§1367(a) of the FCWA, so is Respondent, as EPA's surrogate in California, for enforcing and implementing the FWCA. Ellis Fishel State Cancer Hospital v. Marshall, 629 F.2d 563, 567, (8th Cir. 1980).

    Respondent's exemption argument is summarized as follows. McMahan's job was to investigate and thereby enforce federal (FCWA) and state (Porter-Colgone) Acts. Therefore, he is fundamentally different from an employee of an employer subject to the enforcement provisions of these acts. Application of §1367(a) in these circumstances would have the effect of making Respondent a regulated instead of an employer regulator. It would infringe upon Respondent's authority to determine when violations are to be pursued as well as how violations are to be enforced. If Respondent is deemed "a person" subject to §1367(a) it would be prevented from properly directing the activity of investigatory personnel and deciding upon the enforcement priorities they are to pursue. In effect, Respondent would be deprived of the kind of management discretion necessary to fulfill its mission under the State and Federal acts.

    Respondent contends that §1367(a) was adopted to protect only employees of those persons subject to the enforcement provisions of the Act. As the state agency responsible for implementing the Federal Clean Water Act, Respondent contends that it may not be deemed a person. Respondent argues that it's discretion to enforce provisions of the California Porter-Cologne Act, instead of the provisions of the Federal Clean Water Act, has made §1367(a) ineffective as to it. It claims that there is no need to rely upon the whistleblower protection in §1367(a) to assure Respondent's implementation and enforcement of the Federal Act. It then points out that the EPA may withdraw its approval of the California Water Quality Control Board as the state agency authorized to enforce the FCWA if the Board does not fulfill all of the requirements of the FCWA including, inter alia, the employee protection provision contained in §1367(a).

JURISDICTION

    My research indicates that this is the first case involving the application of §1367(a) to a state as distinguished from a federal enforcement agency. Jurisdiction over federal agencies has been upheld in Conley v. McClellan Air Force Base, 84-WPC-1

9/12/84): Pogue v. U.S. Dept. of Navy, 87-ERA-21; (5/10/90); McAllen v. EPA, 86-WPC-1, slip op. of ALJ at 7-8 (11/28/86); Flannigan v. Bectel Power Corp., 812-ERA-7; cf. In the Matter of Patrick Wilson, 77-WPCA-2 (5/6/77). EPA is concededly subject to the employee protection requirements contained in §1367(a). Approval of Respondent to enforce the Federal Act did not exempt it from the anti-discrimination requirements of §1367(a). Just as EPA is subject to administrative action for violating SS1367(a), so must be its surrogate for enforcing and implementing the Federal Water Control Act. While California also does so under the Porter-Cologne Act it remains subject to the requirements of the Federal Act. Non adoption of a whistleblower provision in the Porter-Cologne Act did not immunize Respondent from complying with §1367(a). cf. Ellis Fishel State Cancer Hospital v. Marshall, 629 F.2d 563,567 (8th Cir. 1980).

the Secretary's abatement order shall provide for the aggregate costs and expenses (including attorney fees) which have been reasonably incurred in bringing a proceeding against persons violating §1367(a). The Secretary of Labor is involved solely with respect to the enforcement of the employee protection provision. In all other respects, the EPA administers the FCWA including delegation thereof to a State.

    Respondent's §1367 argument mixes and homogenizes its provisions without regard to the fact that the first part, subsections (a)(b) and (c), is administered by the Secretary of Labor and involve a distinctly different subject matter than those (subsections (d) and (e)) involving the Administrator, EPA. The last two subsections are within the exclusive jurisdiction of said Administrator and are concerned with the economic effect that effluent limitations and orders have upon pollution prevention. Because these sections are so confined to this one objective they are not applicable to any and all employees. Subsection (d) states:

This section shall have no application to any employee who, acting without direction from his employer (or his agent), deliberately violates any prohibition of effluent limitation or other limitations.. or any other prohibition limitation established under this chapter.

    Once its determined that the employee is not at fault, subsection (d) then requires the Administrator of EPA to determine whether an effluent limitation or order should be withdrawn or modified to prevent the employee or employees from suffering discharge, lay off or other employment discrimination. The Administrator is not required to undo employment consequences at the expense of the offending effluent limitation.

