DATE: January 19, 1995
CASE NOS. 94-TSC-OO3 & 94-TSC-004
In the Matters of
MARRITA M. LEVEILLE
and
DANIEL J. LEVEILLE,
Complainants
v.
NEW YORK AIR NATIONAL GUARD,
Respondents
David K. Colapinto, Esq.
Mellisa C. Brown, Esq.
Kohn, Kohn & Colapinto
For the Complainants
Debra A. Scullary, Esq.
New York Division of Military
and Naval Affairs
For the Respondent
Before: JOEL R. WILLIAMS
Administrative Law Judge
RECOMMENDED DECISIONS AND ORDERS
These cases arise from a joint complaint filed under the
employee protection provisions of various Federal environmental
laws, including §2622 of the Toxic Substance Control Act, 15
U.S.C. §2622; §300J-9 of the Safe Drinking Water Act, 42
U.S.C. §42 U.S.C. §300J-9; §6971 of the Solid Waste
Disposal Act, 42 U.S.C. §6971; §1367 of the Water
Pollution Control Act, 33 U.S.C. §1367; §7622 of the
Clean Air Act, 42 U.S.C. §7622; §9610 of the
Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C. §9610, (hereafter referred to collectively as
the Acts) and the regulations promulgated thereunder, 29 C.F.R.
Part 24.
The complaint, dated January 6, 1994, alleges:
[PAGE 2]
"Briefly stated, we believe we have been subjected to
discrimination in the form of blacklisting by the New York Air
National Guard in retaliation for engaging in protected activities
under the various environmental whistleblower statutes. This
protected activity includes, but is not limited to, reporting
health and safety concerns as well as environmental problems at
Hancock Field near Syracuse, New York, in or about 1992. Upon
information and belief, the New York Air National Guard has been
providing negative references to our prospective employers because
we engaged in protected activities regarding environmental problems
at Hancock Field. On information and belief, this retaliation has
been continuous and ongoing."
By letter dated, February 24, 1994, the Assistant District
Director at Syracuse, New York, of the U.S. Department of Labor,
Employment Standards Administration, Wage and Hour Division,
notified the Complainants that a fact-finding investigation did not
substantiate that the Respondent participated in the blacklisting
activities comprising their complaint during the 30 day period
before the complaint was filed. On March 1, 1994, the Complainants
filed with the Chief Administrative Law Judge a request for a
hearing as provided by the aforementioned regulations.
I held a telephone conference with counsel for the parties
upon my being assigned to conduct a hearing in this matter and
render a recommended decision. Due to counsel's prior commitments,
it was agreed that the hearing should be delayed until July 18,
1994. Accordingly, a hearing was commenced on that date and
concluded the following day. The parties were given full
opportunity to present their respective evidence and, at counsel's
request, the record was left open to permit the filing of briefs.
The record was left open also to afford the Complainants the
opportunity to depose John M. Kennedy, Robert L. Lee and/or Lt.
Colonel H. Dewey Perkins, whose statements were admitted into the
record with such understanding. Complainants have not notified me,
within the time allotted, that they intend to proceed with such
depositions. The parties have filed their briefs and the record is
now closed.
STIPULATIONS
The parties have stipulated to the following:
1. The Department of Labor has jurisdiction over the
complaint pursuant to the aforementioned Acts.
[PAGE 3]
2. The Respondent is an employer that is covered under such
Acts.
3. The Complainants are employees as defined by the Acts.
SUMMARY OF THE PERTINENT EVIDENCE
Complainant Daniel J. Leveille (hereafter "D.J.L.") served
on active duty in the United States Air Force following his
graduation from high school. He subsequently attended Michigan
Technological University on a ROTC scholarship and received a
bachelor of science degree in electrical engineering in 1982. He
was then commissioned in the engineering squadron of the New York
Air National Guard and accepted a position as the assistant
engineer at Niagara Falls, New York. He married Complainant
Marrita M. Leveille (hereinafter "M.M.L.) in or about 1987. In
July of 1989 he transferred to Hancock Field, Syracuse, New York
and in November 1990 was promoted to Base Civil Engineer. He held
this position under the excepted provisions of the Civil Service
program which required that he be a military member of the unit at
the same time.
D.J.L.'s Officer Performance Reports of record show that he
was initially appointed as a Second Lieutenant and had been
promoted to Captain by June 1990. They show also that his duties
with the 174th Civil Engineering Squadron at Hancock Field included
being the unit environmental coordinator. (CX 5-8)
Major General Michael S. Hall, formerly commander of the 174th
Fighter Wing and currently Adjutant General of the Sate of New
York, testified that beginning in August 1990 the unit began
preparing for participation in the Gulf War and that by December
1990 about half of the unit began deploying to the Gulf.
In April 1991, the New York Air National Guard issued a
Position Description for the Environmental Management Function.
The position, titled Environmental Protection Specialist, was
described in general, as providing expert technical advice directly
to Air Commander and to have authority to speak for and represent
him/her in various installation environmental programs ensuring
compliance with military policies and regulations and federal,
state, and local statutes. The position was rated as a Grade 11
and involved, inter alia, implementation and monitoring of
various environmental programs, identifying and resolving
environmental problems, coordinating base level
facility/environmental plans, serving as installation contact and
spokesperson with local and
[PAGE 4]
state regulators. (CX-52)
In May 1991, the National Guard Bureau (NGB) issued a
memorandum providing for the establishment of an Environmental
Management Office to be staffed, in part, by an Environmental
Coordinator. The memorandum noted that all environmental functions
presently performed by the Base Civil Engineer except for
construction and programming and "[h]azardous waste accumulated by
facilities managed by the Base Civil Engineer" were to be
transferred to the new office. It was noted further:
"Special funding for all environmental work and personnel is
being developed by HQ USAF, and we would expect that funds would be
allocated in future FY based on assigned position to this
functional area."
