DATE: July 13, 1995
CASE NO. 93-SDW-1
IN THE MATTER OF
JOHN W. MARTIN,
COMPLAINANT,
v.
THE DEPARTMENT OF THE ARMY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Complainant John W. Martin brings this complaint of unlawful
discrimination against his employer, the Department of the Army,
under the employee protection provision of the Safe Drinking
Water Act (SDWA), 42 U.S.C. § 300j-9(i) (1988), and the
applicable regulations which appear at 29 C.F.R. Part 24 (1994).
In a Recommended Decision and Order (R. D. and O.) issued on
December 22, 1993, the Administrative Law Judge (ALJ) recommended
that the complaint should be dismissed. In particular, the ALJ
found that, in taking adverse employment action against
Complainant, Respondent was motivated by both illegal and
legitimate reasons; but that Respondent avoided liability because
it would have taken the same action in the absence of
Complainant's protected activity. R. D. and O. at 25-26. While
I agree with many of the ALJ's findings, I disagree that
Respondent met its burden of proving that it would have
disciplined Complainant even if he had not engaged in
protected activity. I thus reject the ALJ's ultimate
recommendation that the complaint be dismissed.
DISCUSSION
[PAGE 2]
Complainant John W. Martin has been employed by Respondent
Department of the Army since 1987 as a plumber assigned to repair
water and gas main systems and to perform interior plumbing
repair at Fort Jackson, South Carolina. In February 1991, Martin
was assigned to test backflow preventers and became certified as
a limited tester by the South Carolina Department of Health and
Environmental Control (DHEC). A backflow preventer is a device
that prevents contaminants from backing into a potable water
supply line. Hearing Transcript (T.) 21. Kelly Hunsucker, a
DHEC Control Coordinator, testified that backflow can have
serious consequences.[1]
Martin subsequently tested successfully for an inspector
license which enabled him to coordinate a backflow program at
Fort Jackson. T. 106-111. Throughout 1991 and during early
1992, Martin's first line supervisor, Charlie Pittman, resisted
his efforts to check for, test and repair backflow preventers and
refused to address what Martin perceived to be widespread
violations of the SDWA at Fort Jackson. Martin eventually
complained about these safety and health concerns to Michael Munn
and Franklin Cooper, respectively his second and third line
supervisors; Respondent's Office of Inspector General; DHEC; the
American Federation of Government Employees; and the
Environmental Protection Agency. Pittman thereafter removed
Martin from his backflow preventer tester/inspector position and
returned him to plumbing repair work.
The ALJ found (1) that Martin engaged in protected activity
under the SDWA by contacting Respondent's Inspector General, the
DHEC, and his supervisors and (2) that Respondent retaliated
against him in part because of this protected activity when it
removed him from the backflow prevention position. R. D. and O.
at 22-25. The record fully supports these findings, and I adopt
them.[2]
The ALJ also found that Respondent acted in part for a
legitimate reason, i.e., Martin's failure to return a DHEC
"letter of inquiry" to Pittman as instructed. R. D. and O. at
25. In so doing, the ALJ implicitly rejected Martin's contrary
testimony that the document involved was his own "suggestion" for
certain improvements submitted to Respondent's Director of
Resource Management, which Pittman improperly directed Martin to
evaluate and which Martin returned to the Director of Resource
Management pursuant to that office's instructions. T. 68-73,
102. Although this disposition is questionable in light of
Pittman's ambivalent testimony, T. 523-524, 565, 581-582, 612, I
need not decide its propriety for the reasons set forth below.
As the ALJ correctly noted, in order to avoid liability in
"dual motive" discrimination cases, a respondent must prove by a
preponderance of the evidence that it would have taken the same
[PAGE 3]
action even if the complainant had not engaged in protected
activity. R. D. and O. at 21. See Carroll v. Bechtel Power
Corporation, Case No. 91-ERA-46, Sec. Dec., Feb. 15, 1995,
slip op. at 10. Notwithstanding the reservation noted above, the
record in this case evinces a legitimate reason for reassigning
Martin -- failure to return a document to a supervisor. At the
same time, the record contains no evidence whatever that
Respondent would have reassigned Martin for that reason alone.
Respondent neglected to show, for example, that its disciplinary
rules mandated reassignment for the offense or that any other
similarly offensive employees had been reassigned. Indeed, no
witness even testified that Martin's offense merited
reassignment, only that he was reassigned in part because of it.
T. 523-524. Accordingly, Respondent has failed to satisfy its
"burden of persuasion to show by a preponderance of the evidence
that it would have reached the same decision even in the absence
of the protected conduct." R. D. and O. at 21.
The ALJ also found that Respondent had legitimate reason for
downgrading Martin on a performance appraisal, even though he
engaged in protected activity, because of "verbal confrontations
on the subject of backflow prevention with a salesman and a
construction representative of the Army Corps of Engineers at
[Fort] Jackson." R. D. and O. at 26. While the content of
Martin's comments was protected, the ALJ focused on the
disruptive delivery.
The Secretary previously has considered labor relations
precedent in addressing intemperate language and impulsive
behavior associated with the exercise of whistleblower rights.
Dodd v. Polysar Latex, Case No. 88-SWD-4, Sec. Dec., Sept.
22, 1994, slip op. at 17; Kenneway v. Matlack, Inc., Case
No. 88-STA-20, Sec. Dec., June 15, 1989, slip op. at 6-7;
Ertel v. Giroux Brothers Transportation Co., Case No. 88-
STA-24, Sec. Dec., Feb. 16, 1989, slip op. at 20-21, 30-31. See Dunham v.