    On the other hand, violations of §1367(a) require the Secretary to protect any and all employees and provide them a complete remedy if they are discriminated against for having acted in a whistleblower capacity, i.e. caused a proceeding to be instituted for implementation and enforcement of the Act. Accordingly, the Secretary is required in subsection (b) to direct any person who discriminates against a whistleblower to:

... take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the returning of the employee or the representative of the employee to his former position with compensation.

§1367(a) protects the employee/whistleblower against any person who discriminates against him for filing or causing to be filed a proceeding or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of the Federal Clean Water Act. When considering the economic effect of pollution, the affected employer is an indispensable party to the proceeding conducted by the EPA Administrator. That is not the case in a proceeding under §1367(a) which is directed against a person, who may or may not be the discriminatee's employer. Stanley Steemer was not joined and made a party to this proceeding even though it is currently a defendant in the federal action that was instituted because McMahan reported its violation to the FBI.

    Consistent with the broad protection provided whistle-blowers by §1367(a), remedial relief under subsection (c) mandates the assessment of costs and expenses, including attorney fees, for instituting proceedings to protect employees against discriminatory retaliation. A proceeding concerning the employment and/or economic effect of an effluent limitation does not contain a provision to defray the cost for its institution. The EPA Administrator is not authorized or required to award costs and expenses of litigation. it is also within the discretion of the Administrator to maintain the effluent limitation even if it reduces employment or causes the shutdown of the employer's plant.

    The very different considerations and responsibilities assigned to the Secretary of Labor in §1367(a) make it clear that the employee/whistleblower provision is distinct and unrelated to the function fulfilled by the EPA Administrator under Subsection (e). The employee protection provided by the Secretary has no relationship to an evaluation of potential employment shifts caused by the issuance of an effluent limitations. The weighing of employment consequences as against pollution objectives involve the expertise of the EPA Administrator. Retaliatory discrimination because an employee has disclosed pollution prohibited by the FCWA is placed under the protection of the Secretary of Labor as are practically all other provisions

protecting whistleblowers and contained in federal statute. They are the Clean Air Act, 42 U.S.C. §7622; Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §585; Toxic Substances Control Act (TSCA), 15 U.S.C. §2622; Safe Drinking Water Act (SDWA), 42 U.S.C. §6971; Solid Waste Disposal Act (SWDA), 42 U.S.C. §6971; and the Surface Transportation Assistance Act (STAA), 49 U.S.C. §2301.

    Jurisdiction to deal with the discrimination is established directly from the language contained within 13 U.S.C §1367(a). Reference to the term "person" in the operative section (subdivision (a)) administered by the Secretary is given the clearest meaning by 33 U.S.C. §1362(5) which states:

"The term "persons" means an individual corporation, partnerships, association, State, municipality, commission, or political sub-division of a State, or any interstate body" (Emphasis supplied)

Respondent in this case is the California Water Quality Control Board, the state commission for the enforcement of the Federal Clean Water Act. The term "person" is specifically defined to include any commission or political subdivision.

    Chapter 26 contains the federal law with regard to water, oil and hazardous substance pollution to insure the integrity and protection of this Nation's waters. In U.S. v. Massachusetts Bay Transportation Authority, 614 F.2d 27 (CA-1, 1980), oil and hazardous substance pollution as well as the application of the definition of a person under 33 U.S.C. §1321(7) were considered. The definition of a person in that case was:

"A person" includes an individual, firm corporation, association or partnership.

The Court of Appeals found that the Massachusetts Bay Transportation Authority was a person subject to civil penalties for causing oil spills into navigable waters. The person described in §1362(5) is much more inclusive and therefore §1367(a) must be deemed to encompass Respondent. As the enforcement agency of the Federal Clean Water Act in California, it may cause pollution by not engaging in the effective administration and enforcement of the Act. That is precisely what happens when the disclosure of polluters is inhibited and

they are not required to answer for the damage they cause to this Nation's environment.

    For the purposes of this case I need only consider the retaliatory discrimination suffered by McMahan because of his disclosure of the Stanley Steemer violations and whether it was in violation of §1367(a). Protecting McMahan from discrimination is not intended to impugn or criticize Respondent in any other way. This proceeding is not directed to determine how well or poorly the California Water Quality Control Board is or has been fulfilling the objectives of the FCWA.