(CX 53)
M.M.L. served in the United States Air Force and was honorably
discharged because of service-connected disabilities for which she
receives compensation from the Department of Veterans Affairs. In
May 1991 she received a bachelor of science degree in chemistry and
biology from Cornell University. She was interested in a career in
environmental protection and began seeking a position in this
field.
An Officer's Performance report for D.J.L., for the period
ending June 30, 1991, noted that he met standards in all categories
and included the comment by Lieutenant Colonel Robert Purple,
Deputy Commander for Support, that D.J.L. "can handle any increased
responsibility assigned to him and is ready now." (CX-9)
By July 1991 all of the 174th's personnel had returned from
their deployment to the Gulf. This included Colonel Purple, who
after taking his accrued leave, returned to his duties as the then
Deputy Commander for Support for the unit. Colonel Purple
testified that in the Fall of 1991, he was approached by D.J.L.
with the request that his wife be considered for the newly
established environmental coordinator position. Colonel Purple had
or anticipated a problem in filling the position on a permanent,
competitive basis at Grade-11 and, on advice of the Support
Personnel Management Office, determined that because of her
veteran's status, M.M.L. could be hired on a temporary basis.
M.M.L. testified that it was her understanding that the
position would be made permanent after 120 days. Colonel Purple
testified to the effect due to budgetary reasons he offered no
guarantee to M.M.L. that her temporary status would be limited to
[PAGE 5]
120 days.
As M.M.L. did not have sufficient experience to qualify for
a Grade-11 position, it was necessary to hire her at a Grade-7
level. According to Colonel Purple, this was with the
understanding that , "if everything worked out and all went well,"
she could reach Grade-11 status within two years.
Upon commencing work for the Respondent in October 1991 M.M.L.
was assigned to the supervision of Lieutenant Colonel (then Major)
Richard Mueller for administrative purposes. This was to include
assisting her in arranging her office and obtaining supplies.
Colonel Mueller testified, in substance, that there were problems
in this regard in that "she might not have liked my answer as far
as what she could have or what she couldn't have." He specifically
noted computer equipment that she requested as an example. He
acknowledged on cross examination that it was not unusual for
civilians to have "an adjustment problem with respect to the
military requisition process." Colonel Mueller testified further
that he had talked to M.M.L. about complaints that she was
demanding and uncooperative, which he had received from others, and
that her response was that "she pretty much wanted to do what she
wanted to do when she wanted to do it."
M.M.L. testified that she began discovering environmental
problems at Hancock Field three days after starting work there when
there was a jet spill, and there was no safety equipment for
workers. She subsequently discovered, and photographically
documented, a number of other problems, and she considered Hancock
Field to be "out of control with respect to the protection of the
environment and the people that worked in it."
In December 1991 M.M.L. traveled, with D.J.L, to the Air
National Guard Bureau at Andrews Field for the purpose of
explaining the requests she had made for funding to take care of
the environmental problems on the base. Upon her return, she met
with Colonel Purple and advised him that there were serious
violations in the hazardous waste area and proposed that he could
call the DEC (New York State Department of Environmental
Conservation) and let them know that the base was in serious
violation but that she was taking care of the problems, call the
Guard Bureau and seek their assistance in the matter, or "he could
, basically, do nothing." M.M.L. testified that Colonel Purple
became very angry and upset, said that "DEC cannot touch this base"
and accused her of being "in a panic" and "paranoid."
Complainant's Exhibit 46 is a "Memo for Record," dated
December 19, 1991, which purportedly documents M.M.L.'s meeting
[PAGE 6]
with Colonel Purple. He testified that he was aware of
environmental problems on the base and that he was awaiting the
receipt of funds that M.M.L. was obtaining in order to correct
them. As to his meeting with her on December 19, 1991, Colonel
Purple testified that he didn't think he would have said "let the
DEC try and come after me" as he was aware that DEC exercised
control over the base in environmental matters. He had no problems
with DEC in the past except for an incident unrelated to the base
being out of compliance on environmental matters. He stated
further that he would not have called M.M.L. "paranoid" and offered
a personal reason for not using this term.
M.M.L. chaired a meeting of the Environmental Protection
Committee on January 7, 1992. The minutes of this meeting and
attachments thereto identify a number of environmental problems at
Hancock Field. (CX 29).
General Hall testified that he did not learn of the January 7,
1992 meeting in time to attend as he had been on leave and did not
return until that day. "Having missed the meeting and having
become aware that there was a tension among staff...about where we
stood environmentally" General Hall requested that M.M.L. sit down
with him and brief him on the list of things she felt was wrong on
the base with a sense of priority so that they could clean them up.
He also wanted to meet with her for the following reason:
"I felt that as a new employee on the base I had become aware
of several instances, one in particular, where she could have been
more effective had her behavior during the interaction been
different than it was, and I thought we needed to work with her to
help her feel that she did not need to behave in the way in which
she had in order to get the job done; that, rather, there was
another style of doing business, which would be a better way of
doing business."
One incident mentioned specifically by General Hall was a
report of M.M.L.'s having secretly recorded a conversation with a
co-worker.
General Hall met with M.M.L. on January 21, 1992. He asked
her at that time to review with him the environmental situation on
the base. At that time she handed him a report and said, "It's all
in there, you can read it." This was not what he expected in the
way of a briefing.
The aforementioned report follows:
"1. The purpose of this report is to advise, inform, and offer
[PAGE 7]
counsel to the Air Commander pertaining to the environmental
problems at Hancock Field.
a. My job description contains the requirement to report to
the Air Commander on matters that could bring a notice of violation
or a fine from regulatory agencies. Attached is an expanded
version of the talking paper I used for the Environmental
Protection Committee (EPC) Meeting on 7 Jan 92. The EPC handout
from that meeting contains the reference used in this talking
paper. Specific areas where the base is violating environmental
laws are emphasized.
b. I strongly advise the Air Commander to completely read this
report. Thereafter, contact the Environmental Branch of the Air
National Guard Readiness Center located at Andrews Air Force Base,
Maryland. I also advise him to provide a copy of this report to
the base JAG Officer (174 FW/JA).
