also prohibited
the discrimination of employees by reason of their filing,
instituting or testifying in proceeding, resulting from the
administration or enforcement of the Act. The later was brought
about by 33 U.S.C. §1367(a) which provides:
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 of
enforcement of the provisions of this chapter.
33 U.S.C. §1367(b) designated the Secretary of Labor as the one
to determine whether any employee was fired or discriminated
against. Upon finding such a violation, subsection (b) authorized
the Secretary to issue a decision and order requiring affirmative
action abating the violation. 33 U.S.C. §1367(c) provides that
[Page 6]
the Secretary's abatement order shall provide for the aggregate
costs and expenses (including attorney fees) which have been
reasonably incurred in bringing a proceeding against persons
violating §1367(a). The Secretary of Labor is involved solely
with respect to the enforcement of the employee protection
provision. In all other respects, the EPA administers the FCWA
including delegation thereof to a State.
Respondent's §1367 argument mixes and homogenizes its
provisions without regard to the fact that the first part,
subsections (a)(b) and (c), is administered by the Secretary of
Labor and involve a distinctly different subject matter than
those (subsections (d) and (e)) involving the Administrator, EPA.
The last two subsections are within the exclusive jurisdiction of
said Administrator and are concerned with the economic effect
that effluent limitations and orders have upon pollution
prevention. Because these sections are so confined to this one
objective they are not applicable to any and all employees.
Subsection (d) states:
This section shall have no application to any
employee who, acting without direction from his
employer (or his agent), deliberately violates any
prohibition of effluent limitation or other
limitations.. or any other prohibition limitation
established under this chapter.
Once its determined that the employee is not at fault,
subsection (d) then requires the Administrator of EPA to
determine whether an effluent limitation or order should be
withdrawn or modified to prevent the employee or employees from
suffering discharge, lay off or other employment discrimination.
The Administrator is not required to undo employment consequences
at the expense of the offending effluent limitation.
On the other hand, violations of §1367(a) require the
Secretary to protect any and all employees and provide them a
complete remedy if they are discriminated against for having
acted in a whistleblower capacity, i.e. caused a proceeding to be
instituted for implementation and enforcement of the Act.
Accordingly, the Secretary is required in subsection (b) to
direct any person who discriminates against a whistleblower to:
[Page 7]
... take such affirmative action to abate the
violation as the Secretary of Labor deems
appropriate, including, but not limited to, the
returning of the employee or the representative of
the employee to his former position with
compensation.
§1367(a) protects the employee/whistleblower against any
person who discriminates against him for filing or causing to be
filed a proceeding or is about to testify in any proceeding
resulting from the administration or enforcement of the
provisions of the Federal Clean Water Act. When considering the
economic effect of pollution, the affected employer is an
indispensable party to the proceeding conducted by the EPA
Administrator. That is not the case in a proceeding under
§1367(a) which is directed against a person, who may or may not
be the discriminatee's employer. Stanley Steemer was not joined
and made a party to this proceeding even though it is currently a
defendant in the federal action that was instituted because
McMahan reported its violation to the FBI.
Consistent with the broad protection provided
whistle-blowers by §1367(a), remedial relief under subsection (c)
mandates the assessment of costs and expenses, including attorney
fees, for instituting proceedings to protect employees against
discriminatory retaliation. A proceeding concerning the
employment and/or economic effect of an effluent limitation does
not contain a provision to defray the cost for its institution.
The EPA Administrator is not authorized or required to award
costs and expenses of litigation. it is also within the
discretion of the Administrator to maintain the effluent
limitation even if it reduces employment or causes the shutdown
of the employer's plant.
The very different considerations and responsibilities
assigned to the Secretary of Labor in §1367(a) make it clear that
the employee/whistleblower provision is distinct and unrelated to
the function fulfilled by the EPA Administrator under Subsection
(e). The employee protection provided by the Secretary has no
relationship to an evaluation of potential employment shifts
caused by the issuance of an effluent limitations. The weighing
of employment consequences as against pollution objectives
involve the expertise of the EPA Administrator. Retaliatory
discrimination because an employee has disclosed pollution
prohibited by the FCWA is placed under the protection of the
Secretary of Labor as are practically all other provisions
[Page 8]
protecting whistleblowers and contained in federal statute. They
are the Clean Air Act, 42 U.S.C. §7622; Energy Reorganization Act
of 1974 (ERA), 42 U.S.C. §585; Toxic Substances Control Act
(TSCA), 15 U.S.C. §2622; Safe Drinking Water Act (SDWA), 42
U.S.C. §6971; Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971;
and the Surface Transportation Assistance Act (STAA), 49 U.S.C.
§2301.
Jurisdiction to deal with the discrimination is established
directly from the language contained within 13 U.S.C §1367(a).
Reference to the term "person" in the operative section
(subdivision (a)) administered by the Secretary is given the
clearest meaning by 33 U.S.C. §1362(5) which states:
"The term "persons" means an individual
corporation, partnerships, association, State,
municipality, commission, or political
sub-division of a State , or any interstate body"
(Emphasis supplied)
Respondent in this case is the California Water Quality Control
Board, the state commission for the enforcement of the Federal
Clean Water Act. The term "person" is specifically defined to
include any commission or political subdivision.
