witnesses. Thereafter the parties filed briefs which have been duly considered.

    Based upon the entire record including my observation of the witnesses and their demeanor at the hearing and all other evidence of record, I make the following findings and conclusions:

    1. The Respondent Metropolitan Government of Nashville and Davidson County is a municipal corporation which provides water and Sewerage services to its citizens through its Department of Water and Sewerage Services. As the supplier of such services, it is subject to the provisions of the Safe Drinking Water Act.

(a) Involvement of a sick-in solicitation;

(b) Involvement in a cartoon posting incident;

(c) Giving false testimony under oath relative to the sick-in solicitation and cartoon posting incident; and,

(d) Poor job performance at the Urban Observatory.

    7. The sick-in solicitation was alleged to have occurred in early June 1978. An investigation followed and no action was found to be warranted. It appears that a Metro employee later identified as Richard Britten had passed a message to Ray's superiors Fred Clinard and Lester Williams that a man identifying himself as Don Ray had talked to his wife by phone and solicited his, Britten's, participation in a sick-in. On June 26, 1979 Richard Britten signed a document that he had never been confronted by Donald Ray with the idea of calling in sick. At the hearing before me he stated that his signed statement was not true.

    William K. Maxwell, a union steward, testified that sometime during 1978 Ray had solicited him to participate in a sick-in. He was unable to pin-point the exact date because he said there had been two or three sick-in incidents. In any event, he told his superior about the incident the day after it happened.

    Apart from the belated testimony and its credibility as it relates to Britten and Maxwell, the record before me does not establish that a sick-in occurred in June 1978 and the administrative action following the incident resolved the matter. No employee would remain safe in employment if a government agency were permitted to resurrect ancient events long since administratively or judicially resolved.

    8. The alleged cartoon incident occurred about August 1978 and was investigated shortly thereafter. The testimony before me did not establish that Ray was involved as a participant in the incident and the issue was withdrawn at the hearing.

and collaterally by Judge Fath in June 1979.

"Q. Now, at the time you made this decision to discipline Mr. Ray at that time did you have any fear or any apprehension personally about what effect such an action might have?

"A. Yes I did. I had to weigh it quite heavily because of the fact that Mr. Ray already had one case pending personally against me and of course it weighed quite heavily on me in regard to making this decision but I felt like that it was in the best interest of the Department and Metropolitan Government and the customers that it served that such a hearing had to be given and charges had to he brought.

"Q. Now the previous charges against you, did Mr. Ray sue you personally?

"A. He did.

"Q. And for what amount?

"A. I believe it was $780,000."

    12. There has been a source of friction between Complainant and defendants relating to his transfer from Metro in February 1979 and his work assignments while on loan to the Urban Observatory pending final action on his claim before the Sixth Circuit Court of Appeals which culminated in the complaint filed by Ray on September 25, 1979. The Director of the Observatory noted that Ray had not been able to adjust and work out satisfactorily on his assignments and returned him to Metro on October 2, 1979. At Metro he was subsequently discharged on October 9, 1979 resulting in the supplemental complaint. Dr. Bilyeat, in a letter addressed to Ray on October 2, 1979 stated in part:

"While I sincerely appreciate Metro's commitment of having you work with the project, I believe that your continued involvement is not in the best interests of the hazmat

effort. Among other things, the development and initiation of a new effort like the hazmat program eventually requires a high degree of self-initiative and administrative developmental skills. As you have stated you are a lab chemist who finds it difficult to apply knowledge in an administrative developmental fashion. My review of your recent work confirms that decision."

    1. The statute which gives rise to this proceeding protects employees from discriminatory action directed toward them as a result of certain endeavors to pursue its enforcement. Section 1450(i) provides the following:

    No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has -

"A. Commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this subchapter or a proceeding for the administration or enforcement of drinking water regulations or underground injection control programs of a State.