2. The lack of "command interest" and support for my function is
evident in the following areas:
a. The failure of the Air Commander to attend the
Environmental Protection Committee Meeting on 7 Jan 92.
b. My job description specifically states
that I work directly for the DCS or Air Commander. My assignment
[PAGE 8]
to Major Mueller, an underling of the DCS, has proven to be a
hindrance to the environmental mission.
c. The staff at the ANGRC/CEV questioned me,
on 17 Dec 91, while defending the
environmental funding requested for Hancock
Field. They advised that the violations in
the hazardous waste arena could bring a notice
of violation or fines from regulatory agencies
on base. Therefore, a decision to notify
NYSDEC or to remain silent was to be made by
the DCS. Accordingly,
the situation should be brought to the attention of the
DCS immediately upon my return. On 19 Dec 91, I
accomplished this task, only to be informed by LTC Purple
that my concerns and advice were unfounded.
He stated that the regulatory agencies cannot touch this
base. Furthermore, the urgency of my efforts to correct
the problem was based on paranoia and panic. I strongly
feel LTC Purple has erroneously interpreted the facts.
d. I submitted a package identifying modular
furniture and computer requirements for the
EPS office through Major Mueller within the
first two weeks of my starting date. These
items have yet to be ordered.
e. The responsibilities of my position are
tremendous and vital to the mission of Hancock
Field. Inherent with the delegation of
responsibility is the requirement of
authority.
4. Hancock Field as a whole is out of control concerning
the protection of the environment and the people that
work in it. I submit this report as evidence of the
apparent disregard for the environment at Hancock Field."
General Hall considered that the report fit into the pattern
he was concerned about in regard to M.M.L.'s personal skills. He
testified further that he again met with her at the end of January
upon his return from a week's deployment in Europe. By that time
he had already contacted DEC, with whom he had a good working
relationship in the past, and asked that they conduct a thorough
review of the base so that "we could reach agreement about exactly
where we were on the base and what needed to be done to clean it
[PAGE 9]
up." He informed M.M.L. that he had chosen this course rather
than going to the National Guard Bureau and that the team would be
arriving the first week in February. Upon being informed by her
that she would be at a training schedule in Washington that week,
General Hall arranged to postpone the DEC visit because he wanted
her to be present.
The testimony of Lieutenant Colonel Richard F. Blansett, the
Comptroller for Hancock Field, that of General Hall and Financial
Management Board meeting minutes of record are to the combined
effect that a reduction in the funding of the unit for Fiscal Year
1992 necessitated a 2.5 percent, across the board reduction in
expenditures for that year. In order to absorb this reduction as
it related to the civilian personnel costs, a decision was reached
on or about February 9, 1992 to eliminate all of the approximately
ten civilian personnel temporary positions. General Hall testified
in this regard that he retained the temporary employees as long as
possible, that is until it came to the point that the ability to
pay permanent personnel, who had retention rights over temporaries,
was being jeopardized.
General Hall continued that about the fourteenth of February
he learned that National Guard Bureau was sending up a team to
investigate the subject of their environmental compliance. He
contacted Brigadier General Shepperd, the Deputy Director of the
Air National Guard, and learned that he had "seen evidence of
environmental problems at Hancock Field in the form of photography"
and that the Bureau had decided to send a team to investigate.
General Shepperd had not been made aware of the scheduled DEC
inspection. Based on the information furnished by General Hall, it
was decided by the Bureau that instead of an investigation, they
would conduct an Environmental Compliant and Management Assessment
(ECAMP) the following week.
Because of "interest generated in the event", General Hall
decided that it was appropriate to do what he had always done on
the base and that is to inform the public. A press release was
issued which stated that because of concerns about environmental
compliance on base, a team would be visiting to assist them to
understand their environmental situation and plan to remedy it.
The ECAMP was conducted February 18 to 21, 1992 and exhibits of
record show that it received both newspaper and television
coverage. This included interviews with M.M.L., who testified to
the effect that this was with reluctance on her part. The
television coverage depicted her accompanying the ECAMP team on
their tour of the base. (CX 31 & 63)
[PAGE 10]
M.M.L. was notified officially on February 19, 1992 that her
position was being eliminated due to the lack of funds. A
newspaper article on February 21, 1992 is headlined "Environmental
Worker Looses Air Base Job, and one of the television news programs
refers to her as a whistleblower who lost her job. The termination
became effective on March 7, 1992. Notification of Personnel
Action forms of record show that ten other employees were
terminated at or about the same time with the reason for
termination being for lack of funds. (RX 13-24)
Work Search Records prepared by M.M.L. for the New York State
Unemployment Insurance Division indicate that she began applying
for work in the environmental protection field on a nationwide
basis beginning on March 10, 1992. (CX-25).
An Application for Federal Employment of record prepared by a
Timothy Sager shows that he was employed at the 174th as an acting
environmental protection specialist in an E-9 (military) capacity
from March 23, 1992 to September 5, 1992 and as a civilian from
September 6, 1992. Colonel Blansett's testimony was to the effect
that they did not experience the same funding difficulty for
military positions (workdays) as they did for civilian positions.
The record includes memoranda written by D.J.L. on March 11,
1992 to a CMS Dix referable to the use of DMNA state employees for
environmental projects and an exchange of memorandums in April 1992
with a Major Boyce referable to responsibility for asbestos
removal. (CX35&36)
An application for employment as an Environmental Protection
Specialist was submitted by D.J.L. to the Georgia Air National
Guard on April 14, 1992. (CX-17&61J)
On May 18, 1992 D.J.L. filed an action request with the
Inspector General in regard to the probability of fraud in the
termination of M.M.L. and subsequent abuse of hiring practices by
the 174th. He subsequently met with the Inspector General and
conducted him on a tour of the base to point out environmental
problems. He testified that as persons who are being interviewed by
the Inspector General must sign up for an appointment, his
superiors must have known that he had filed the complaint.