Chapter 26 contains the federal law with regard to water,
oil and hazardous substance pollution to insure the integrity and
protection of this Nation's waters. In U.S. v. Massachusetts
Bay Transportation Authority , 614 F.2d 27 (CA-1, 1980), oil and
hazardous substance pollution as well as the application of the
definition of a person under 33 U.S.C. §1321(7) were considered.
The definition of a person in that case was:
"A person" includes an individual, firm
corporation, association or partnership.
The Court of Appeals found that the Massachusetts Bay
Transportation Authority was a person subject to civil penalties
for causing oil spills into navigable waters. The person
described in §1362(5) is much more inclusive and therefore
§1367(a) must be deemed to encompass Respondent. As the
enforcement agency of the Federal Clean Water Act in California,
it may cause pollution by not engaging in the effective
administration and enforcement of the Act. That is precisely
what happens when the disclosure of polluters is inhibited and
[Page 9]
they are not required to answer for the damage they cause to this
Nation's environment.
For the purposes of this case I need only consider the
retaliatory discrimination suffered by McMahan because of his
disclosure of the Stanley Steemer violations and whether it was
in violation of §1367(a). Protecting McMahan from discrimination
is not intended to impugn or criticize Respondent in any other
way. This proceeding is not directed to determine how well or
poorly the California Water Quality Control Board is or has been
fulfilling the objectives of the FCWA.
The legislative history accompanying the 1972 amendments do
not support the contention that 33 U.S.C. §1367(a) was intended
to only include employers subject to the requirements of the
Federal Clean Water Act. Congress not only expanded the
definition of a person in 33 U.S.C. §1362(5) but at the same time
adopted 33 U.S.C. §1367(a). These simultaneous enactments were to
obtain maximum protection for employee/whistleblowers. If
Congress only intended to prohibit discrimination by certain
employers and not to any person, §1367(a) would have so stated.
Congress protected the employee against discrimination by any
person, whether or not a regulated employer, by expanding the
definition of person to include a state commission or a state
political subdivision. There is nothing in the legislative
history to suggest that the whistleblower provision excluded
persons having responsibility to enforce the Act. Both employer
regulators and regulated employers are covered in that both fall
within the definition of a person as contained in §1362(5).
Respondent contends that it is virtually impossible for it
to take any action regarding its personnel without running afoul
of the employee protection provisions contained in §1367(a).
This contention is contrary to Respondent's primary purpose of
fulfilling the requirements and objectives of the FCWA. As the
"watchdog agency" for the FCWA in the State of California it
would appear to have a duty to encourage its own employees to
report any and all instances of water pollution so that they may
be prosecuted and thereby eliminated. Retaliation because
pollution is reported and then made the subject of an enforcement
proceeding would turn the whistleblower protection provision in
§1367(a) on its head. The watchdog agency would have assumed the
role of the proverbial fox assigned the role of guarding the
chicken coop. Instead of implementing and enforcing water
[Page 10]
pollution laws, Respondent would be in the position of obstructing
such laws. If McMahan was simply doing his job in Enforcement
when he encountered and then reported the Stanley Steemer
pollution violations to the FBI he should not have been subject
to either a disciplinary reprimand or job transfer.
The Stanley Steemer Incident
The nature and circumstances of the Stanley Steemer water
pollution violation McMahan discovered and his investigation
thereof are not in dispute. After observing waste water being
discharged by a Stanley Steemer truck on January 23, 1990 McMahan
collected a sample of the discharge and made a photographic
record of the pollution caused by the discarding of waste water
into a storm drain. While McMahan was advancing the frame of his
camera the Stanley Steemer driver, Terrance Celestine, picked up
the container containing the discharge sample. McMahan ordered
him not to do so. However, Celestine removed the cap and poured
the sample onto the ground. McMahan was able to photograph the
destruction of the discharge which he had collected as evidence
of water pollution by Stanley Steemer.
McMahan identified himself as an official of the Enforcement
Unit and told Celestine that he was interfering with the
collection of physical evidence; that his employer, Stanley
Steemer, was in violation of the Act; and that he had committed a
felony by deliberately destroying evidence.
Celestine asked and was permitted to call his supervisor to
respond to the violations McMahan had enumerated. Celestine then
went ahead and began to take down the apparatus which permitted
the waste discharge to flow into a storm drain that emptied into
the San Diego Bay. He told McMahan why and how the discharge had
occurred. The carpet cleaning process required heated water to
be mixed with a chemical detergent which then was applied by
vacuum nozzle to the carpet. This liquid was returned to a tank
attached to the Stanley Steemer truck. When the amount exceeded
the capacity of the tank it was hosed into the gutter as McMahan
had witnessed. ordinarily, the waste water was dumped on the
customer's property, but Celestine explained that he had been
unable to do so on this job. Celestine showed McMahan the
storage tank and told him that it was emptied at a dump station
located at Stanley Steemer's home office so as to avoid
pollution.
[Page 11]
The driver's supervisor then appeared on the scene and
identified himself as the Director of Operations for Stanley
Steemer. He described the standard procedure for the disposition
of waste water and told McMahan that it was supposed to be
confined to the storage tank to avoid pollution. Complainant
brought up the driver's destruction of the waste water sample.