    The legislative history accompanying the 1972 amendments do not support the contention that 33 U.S.C. §1367(a) was intended to only include employers subject to the requirements of the Federal Clean Water Act. Congress not only expanded the definition of a person in 33 U.S.C. §1362(5) but at the same time adopted 33 U.S.C. §1367(a). These simultaneous enactments were to obtain maximum protection for employee/whistleblowers. If Congress only intended to prohibit discrimination by certain employers and not to any person, §1367(a) would have so stated. Congress protected the employee against discrimination by any person, whether or not a regulated employer, by expanding the definition of person to include a state commission or a state political subdivision. There is nothing in the legislative history to suggest that the whistleblower provision excluded persons having responsibility to enforce the Act. Both employer regulators and regulated employers are covered in that both fall within the definition of a person as contained in §1362(5).

    Respondent contends that it is virtually impossible for it to take any action regarding its personnel without running afoul of the employee protection provisions contained in §1367(a). This contention is contrary to Respondent's primary purpose of fulfilling the requirements and objectives of the FCWA. As the "watchdog agency" for the FCWA in the State of California it would appear to have a duty to encourage its own employees to report any and all instances of water pollution so that they may be prosecuted and thereby eliminated. Retaliation because pollution is reported and then made the subject of an enforcement proceeding would turn the whistleblower protection provision in §1367(a) on its head. The watchdog agency would have assumed the role of the proverbial fox assigned the role of guarding the chicken coop. Instead of implementing and enforcing water

pollution laws, Respondent would be in the position of obstructing such laws. If McMahan was simply doing his job in Enforcement when he encountered and then reported the Stanley Steemer pollution violations to the FBI he should not have been subject to either a disciplinary reprimand or job transfer.

The Stanley Steemer Incident

    The nature and circumstances of the Stanley Steemer water pollution violation McMahan discovered and his investigation thereof are not in dispute. After observing waste water being discharged by a Stanley Steemer truck on January 23, 1990 McMahan collected a sample of the discharge and made a photographic record of the pollution caused by the discarding of waste water into a storm drain. While McMahan was advancing the frame of his camera the Stanley Steemer driver, Terrance Celestine, picked up the container containing the discharge sample. McMahan ordered him not to do so. However, Celestine removed the cap and poured the sample onto the ground. McMahan was able to photograph the destruction of the discharge which he had collected as evidence of water pollution by Stanley Steemer.

    McMahan identified himself as an official of the Enforcement Unit and told Celestine that he was interfering with the collection of physical evidence; that his employer, Stanley Steemer, was in violation of the Act; and that he had committed a felony by deliberately destroying evidence.

    Celestine asked and was permitted to call his supervisor to respond to the violations McMahan had enumerated. Celestine then went ahead and began to take down the apparatus which permitted the waste discharge to flow into a storm drain that emptied into the San Diego Bay. He told McMahan why and how the discharge had occurred. The carpet cleaning process required heated water to be mixed with a chemical detergent which then was applied by vacuum nozzle to the carpet. This liquid was returned to a tank attached to the Stanley Steemer truck. When the amount exceeded the capacity of the tank it was hosed into the gutter as McMahan had witnessed. ordinarily, the waste water was dumped on the customer's property, but Celestine explained that he had been unable to do so on this job. Celestine showed McMahan the storage tank and told him that it was emptied at a dump station located at Stanley Steemer's home office so as to avoid pollution.

    The driver's supervisor then appeared on the scene and identified himself as the Director of Operations for Stanley Steemer. He described the standard procedure for the disposition of waste water and told McMahan that it was supposed to be confined to the storage tank to avoid pollution. Complainant brought up the driver's destruction of the waste water sample. The driver explained that he did so because that is what he was taught to do when in the military. He stated that if this had been an actual military situation he would have destroyed the film as well.

