DATE: March 24, 1995
CASE NO: 93-WPC-11
IN THE MATTER OF
RONNIE CARSON,
COMPLAINANT,
v.
TYLER PIPE COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This proceeding arises under the employee protection
provisions of the Safe Drinking Water Act (SDWA), 42 U.S.C.
§ 300j-9(i), the Water Pollution Control Act (WPCA), 33
U.S.C. § 1367, and the regulations promulgated thereunder, 29
C.F.R. Parts 18-24 (1994). Complainant alleges that he was
terminated by Tyler Pipe Company (Tyler) in retaliation for
safety related complaints he made to company management. On June
17, 1994, the Administrative Law Judge (ALJ) issued a Recommended
Decision and Order (R.D. and O.) that the complaint be dismissed.
The ALJ's findings of fact, R.D. and O. at 2-6, are supported by
ample evidence and I adopt them. Although the ALJ made errors in
his analysis, as discussed below, I agree with his ultimate
recommendation and dismiss the complaint. BACKGROUND
Statement of Facts
The following is a brief summary of the pertinent facts.
Respondent engages in water treatment processing at two water
treatment facilities in Tyler, Texas. The plants receive
untreated water and through a series of chemical treatments alter
the untreated water to acceptable levels for release. T. 171.
[PAGE 2]
R.D. and O. at 2. The pH levels are regulated by the Texas Water
Commission ("TWC"). Water not meeting the required pH levels
cannot be released by Tyler without violating the permits issued
by the TWC.
Carson worked as an operator for Tyler for five years.
Throughout his tenure Carson wrote letters to management
regarding a wide variety of issues, including problems he
perceived at the water treatment plants and suggestions for
improvements. R.D. and O. at 3. Specifically at issue were two
lengthy letters written by Carson on May 15, 1990, and May 22,
1992. [1]
The May 22, 1992 letter was 39 pages and in it Carson
complained of a variety of problems, including record
falsifications. [2] As a result of writing this letter Carson
met first with Bob Skidmore, the Water Treatment Supervisor, and
then with Lindsey Smith, the Manager of Technical Services.
Smith went over the letter with Carson during a two and a half
hour meeting. Although not every issue raised in the letter was
discussed, Carson was asked specifically about the alleged record
falsifications. Carson refused to give Smith and Skidmore any
names or details regarding the allegation. The meeting was
terminated by Carson and he also chose not to schedule another
meeting. Smith viewed this meeting as a reprimand for making
false accusations and for doing so outside the established chain
of command. However, Carson was not informed that the meeting
was a reprimand. R.D. and O. at 3-4. Since it was not
officially recorded as a reprimand in Carson's personnel file, I
find that the meeting was not an official reprimand of Carson.
Prior to Carson's May 22, 1992 letter, he had been suspended
two times. Carson was suspended once for refusing to clean out a
refrigerator and once for fighting with another employee.
Additionally, throughout the hearing several of Carson's co-
workers testified that they had difficulties working with him.
See, e.g., T. 91, 97, 103, 112, 186.
On March 10, 1993, Carson reported to work for his usual
shift, from 11:00 p.m. until 7:00 a.m. on March 11. When Carson
arrived at work he was informed of problems in tank 309. Carson
was told by his supervisor, Charles Shelton, to transfer the
contents of the 309 tank into the 310 tank. Carson attempted to
do as Shelton had instructed, but Carson did not properly adjust
all the valves. As a result, the contents of tank 309 went into
a different tank, thus causing a pH imbalance and a potential
violation of the TWC regulations. Rather than admitting his
mistake and notifying Shelton, Carson took matters into his own
hands.
Carson tried to resolve the pH imbalance by emptying all of
the water tanks. The emptying of the tanks caused the plant to
[PAGE 3]
flood. Though it was not uncommon for water to be on the plant
floor, Carson should not have taken these actions without
direction from his supervisor. If it had rained, as predicted,
the flooding would have definitely caused Tyler to be out of
compliance with TWC regulations. R.D. and O. at 5. Carson left
at the end of his shift without explaining the situation to
Shelton, Skidmore, or any other supervisors. When Skidmore
stopped Carson on his way out to ask about the alleged incident,
Carson told Skidmore he was off the clock and refused to discuss
the matter. R.D. and O. at 6.