The driver explained that he did so because that is what he was
taught to do when in the military. He stated that if this had
been an actual military situation he would have destroyed the
film as well.
Respondent is in no respect critical of the way McMahan
dealt with the Stanley Steemer incident that he encountered on
January 23, 1990 (C-7). The discharge of carpet cleaning
materials into a storm drain was polluting water in violation of
the FCWA. Such activity requires a federal permit and Stanley
Steemer had none (T-45,113-4). Respondent had received a large
number of water pollution complaints concerning carpet cleaning
companies because of their handling of waste discharges (Tr.
112). The severity of the problem was such that it had been
referred to the Hazardous Waste Crimes Task Force for study and
appraisal. (R-13; C-4; R-8). Therefore it would have been
improper for McMahan to ignore discharge of waste water by
Stanley Steemer. Discharge of pollutants into San Diego Bay
requires a NPDES permit (T-114) and it may only be issued
pursuant to federal authority (T-157). Respondent, as the
enforcement agency of the Federal Clean Water Act, determines
when and under what conditions a NPDES permit may be issued to a
polluter such as Stanley Steemer (T-45).
Complainant was therefore performing his duty by
investigating and writing up Stanley Steemer water pollution
incident. It is the FBI referral that Complainant made on
January 23, 1990 to which Respondent objects as "insubordination"
warranting a disciplinary response. Anomalously, Respondent has
supported federal prosecution of Stanley Steemer as a result of
the information Claimant provided the FBI. The claimed
insubordination is based upon the fact that McMahan informed the FBI
of the Stanley Steemer violations on January 23, 1990 without
prior approval. By precisely identifying the premise of the
disciplinary reprimand we find that it was directed to an act of
omission and not commission. Respondent's support and
cooperation with the U.S. Attorney's prosecution of Stanley
Steemer makes it patently clear that it would have approved
[Page 12]
McMahan's referral and that it objected to the fact that McMahan
had done so on his own.
Complainant had caught Stanley Steemer "in the act" (T-33).
There is no way of knowing where or when carpet cleaning
companies are discharging pollutants and the Task Force
recognized that it would be a fluke for this to happen (T-20).
The situation encountered by McMahan was particularly aggravated
by the violator's (Celestine) destruction of evidence when he
poured the discharge sample onto the ground (C-3; T-253-9).
When McMahan returned to the Regional Office he attempted
to locate and report the incident to his supervisor, Barker as
well as to the Director and Acting Director, Coe and Delaney.
None of them were there. He then went to Sweeney, supervisor of
the Administrative Unit, who told him they were attending a
meeting in Sacramento (T-119-120). Sweeney tried to place
McMahan in contact with Barker but she was unable to do so
(T-119,120). McMahan then called FBI special agent Wight even
though he had been instructed by Barker to discuss Task Force
(FBI) referrals with him, before going ahead (T-273). McMahan
had never uncovered an incident of pollution by chance. He
believed that Celestine's destruction of the discharge sample was
a possible felony. Wight confirmed the urgency McMahan assigned
the incident by asking McMahan to prepare and send him a report
as soon as possible (T-261). Charles Crandall, formerly U.S.
Attorney responsible for civil and criminal cases, was presented
the circumstances with which McMahan had been confronted and
asked whether it was appropriate for McMahan to call and apprise
the FBI of the Stanley Steemer incident. Crandall stated:
"That's precisely the kind of thing that we wanted
the technical people who had sole access to that
information to do because if they didn't do it, we
would never get the information. And if there was
a blockage of some sort within the agency where
they work we'd never find out about it either. And
that [i.e. reprimand for FBI referral] would be
absolutely forbidden as far as I was concerned"
(T-224).
About ten minutes after speaking to the FBI McMahan learned
that Barker was speaking to another Enforcement Unit investigator.
McMahan asked to be connected. He told Barker all that
[Page 13]
had transpired, including his unsuccessful attempt to contact him
before calling the FBI. Barker told him that he should not have
referred the case on his own. However, Barker instructed McMahan
to provide special agent Wight the report that had been requested
of the Stanley Steemer incident in that it was a potential
violation of federal law (T-121,283).
Thereafter, Barker reported his conversation to Delaney.
Upon returning from Sacramento on January 25 Barker was
instructed by Delaney to prepare and issue a written reprimand
because of the FBI referral (T-409-410). Nothing was done to
countermand the FBI referral and McMahan prepared a written
report of the Stanley Steemer incident and transmitted it to
agent Wight with Barker's consent and approval. Respondent could
have taken over and prosecuted Stanley Steemer for its water
pollution violations. Instead, it relied upon the FBI to have
the U.S. Attorney institute a proceeding against Stanley Steemer
for violating the FCWA (R-7).
Barker returned from Sacramento on January 25, 1990.
McMahan gave him the report he prepared for agent Wight and once
again Barker told him that he should not have called the FBI
(T-264). McMahan and the other Enforcement Unit employees attend
Task Force meetings and it appears that they had been told not to
make referrals without Barker's approval (T-273). However, it
was not until February 21, 1990, that this referral policy to
outside agencies was made the subject of a Unit Staff meeting
(C-51; T-193,178;C-7 at p. 21). Guidelines governing staff
interaction with the Task Force were proposed on June 6, 1988 and
they contain no reference to how outside referrals were to be
made (R-7). On May 16, 1988, Respondent's executive officer
Delaney issued a memorandum that stated:
"Regional Board staff should inform the task force
of all violations having circumstances which could
potentially be subject to criminal penalties."