"B. testified or is about to testify in any such proceeding, or

"C. assisted or participated or is about to assist or participate in any manner in such proceeding or in any other action to carry out the purposes of this subchapter."

    The record in this case shows that the alleged sick-in participation by Ray in June 1978 was investigated at the time

and there was no basis found for any administrative charges or action against Ray and he was continued on full duty with no reprisal of any sort. Further, the matter was referred to in the proceeding before Judge Fath as indicated in testimony before me.

    I consider the matter as not properly before me for consideration in this proceeding because of prior administrative and/or quasi-judicial consideration and also because of its remoteness to the instant complaint.

    The doctrine of res judicata is a judicially created doctrine which may be said to exist as an obvious rule of reason, justice, fairness, expediency, practical necessity and public tranquility. Public policy, judicial orderliness, economy of judicial time and the interest of litigants, as well as the place and order of society, all require that stability should be accorded judgements, that controversies once decided on their merits shall remain in repose, that inconsistent judicial decisions shall not be made on the same set of facts, and that there be an end to litigation which, without the doctrine of res judicata would be endless, 46 Am. Jurisprudence 2d § 395, pp. 559, 560 and 561.

    The doctrine of res judicata is but a manifestation of the recognition that endless litigation leads to confusion or chaos. The doctrine reflects the refusal of the law to tolerate a multiplicity of, or needless, litigation and is based on the worthy premise that the proper administration of justice is best served by limiting parties to one fair trial of an issue or cause. It rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or has an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. (Underscoring supplied.) 46 Am. Jurisprudence 2d § 395, pp. 561, 562.

    I conclude that the Respondents' charge to terminate Complainant Ray from employment on October 9, 1979 because of the alleged remote sick-in incident some 16 months earlier is without merit.

    2. I conclude that there was no reliable substantive

evidence presented before me to substantiate that Ray participated in the alleged cartoon posting incident in August 1978. This charge by the Respondent Metro against the Complainant is likewise found to have been without merit and it was withdrawn at the close of the hearing.

    3. A third charge alleged by the Respondent Metro as a basis for terminating Complainant's employment was that he gave false testimony under oath relative to the alleged sick-in solicitation and the cartoon posting incident. Since the latter charge was withdrawn for lack of any reliable evidence it is concluded to have been without merit.

    As to the June 1978 sick-in solicitation charge, the inconsistent statements and testimony by Richard Britten leave much to be desired and certainly do not provide an adequate basis to predicate a charge of giving false testimony under oath. On a credibility basis based upon my observation of the witness and the testimony presented at the hearing I reject his testimony as not being forthright or reliable.

    As to the testimony of William K. Maxwell, he referred to at least three sick-ins and was unable to identify which, if any, Complainant Ray was alleged to have participated; sick-ins were not unusual subjects of discussion in Maxwell's capacity as a union steward. Certainly, the evidence as to a sick-in incident in which Ray is alleged to have participated without his ability to delineate the time, is too indefinite to predicate a charge of having given false testimony under oath and I conclude the charge to be without merit.

    4. The only important and relevant timely charge in this proceeding was Ray's alleged poor job performance at the Urban Observatory and his subsequent termination of services by Metro.

    As noted on his performance evaluation in November 1978, his supervisors, Lester Williams and William F. Brock recorded that he was very zealous with manifestations of internal conflicts and no regard for the public image. His prior evaluations had ranged from above standard to outstanding. It is evident that his competence and capability as a chemist during his employment with Metro prior to February 1979 was unquestioned

litigation. Ray's supervisors are defendants in this case, and as such they are both sensitive and vulnerable to charges real or imagined, which might interfere with their defenses or the functions of the department.

"This mix of personalities had great potential for adverse effects on the department. Under the circumstances, Metro acted prudently in transferring Ray to avoid compounding existing problems pending the disposition of this litigation.

"In the matter [of] Ray's reassignment, Metro acted within the parameter of its authority as his employer. The Act does not restrict an employer in its operational decisions. Management must be able to adjust employment situations so as to carry out its duties. Bauch v. Joseph W. Landers, Jr., et al., Decision of the Secretary of Labor, May 10, 1979 [Case No. 79-SDWA-1]."