    Respondent is in no respect critical of the way McMahan dealt with the Stanley Steemer incident that he encountered on January 23, 1990 (C-7). The discharge of carpet cleaning materials into a storm drain was polluting water in violation of the FCWA. Such activity requires a federal permit and Stanley Steemer had none (T-45,113-4). Respondent had received a large number of water pollution complaints concerning carpet cleaning companies because of their handling of waste discharges (Tr. 112). The severity of the problem was such that it had been referred to the Hazardous Waste Crimes Task Force for study and appraisal. (R-13; C-4; R-8). Therefore it would have been improper for McMahan to ignore discharge of waste water by Stanley Steemer. Discharge of pollutants into San Diego Bay requires a NPDES permit (T-114) and it may only be issued pursuant to federal authority (T-157). Respondent, as the enforcement agency of the Federal Clean Water Act, determines when and under what conditions a NPDES permit may be issued to a polluter such as Stanley Steemer (T-45).

    Complainant was therefore performing his duty by investigating and writing up Stanley Steemer water pollution incident. It is the FBI referral that Complainant made on January 23, 1990 to which Respondent objects as "insubordination" warranting a disciplinary response. Anomalously, Respondent has supported federal prosecution of Stanley Steemer as a result of the information Claimant provided the FBI. The claimed insubordination is based upon the fact that McMahan informed the FBI of the Stanley Steemer violations on January 23, 1990 without prior approval. By precisely identifying the premise of the disciplinary reprimand we find that it was directed to an act of omission and not commission. Respondent's support and cooperation with the U.S. Attorney's prosecution of Stanley Steemer makes it patently clear that it would have approved

McMahan's referral and that it objected to the fact that McMahan had done so on his own.

    Complainant had caught Stanley Steemer "in the act" (T-33). There is no way of knowing where or when carpet cleaning companies are discharging pollutants and the Task Force recognized that it would be a fluke for this to happen (T-20). The situation encountered by McMahan was particularly aggravated by the violator's (Celestine) destruction of evidence when he poured the discharge sample onto the ground (C-3; T-253-9).

    When McMahan returned to the Regional Office he attempted to locate and report the incident to his supervisor, Barker as well as to the Director and Acting Director, Coe and Delaney. None of them were there. He then went to Sweeney, supervisor of the Administrative Unit, who told him they were attending a meeting in Sacramento (T-119-120). Sweeney tried to place McMahan in contact with Barker but she was unable to do so (T-119,120). McMahan then called FBI special agent Wight even though he had been instructed by Barker to discuss Task Force (FBI) referrals with him, before going ahead (T-273). McMahan had never uncovered an incident of pollution by chance. He believed that Celestine's destruction of the discharge sample was a possible felony. Wight confirmed the urgency McMahan assigned the incident by asking McMahan to prepare and send him a report as soon as possible (T-261). Charles Crandall, formerly U.S. Attorney responsible for civil and criminal cases, was presented the circumstances with which McMahan had been confronted and asked whether it was appropriate for McMahan to call and apprise the FBI of the Stanley Steemer incident. Crandall stated:

"That's precisely the kind of thing that we wanted the technical people who had sole access to that information to do because if they didn't do it, we would never get the information. And if there was a blockage of some sort within the agency where they work we'd never find out about it either. And that [i.e. reprimand for FBI referral] would be absolutely forbidden as far as I was concerned" (T-224).

    About ten minutes after speaking to the FBI McMahan learned that Barker was speaking to another Enforcement Unit investigator. McMahan asked to be connected. He told Barker all that

had transpired, including his unsuccessful attempt to contact him before calling the FBI. Barker told him that he should not have referred the case on his own. However, Barker instructed McMahan to provide special agent Wight the report that had been requested of the Stanley Steemer incident in that it was a potential violation of federal law (T-121,283).

    Thereafter, Barker reported his conversation to Delaney. Upon returning from Sacramento on January 25 Barker was instructed by Delaney to prepare and issue a written reprimand because of the FBI referral (T-409-410). Nothing was done to countermand the FBI referral and McMahan prepared a written report of the Stanley Steemer incident and transmitted it to agent Wight with Barker's consent and approval. Respondent could have taken over and prosecuted Stanley Steemer for its water pollution violations. Instead, it relied upon the FBI to have the U.S. Attorney institute a proceeding against Stanley Steemer for violating the FCWA (R-7).