Brock, 794 F.2d 1037, 1040-1041 (5th Cir. 1986), aff'g
Dunham v. Brown & Root, Inc., Case No. 84-ERA-1, Sec. Dec.,
June 21, 1985. The standard employed under the National Labor
Relations Act requires balancing the right of the employer to
maintain shop discipline and the "heavily protected" statutory
rights of employees: to fall outside statutory protection, an
employee's conduct actually must be indefensible under the
circumstances.
Here, Martin's spontaneous, intemperate reactions would
appear neither to remove SDWA protections nor to provide
Respondent with a legitimate, nondiscriminatory motivation. The
first incident involved a salesman demonstrating the use of
pressurized sewer cleaning equipment which accessed the potable
water system and which lacked an adequate backflow preventer.
T. 262-264. Martin became alarmed that the salesman was about to
[PAGE 4]
start up the equipment, insisting loudly that an actual
demonstration was not permissible. Martin then departed to find
the Military Police, who declined to return with him. Martin
later apologized to the salesman for his behavior. T. 197-206.
The second incident involved a construction representative
for the Army Corps of Engineers conducting an inspection of a
building complex at Fort Jackson. Martin loudly insisted that
the backflow prevention was inadequate and that a particular
building could not be used until brought up to standard. Martin
then departed, and the representative continued with the
inspection. T. 733-740. The representative considered Martin's
behavior "very unprofessional." T. 739.
When questioned about these incidents, Martin's third line
supervisor testified:
[Martin] may have had some run-ins with some people,
some complaints about maybe his demeanor or his manner.
But I dismissed them, because . . . you can't please
all of the people all of the time. And there's going
to be personality conflicts, no matter what. . . . If
there were numerous complaints . . . then . . . it
would have attracted my attention. But once in awhile
-- a once-in-awhile type complaint, I know you can't
please everybody all the time.
T. 651 (Cooper). While the manner in which Martin stated his
legitimate safety and health concerns may have disrupted the
demonstration and inspection briefly, Martin did not persist, and
the events continued. I find that Martin's behavior was not
indefensible under the circumstances.
Even assuming that a dual motive analysis is appropriate
here, Respondent has failed to prove that it would have
downgraded Martin solely on the basis of this behavior. The only
evidence on this point is Pittman's unexplained assertion that if
"[y]ou have two complaints against you during a rating period,
you cannot get 'exceptional.' You can get a 'fully
[satisfactory],' but not an 'exceptional.'" T. 537. This
evidence is not sufficient to sustain Respondent's burden of
proof. Accordingly, I decline to adopt the ALJ's finding. R. D.
and O. at 25-26.
Martin also alleged that Respondent retaliated against him
on two additional fronts. I agree with the ALJ (1) that Martin
failed to show that his suggestions were rejected because of his
regulatory concerns, and (2) that Respondent's failure to promote
him was not discriminatory. R. D. and O. at 26.
CONCLUSION
Respondent unlawfully discriminated against Complainant by
removing him from the backflow preventer tester/inspector
[PAGE 5]
position and by downgrading him on the performance appraisal.
The rejection of Complainant's suggestions and failure to promote
did not constitute unlawful discrimination.
In its Reply Brief, Respondent alleges that Complainant
resigned his employment in May 1994. In a letter dated
September 20, 1994, Complainant acknowledges that he no longer
works for Respondent. Accordingly, an order reinstating
Complainant to his former tester/inspector position may not be
appropriate. Cf. Nathaniel v. Westinghouse Hanford
Company, Case No. 91-SWD-2, Sec. Dec., Feb. 1, 1995, slip op.
at 20-21 (employee who quit employment voluntarily not eligible
for post-resignation damages and back pay or for reinstatement).
The issue thus becomes whether Martin was constructively
discharged, i.e., "whether working conditions were
rendered so difficult, unpleasant, unattractive, or unsafe that a
reasonable person would have felt compelled to resign."
Johnson v. Old Dominion Security, Case Nos. 86-CAA-3 et
seq., Sec. Dec., May 29, 1991, slip op. at 19-22.
Respondent is ordered to upgrade Complainant's September
1992 performance appraisal. Although Complainant requests
compensation for stress, the evidence is insufficient to sustain
such an award. See T. 486-490. Respondent is ordered to
compensate Complainant for costs and expenses, including
attorneys' fees, reasonably incurred in bringing the complaint.
This case IS REMANDED to the ALJ to determine whether a
constructive discharge occurred and to assess any costs,
expenses, and back pay due Complainant.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
For example, funeral homes tap into the water supply with
aspirators used "to suck the contents out of the dead bodies
[joining] right into the water supply and go[ing] on to waste,
hopefully. But if the back siphonage were to occur, then the
blood . . . would go back into the drinking water supply, and
could show up at the water fountain . . . . T. 212. Hospitals
and nursing homes similarly are considered "high risk" because of
laboratory activities and procedures for treatment of persons who
are ill or infirm, e.g., whirlpool baths for patients
"with open body sores and people who can't control their
bowel[s]." T. 280, 323. Martin testified that he discovered
numerous SDWA violations at the Fort Jackson hospital. T. 50.
Additionally, chemicals in the heating and cooling systems at
Fort Jackson's barracks, which contained no backflow preventers,
posed a hazard. T. 39-40, 86-88, 236-237.
[2]
Whistleblower provisions prohibit discrimination with
respect to an employee's compensation, terms, conditions, or
privileges of employment, including transfer to a less desirable
position even though no loss of salary may be involved.
DeFord v. Secretary of Labor, 700 F.2d 281, 283, 287 (6th
Cir. 1983); Jenkins v. U.S. Environmental Protection
Agency, Case No. 92-CAA-6, Sec. Dec., May 18, 1994, slip op.
at 14-16.