(R-7).
Stanley Steemer represents an incident that was unique in
McMahan's experience as a member of the Enforcement Unit.
McMahan witnessed Stanley Steemer discharging waste materials
into a storm drain and was then prevented from identifying the
chemical nature of the discharge because Celestine destroyed the
sample he had prepared. (C-3; T-133,258). McMahan was not only
concerned about Federal violations of the Clean Water Act but of
[Page 14]
being prevented from acquiring evidence thereof (T-253-259). The
special and unique circumstances are memorialized by the first
paragraph of the Reprimand that was issued on February 1, 1990.
(C-1).
The Reprimand (C-1) rejects these circumstances as
justification because McMahan could have discussed the Stanley
Steemer incident with Michael McCann, the supervisor of the
Planning Unit and who was in the office on January 23, 1990. At
no time has McMahan ever reported to or has he been supervised by
McCann. Until his transfer in 1990 McMahan has always been a
staff member of the Enforcement Unit. Although Barker knew that
McCann's supervision was distinct and separate from his own, the
Reprimand states:
"In any event, Mr. Michael McCann, Senior Engineer,
was in the office and available for consultation
the entire afternoon of January 23. He has
reported to me that you made no attempt to discuss
with him the necessity to contact the FBI on your
inspection findings. The circumstances and nature
of the discharge did not mandate immediate referral
of your inspection findings to the FBI. You could
have discussed the situation in advance with
McCann..."
McMahan had contacted Sweeney, head of the Administrative
Unit, so as to enable him to discuss the matter with Barker
beforehand. Sweeney is on the same supervisory level as McCann.
She was unable to locate Barker and thereby enable McMahan to
discuss Stanley Steemer with him. There was no reason for
McMahan to discuss the incident or the necessity to refer it with
McCann. The later's authority was over Planning and not
Enforcement. Predicating McMahan's misconduct upon by-passing
McCann is patently ingenious. Indeed the interposition of
McCann's availability for consultation changes the wrongdoing
from "prior approval", to making "no attempt to discuss with him
the necessity to contact the FBI on your inspection findings."
Barker testified that he could not recall a single instance
where McMahan had provided information to the Task Force or to
the FBI without prior approval (T-134-135). Nevertheless the
third paragraph of the Reprimand charges McMahan with having been
warned about that which Respondent has in no way established and
testimonially conceded Mcmahan had never done. It was therefore
[Page 15]
most improper to charge that McMahan had been previously warned
about making outside referrals.
The Reprimand does not limit itself to McMahan's FBI
referral. It includes facts and circumstances which suggest that
Respondent was more concerned with getting McMahan out of
Enforcement than calling his attention to employee miscondunct.
First, the FBI referral was subsumed by Respondent ten minutes
after it was made, in that Barker told McMahan to complete and
submit a report of the Stanley Steemer incident to agent Wight so
that he could thereby evaluate it as a possible violation, of the
FCWA. Second, McCann's presence in the office that day is set
out as a circumstance that obligated McMahan to do what he had
never done before. McCann was the head of the Planning Unit and
was not shown to have any role in directing or approving the
activities of Enforcement Unit employees. Criticizing Mcmahan
for not attempting "to discuss with McCann the necessity to
contact the FBI on your inspection findings" suggests that his
referral would not have amounted to misconduct if he had done so.
Third, not having waited until Barker returned from Sacramento on
January 25 is asserted as a breach of authority as well as lack
of judgment. In view of the fact that McMahan had fully
described the Stanley Steemer incident when he spoke to Barker on
January 23, it is difficult to understand what purpose is served
by discussing the incident with Coe on January 24 or by once
again discussing the matter with Barker on January 25. Fourth,
accusing McMahan of having been warned in the past about
referring information to the Task Force without prior approval is
in no respect supported by the evidence. Likewise, there is no
evidence that McMahan did anything to "usurp the Regional Board's
discretion in responding to waste discharge violations using the
enforcement remedies in the California Water Code." Assuming the
FBI referral may be deemed importunate Respondent remained free
to deal with Stanley Steemer's violations in any way that it
wanted. Barker instructed and authorized McMahan to prepare and
submit a report to agent Wight instead of advising Wight that it
would deal with Stanley Steemer using state and not federal
enforcement remedies. Fifth, there is no reference to the fact
that McMahan attempted to contact Barker before calling the FBI,
and that Sweeney had been unable to locate him. Its omission
suggests that the Reprimand was to point out the absolute
requirement prior approval before contacting the Task Force
with information obtained in the course of McMahan's job duties.
The transfer of McMahan from Enforcement to Permits eliminated
[Page 16]
the likelihood that advanced approval would be required in the
future.
The exaggerations, distortions and misstatements set forth
in the reprimand require me to find and conclude that Respondent
disciplined McMahan for having caused a proceeding to be
instituted to enforce the FCWA, and not because he had failed
to contact Barker before calling the FBI about the Stanley
Steemer incident. Discrimination in violation of §1367(a) is
prohibited if it was the basis for mounting a proceeding for
enforcement of the FCWA. The prohibition is absolute and it is
not dependent upon whether or not the employee acted with his
supervisor's approval. In that Respondent approved federal
enforcement by permitting McMahan to prepare and submit a report
of the incident to FBI agent Wight, I am constrained to believe
and therefore find that the object and purpose of the Reprimand
was to discipline McMahan and exclude him from enforcement
functions.