    Barker returned from Sacramento on January 25, 1990. McMahan gave him the report he prepared for agent Wight and once again Barker told him that he should not have called the FBI (T-264). McMahan and the other Enforcement Unit employees attend Task Force meetings and it appears that they had been told not to make referrals without Barker's approval (T-273). However, it was not until February 21, 1990, that this referral policy to outside agencies was made the subject of a Unit Staff meeting (C-51; T-193,178;C-7 at p. 21). Guidelines governing staff interaction with the Task Force were proposed on June 6, 1988 and they contain no reference to how outside referrals were to be made (R-7). On May 16, 1988, Respondent's executive officer Delaney issued a memorandum that stated:

"Regional Board staff should inform the task force of all violations having circumstances which could potentially be subject to criminal penalties." (R-7).

Stanley Steemer represents an incident that was unique in McMahan's experience as a member of the Enforcement Unit. McMahan witnessed Stanley Steemer discharging waste materials into a storm drain and was then prevented from identifying the chemical nature of the discharge because Celestine destroyed the sample he had prepared. (C-3; T-133,258). McMahan was not only concerned about Federal violations of the Clean Water Act but of

being prevented from acquiring evidence thereof (T-253-259). The special and unique circumstances are memorialized by the first paragraph of the Reprimand that was issued on February 1, 1990. (C-1).

    The Reprimand (C-1) rejects these circumstances as justification because McMahan could have discussed the Stanley Steemer incident with Michael McCann, the supervisor of the Planning Unit and who was in the office on January 23, 1990. At no time has McMahan ever reported to or has he been supervised by McCann. Until his transfer in 1990 McMahan has always been a staff member of the Enforcement Unit. Although Barker knew that McCann's supervision was distinct and separate from his own, the Reprimand states:

"In any event, Mr. Michael McCann, Senior Engineer, was in the office and available for consultation the entire afternoon of January 23. He has reported to me that you made no attempt to discuss with him the necessity to contact the FBI on your inspection findings. The circumstances and nature of the discharge did not mandate immediate referral of your inspection findings to the FBI. You could have discussed the situation in advance with McCann..."

    McMahan had contacted Sweeney, head of the Administrative Unit, so as to enable him to discuss the matter with Barker beforehand. Sweeney is on the same supervisory level as McCann. She was unable to locate Barker and thereby enable McMahan to discuss Stanley Steemer with him. There was no reason for McMahan to discuss the incident or the necessity to refer it with McCann. The later's authority was over Planning and not Enforcement. Predicating McMahan's misconduct upon by-passing McCann is patently ingenious. Indeed the interposition of McCann's availability for consultation changes the wrongdoing from "prior approval", to making "no attempt to discuss with him the necessity to contact the FBI on your inspection findings."

    Barker testified that he could not recall a single instance where McMahan had provided information to the Task Force or to the FBI without prior approval (T-134-135). Nevertheless the third paragraph of the Reprimand charges McMahan with having been warned about that which Respondent has in no way established and testimonially conceded Mcmahan had never done. It was therefore

most improper to charge that McMahan had been previously warned about making outside referrals.

    The Reprimand does not limit itself to McMahan's FBI referral. It includes facts and circumstances which suggest that Respondent was more concerned with getting McMahan out of Enforcement than calling his attention to employee miscondunct. First, the FBI referral was subsumed by Respondent ten minutes after it was made, in that Barker told McMahan to complete and submit a report of the Stanley Steemer incident to agent Wight so that he could thereby evaluate it as a possible violation, of the FCWA. Second, McCann's presence in the office that day is set out as a circumstance that obligated McMahan to do what he had never done before. McCann was the head of the Planning Unit and was not shown to have any role in directing or approving the activities of Enforcement Unit employees. Criticizing Mcmahan for not attempting "to discuss with McCann the necessity to contact the FBI on your inspection findings" suggests that his referral would not have amounted to misconduct if he had done so. Third, not having waited until Barker returned from Sacramento on January 25 is asserted as a breach of authority as well as lack of judgment. In view of the fact that McMahan had fully described the Stanley Steemer incident when he spoke to Barker on January 23, it is difficult to understand what purpose is served by discussing the incident with Coe on January 24 or by once again discussing the matter with Barker on January 25. Fourth, accusing McMahan of having been warned in the past about referring information to the Task Force without prior approval is in no respect supported by the evidence. Likewise, there is no evidence that McMahan did anything to "usurp the Regional Board's discretion in responding to waste discharge violations using the enforcement remedies in the California Water Code." Assuming the FBI referral may be deemed importunate Respondent remained free to deal with Stanley Steemer's violations in any way that it wanted. Barker instructed and authorized McMahan to prepare and submit a report to agent Wight instead of advising Wight that it would deal with Stanley Steemer using state and not federal enforcement remedies. Fifth, there is no reference to the fact that McMahan attempted to contact Barker before calling the FBI, and that Sweeney had been unable to locate him. Its omission suggests that the Reprimand was to point out the absolute requirement prior approval before contacting the Task Force with information obtained in the course of McMahan's job duties. The transfer of McMahan from Enforcement to Permits eliminated

