I
The essential facts in this case are not in serious
dispute. Hanna is a teacher of social studies in one of
respondent's schools, as well as President of the Allentown
Federation of Teachers. Since 1970 this association has
sought to represent the professional employees of the School
District. Pursuant to elections held in 1971 and 1978 these
employees have been represented by the Allentown Education
Association. Hanna, however, continues to be active in
pursuing certification as their collective bargaining
representative.
In early 1979 Hanna became aware of, and concerned
about, potential health hazards from exposure to asbestos in
schools. Accordingly, by letter of February 22, 1979
addressed to the President of the Allentown Board of School
Directors, he requested that the Board take steps
immediately to determine whether asbestos materials had been
used in the construction of the School District's buildings
and, if so, to determine whether any hazardous situations
existed. At the next regularly scheduled public meeting of
the Board, Hanna repeated his request and provided the
members of the Board with copies of his February 22 letter.
His initiatives were not appreciated; one member of the
Board accused him of seeking publicity and alarming the
public; another stated that an inspection was unnecessary
because an earlier inspection had revealed no danger.
Sensing opposition to his request, Hanna turned to
Frank Sentz, a regional industrial hygienist of the
Pennsylvania Department of Environmental Resources, for an
official inspection of the Allentown schools. He was
informed by telephone that the inspection would be conducted
on March 6, 1979 .Hanna then requested from the School
District a personal leave day with justification for March
6, so that he could accompany the instructor. Under the
applicable collective bargaining agreement, teachers are
allowed four (4) days of leave during the school year for
personal reasons and emergencies, one of which may be
taken without giving any reason, i.e., without justification.
Upon receipt of the request on March 5, 1979, Richard
G. Garger, Assistant to the Superintendent for Administrative
Services for the School District, advised Hanna by
telephone that leave would be allowed without justification.
Written approval of such leave is dated March 8, 1979.
on March 16, 1979 two other teachers were granted leave with
justification, one for the purpose of attending to the
installation of carpets in his house and the other for the
purpose of accompanying his daughter to a sports event.
Also on March 5, 1979, the day before the inspection
was to take place, Dr. John F. McHugh, principal of the
school where Hanna teaches, having learned that Hanna
was going to be absent on the following day asked him
whether his lesson plan was in order. The reply was in
effect that everything was in order. Dr. McHugh accepted
the assurance and did not at any time secure or look at the
lesson plan. A lesson plan is required of every teacher, to
make sure that the teacher plans his course of instruction
in advance and that, in case of absence, a substitute may
take over without loss of continuity. However, it is rare
for a principal to inspect a teacher's lesson plan.
The inspection of the school buildings took place as
scheduled. Hanna furnished Frank Sentz, the inspector, with
a list of buildings which might contain asbestos and actually
accompanied him on the inspection tour, together with a
friend whom he deemed knowledgeable about asbestos and with
personnel of the School District. On April 2, 1979 Sentz
notified the School District of the results of the
inspection and recommended certain control measures.
On March 22, 1979 Hanna asked the School Board for
permission to inspect schools for asbestos hazards. He
understood that the request had been granted, and
accordingly visited one school. However, by letter dated April 3,
1979, Dr. Charles F. Wilson, Superintendent of Schools,
advised Hanna that Sentz had been requested to arrange for a
thorough inspection of all the District's buildings not
previously inspected and that Hanna's presence was not
necessary. On April 19, 1979 Dr. Wilson again denied
Hanna's repeated requests for permission to inspect school
facilities and expanded on his reasons for the denial. In
the meantime, by memorandum of April 5, 1979, Dr. Wilson had
notified building principals and custodians that Hanna's
request had been denied and requested that Hanna not be
allowed access to the buildings.
On April 19, 1979 Hanna wrote a letter to Steven
Jellinek of the U.S. Environmental Protection Agency,
narrating his efforts to determine the presence of any
asbestos hazards in the school buildings, alleging
retaliation by the School District, and requesting help or advice.
On May 4, 1979 John P. DeKany, Deputy Assistant
Administrator for Chemical Control, EPA, responded to the letter.
DeKany expressed appreciation for Hanna's actions in
investigating the asbestos problem in the Allentown schools, and
called his attention to section 23 of the Act. DeKany
advised that the section prohibits any employer from
discriminating against an employee who assists the Administrator
of EPA in carrying out the purposes of the Act, and that
any employee who believes to have been discriminated against
could lodge a complaint with the Secretary of Labor. A copy
of the Act was enclosed. At about that time Hanna had
several telephone conversations with DeKany, concerning the
asbestos problem and also the filing of complaint for
discrimination. On May 29, 1979 Hanna addressed a letter to
an officer of the Occupational Safety and Health Administration,
U.S. Department of Labor, setting forth a complaint
under section 23 of the Act. The letter specifically
asserts that (1) the denial of a Personal day leave with
justification and (2) the ban on Hanna's access to school
buildings constitute discrimination forbidden by section 23
of the Act.
On July 12, 1979 Hanna released a memorandum addressed
to all Allentown school teachers. It is entitled "Administrative
Corruption in the Allentown School District" and is
critical of the school administration in general and of 'Mr.