D.J.L. testified that immediately after meeting with the
Inspector General he was relieved of his supervisory
responsibilities for the base fire department. Colonel Purple
testified that this was due to the fire department having received
an unsatisfactory rating during a Unit Effectiveness Inspection
(UEI). Colonel Purple was of the opinion that as the base civil
[PAGE 11]
engineer, D.J.L. could have taken steps to prevent this rating
which reduced the Units overall effectiveness rating. D.J.L. opined
that as the inspection was a military one, and he did not have
supervision of the fire department from a military standpoint, he
bore no responsibility for the unsatisfactory rating.
Colonel Purple's May 29, 1992 endorsement of D.J.L.'s Officer
Performance Report for the period ending April 15, 1992, did not
include language such as "can handle any increased responsibility
assigned to him and is ready now." (CX-9). D.J.L. testified to the
effect that the failure to use such terminology has an adverse
effect on one's promotability. He believed that he was being
retaliated against for his and his wife's environmental activities
and gave the following as his basis for this belief:
"...There was a comment circulated on the base that I heard through
scuttlebutt, which is hearsay, and I recognize that, but when you
hear that you are never going to be the commander of a squadron
because you can't control your wife, that cuts to the quick, and
that hurts--that hurts my career aspirations, and it's credible
because, in the military world, what your wife does is important
and can affect your career, and I felt my career was hurt at
Syracuse for actions which were not mine."
In May 1992 D.J.L. began filing applications with other Guard
units. This included a GS-11 position with the Virginia Air
National Guard at Sandston, Virginia. (CX17&61)
The initial ECAMP report was issued in July 1992 and noted
that there were no "Significant Deficiencies" identified during the
February 1992 survey. A "Significant Deficiency" is defined in the
report as a problem requiring immediate action as it poses or is
likely to pose a direct and immediate threat to human, health,
safety, the environment, or the installation mission. There were
a total of 14 "Major Deficiencies," defined as a problem which
usually results in a notice of violation from regulatory agencies
and which requires action, but not necessarily immediately. There
were also 22 "Minor Deficiencies" which are defined as being mostly
administrative in nature. An ECAMP Combined Findings Review, dated
August 6, 1992, indicates that the majority of the problems had
been corrected and that the few remaining were in the process of
being corrected. (RX-12)
D.J.L. began a temporary appointment as a GS-11 Civil Engineer
with the Virginia National Guard in October 1992 with the same
salary that he earned with the Respondent as a GS-12.
[PAGE 12]
(CX-59).
M.M.L. continued her search for employment until February 1993
when she was hired as an Environmental Protection Specialist, GS-7,
with the Department of Transportation in Raleigh, North Carolina.
She received favorable progress reports for this position for the
Months of February and March 1993. She testified that thereafter
her relationship with this employer changed in that "they no longer
felt that [she] was the person they hired due to the derogatory
information they received from Lieutenant Colonel Purple." She
stated that she learned this at a meeting where she was told by her
training supervisor that they had heard that she had a problem
going around her supervisors and that if it happened there "she
would be gone." When she asked where this information came from
she was told that the matter had been discussed at a staff meeting
and that the source was Colonel Purple. She submitted into
evidence a 24 Hour Schedule page for April 12, 1993 which she
stated was her contemporaneous documentation of this event. (CX-21)
Colonel Purple testified that he did not speak to any of her
coworkers at the Federal Highway Administration and did not know
that she worked there. Robert L. Lee, who was M.M.L.'s supervisor
at the Federal Highway Administration, stated the following in a
letter dated July 15, 1994:
"To the best of my knowledge and recollection, I was never
contacted by, nor did I contact the New York National Guard, about
Ms. Leveille. I am not aware of any negative references or
comments dealing with her previous employment."
(RX-34)
M.M.L. submitted her resignation to the Department of
Transportation, effective May 2, 1993. (CX-54). In a Notification
of Personnel Action regarding her resignation it was noted: "Reason
for Sep= Upon advice of counsel, am not at liberty to discuss at
this time." Her salary at the time was $22,717. (CX-55) She
testified that she left this job because she was "extremely
distressed after finding that Lieutenant Colonel Purple came to get
me at a job" and that he had "ruined my reputation beyond repair."
As a result of her resignation she was required to reimburse the
Federal Highway Administration for moving expenses in the amount of
$2,809.95. (CX-57&58)
Thereafter, on May 14, 1993 M.M.L. filed a Freedom of
Information Act (FOYA) request with the U.S. Office of Personnel
Management for "[a]ll information which was provided by all
individuals contacted by your agency" in regard to a National
[PAGE 13]
Agency with Written Inquiries (NACI) which had been ordered by the
Department of Transportation. (CX-26)
On May 20, 1993, Mr. Colapinto wrote to Col. Purple as
follows:
"We represent Ms. Marrita Leveille who formerly worked as a
civilian employee at Hancock Field as an Environmental Protection
Specialist (GS-0028-07) between 31 October 1991 and 7 March 1992.
Ms. Leveille is concerned that the New York Air National Guard may
have provided negative and/or derogatory information about her to
prospective employers.
"As you are probably aware, during the course of Ms.
Leveille's former employment at Hancock Field she raised several
significant health and safety issues. If, in the past, the New
York Air National Guard or its representatives has provided
negative and/or derogatory information about Ms. Leveille such
action would constitute blacklisting and violate federal and/or
state law.
