DATE: July 16, 1993
CASE NO. 90-WPC-1
IN THE MATTER OF
LANCE MCMAHAN,
COMPLAINANT,
v.
CALIFORNIA WATER QUALITY CONTROL BOARD,
SAN DIEGO REGION,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision (R.D.)
issued on February 5, 1991, by the Administrative Law Judge (ALJ)
in this case, arising under the employee protection provision of
the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §
1367 (1988). The ALJ has recommended that the Complainant should
prevail in his complaint of unlawful discrimination. I agree
generally with his recommendation as outlined below.
1. Coverage
Respondent California Regional Water Quality Control
Board, San Diego Region argues that, as a State agency having
responsibility for enforcing laws relating to the abatement of
pollution, it is not subject to FWPCA Section 1367. [1] I
disagree. The FWPCA provides that "[n]o person shall fire, or in
any other manner discriminate against . . . any employee" because
he has engaged in protected activity. 33 U.S.C. § 1367(a).
The Act defines the term "person" to mean "an individual,
corporation, partnership, association, State, municipality,
commission, or political subdivision of a State, or any
interstate body." 33 U.S.C. § 1362(5). At the very least,
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Respondent constitutes a State "commission" which has been
defined variously as a group of people appointed to perform
specified duties, an administrative agency of the government
with quasi-judicial and quasi-legislative powers, and a type of
municipal governing body. See, for example, Webster's New
World Dictionary (3rd College ed. 1988). I agree with the ALJ
that Respondent is subject to FWPCA Section 1367, and I adopt his
findings in this regard. R.D. at 8-9. In so doing, I expressly
decline to decide whether the United States Environmental
Protection Agency constitutes a "person" for purposes of FWPCA
Section 1367. See R.D. at 4 (first full paragraph (par.))
and 5 (first full par.).
2. Merits
Under the burdens of proof and production in "whistleblower"
cases, Complainant first must make a prima facie showing that
protected activity motivated Respondent's decision to take
adverse employment action. Respondent may rebut this showing by
producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason. Complainant then must
establish that the reason proffered by Respondent is not the
true reason. Dartey v. Zack Co., Case No. 80-ERA-2, Sec.
Dec., Apr. 25, 1983.
In order to establish a prima facie case, Complainant must
show that he engaged in protected activity, that he was subject
to adverse action, and that Respondent was aware of the protected
activity when it took the adverse action. Complainant also must
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse
action. [2] Under the FWPCA, an employee is protected if he
"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." 33 U.S.C.
§ 1367(a).
As the ALJ found, Complainant engaged in protected activity
when he instituted a proceeding by reporting a carpet cleaning
company's regulatory violation and the destruction of evidence
to a member of Respondent's Hazardous Waste Crimes Task Force.
[3] The reprimand issued to Complainant shortly thereafter
unquestionably constituted adverse action. Respondent defended
that it reprimanded Complainant because he engaged in the
allegedly "unprotected" activity of failing to consult his
supervisor before contacting the Task Force. The ALJ found that
this proffered motivation was pretextual and that Complainant was
reprimanded solely "for having caused a proceeding to be
instituted to enforce the [FWPCA]." The record fully supports
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these findings, and I adopt them. R.D. at 10-16. In this
regard, I note that FWPCA Section 1367 protected Complainant in
instituting an enforcement proceeding by making a Task Force
referral regardless of whether he first consulted his supervisor.
See R.D. at 16 (first par.). Cf. Ellis Fischel
State Cancer Hospital v. Marshall, 629 F.2d at 565 (hospital
radiation safety officer was protected under Energy
Reorganization Act despite failure to follow normal procedure of
bringing problems to the attention of responsible hospital
personnel before reporting to the Nuclear Regulatory Commission).
The ALJ also found that Respondent transferred Complainant
from the "surveillance and enforcement" unit to the "permits and
requirements" unit because he had engaged in protected activity.
R.D. at 16-19. This finding likewise is supported by the record.
The transfer constituted adverse action in that it prevented
Complainant from performing supervisory duties and field
enforcement work, which he preferred. Hearing Transcript (T.)