It was concluded ... "that Ray's transfer from his job in the laboratory to Project Prevent/Recover was not a violation of the Act, and that he did not file a timely complaint with reference to the other alleged acts of discrimination."

    Ray's complaint of September 25, 1979 refers to having performed an occasional task in preparing Project Prevent/Recover for presentation to the United States Department of transportation but alleged that the greater part of his past eight months had been spent in idle and unproductive waste. His transfer to "Project 208 - Non-Point Source Pollution" on August 27, 1979 was also stated to involve waste treatment. He completed his first assignment on August 31, 1977. He considered the assignment objectionable and discriminatory.

    Apart from the allegations, Project 208 was a component to

"...to protect employees who attempt to enforce the safe drinking water regulations, I do not believe it restricts an employer in its operational decisions. It does not, and should not, preclude management from taking steps to assure and maintain effectiveness by its staff in enforcing the water system requirements. To this, extent, Respondents and others similarly invested with enforcement duties, must be able to transfer employees or adjust employment situations so as to accomplish such effective enforcement.

    "In the case at bar the record is replete with instances where, despite the competence and expertise of Bauch as a technical Engineer, his attitude and behavior have provoked continual criticisms from other individuals, not only did this exist while he was employed with Carol City Utilities and Ray Hart & Associates prior to his current employment, but complaints re his aggressiveness and lack of tact persisted during his tenure with Respondent. Straham discussed these difficulties with Bauch several months after he was employed by Respondent. Moreover, each performance review of Bauch's supervisors referred to his difficulties in relating to consultants and others, his emotional involvement, and his overbearing attitude during the performance of his duties."

Complainant Ray's reassignment from Metro to the Urban Observatory about March 1, 1979 has previously been concluded to have been within the parameters of Metro's authority as his employer. He had been reassigned to avoid compounding existing problems pending disposition of litigation in connection with a complaint filed by him in February 1979. His duties while on reassignment or loan to the Urban Observatory did not involve work related to providing safe drinking water for Metropolitan Nashville and Davidsion County, Tennessee. The record does not reflect that Metro interfered with his assignments or work at the Urban Observatory while attempting to adjust his employment situation so as to carry out its own duties. Nevertheless, Ray, particularly during the latter

part of his tenure at the Observatory, was experiencing difficulty in his association with supervisors and others and in developing and completing acceptable work projects. Although his previous actions and conduct indicated animosity and friction against his Metro supervisors and others, he sought to return to Metro as principal chemist even though appellate litigation previously initiated by him had not been finally resolved. His attitude, behavior, animosity and friction with supervisors and employees Continued at the Observatory. At the Observatory he had an opportunity to demonstrate that he could adjust to an employment situation created to utilize his expertise in chemistry and hazardous material handling free from his past environment at Metro. This he did not do. He persisted in seeking return to Metro before the litigation he had initiated could be resolved involving the Urban Observatory in his dispute with Metro. When his services and usefulness at the Observatory were no longer desired, he was returned to Metro and his employment was terminated.

    The smooth operation of the department (water and sewer services) by Metro is dependent upon the compatibility of the employees who carry out the duties of the department. The Act does not restrict an employer in its operational decisions. Metro's attempt to reassign Ray to the Urban Observatory to avoid compounding existing chaotic problems pending disposition of litigation was unsuccessful and resulted in creating similar problems within the Observatory as had been experienced by Metro.

    The record before me does not support a conclusion that Metro opposed enforcement of the provisions of the Safe Drinking Water Act nor does it appear that Respondent attempted to restrict such enforcement by its employees. Ray was not performing any functions associated with Metro either when he filed his complaint in September 1979 or in October 1979 when his services were terminated.