"Please be advised that Ms. Leveille will initiate legal
action if the New York Air National Guard, or its representatives,
officially or unofficially releases information concerning Ms.
Leveille, other than her dates of employment, positions held, grade
and rate of pay, to any third party or prospective employer."
(CX-38)
M.M.L. was selected as an Environmental Inspector for the
Commonwealth of Virginia, Office of Water Programs, in Richmond,
effective on June 1, 1993, at a salary of $21,500 per year. She
was still employed in this position at the time of the hearing.
Documented Reference Check (DRC) is a Diamond Bar, California,
company which specializes in obtaining reference
for individuals from their previous employers in the following
manner:
"All orders are contracted out to other agencies with
different names, addresses and telephone numbers. Rather than
employ deceit, these contractors will identify themselves properly,
welcoming correspondence and return calls by your employer. This
protects your confidentiality, so your employer has no idea that
you initiated the investigation and no clue the original order was
placed with DRC. We diligently gather all available facts
regarding your work history and verify additional information such
[PAGE 14]
as employment dates, titles, salary and other pertinent facts. The
conversation by your previous employer will be documented. A
written report is then generated and promptly forwarded to you. If
you never litigate, you still have access to similar information
that potential employers gather before making an offer of
employment."
(CX-39)
On June 28, 1993, M.M.L. placed an order with DRC for a
reference check with the Respondent and specified that Colonel
Purple was to be contacted first. She testified that this was done
on advice of her counsel. (CX-40)
The initial response to M.M.L.'s FOYA request is dated
September 10, 1993. It included Certification of Identification
which indicates that a report had been furnished the Department of
Transportation on July 26, 1993, when the case was closed, but does
not show that a Final determination had been made. Included with
this certificate was a "sanitized" Investigative Request for
Employment Data and Supervision Information wherein the only
discernable information is to the effect that the person responding
would not recommend M.M.L. for government security clearance or
employment but had no reason to question her loyalty to the United
States, honesty or trustworthiness. The form does not identify any
inquiring agency other than the Office of Personnel Management.
(CX-27)
D.J.L. applied for a position with the Pennsylvania National
Guard as a Supervisory Civil Engineer in November 1993.
In an addendum to this application he described the circumstances
of his departure from the 174th as being "an example of the
struggle which can exist when two people must manage their
independent professional careers." He explained that his wife had
been unable to obtain employment in Central New York after her
temporary employment from October 1991 through March 1992 had ended
"when economic factors curtailed the firms ability to hold on to
their temporary employees" and that her employment prospects
appeared to be better in the Richmond area where he had accepted a
position as a GS-11. (CX 61h, pg 32).
DRC attempted to contact Colonel Purple on almost a daily
basis beginning on September 23, 1993. Contact was established on
November 2, 1993 and in a report to M.M.L., dated the same day, the
following dialogue was stated:
"MIKE RANKIN: 'Lieutenant Colonel Purple? This is Mike Rankin. I
have a resume here from a former associate of yours, a Marrita M.
[PAGE 15]
Leveille. You may know here as May. I can better understand how
to work with her here, if I understand what she did there?'
LT. COL. PURPLE: 'So, how can I help?'
MIKE RANKIN: 'I do show that she was Environmental Protection
Specialist. That probably means a lot to you there, but as an
outsider I don't know what it means.'
LT. COL. PURPLE: 'She worked in the environmental as a GS-7. She
was qualified to be higher because of education and time and things
like that. She was temporary with us.'
MIKE RANKIN: 'So that was just a temporary position?'
LT. COL. PURPLE: 'Yes sir.'
MIKE RANKIN: 'I'm glad you mentioned that. It did seem to be a
short period. I thought maybe there was a problem.'
LT. COL. PURPLE: 'From October '91 until late '91, I think it was
March.'
MIKE RANKIN: 'Why did she leave?'
LT. COL. PURPLE: 'At the base we layed off all our temporary
people.'
MIKE RANKIN: 'Did she have any noteworthy accomplishments or
projects during that time?'
LT. COL. PURPLE: 'Not that I am aware of.'
MIKE RANKIN: 'Did she ever supervise or manage any other
employees?'
LT. COL. PURPLE: 'Just her husband.'
MIKE RANKIN: 'Okay, that was just one other employee?'
LT. COL. PURPLE: 'That was a joke.'
MIKE RANKIN: 'Did he actually work there?'
LT. COL. PURPLE: 'Yes."
[PAGE 16]
MIKE RANKIN: 'She had him on a short rope?'
LT. COL. PURPLE: 'He was a base Engineer.'
MIKE RANKIN: 'Just for clarification on that; did that interfere
with her performance?'
LT. COL. PURPLE: 'Yes.'
MIKE RANKIN: 'It did interfere with her performance. Did it
interfere with his performance?'
LT. COL. PURPLE: 'Yes.'
MIKE RANKIN: 'Okay, that might be one reason why she is not there.'
LT. COL. PURPLE: 'Could well be.'
MIKE RANKIN: 'How was her interpersonal skills with management,
such as yourself?'
LT. COL. PURPLE: 'With me fine, any one else not too good.'
MIKE RANKIN: 'Was she a combative employee? Argumentive?'
LT. COL. PURPLE: 'Yes.'
MIKE RANKIN: 'To put you in the shoes of a potential employer,
would you hire Marrita Leveille?'
LT. COL. PURPLE: 'No, I would not.'
MIKE RANKIN: 'And is that because of her poor interpersonal
skills?'
LT. COL. PURPLE: 'Yes, that is part of it.'
MIKE RANKIN: 'Any problems with attendance or tardiness?'
LT. COL. PURPLE: 'No.'
MIKE RANKIN: 'And work habits was she a productive employee?'
LT. COL. PURPLE: 'Until the interpersonal skill interfered.'
MIKE RANKIN: 'I guess Ms. Leveille played a big part in
productivity, and if she is hurting morale than she is going to
hurt productivity?'