The Job Transfer from Enforcement To Permits As Discrimination
Prohibited by §1367(a)
McMahan was notified that he was being removed from
Enforcement and reassigned to Permits when he was given the
disciplinary Reprimand on February 1, 1990 (C-1). At the very
same time, McMahan outlined the substance of what he was told by
Barker, namely:
(1) [Stanley Steemer violations] not significant/worth
investigation.
(2) Did not check W/MPM [McMann]
(3) If again, then punitive action
(4) Gloria Fulton - Rotating to Permits
(5) Not Rotating due to carpet cleaning
(6) Effective next couple days
(7) Task Force - Not OK to call FBI on my own
(8) Do not do it again
This simultaneously made outline of what Barker told McMahan
(T-278) is in direct conflict with Respondent's contention that its
timing was coincidental and unrelated to the Stanley Steemer
matter. Barker's negation of the carpet cleaning violations for
removing McMahan from Enforcement requires careful scrutiny
(C-30).
[Page 17]
The organizational chart of the San Diego Regional Office
(C-31) shows five units, each of which is named after the
function it performs: (1) Permits & Requirements; (2) Surveillance
& Enforcement; (3) Planning & Technical Assistance; and (4)
Office Services. Each unit has its own supervisor who reports to
the Executive Officers, Coe and Delaney. Each unit is allocated
as many job slots as are necessary to carry out its function.
That is the background in which the personnel moves were carried
out that excluded McMahan from the enforcement function and
assigned him to Permits.4
At no time prior to the reprimand meeting of February 1,
1990, had Barker intimated that McMahan would be transferred
and/or cease working in Enforcement. Enforcement was fully
staffed and had no vacancies. The only understaffed unit was
Planning, going back to September, 1989 (T-124, 314,316).
Interviews were conducted to fill one of the two Planning
vacancies. On October 19, 1989, Gloria Fulton was selected and
offered employment in the Planning Unit by its Supervisor,
Michael McCann. (T-32, 294,305). The job offer was a lateral
transfer from the San Francisco to the San Diego Regional Office
(C-29). On October 24, 1989, Fulton accepted the offer and asked
McCann to discuss when and how it would be implemented with her
supervisor (C-35). On November 30, 1989, McCann called Fulton
about the possibility of reporting for work in the Planning Unit
as of February 1, 1990 (C-36). Fulton was requested to advise
McCann whether she could report as of that date and that the
employment offer would be withdrawn if she could no. (C-36).
On December 14, 1989, Fulton agreed to report on February 1, 1990
(C-37, T-330). McCann testified that Fulton was hired to work in
Planning but that she was nevertheless employed in Enforcement by
transferring McMahan to Permits (T-306).
In order to create a vacancy for McMahan, Carol Tomaki was
told on February 1, 1990 that she was being transferred from
Permits to Planning. Although Tomaki wanted to continue working
in Permits, she was required to move to Planning. (T-311, 326-7,
464-5). By the end of January there was general knowledge that
Fulton was coming aboard. On January 25, 1990 Barker told
McMahan that he did not know where Fulton would be assigned
(T-281). It was not until February 1, 1990 that Board authorization
was submitted to have Fulton employed in Enforcement instead of
Planning. (C-39). The authorization request represented that
Enforcement required additional staffing and that it was
[Page 18]
therefore necessary to employ Fulton in Enforcement instead of
Planning. (T-349-50, C-39). The Board was not told that a
vacant slot had been created in Enforcement by transferring
McMahan to Permits.
Delaney conceded that the decision to transfer McMahan was
motivated, in part, by his expectation that the disciplinary
action against McMahan would result in the filing of a grievance
(C-52). The employment of Fulton in Enforcement and the
transfers of McMahan and Tomaki did nothing to ameliorate the
understaffing in Planning (C-15). Employment of Fulton did not change
the number in Enforcement, which continued to be staffed in the
same way as before (T-389). The only effective change was to
move McMahan out of Enforcement.
On February 21, 1990, McMahan filed a grievance protesting
his transfer out of Enforcement. In response, Barker stated that
he did not have the power to unilaterally transfer employees out
of his unit and that McMahan was chosen for rotation to allow for
the placement of Fulton. (C-8). Barker also stated that he
believed the job transfer would be to McMahan's advantage and
that it was not for the purpose of discipline (C-8).