    Rather, Ray was impetuous to force himself back on Metro as its principal chemist and impervious to the outcome of litigation he had initiated. Although the Urban Observatory where he was on loan had taken no action against him, he involved it in the complaint filed in September 1979 necessitating his return to Metro. Ray's work at the Urban Observatory was not in furtherance of or in connection with the Safe Drinking Water Act nor in view of the circumstances was his assignment found to be in the best interests of the Urban Observatory. Ray created the circumstances

resulting in his return from the Urban Observatory to Metro. I conclude that his return to Metro did not run afoul of the prohibitive language of Section 1450(1) of the Act.

    Since Metro had previously indicated that Ray was on a temporary assignment with the Urban Observatory and would be returned to Metro upon completion of the assignment, did its termination of his services constitute a violation of the Act?

unresolved; the explosive personnel conflicts between Ray and his supervisors and co-workers continued to threaten and compound management's existing problems. Ray did not purport to await disposition of litigation that he had previously initiated to resolve his differences with Metro, but attempted premature reinstatement by the means available to him that would force such action. I find no probable cause was generated by either Metro or the Urban observatory to have warranted the coercive pressure urged by Ray for reinstatement prior to disposition of the pending litigation he had initiated and completion of the projects for which he had been temporarily assigned.

    As has been previously mentioned, the purpose of Section 1450(i)(1) is to protect employees who enforce the safe drinking water regulations. Ray's assignment while on loan to the Urban Observatory did not involve enforcement of the Safe Drinking Water Act or regulations promulgated thereunder.

    The record is rather clear that Ray, while with Metro and at the Urban Observatory, had emotional conflicts that generated personnel differences between him and his staff supervisors and co-workers making satisfactory adjustment difficult. Metro's prior action in transferring him to the Urban Observatory pending resolution of litigation initiated by him has previously been held to be within the parameters of Metro's operational decision. Neither his performance on the job nor his adjustment as a professional employee to cooperate and work with staff supervisiors was satisfactory while on loan assignment. Despite Ray's competence and expertise as a chemist his attitude, behavior, and conduct have provoked criticism from staff supervisors and individuals and created turmoil within the Agency to which he was assigned as well as that to which he was loaned while his appeal was being resolved. He forced additional litigation by reason of new complaints in September 1979, at a time when he was on loan and not involved in any way with enforcement of the Safe Drinking Water Act. Under the circumstances, Ray's action before me is pretextual in nature to manacle the operational decision of the Water and Sewerage Department from which he was on loan and at a time when he was not engaged in enforcing the Safe Drinking Water Act and regulations promulgated thereunder.

    I conclude that the Act was not intended to reach a situation as here prevailed, but rather, it was expected to embrace instances when an employer employed tactics to resist

adherence to the regulatory provisions and take action to frustrate it. After Ray's temporary reassignment to the Urban Observatory to provide use of his services in an environment apart from staff and personnel with whom he had been associated, Metro found itself barraged with new complaints before litigation on his former appeal was resolved. Metro is not shown to have taken any action to thwart appellate resolution of the litigation or to interfere with the handling of Ray's work with Urban Observatory. While Ray's performance at the Observatory was not satisfactory, it had taken no action against him until Ray involved it in his September 1979 complaints; whereupon it returned him to Metro for disposition and his employment with the Department of Water and Sewerage was terminated.

    In view of the foregoing, I conclude that the Respondents did not discriminate against Donald Lee Ray when his employment as a chemist was terminated in October 1979 because of poor performance, including inability to adjust to the usual and normal employment situations as a supervisor of other employees; Ray was not engaged in enforcing the provisions of the Act when he filed the complaints in issue in September 1979, and all matters being considered the Respondents did not violate Section 1450(i) (1) of the Safe Drinking Water Act (Public Law 93-523).

    In light of the conclusions set forth above, the undersigned recommends that the Secretary of Labor dismiss the Complaint.

       RHEA M. BURROW
       Administrative Law Judge

Dated: March 18, 1980
Washington, D.C.

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