the likelihood that advanced approval would be required in the future.

    The exaggerations, distortions and misstatements set forth in the reprimand require me to find and conclude that Respondent disciplined McMahan for having caused a proceeding to be instituted to enforce the FCWA, and not because he had failed to contact Barker before calling the FBI about the Stanley Steemer incident. Discrimination in violation of §1367(a) is prohibited if it was the basis for mounting a proceeding for enforcement of the FCWA. The prohibition is absolute and it is not dependent upon whether or not the employee acted with his supervisor's approval. In that Respondent approved federal enforcement by permitting McMahan to prepare and submit a report of the incident to FBI agent Wight, I am constrained to believe and therefore find that the object and purpose of the Reprimand was to discipline McMahan and exclude him from enforcement functions.

The Job Transfer from Enforcement To Permits As Discrimination Prohibited by §1367(a)

    McMahan was notified that he was being removed from Enforcement and reassigned to Permits when he was given the disciplinary Reprimand on February 1, 1990 (C-1). At the very same time, McMahan outlined the substance of what he was told by Barker, namely:

(1) [Stanley Steemer violations] not significant/worth investigation.

(2) Did not check W/MPM [McMann]

(3) If again, then punitive action

(4) Gloria Fulton - Rotating to Permits

(5) Not Rotating due to carpet cleaning

(6) Effective next couple days

(7) Task Force - Not OK to call FBI on my own

(8) Do not do it again

This simultaneously made outline of what Barker told McMahan (T-278) is in direct conflict with Respondent's contention that its timing was coincidental and unrelated to the Stanley Steemer matter. Barker's negation of the carpet cleaning violations for removing McMahan from Enforcement requires careful scrutiny (C-30).

therefore necessary to employ Fulton in Enforcement instead of Planning. (T-349-50, C-39). The Board was not told that a vacant slot had been created in Enforcement by transferring McMahan to Permits.

    Delaney conceded that the decision to transfer McMahan was motivated, in part, by his expectation that the disciplinary action against McMahan would result in the filing of a grievance (C-52). The employment of Fulton in Enforcement and the transfers of McMahan and Tomaki did nothing to ameliorate the understaffing in Planning (C-15). Employment of Fulton did not change the number in Enforcement, which continued to be staffed in the same way as before (T-389). The only effective change was to move McMahan out of Enforcement.

    On February 21, 1990, McMahan filed a grievance protesting his transfer out of Enforcement. In response, Barker stated that he did not have the power to unilaterally transfer employees out of his unit and that McMahan was chosen for rotation to allow for the placement of Fulton. (C-8). Barker also stated that he believed the job transfer would be to McMahan's advantage and that it was not for the purpose of discipline (C-8).