[PAGE 17]
LT. COL. PURPLE: 'Probably. But I do have to get going.'
MIKE RANKIN: 'Alright, I know you are a busy man, unless there is
something further you would like to add?'
LT. COL. PURPLE: 'No sir. I think you know how to listen between
the lines.'
MIKE RANKIN: 'Yes. I am getting your message loud and clear so I
believe you are telling me to put a red flag on Marrita Leveille.
I will make a note of this and move this on to the next step.'
LT. COL. PURPLE: 'Okay, thank you for your time.'
MIKE RANKIN: 'Bye.'
LT. COL. PURPLE: 'Bye.'"
(CX-41)
Colonel Purple testified that the reference to M.M.L.
supervising her husband was said laughingly and was intended as a
joke. He explained that "people who know me realize that I refer
to my wife as the war department, things like that." In regard to
why he believed that M.M.L.'s relationship with her husband
interfered with her performance, Colonel Purple stated:
"It means that they probably work too closely together. It's
a mistake, and I knew it at the time when Mr. Leveille asked me to
hire his wife. Usually, its a mistake to have husband and wife in
extremely close proximity. The law absolutely forbids to be in a
supervisory capacity of any kind, in any chain, military or
civilian, but its gotten somehow that even in the same squadron is
a no-no, and our ACT Union is against that, and I think they were
probably too close."
M.M.L. testified that she received a copy of the report by
telecopier on December 9, 1993 and subsequently received a copy by
mail. The postmark on the original of the envelope in which the
report was mailed is unreadable. It bears the legend "Merry X-Mas
Happy New Year." (CX-41)
A Memorandum for Record, prepared by M.M.L. and dated January
3, 1994, refers to a job interview she had with a John Kennedy
wherein he reportedly showed less interest in hiring her for a
position with the Virginia Department of Environmental Quality than
[PAGE 18]
he had expressed previously. She "suspected" that this was due to
his having contacted Colonel Purple and surmised that his comments
were sufficient to discourage the department from hiring her. (CX-
18).
Colonel Purple testified that he had not been contacted by the
aforementioned for a reference and the record includes a letter
from John Kennedy stating that no such contact was made. (RX-32)
On February 18, 1994 the Office of Personnel Management, in
response to her FOYA appeal, forwarded to M.M.L. another copy of
the aforementioned investigative request form. This had also been
sanitized except that it now showed that she had been "discharged
because of company cutback in workforce or change in skill needs."
(CX-67) M.M.L.'s resumes do not show that this was a reason for her
leaving any other positions. (CX-62)
D.J.L. was appointed as a Supervisory Civil Engineer, GS-12,
in the Pennsylvania National Guard effective April 3, 1994. At the
time of the hearing he held the rank of Major in the National
Guard.
Both complainants underwent a psychological evaluation by
Edwin N. Carter, Ph.D., on July 7, 1994. Reports of the same are of
record (CX-43) and Dr. Carter testified at the hearing regarding
the effect the Respondent's alleged adverse actions have had on the
Complainant's lives. They have also offered testimony to the same
effect.
FINDINGS AND CONCLUSIONS
Section 2622(a) of the Toxic Substances Control Act (TSCA)
provides:
"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 the 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 purpose of this chapter."
[PAGE 19]
Either by employing the same or similar language, all of the
other Acts proscribe the same conduct.
Section 2622(b)(1) of the TSCA provides, in pertinent part:
"Any employee who believes that the employee has been
discharged or otherwise discriminated against by any person in
violation of subsection (a) of this section may, within 30 days
after such alleged violation occurs, file (or have any person
file on the employee's behalf a complaint with the Secretary of
Labor..." (Emphasis added.)
Each of the other Acts contain the same 30 day time limit for
the filing of a complaint.
Based on the Supreme Court's holdings under analogous laws in
Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981) and Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, the Secretary of Labor (the
"Secretary") held in Dartley v. Zack Company of Chicago,
82-ERA-2 (Op. Sec'y, April 25, 1983) that the following general
principles will be applied to cases arising under the Acts
enumerated in 29 C.F.R., Part 24:
"Under Burdine, the employee must initially present a
prima facie case consisting of a showing that he engaged in
protected conduct, that the employer was aware of that conduct and
that the employer took some adverse action against him. In
addition, as part of his prima facie case, 'the plaintiff must
present evidence sufficient to raise the inference that...protected
activity was the likely reason for the adverse action.' Cohen v.
Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982) (applying
Burdine to a retaliatory discharge claim under section
704(a) of Title VII). If the employee establishes a prima facie
case, the employer has the burden of producing evidence to rebut
the presumption of disparate treatment by presenting evidence that
the alleged disparate treatment was motivated by legitimate,
nondiscriminatory reasons. Significantly, the employer bears only
a burden of producing evince at this point; the ultimate burden of
persuasion of the existence of intentional discrimination rests
with the employee. Budine, supra, 450 U.S. 248, 254-255. If
the employer successfully rebuts the employee's prima facie case,
the employee still has 'the opportunity to demonstrate that the
proffered reason was not the true reason for the employment
decision... [The employee] may succeed in this either directly by
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer's
proffered explanation is
[PAGE 20]
unworthy of credence.' Id. at 256 (citation omitted in
original.) The trier of fact may then conclude that the employer's
proffered reason for its conduct is pretext and rule that the
employee has proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the employer was
not motivated, in whole or in part, by the employee's protected
conduct and rule that the employee has failed to establish his case
by a preponderance of the evidence. Id. at 254-265.
Finally, the trier of fact may decide that the employer was
motivated by both prohibited and legitimate reasons, i.e., that the
employer had 'dual motives.'