Garger and Dr. Wilson in particular. The memorandum lists
eight areas in which corrective actions against the School
District were alleged to be pending before State and Federal
agencies. These include an investigation by the U.S.
Department of Labor of discriminatory actions against
Hanna, and a request by the Pennsylvania Department of
Environmental Resources for the removal or repair of
asbestos-containing materials. At a meeting of July 26, 1979,
the School Board adopted a resolution authorizing the
President of the Board to take appropriate action on behalf
of the District and its agents and employees, against Hanna
and the Allentown Federation of Teachers, with respect to
the memorandum of July 12, 1979 and "the course of action
and matters to which reference is made therein . . ."
Exhibit R-8. Shortly thereafter the School District
commenced on action for libel against Hanna, individually and
as President of the Allentown Federation of Teachers. The
School District also filed charges of unfair labor practices
with the Pennsylvania Labor Relations Board against Hanna
and the Allentown Federation of Teachers. On August 6, 1979
Hanna filed another complaint with the U.S. Department of
Labor, asserting that the suit for libel constitutes
discrimination within the meaning of section 23 of the Act.
It remains to state that the asbestos problem in
the Allentown schools and the actions and events relating
thereto received wide coverage in the Allentown newspapers
during the months of March and April, 1979.
II
It is complainant's contention that (1) the denial
of personal leave with justification, (2) the inquiry
about his lesson plan, (3) the ban on his access to school
buildings, and (4) the institution of the libel suit were in
retaliation for his efforts to discover and remove potential
asbestos hazards from the Allentown school buildings, and
therefore in violation of section 23 of the Act. Respondent
denies discriminatory motivation, and, in addition, raises
two affirmative defenses. It contends (1) that as an agency
of the Legislature of the Commonwealth of Pennsylvania it is
not an employer subject to the Act, and (2) that the
complaint dated May 29, 1979, which relates to the first three
of the actions listed above, was not timely filed.
III
The Toxic Substances Control Act, in general, provides
for the development of adequate data with respect to the
effects of chemical substances and mixtures on health and
the environment, and for the regulation of such substances
and mixtures which present an unreasonable risk of injury to
health or the environment. 15 U.S.C.A. 2601 et seq . The
responsibility to carry out these purposes is entrusted to
the Administrator of Environmental Protection Agency.
In order to encourage private assistance in carrying out the
purposes of the Act, Section 23 protects employees who
render assistance against discrimination by their employers.
The threshold question in this case is whether
complainant's activities aimed at discovering and removing
asbestos hazards are protected activities under section 23
of the Act. Section 23(a), 15 U.S.C.A. 2622, provides:
(a) In general - No employer may discharge any
employee or otherwise discriminate against any
employee with respect to the employee's compensation,
terms, conditions, or privileges of employment
because the employee (or any person acting pursuant
to a request of the employee) has -
(1) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this chapter;
(2) testified or is about to testify in any such
proceeding; or
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding
or in any other action to carry out the purposes
of this chapter.
The theory underlying both complaints is that in raising the
question of potential asbestos hazards before the Allentown
School Board; in requesting an inspection of the School
District buildings by the Board and by the Pennsylvania
Department of Environmental Resources; in participating and
assisting in the inspection conducted by the Department;
and, finally, in bringing the asbestos problem to the
attention of the professional employees of the School
District and of the public at large, Hanna was engaged in
actions to carry out the purposes of the Act, within the
meaning of the last clause of section 23(a)(3). In other
words, it is not claimed that complainant commenced,
assisted or participated in any proceeding carried out pursuant
to the Act. Rather, the argument is that since control of
health hazards from chemical substances, such as asbestos,
is one of the purposes of the Act, complainant's efforts
towards discovery and removal of asbestos hazards from
school buildings fostered and advanced the underlying
policies of the Act.
I am unable to accept such a far reaching interpretation
of the statute. I am of the opinion that section 23 of
the Act protects employees who assist in some manner in the
enforcement or implementation of a provision of the Act.
And the catchall clause in subdivision (3) of section
23(a) covers only actions which have the same purpose as
those specified in the three subdivisions. I find no
support in the language of the statute or in its legislative
history3 for an interpretation which would
extend Federal
protection to employees who assist State enforcement
agencies, and even to those who undertake purely private
initiatives, simply because the State agencies and the employees
have in view a result also contemplated by the Act.In
order to be entitled to the protection of the Act it is
not sufficient that the goal of an employee's efforts
coincide with a,goal of the Act; it is necessary to take
action under the Act, ordinarily in aid of the Administrator,
for the purpose of giving effect to a provision of the
Act.
In this case, complainant's activities for which
protection is claimed were not related to the enforcement or
implementation of any provision of the Act. Indeed,
prior to May 4, 1979 complainant was not even aware of the
existence of the Act. Tr. at 232-233. I am constrained
to conclude, therefore, that Hanna's commendable efforts
towards removal of asbestos hazards from the Allentown
schools were not protected by section 23 of the Act.