    The rash of employee movement to achieve a single result the transfer of McMahan from Enforcement to Permits -- was unprecedented. Within seven days of the Stanley Steemer incident, Fulton was threatened with the withdrawal of a previously accepted job offer unless she came to work in Enforcement; Tomaki was summarily transferred from Permits to Planning; McMahan was told he was being moved to Tomaki's position in Permits; and the existing authority to fill a vacancy in Planning was changed to Enforcement where there was no vacancy. Explanations proffered as the reason for transferring McMahan were patently strained and conflicting. Barker's grievance response, that McMahan was transferred because of a vacancy in Permits, was disingenuous in that it was necessary to create a vacancy by transferring Tomaki to Planning. It was not until after the Stanley Steemer incident on January 23, 1990, that steps were taken to employ Fulton in Enforcement even though she had been offered and had specifically accepted a position in Planning. The only vacancy that was being filled up until January 23, 1990, was the one in Planning. The Fulton employment decision was changed after the Stanley Steemer incident even though it left Planning understaffed. Fulton's previous

experience was such that the switch to Enforcement required a break in training period that could have been avoided. Pulling Tomaki out of Permits was so precipitous as to suggest that it was only done to get McMahan out of Enforcement. It is incongruous for McCann to have hired Fulton for the Planning Unit when it was his "hindsight" intention to place her in Enforcement. Barker knew that Fulton had been hired for Planning. He tried to avoid explaining the switch by stating that he did not have the power to transfer employees and suggesting that McMahan was simply being "rotated" for his own benefit. These reasons do not camouflage the real object that Respondent sought to attain, namely, to get McMahan out of Enforcement because he had caused a proceeding to be filed against Stanley Steemer for violations of the Act without prior approval. With McMahan in Permits, Respondent had eliminated the likelihood that McMahan would repeat the alleged misconduct.

    I am constrained to credit McMahan's contemporaneously made record of the reprimand interview he had with Barker on February 1, 1990. McMahan's testimony was completely consistent with said record, and establishes that his transfer out of Enforcement was part and parcel of the disciplinary action taken in retaliation for his having reported the Stanley Steemer incident and thereby causing it to be prosecuted for violations of the FCWA.

Other Matters

    Respondent was unable to deny that Mcmahan had caused a proceeding to be instituted for violations of the Act. Respondent's denial that the reprimand and the accompanying job transfer were retaliatory and triggered by the Stanley Steemer incident was so incredulous as to constitute a sham. Respondent's defense was therefore centered upon the application of §1367(a) as the state enforcement agency of the Act. Under the heading "Jurisdiction" we have shown that it does.

    Many peripheral matters were nevertheless presented that are not germane to finding that McMahan was or was not discriminated against in violation of §1367(a). First, the discretion exercised by Respondent in determining which violations will be pursued and the manner in which they are prosecuted was not being challenged. Barker was told about McMahan's FBI referral ten minutes after the telephone call to Wight was completed. Instead of countermanding McMahan's

decision, Barker directed Mcmahan to prepare a report of the Stanley Steemer incident and send it to Wight. Accordingly, the report McMahan provided the FBI was authorized and was the basis for the subsequent federal prosecution of Stanley Steemer for violations of the FCWA. Second, the "Revolving Door Law" preventing former officials, such as Ladin Delaney, from becoming consultants of clients having matters pending before the Water Quality Control Board. Third, the Wilgenburg Dairy prosecutions, except as they relate to McMahan's exemplary work record, do not have anything to do with this case. Fourth, the excellence of McMahan's performance in Enforcement was conceded and need not have been further embellished by showing that he was regularly assigned supervisory and other "extra" responsibilities. Faith, the reprimand was conceded to be disciplinary action and nothing was added by hypothesizing that it may impact upon McMahan's future promotions and salary entitlement. Sixth, Respondent's practice of referring prosecutable matters to other agencies, such as the Department of Health, Coast Guard, or FBI. There is no reason why it may not continue to do so by complying with the requirements of §1367(a). Seventh, McMahan's status as a "designated employee" under Proposition 65 was not why he reported the Stanley Steemer violations to the FBI. See Point V of Respondent's Post-Hearing Memorandum. Eighth, alleged political considerations with respect to Respondent's prosecution of boat yards, the dairy industry, and other violations. Admission of Exhibits R-13 and R-21 did not authorize an expos'e of enforcement laxness or any other failure on the part of the Water Quality Control Board. McMahan misconstrued the dimensions of this proceeding in attempting to do so as evidenced by proposed findings 64 thru 99, 110, 112, 128, 139, 144 through 156. Ninth, guidelines coordinating enforcement activities with the Task Force to show that McMahan followed an improper method when referring Stanley Steemer to the FBI. §1367(a) protects employees regardless of the method they utilize, so long as it causes a proceeding to be filed involving the administration or enforcement of the provisions of the Federal Clean Water Act. And finally Tenth, the claim that McMahan's discipline was discriminatory in that other employees had been permitted to report water pollution violations to federal authorities without prior approval (Munch, T-195 thru 202). §1367(a) prohibits discrimination as a form of discipline when it is a consequence of whistleblowing, i.e. causing a proceeding to be filed or instituted. Just cause considerations for discipline under a labor agreement are not the test of a §1367(a) violation and

there was no reason for the parties to relitigate the grievance that arose out of the Stanley Steemer incident before me.