The rash of employee movement to achieve a single result
the transfer of McMahan from Enforcement to Permits -- was
unprecedented. Within seven days of the Stanley Steemer
incident, Fulton was threatened with the withdrawal of a
previously accepted job offer unless she came to work in
Enforcement; Tomaki was summarily transferred from Permits to
Planning; McMahan was told he was being moved to Tomaki's
position in Permits; and the existing authority to fill a vacancy
in Planning was changed to Enforcement where there was no
vacancy. Explanations proffered as the reason for transferring
McMahan were patently strained and conflicting. Barker's
grievance response, that McMahan was transferred because of a
vacancy in Permits, was disingenuous in that it was necessary to
create a vacancy by transferring Tomaki to Planning. It was not
until after the Stanley Steemer incident on January 23, 1990,
that steps were taken to employ Fulton in Enforcement even though
she had been offered and had specifically accepted a position in
Planning. The only vacancy that was being filled up until
January 23, 1990, was the one in Planning. The Fulton employment
decision was changed after the Stanley Steemer incident even
though it left Planning understaffed. Fulton's previous
[Page 19]
experience was such that the switch to Enforcement required a
break in training period that could have been avoided. Pulling
Tomaki out of Permits was so precipitous as to suggest that it
was only done to get McMahan out of Enforcement. It is incongruous
for McCann to have hired Fulton for the Planning Unit when
it was his "hindsight" intention to place her in Enforcement.
Barker knew that Fulton had been hired for Planning. He tried to
avoid explaining the switch by stating that he did not have the
power to transfer employees and suggesting that McMahan was
simply being "rotated" for his own benefit. These reasons do not
camouflage the real object that Respondent sought to attain,
namely, to get McMahan out of Enforcement because he had caused a
proceeding to be filed against Stanley Steemer for violations of
the Act without prior approval. With McMahan in Permits,
Respondent had eliminated the likelihood that McMahan would
repeat the alleged misconduct.
I am constrained to credit McMahan's contemporaneously made
record of the reprimand interview he had with Barker on February
1, 1990. McMahan's testimony was completely consistent with said
record, and establishes that his transfer out of Enforcement was
part and parcel of the disciplinary action taken in retaliation
for his having reported the Stanley Steemer incident and thereby
causing it to be prosecuted for violations of the FCWA.
Other Matters
Respondent was unable to deny that Mcmahan had caused a
proceeding to be instituted for violations of the Act.
Respondent's denial that the reprimand and the accompanying job
transfer were retaliatory and triggered by the Stanley Steemer
incident was so incredulous as to constitute a sham. Respondent's
defense was therefore centered upon the application of
§1367(a) as the state enforcement agency of the Act. Under the
heading "Jurisdiction" we have shown that it does.
Many peripheral matters were nevertheless presented that
are not germane to finding that McMahan was or was not
discriminated against in violation of §1367(a). First, the
discretion exercised by Respondent in determining which
violations will be pursued and the manner in which they are
prosecuted was not being challenged. Barker was told about
McMahan's FBI referral ten minutes after the telephone call to
Wight was completed. Instead of countermanding McMahan's
[Page 20]
decision, Barker directed Mcmahan to prepare a report of the
Stanley Steemer incident and send it to Wight. Accordingly, the
report McMahan provided the FBI was authorized and was the basis
for the subsequent federal prosecution of Stanley Steemer for
violations of the FCWA. Second, the "Revolving Door Law"
preventing former officials, such as Ladin Delaney, from becoming
consultants of clients having matters pending before the Water
Quality Control Board. Third, the Wilgenburg Dairy prosecutions,
except as they relate to McMahan's exemplary work record, do not
have anything to do with this case. Fourth, the excellence of
McMahan's performance in Enforcement was conceded and need not
have been further embellished by showing that he was regularly
assigned supervisory and other "extra" responsibilities. Faith,
the reprimand was conceded to be disciplinary action and nothing
was added by hypothesizing that it may impact upon McMahan's
future promotions and salary entitlement. Sixth, Respondent's
practice of referring prosecutable matters to other agencies,
such as the Department of Health, Coast Guard, or FBI. There is
no reason why it may not continue to do so by complying with the
requirements of §1367(a). Seventh, McMahan's status as a
"designated employee" under Proposition 65 was not why he
reported the Stanley Steemer violations to the FBI. See Point V
of Respondent's Post-Hearing Memorandum. Eighth, alleged
political considerations with respect to Respondent's prosecution
of boat yards, the dairy industry, and other violations.
Admission of Exhibits R-13 and R-21 did not authorize an expos'e
of enforcement laxness or any other failure on the part of the
Water Quality Control Board. McMahan misconstrued the dimensions
of this proceeding in attempting to do so as evidenced by
proposed findings 64 thru 99, 110, 112, 128, 139, 144 through
156. Ninth, guidelines coordinating enforcement activities with
the Task Force to show that McMahan followed an improper method
when referring Stanley Steemer to the FBI. §1367(a) protects
employees regardless of the method they utilize, so long as it
causes a proceeding to be filed involving the administration or
enforcement of the provisions of the Federal Clean Water Act.
And finally Tenth, the claim that McMahan's discipline was
discriminatory in that other employees had been permitted to
report water pollution violations to federal authorities without
prior approval (Munch, T-195 thru 202). §1367(a) prohibits
discrimination as a form of discipline when it is a consequence
of whistleblowing, i.e. causing a proceeding to be filed or
instituted. Just cause considerations for discipline under a
labor agreement are not the test of a §1367(a) violation and
[Page 21]
there was no reason for the parties to relitigate the grievance
that arose out of the Stanley Steemer incident before me.
It would appear the parties utilized this proceeding to
bring out their differences on many matters wholly unrelated to
the whistleblowing protection afforded by §1367(a). This is not
the forum in which to deal with them.