"Under Mt. Healthy, if the trier of fact reaches the
latter conclusion, that the employee has proven by a preponderance
of the evidence that the protected conduct was a motivating factor
in the employer's action, the employer, in order to avoid
liability, has the burden of proof or persuasion to show by a
preponderance of the evidence that it would have reached the same
decision even in the absence of protected conduct. Mt. Healthy,
supra, 429 U.S. 274, 287; Consolidated Edison Company of New
York v. Donavan, supra, 673 F.2d 61, 63."
To my knowledge, neither the Secretary nor the Courts have
altered the forgoing respective burdens of production and proof in
cases arising under the Acts with which we are here concerned.
With these principles in mind, I now turn to an individual analysis
of each Complainant's case.
MARRITA M. LEVEILLEProtected Activity
Citing Brown & Root, Inc. v. Donavan, 774 F.2d 1029
(5th Cir. 1984), the Respondent contends, in substance, that
M.M.L. can not be considered to have engaged in protected
activities under the Act because her expressions of environmental
concerns were her job responsibility and were internal in nature.
However, as noted by the Complainants, the Secretary has declined
to follow Brown v. Root and has instead relied on
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159
(9th Cir. 1984); Consolidated Edison Co. of N.Y., 673 F.2d
61 (2d Cir. 1982) and; Kansas Gas & Electric Co. v. Brock,
780 F.2d 1505 (10th Cir. 1985), cert denied, 478 U.S.
1011)(1986) to hold that internal complaints by employees engaged
in work as inspectors are protected activities under the Acts.
M.M.L.'s two January 1992 memoranda fall clearly into the category
of internal environmental complaints and document her engagement in
protected activity.
[PAGE 21]
Employer's Awareness
To establish the scienter element, the evidence must show
that the person or persons, who were responsible for taking the
alleged adverse on behalf of the employer, had knowledge of the
protected activity when the alleged action was taken. Crosier
v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994);
Floyd v. Arizona Public Service Co., 90-ERA-39. Again, I
have no hesitation in finding that the person alleged to have taken
the adverse action which forms the basis of M.M.L.'s complaint,
i.e., Colonel Purple, had knowledge of her protected activities.
Timeliness of Complaint
M.M.L. concedes, and I so find, that her complaint is not
timely in regard to her termination in March 1992. Her complaint
is predicated instead on the Respondent's having "blacklisted" her
by way of adverse references purportedly given by Colonel Purple.
In regard to the alleged April 1993 incident at the Federal
Highway Administration, I find that her complaint is also untimely.
Assuming arguendo that conversations with Federal Highway
Administration took place as testified to and memorialized by
M.M.L., she had until May 12, 1993 to file a complaint under the
Acts based on the information she received at that time. Such a
complaint would have triggered a timely investigation by the
Department of Labor whereby sources of any adverse information
could have been identified through interviews with the persons
involved. It appears from the record that she had been in contact
with an attorney at that time and I know of no equitable reason to
toll the time limit for this incident.
This leaves for consideration the references given in
response to the Office of Personnel Management's request and during
the dialogue with DRC. I find her complaint to be timely as to
both. As to the latter, I accept her testimony that she was not
furnished with a report by DRC until December 9, 1993 and the
complaint was filed within 30 days from such date. As to the
former, she had no way of identifying the source of this adverse
reference until the Office of Personnel Management furnished her
with a copy of the reference response with sufficient data, i.e.,
the reference to the layoff, to permit an identification of the
source. This, of course, did not occur until after the complaint
was filed and I consider that it has been amended to include this
reference.
[PAGE 22]
Adverse Action
I find that M.M.L. has failed to establish that she has
not been able to obtain or retain employment as the result of
references provided by Colonel Purple or any other person in the
Respondent's employ. The reference to the Office of Personnel
Management was referred to the Federal Highway Administration
subsequent to her voluntarily resigning from that agency. She did
become employed subsequently by the Commonwealth of Virginia and I
am convinced by Mr. Kennedy's statement that her failure to obtain
a different job with the Commonwealth was not due to any adverse
information furnished by the Respondent.
Nevertheless, M.M.L. contends that the act of "badmouthing" by
Colonel Purple, standing alone, "is sufficient to recover remedies
under the acts and [she is] not required to show [she] did not
actually get a job as a result in order to prevail." However, the
only case she cites to support this view is Bryant v. EBASCO
Services, Inc., 88-ERA-31, (Op. Sec'y, Apr. 21, 1994).
Although Bryant recognizes that "blacklisting based on a
complainant's protected activity" constitutes a prohibited
adverse action, I find nothing in the language of Secretary's
opinion or in the facts of the case which suggest that no resulting
employment injury need be shown. In fact, the Secretary noted
specifically in Bryant that the complainant had testified
that he had been rejected for positions with other nuclear
employers over a two year period.
In Howard v. Tennessee Valley Authority, 90-ERA-24 (ALJ
Rec. D&O, Sep. 14, 1990), the Administrative Law Judge, after
reviewing the Secretary's opinions in cases involving complaints of
blacklisting, held:
"Accordingly, I conclude that in order to set forth a valid
claim of black listing, it is necessary to allege, among other
elements, an actual employment injury."
I agree with this conclusion. It follows that in order to
prevail in such a claim, an actual employment injury must be
proven.
In any event, M.M.L. has failed to present evidence that
raises the inference that her protected activities was the likely
reason for the adverse references. Even if she had raised such an
inference, the Respondent has articulated and proven that there was
a legitimate reason for these references other than her protected
activities.
[PAGE 23]
There is no mention by Colonel Purple in his conversation with
Mr. Rankin of M.M.L.'s protected activities. He was led to infer
instead that the spousal relationship, her being a combative and
argumentive employee and her otherwise having poor interpersonal
skills were the reasons why he would not hire M.M.L.