IV
Although the conclusion just reached is dispositive of
both complaints, I deem it expedient to consider some other
issues presented in this case. It seems to me that the
objection to the complaint of May 29, 1979, on the ground of
untimeliness, is well taken. Section 23(b)(1) provides that
any employee who believes to have been discriminated against
in violation of subsection (a) may file a complaint with the
Secretary of Labor within 30 days of the occurrence of the
alleged violation. The complaint of May 29 relates to the
denial of leave with justification, the inquiry about. the
lesson plan, and to the ban on access to school buildings.
ALJ Ex. 1. The first two of these acts had taken place no
later than March 8, 1979, while the ban was imposed on April
3 or April 5, 1979. The thirty-day period started to
run, at the latest, on these dates and had run out by May
29, 1979.
It is true that at that time there were no regulations
establishing a procedure for the filing of complaints. I
agree with complainant that there was confusion at EPA
as to the proper contact in the U.S. Department of Labor.
But, in my view, these facts cannot control the question.
The Act itself gives notice of the Federal officer with whom
complaints may be filed, and Hanna could have filed his
first complaint by mailing it to the Secretary of Labor,
which is the way in which he filed the second complaint.
ALJ Ex. 1a. Moreover, the confusion relied on arose after
may 14, 1979, more than 30 days after the actions complained
of. See CL-11.
The probable reason for Hanna's failure to file his
first complaint on time is that he was not aware of the
statute until DeKany brought it to his attention. Assuming
that the 30-day period may be tolled on some equitable
principles, I do not think that ignorance of legal rights is
a valid excuse. See Quina v. Owens-Corning Fiberglas Corp. ,
575 F.2d 1115, 1118 (5th Cir. 1978); Cf. Bonham v. Dresser
Industries, Inc. , 569 F.2d 187, 193, note (3d Cir. 1978).
Nor could it be, without undermining the purpose of the
limitation.
V
The letter of August 6, 1979 to Secretary of Labor Ray
Marshall sets out a new complaint under the Act. The letter
alleges that the filing of the libel action against Hanna
and the Allentown Federation of Teachers was "a result in
large part" of his involvement in exposing the presence of
asbestos in the Allentown schools. ALJ Ex. 1a. In his
brief, complainant argues that the School Board's resolution
of July 26, 1979 shows on its face that the motive for the
action was to punish Hanna. I have considered the question
in the light of all reasonable inferences that may be drawn
from the language of that resolution as well as from the
circumstances surrounding the asbestos controversy. I am
unable to agree that the action was a retaliation for his
involvement in the asbestos problem.
A proper analytical approach to the consideration of
this question is suggested by the decisions of the Supreme
Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93
S.Ct. 1817 (1973), and Furnco Construction Corp. v. Waters ,
438 U.S. 567, 98 S. Ct. 2943 (1978). In view of the
difficulty of proving discriminatory motivation in the ordinary
case, where direct evidence of such motivation is likely to
be absent, a complainant may make a prima facie case by
showing actions taken by the employer from which one
can infer, if such actions remain unexplained, that it is
more likely than not that the actions were based on an
impermissible consideration. The nature of such a prima
facie showing varies from case to case, but it must be such
as to rule out the more obvious reasons for the employer's
actions. Once a prima facie case is made out, the burden
shifts to the employer to produce evidence of legitimate,
nondiscriminatory reasons. See Loeb v. Textron, Inc. , 600
F.2d 1003, 1011-1015 (1st Cir. 1979). Finally, while a
complainant need not prove that the alleged reason for
discrimination was the sole motivating factor in the conduct
complained of, he or she must show that it was the
determining factor. See Loeb v. Textron, Inc., supra , at 1019.
Considering the second complaint in the light of
these principles, I conclude that complainant has failed to
make out a prima facie case because he has failed to rule
out the most obvious reason for the libel suit, the
resentment that a publication like the July 12 memorandum is
likely to generate. I believe that the resolution of July
26, 1979 meant to authorize "appropriate action" on behalf
of the School District and its agents and employees, with
respect to the memorandum and any matter referred to in it.
In view of the strong language used in the memorandum, it is
likely enough that the members of the School Board took
offense at it.
Moreover, the commencement of the lawsuit is not an
action with respect to compensation, terms, conditions, or
privileges of Hanna's employment, within the meaning of
section 23 (a). In attempting to relate the lawsuit to his
employment, complainant contends that in order to defend
against the suit he will miss days from work and compensation
therefor, which is probable, and that the loss of such
compensation might reduce his pension at retirement, which
is speculative. But, in my opinion, such normal incidents
of litigation cannot transform a tort action into an adverse
personnel action. Thus, Hanna's second complaint must also
be dismissed on the merits.
VI
In view of the foregoing conclusions it is unnecessary
to consider the question of whether the School District is
an employer within the meaning of section 23 of the Act.
The following order is recommended:
Order
The complaints of Edward Hanna, filed on May 29, 1979
and August 6, 1979, are hereby dismissed.
NICODEMO De GREGORIO
Dated: March 21, 1980
ND:df
[ENDNOTES]
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