Remedial Relief and Legal Fees
The affirmative relief proposed by the District Director
(R-19), provided:
Develop & disseminate to staff clear and written
policy instructions on (a) how they are to handle
information, complaints and violations that are of
interest to other agencies; (b) when and how they
should contact or involve another agency in a
complaint or violation of the Federal Water
Pollution Control Act.
Although affirmative action is authorized upon abating
discrimination pursuant to §1367(a), I believe it would be
unnecessarily intrusive to instruct Respondent concerning the way
it enforces the Act. This case involves retaliatory discipline
in violation of §1367(,a) and the remedy should be so confined.
Respondent has cooperated with federal authorities in the
prosecution of Stanley Steemer. Disciplining McMahan for having
reported the carpet discharge violation and the destruction of
evidence to the FBI has not prevented Respondent from doing so.
The Task Force, comprised of agencies concerned with water and
other types of pollution, was created by Respondent and has been
utilized to coordinate its prosecution of violators under the
state and federal statute. In these premises, the remedy to be
divised for the violations of §1367(a) shall be limited to
undoing the reprimand and accompanying job transfer and providing
payment for McMahan's legal fees. An order requiring Respondent
to post a written notice for a period of thirty days advising its
employees that the disciplinary reprimand has been expunged and
that McMahan has been reinstated to the Enforcement Unit should
be sufficient to undo whatever coercive effect McMahan's
discrimination may have had upon his coworkers.
§1367(c) requires the assessment of a sum equal to the
[Page 22]
aggregate amount of all costs and expenses (including attorney
fees) as determined by the Secretary of Labor to have been
reasonably incurred for or in connection with the institution and
prosecution of a proceeding for abating discrimination in
violation of §1367(a).
Attorneys for Complainant have applied for a legal fee in
the amount of $48,835.75 and costs in the amount of ,369.29.
Included in the fee is $2,446.25 owed to an attorney, James
McGuill, who represented McMahan in a grievance proceeding
concerning the disciplinary reprimand and job transfer.
Complainant may have bypassed the grievance procedure and only
elected to seek relief under §1367(a). Both proceedings involved
the disciplinary reprimand and job transfer, and the extensive
materials submitted to the Wage and Hour Division on February 16,
1990 (R-18) were developed before McMahan retained his present
attorneys on September 1, 1990 to pursue a remedy for violations
of §1367(a). The evidence compiled with regard to the grievance
substantially reduced the amount of preparation necessary to
establish a violation of §1367(a). The primary task of McMahan's
attorneys was to establish that §1367(a) applied to Respondent,
as the state agency that was delegated and authorized to enforce
the FCWA.
It is asserted that attorney McGuill terminated his
representation because he did not want to prosecute a
"whistleblower" claim as it would involve taking on the State of
California. No evidentiary support was provided for that
assertion and I cannot conclude that the change of attorneys was
reasonably incurred. In addition representation by McGuill was
with respect to the handling of a grievance and not a violation
of §1367(a). I will therefore not recommend its approval.
The remaining $46,389.50 was incurred since September 1,
1990, with respect to filing of prehearing briefs, preparing
witnesses and exhibits, and the presentation of evidence over two
days of hearing which produced a record of 473 pages along with
some 63 exhibits of which 21 were sponsored by Respondent. Both
sides submitted extensive briefs upon the conclusion of the
hearing along with proposed findings of fact and conclusions of
law.
Exhibit A attached to Complainant's fee application lists
approximately 220 hours of legal services performed by a team of
[Page 23]
two attorneys who represented Complainant. The hourly billing
rate of attorney Birmingham is $180.00 and of attorney Solitero,
$165.00 an hour. I reject Respondent's opposition to the payment
of any legal fee whatsoever because of the mandatory "shall be
assessed" language contained in §1367(c). Particularly,
Respondent disputes payment for the amount of time claimed for
legal and computer research; exhibit preparation such as photos
and their enlargement showing the destruction of the discharge
sample; video taped rehearsals to review and critique McMahan's
testimony prior to hearing; and the photocopy cost of a seven-inch
stack of decisions submitted along with the post-hearing
brief. If all of these objections were credited it would amount
to less than $8000.00 and only reduce the requested fee to
$39,389.50.
Among the factors to be considered in determining the
appropriate amount of a legal fee are whether the case involved
novel, complex, and difficult issues; whether the hours of legal
representation were directed to and commensurate with the
necessary work done; and the benefit (monetary or otherwise) that
was obtained for the client. In whistleblower cases consideration
is also given to the contribution that the legal services
had with respect to the administration and enforcement of the
Act. Complainant's attorneys list other factors (See post-hearing
brief at p. 43) but do not demonstrate how they impacted
upon or related to the $46,389.50 fee amount that has been
requested.
Complainant's attorneys claim this case is "potentially
precedent setting" due to the absence of case law interpreting 33
U.S.C. §1367 as applied to an employee of an environmental law
enforcement agency. This was the only novel and difficult issue
in this case and has been dealt with by me under the heading,
"Jurisdiction." I have reviewed the time allocated to this
subject and do not find it to have been extraordinary. The
remainder of the case was straightforward and basically simple
and most of the legal time appears to have been expended to that
part of the case. Respondent admitted the reprimand was disciplinary
action and its explanation concerning its attempt to
separate it from the job transfer was so specious as to require
little effort to destroy. It is therefore difficult to justify a
fee of $46,389.50 on the basis of legal work directed to and
commensurate with the necessary work to be done.5
[Page 24]
Respondent did not direct its fee reduction objections to
unrelated and unnecessary work for which payment is now sought.