I can not say that these perceptions of Colonel Purple were
unreasonable or unfounded under the circumstances of this case. She
had been involved in disagreements with Major Mueller over the
equipment of her office. She was confrontational in her meeting
with Colonel Purple in December 1991. Her January 21, 1992 meeting
with General Hall was confrontational likewise. The tone of her
memorandum of the same date is not what a career military person
would have expected from a subordinate, military or civilian. She
was argumentative with General Hall in their second meeting
regarding the agency which would be called in to identify
environmental problems and advise as to what corrective actions
needed to be taken. She then went to the National Guard Bureau
with her photographic documentation which, at the least, gave the
appearance of "going behind the back" of General Hall. collection.
M.M.L. contends that employees are protected under the Acts
even if they bypass the chain of command or go 'around established
channels" in bringing forth environmental concerns. However, I
find the authorities cited in support of this contention to be
distinguishable from the instant case. In Saporito v. Florida
Power & Light Co., 89-ERA-7/17 (Sec'y's Remand Order, June 3,
1994), the employee expressed no environmental concerns to his
employer. In Pillow v. Bechtel, 87-ERA-35 (Op. Sec'y, July
19, 1993); Nichols v. Bechtel, 87-ERA-44 (Op Sec'y, October
26, 1992); McMahon v. Calif. Water Control Bd., 90-WPC-1
(Op. Sec'y, July 16, 1993) the employees either bypassed a
supervisor or the respondent altogether in identifying safety or
environmental concerns.
Here M.M.L. bypassed no one in the Respondent's organization
in identifying environmental concerns. It was not the raising of
the complaints which caused the problem. Rather, it was her
disagreement with General Hall as to how to deal with them. This is
what led to her second contact with the National Guard Bureau. Had
General Hall indicated that he intended to do nothing about
M.M.L.'s environmental concerns, her contact with the National
Guard Bureau would have constituted protected activity in my
opinion. Such was not the case. General Hall conveyed to her not
only an intent to seek solutions for her concerns but also plans to
do so which he had already put in motion. To his thinking, DEC was
the correct route to go even if it involved potential criminal
liability. He was the person "in charge." M.M.L.'s obvious
unwillingness to accept this does not constitute protected
[PAGE 24]
activity.
Accordingly, I conclude that any adverse reference(s), which
form the basis for M.M.L.'s complaint, were not in retaliation for
her having engaged in protected activity. It follows that I must
recommend that her complaint must be denied.
Daniel J. Leveille
Protected Activity
D.J.L contends, inter alia, that he should be
considered to have engaged in protected activities because of his
spouse's activities. I agree. Although the case which he cites in
support of this theory, Marshall v. Georgia Southern
College, 489 F. Supp. 1322 (M.D. Ga. 1980) aff'd, 765
F.2d (11th Cir. 1985), arises under the Fair Labor Standards Act,
29 U.S.C. §§201, et seq., the employer's conduct
proscribed in that Act is comparable to that in the Acts with which
we are concerned. The District Court reasoned that to not extend
protection to the spouse of the one who did the actual complaining
would subvert the purpose of the statute with impunity through
"indirect retaliations." As noted by D.J.L, Marshall was
cited favorably (by way of dicta) by the Secretary in Assistant
Secretary v. S&S Sand and Gravel, Inc., 92-STA-30, (Op. Sec'y,
Feb. 2, 1993), a case arising under like employee protection
provisions of the Surface Transportation Act. Consequently, I find
that D.J.L. has engaged in protected activity under the Acts.
Employer's Awareness
As I have found that D.J.L.'s protected activity derives
from that of M.M.L., and as I have found that the Respondent was
aware of her activities and their marital relationship, it
logically follows that the requisite scienter is established as to
D.J.L as well.
Timeliness of Complaint
Although D.J.L. has submitted evidence in an attempt to
establish that the Colonel Purple retaliated against him for
protected activities by way of a less than desirable Officer
Performance Report, his complaint was filed much too late to
embrace any such action. His complaint,as was M.M.L.'s is based on
alleged "blacklisting" activities against him by the Respondent.
Therefore, consideration thereof must be confined to whether any
attempt to blacklist him occurred within 30 days of its filing
date.
[PAGE 25]
Adverse Action
I find that D.J.L. has failed to establish that the
Respondent has engaged in any blacklisting activity against him by
giving an unfavorable reference(s) or otherwise.
The mere fact that D.J.L. was mentioned in Colonel Purple's
conversation with Mike Rankin does not constitute an attempt to
blacklist him. Such reference was purportedly given in jest as a
reflection of Colonel Purple's relationship with his own spouse.
In any case, the reference was not requested or given for the
purpose of recommending D.J.L's suitability for employment and it
would be pure speculation to say that Colonel Purple would have
given any adverse recommendation if asked.
Furthermore, although D.J.L. may have surmised at the time he
filed his complaint that he had not been selected initially by the
Pennsylvania National Guard because of an adverse reference from
the Respondent, he has not proven that any reference was sought
from or given by the Respondent to this unit. He, in fact, has
subsequently received the appointment and has been promoted both in
his civilian and military capacity.
It follows from the forgoing findings that I must recommend
that D.J.L.'s complaint be denied also.
RECOMMENDED ORDER
It is recommended to the Secretary of Labor that the
complaints of Marrita M. Leveille and Daniel J. Leveille seeking
corrective actions and compensatory damages under the Acts be
denied.
____________________________
JOEL R. WILLIAMS
Administrative Law Judge
NOTICE: This recommended Order and the Administrative file in this
matter will be forwarded for review by the Secretary of Labor to
the Office of Administrative Appeals, U.S. Department of Labor,
Room S-4309, Francis Perkins Building, 200 Constitution Ave., N.W.,
Washington, D.C. 20210. The Office of Administrative Appeals has
the responsibility to advise and assist the Secretary in the
preparation and issuance of final decisions in employee protection
cases adjudicated under the regulations at 29 C.F.R. Parts 24 and
1978. See 55 Fed. Reg. 13250 (1990).
