ARB CASE NO. 98-056
ALJ CASE NOS. 97-CAA-2
97-CAA-9
DATE: February 29, 2000
In the Matter of:
PAUL BERKMAN,
COMPLAINANT,
v.
UNITED STATES COAST GUARD
ACADEMY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Scott W. Sawyer,Esq., New London, Connecticut
For the Respondent:
William G. Haskin, Esq., United States Coast Guard, Norfolk,
Virginia
DECISION AND REMAND ORDER
This case was brought under the employee protection (whistleblower)
provisions of five Federal environmental statutes: the Clean Air Act (CAA), 42 U.S.C. §7622;
the Federal Water Pollution Control Act (WPCA), 33 U.S.C. §1367; the Toxic Substances
Control Act (TSCA), 15 U.S.C. §2622; the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), 42 U.S.C. §9610; and the Solid Waste Disposal
1 The SWDA also is known as the
Resource Conservation and Recovery Act (RCRA). We will refer to the five statutes collectively as
"the environmental acts."
2 The Academy's "North
Site" is located on the Thames River between the Academy's rowing center and the Thames
Shipyard. CX 11. The site, which formerly belonged to a commercial shipyard, contained metal scraps,
metal cans, glass, rusted metal, and a sand plateau on which there was no vegetation. T. 468.
3 At the time, Berkman's chain of
command was: LT Ingalsbe, Greg Carabine (a civilian), CAPT Florin, CAPT Olsen, and Admiral
(ADM) Versaw. Florin initially was a commander (CDR) and was promoted to captain.
4 Other knowledgeable witnesses
agreed that individuals can be held liable for not reporting an environmental problem. T. 77-78
(Suzanne Berkman); 362 (Frey).
5 The job elements eventually were
changed after April 1996. T. 505.
7 Berkman filed an Equal
Employment Opportunity complaint, on the basis of religious discrimination, about the initial denial of
his leave request and the lack of sensitivity in the way it was handled. CX 52.
8 Opstrup described the consultants
as being divided on the issue of reporting the North Site. CX 116 at 31.
9 A year earlier, in April, 1995,
Berkman sought medical treatment to determine the reason for fatigue he was then experiencing. CX
55. Berkman was examined by a rheumatologist because he had a rheumatological condition called
fibromyalgia. T. 602. The physician referred Berkman to a psychiatrist who diagnosed him as suffering
depression. T. 603. However, the depression was not affecting Berkman's work; thus Berkman did not
seek or receive any treatment for the depression at that time. T. 775
10 In the alternative, if Berkman
were determined to have been constructively discharged, the ALJ found that Berkman would be entitled
to back pay and one year of front pay until reinstatement to his former position. RD&O at 44-45.
11 For the remainder of this
decision, the term "environmental acts" will not include the TSCA.
12 In the second complaint,
Berkman realleged incidents of harassment that predated his first complaint. Berkman requested
consolidation of his first and second complaints. ALJX 26 at ¶42. The ALJ granted
consolidation. ALJX 29.
14 The quoted language is
found in the CAA, 42 U.S.C. §7622(a). The other environmental acts at issue in this case, the
WPCA, 33 U.S.C. §13679(a), the CERCLA, 42 U.S.C. §9610(a), and the SWDA, 42 U.S.C.
§6971(a), use the language: "No person shall fire, or in any other way discriminate
against, any employee" because he engaged in protected activities (emphasis added).
15 Therefore, we reject the
ALJ's finding, RD&O at 38, that Berkman's removal from the Tank Consolidation Project was not part
of a hostile work environment.
16 According to Opstrup, Carabine
called Berkman an environmental zealot or words to that effect. CX 116 at 63-64.
17 We note that an employer
may not, with impunity, fault an employee for going outside the chain of command to make a complaint
about an environmental concern to a government agency. See Fabricius v. Town of Braintree/Park
Dep't, ARB Case No. 97-144, ALJ Case No. 97-CAA-14, Fin. Dec. and Ord., Feb. 9, 1999, slip op.
at 5 and cases there cited, including Pogue v. Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir.
1991).
18 Although the leave policy
remained in effect at the time of the hearing, Campbell testified that it was not being enforced against
other employees. T. 879.
19 In the alternative, in case
of a finding of constructive discharge, the ALJ found that Berkman was entitled to an offer of
reinstatement to be made one year from the date of final judgment. The ALJ also ordered payment of
back pay until the date of final judgment and one year of front pay. RD&O at 43-45.
20 At the time of the hearing,
Berkman spent his days fixing furniture in a retail store owned by his wife. T. 100. He was not paid
for that work. Id. Mrs. Berkman testified that he worked slowly and sometimes needed to rest
on the job. T. 101.
21 As a payment of future
damages, any front pay award shall be discounted to present value. Michaud, slip
op. at 6.
22 We reject the Academy's
suggestion, Rebuttal Br. at 3, that a physician could not conclude that Berkman's work situation caused
his anxiety and major depression unless the doctor visited the work site, spoke to Berkman's supervisors
and coworkers, or independently substantiated Berkman's allegations of stress and harassment. A
treating professional has received training in determining the source of a patient's depression, and we
rely upon the medical professionals' application of their training in treating Berkman.
23 We agree with the ALJ's
analysis that Mrs. Berkman is not entitled to any separate damages for loss of consortium. RD&O at 50.
24 The other environmental
acts contain similar language.
25 The earlier, defective
petition attached to Berkman's post-hearing brief included costs of $2,500 for deposition transcripts
and ,154.15 for hearing transcripts. Those costs are absent from the updated fee petition that we
are considering here.
26 The Academy's objection
to paying ten hours of attorney travel time on July 8, 1997, Rebuttal Br. at 8, is now moot because
Berkman's counsel has documented that the claimed ten hours includes the taking of four depositions
on that date. See Complainant's Petition to Clarify, dated May 8, 1998.