In fairness, both sides moved far beyond the parameters of this
litigation and each expended large amounts of representational
time in responding to the other. In either instance I am unable
to find that they (see discussion under "Other Matters") were
reasonably related to the prima facie elements necessary to show
a violation of §1367(a).
Finally, no monetary award or benefit has been achieved for
McMahan and the payment of $39,389.50 plus costs of ,369.29
will be realized solely by his attorneys. An order issued under
§1367(c) is intended to made the employee whole by having the
violator pay the amount the employee has reasonably incurred in
connection with the institution and prosecution of the proceeding.
In good conscience, I cannot conclude that it was reasonable
for Complainant to have incurred costs and fees in the
amount of $40,758.89 and will therefore recommend that Respondent
be assessed, as the person committing the within violation,
$20,379.39 or 50% less than has been requested. This fee is most
substantial and will fulfill the objective of formulating a
proper whistleblower remedy.
CONCLUSIONS OF LAW
Based upon all of the foregoing, I conclude that:
(1). Respondent is subject to §1367(a) of the Act;
(2). Complainant was an employee and engaged in
protected activity by reason of the fact that he
caused to be filed and instituted a proceeding for
violations and enforcement of the Federal Clean
Water Act.
(3). Complainant was discriminated against with respect to
his terms and conditions of employment when subjec-to
a disciplinary reprimand and accompanying job
transfer;
(4). Respondent knew of and had reason to know that
Complainant engaged in protected activity;
(5). The retaliation against Complainant was motivated
[Page 25]
by Complainant's having engaged in protected
activity; and
(6). Respondent has not established the existence of a
valid business justification for its decision to
transfer Complainant, nor has Respondent proven that
Complainant would have been disciplined even if the
protected activity had not occurred.
ORDER
Under the authority contained in 33 U.S.C. §1367(b), it is
recommended that the Secretary of Labor direct the Respondent,
California Water Quality Control Board, San Diego Region, to
abate the violations found herein and provide the following
relief as necessary to effectuate the purposes of the Federal
Clean Water Act and its employee protection provisions:
1. reinstate Complainant, Lance McMahan, to his former
position with the Enforcement Unit;
2. expunge from its record all memoranda or reference to
the disciplinary action taken against Complainant, Lance McMahan,
including any reference to the February 1, 1990 reprimand;
3. post a written notice for a period of thirty days
advising its employees that the disciplinary remand of the
Complainant, Lance McMahan, has been expunged and that he
Complainant has been reinstated to the Enforcement Unit;
4. pay to Complainant's attorneys, Eve Birmingham and
Hector E. Solitero, Esquires, costs and expenses as hereinbefore
determined, in the amount of $20,379.39.
MELVIN WARSHAW
Administrative Law Judge
Washington, D.C.
MW/bdw
NOTICE OF APPEAL RIGHTS : Despite the waiver of the time
requirement contained in 29 C.F.R. §24.6 the Secretary of Labor
shall have 60 days following the issuance of this recommended
decision and order to issue a final order in accordance with
§24.6(b)(2). Within 60 days after the issuance of a final
order any aggrieved party may file a petition for review in the
United States court of appeals for the circuit in which the
violation occurred pursuant to 29 C.F.R. §24.7(a).
[ENDNOTES]
1 "C" refers to
complainant's and "R" to respondent's exhibits.
It was stipulated that the report made to the FBI lead to
agreements for deferred prosecutions of Stanley Steemer for their
violations of the Clean Water Act on January 23, 1990. (T-85;
C-25) The designation "T" is to the transcript of hearing.
2 The Porter-Cologne Act is
California's program concerning
pollution and provides for implementation and enforcement of the
Federal Clean Water Act. EPA has authorized California to carry
out the provisions of the FCWA. Respondent is one of the
regional offices of the California Water Quality Control Board
which was created to abate and enforce requirements of the state
and federal Acts. The Porter-Cologne Act substantially parallels
the Federal Clean Water Act but does not have a whistleblower
provision such as 33 U.S.C. §1367(a).
3 The amendment also
authorized
the institution of citizen's
suits because of the violation of effluent limitations, 33
U.S.C. §1365.
4 I have found the disciplinary
reprimand to be a violation of
§1367(a) because McMahan was engaged in protected activity. I
have further found that the reprimand was utilized to transfer
McMahan to Permits and exclude him from Enforcement. Once a
prima facie case has been established the burden shifts to
Respondent to affirmatively prove that the disciplinary action
would have been made even if McMahan had not engaged in protected
activity. MacKowiak v. University Nuclear Systems Inc. , 735 F.2d
1159, at 1164 (9th Cir. 1984); DeFord v. Secretary of Labor , 700
F.2d 281, 286 (6th Cir. 1983). Respondent made no attempt to
develop a rebuttal defense.
5 Under the heading "Other
Matters," I have shown that a great
deal of time and effort was directed to peripheral areas which
had practically nothing to do with activity protected by
§1367(a).