When Carson arrived at work for his next shift he was asked
to meet with Shelton, Skidmore and Smith. T. 191. At that
meeting Smith presented Carson with the results of an
investigation Skidmore had conducted detailing the events leading
up to the plant flooding. R.D. and O. at 6. Carson had no
explanation for his actions except that he claimed to have
authority over all the fluids in the plant during his shift.
R.D. and O. at 6. Carson was very defensive and claimed that Skidmore and Smith were harassing him. Carson was suspended for
three days pending a final decision regarding his termination.
On March 16, 1993, Carson was asked to meet with Smith,
Skidmore and Kevin Fowler, the Human Resources Manager. During
this meeting the events of March 10 and 11 were again discussed.
Carson was given another opportunity to explain his actions and
his reasons for not contacting his supervisor. The meeting ended
with Carson's termination. Tyler stated that the reasons for
Carson's discharge were his actions at work on March 10 and 11,
1993.
Procedural Issues
On December 1, 1994, Respondent filed a "Motion to Disregard
Carson's November 14, 1994, Letter as Untimely." The letter to
which Respondent refers was sent by Carson to me on November 14,
1994, in response to Respondent's Reply Brief. At page five of
Carson's letter he requested a waiver of the time period for the
filing of his letter. Carson has proceeded without counsel. I
will accept Carson's letter and consider it together with all of
the other briefs filed.
DISCUSSION
Burdens of Proof
Under the burdens of proof and production in "whistleblower"
proceedings, Complainant must first make a prima facie
showing that protected activity motivated Respondent's decision
to take an adverse employment action. Respondent may rebut this
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason.
Complainant must then establish that the reason proffered
by Respondent is pretextual. At all times, Complainant
has the burden of establishing that the
[PAGE 4]
real reason for his discharge was discriminatory.St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993);
Thomas v. Arizona Public Service Co., Case No. 89-ERA-19,
Sec. Dec., Sept. 17, 1993, slip op. at 20.
In order to establish a prima facie case, a
Complainant must show that: (1) he engaged in protected conduct;
(2) the employer was aware of that conduct; and (3) the employer
took some adverse action against him. Carroll v. Bechtel
Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 14, 1995,
slip op. at 9, citing Dartey v. Zack Co. of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip
op. at 7-8. Additionally, the Complainant must present
evidence sufficient to raise the inference that the protected
activity was the likely reason for the adverse action. Id.
See also Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1162 (9th Cir. 1984); McCuistion v. TVA, Case No. 89-
ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6.
The first issue is to determine whether or not Carson
engaged in a protected activity. As the ALJ correctly noted, but
declined to follow, I have consistently found that internal
complaints are protected activity consistent with the broad
remedial purposes of the whistleblower acts. R.D. and O. at 9.
This holding has also been endorsed by various courts. See,
e.g., Passaic Valley Sewerage Com'rs v. Department of Labor,
992 F.2d 474 (3d Cir. 1993) ("PVSC"); Couty v.
Dole, 886 F.2d 147 (8th Cir. 1989);Kansas Gas and
Electric Co., v. Brock, 780 F.2d 1505 (10th Cir.
1985); Mackowiak, 735 F.2d at 1159; Consolidated
Edison Co. of N.Y., Inc. v. Donovan, 673 F.2d 61 (2nd Cir.
1982). The ALJ based his decision that internal
complaints are not protected activity upon the Fifth Circuit
holding in Brown & Root, Inc. v. Donovan, 747 F.2d 1029
(5th Cir. 1984). The Court in Brown & Root held that the
filing of an internal quality control report was not protected
under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C.
§ 5851(a)(3). However, the Brown & Root case was
legislatively overturned, effective October 24, 1992. 42 U.S.C.
§ 5851(a)(1)(A). For any case filed after that date, even
in the Fifth Circuit, internal complaints are protected under the
ERA. This case was filed on or about May 19, 1993. Further,
this proceeding arises under the SDWA and WPCA for which I have
consistently held that internal complaints are protected.
Therefore, the ALJ erred in finding that Carson did not engage in
protected activity at the time he made internal complaints.
The ALJ also erred in finding that the complaints were
not protected "because they are vague" and contained "no
specific proof to support the allegations." R.D. and O. at 9.