270-271.
3. Costs and Expenses
The ALJ disallowed the recovery of a portion of
Complainant's attorney's fees largely because he believed that
Complainant presented "peripheral matters . . . not germane"
to a finding of unlawful discrimination. See R.D. at 19-
24. The ALJ apparently determined that fees charged for
developing this evidence were not reasonably incurred. 33 U.S.C.
§ 1367(c). I disagree. Much of the referenced evidence
bears on the motivation of Board Executive Officer Coe and
Surveillance and Enforcement Supervisor Barker in curtailing
Complainant's enforcement activities.
Complainant was a competent and effective enforcer as
evidenced by his role in the Wilgenburg Dairy prosecution and
incidences of citing boat yard, carpet cleaning, and other
generic violators that Coe and Barker later determined not to
pursue or to "palm off" on other agencies for action. Board
members and staff routinely communicated with a special
subcommittee of dairymen, which took the Board to task when the
Wilgenburg investigation was referred by the Task Force to the
United States Attorney without Board knowledge. T. 49-51
(Barker). Other testimony suggests that the relationship of
Barker's unit to the Task Force had not been delineated fully and
that Barker's and Coe's enforcement priorities, which sometimes
involved political considerations, T. 146 (Barker), differed from
the Task Force's aggressive approach. Finally, testimony by
enforcement staff reveals that prior to Complainant's reprimand,
Barker did not require a consultation before they made outside
referrals. T. 91-96 (Wirtz); T. 186-193 (Sandall); T. 195-201
(Munch). This testimony suggests that after receiving "flack"
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over Wilgenburg, T. 49, Barker and Coe became increasingly
"sensitive" about criminal referrals, T. 378-379 (Coe), and that
their motivation in reprimanding and transferring Complainant was
that he initiated an enforcement proceeding by contacting the
Task Force. In short, the evidence referenced by the ALJ is
not so unrelated to the case as to warrant a reduction in
Complainant's fee award. Moreover, Complainant has submitted
documentation establishing costs and expenses incurred in
bringing this proceeding in its incipient stages before the
Employment Standards Administration and on review of the ALJ's
recommended decision.
ORDER
Respondent California Water Quality Control Board, San Diego
Region is ordered to reinstate Complainant Lance McMahan to his
former position in the Surveillance and Enforcement Unit; to
expunge from its records all memoranda or reference to the
February 1, 1990, reprimand; to post written notice for a period
of thirty days advising its employees that the reprimand of
Complainant has been expunged and that he has been reinstated to
his former position; and to pay Complainant costs and expenses,
including attorney's fees, in the total amount of $52,553.04.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
OAA:LLEASURE:kg:02/15/96
Room S-4309:FPB:219-4728
[ENDNOTES]
[1] Testimony regarding Respondent's authority appears at
Hearing Transcript (T.) 22-24, 29-30, 37-45, 425-428.
Complainant's Exhibits 12 and 13 comprise minutes of meetings
regularly convened by Respondent.
[2] Complainant's prima facie case requires a showing
sufficient to support an inference of unlawful discrimination.
This burden is not onerous. Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Direct evidence is not
required for a finding of causation. The presence or absence of
retaliatory motive is provable by circumstantial evidence, even
in the event that witnesses testify that they did not perceive
such a motive. Ellis Fischel State Cancer Hospital v.
Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert.
denied, 450 U.S. 1040 (1981). AccordMackowiak v.
University Nuclear Systems Inc., 735 F.2d 1159, 1162 (9th
Cir. 1984).
[3] Donna Blake, a criminal investigator for the San Diego
District Attorney's Office, testified that she co-founded the
Task Force in 1978, that it was comprised of representatives
from numerous Federal, State, and local government agencies,
and that it engaged in collective investigation of hazardous
waste violations in reference to both the FWPCA and State law.
T. 204-211; Resp. Exh. 11. In early 1989, the Task Force began
monitoring complaints received by its member agencies to
determine whether pollution by carpet cleaning companies
warranted criminal investigation. T. 205-207.