Carson raised the issue of record falsifications in his letter of
May 22, 1992. The allegation was clearly stated, even though it
[PAGE 5]
was only one paragraph in a 39 page letter. Smith testified that
he felt the two and a half hour meeting with Carson was a
reprimand because Carson would not or could not substantiate the
record falsification allegations, and because he circumvented the
chain of command by sending the letter directly to upper
management. With regard to the allegation of record
falsification, it does not matter whether the allegation was
ultimately substantiated, it only needs to be "grounded in
conditions constituting reasonably perceived violations of the
environmental acts." Minard v. Nerco Delamar Co., Case
No. 92-SWD-1, Sec. Dec., Jan. 25, 1995, slip op. at 8, and
citations therein. As an operator at the plant, one of Carson's
duties was to treat the water so it could be released in
accordance with the TWC regulations. Records were kept by the
operators to show compliance with TWC regulations. Carson's
allegation of record falsification was, therefore, sufficient to
show a reasonably perceived violation of the Act. T. 350-51.
Under the ERA it is not permissible to find fault with an
employee for failing to observe established channels when making
safety complaints. Pillow v. Bechtel Construction,
Inc., Sec. Dec., July 19, 1993, slip op. at 22; See,
also, Pogue v. United States Dep't of Labor,
940 F.2d 1287, 1290 (9th Cir. 1991). Therefore, the allegation
that Carson was reprimanded for circumventing the chain of
command when he sent the May 22, 1992 letter is evidence of
protected activity.
The final element of a prima facie case requires
Complainant to present evidence sufficient to raise an inference
that his protected activity led to his discharge. Carson must
show that his May 22, 1992 letter led to his discharge on March
17, 1993. It does not matter if the discharge was caused by the
allegation of record falsifications in the letter, or the fact
that the letter was not sent through the proper chain of command.
Generally, the proximity in time between the decisionmaker's
awareness of Complainant's protected activity and the adverse
employment action is sufficient to raise an inference of
causation. Zessin v. ASAP Express, Inc.,
Case No. 92-STA-33, Sec. Dec., January 19, 1993, slip op. at 13;
Bergeron v. Aulenback Transp., Inc., 91-STA-38,
Sec. Dec. and Ord., June 4, 1992, slip op. at 3. In the past I
have found that a ten-month lapse between the protected activity
and the adverse action may be sufficient to raise an inference of
causation. The lapse between Carson's protected activity, May
1992, and the adverse action, March 1993, is approximately ten
months. See Goldstein v. Ebasco, Case No. 86-ERA-36, Sec.
Dec., Apr. 7, 1992, slip op. at 11-12, rev'd on other grounds
sub nom., Ebasco Constructors, Inc. v. Martin, No. 92-4567
(5th Cir. Feb. 19, 1993) (causation established where eight to
ten months elapsed between protected
[PAGE 6]
activity and adverse action); see also Couty v. Dole,
886 F.2d 147, 148 (8th Cir. 1989) (temporal proximity
sufficient as a matter of law to establish final element in a
prima facie case).
However, since the record in this case is complete, "the
answer to the question whether [Complainant] presented a prima
facie case is no longer particularly useful." Carroll,
slip op. at 10. As pointed out in the Carroll
decision, logic dictates that "[i]f a complainant has not
prevailed by a preponderance of the evidence on the ultimate
question of liability it matters not at all whether he presented
a prima facie case." Carroll, slip op. at 11.
Carson has clearly not carried his ultimate burden of proof by
showing that he was discharged for engaging in protected
activity.
I find that Respondent articulated legitimate,
nondiscriminatory reasons for discharging Complainant. The
record contains credible testimony regarding the events of March
10 and 11, 1993. Carson acted inappropriately and contrary to
the established rules at Tyler, which directly led to his
discharge. T. 233-35. Carson has not proven that Tyler's
reasons were pretextual. Wholly unprotected activity
immediately preceded, and apparently operated alone in
precipitating Complainant's discharge. Monteer v. Milky Way
Transport Company, Inc., Case No. 90-STA-9, Sec. Dec., July
31, 1990, slip op. at 4.
CONCLUSION
For the forgoing reasons, I find that Carson was not
discharged in violation of the SDWA or WPCA. The recommended
decision of the ALJ is accepted and the complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The first letter was written to the president of Tyler,
James Russell. Carson claimed the letter dated May 15, 1990,
included allegations of safety violations. However, this letter
is not part of the record and therefore cannot be accepted as
evidence of protected activity.
[2] Complainant's Exhibit 2 and Respondent's Exhibit 10, at 36.