    It would appear the parties utilized this proceeding to bring out their differences on many matters wholly unrelated to the whistleblowing protection afforded by §1367(a). This is not the forum in which to deal with them.

Remedial Relief and Legal Fees

    The affirmative relief proposed by the District Director (R-19), provided:

Develop & disseminate to staff clear and written policy instructions on (a) how they are to handle information, complaints and violations that are of interest to other agencies; (b) when and how they should contact or involve another agency in a complaint or violation of the Federal Water Pollution Control Act.

    Although affirmative action is authorized upon abating discrimination pursuant to §1367(a), I believe it would be unnecessarily intrusive to instruct Respondent concerning the way it enforces the Act. This case involves retaliatory discipline in violation of §1367(,a) and the remedy should be so confined. Respondent has cooperated with federal authorities in the prosecution of Stanley Steemer. Disciplining McMahan for having reported the carpet discharge violation and the destruction of evidence to the FBI has not prevented Respondent from doing so. The Task Force, comprised of agencies concerned with water and other types of pollution, was created by Respondent and has been utilized to coordinate its prosecution of violators under the state and federal statute. In these premises, the remedy to be divised for the violations of §1367(a) shall be limited to undoing the reprimand and accompanying job transfer and providing payment for McMahan's legal fees. An order requiring Respondent to post a written notice for a period of thirty days advising its employees that the disciplinary reprimand has been expunged and that McMahan has been reinstated to the Enforcement Unit should be sufficient to undo whatever coercive effect McMahan's discrimination may have had upon his coworkers.

    §1367(c) requires the assessment of a sum equal to the

aggregate amount of all costs and expenses (including attorney fees) as determined by the Secretary of Labor to have been reasonably incurred for or in connection with the institution and prosecution of a proceeding for abating discrimination in violation of §1367(a).

    Attorneys for Complainant have applied for a legal fee in the amount of $48,835.75 and costs in the amount of ,369.29. Included in the fee is $2,446.25 owed to an attorney, James McGuill, who represented McMahan in a grievance proceeding concerning the disciplinary reprimand and job transfer. Complainant may have bypassed the grievance procedure and only elected to seek relief under §1367(a). Both proceedings involved the disciplinary reprimand and job transfer, and the extensive materials submitted to the Wage and Hour Division on February 16, 1990 (R-18) were developed before McMahan retained his present attorneys on September 1, 1990 to pursue a remedy for violations of §1367(a). The evidence compiled with regard to the grievance substantially reduced the amount of preparation necessary to establish a violation of §1367(a). The primary task of McMahan's attorneys was to establish that §1367(a) applied to Respondent, as the state agency that was delegated and authorized to enforce the FCWA.

    It is asserted that attorney McGuill terminated his representation because he did not want to prosecute a "whistleblower" claim as it would involve taking on the State of California. No evidentiary support was provided for that assertion and I cannot conclude that the change of attorneys was reasonably incurred. In addition representation by McGuill was with respect to the handling of a grievance and not a violation of §1367(a). I will therefore not recommend its approval.

    The remaining $46,389.50 was incurred since September 1, 1990, with respect to filing of prehearing briefs, preparing witnesses and exhibits, and the presentation of evidence over two days of hearing which produced a record of 473 pages along with some 63 exhibits of which 21 were sponsored by Respondent. Both sides submitted extensive briefs upon the conclusion of the hearing along with proposed findings of fact and conclusions of law.

    Exhibit A attached to Complainant's fee application lists approximately 220 hours of legal services performed by a team of

two attorneys who represented Complainant. The hourly billing rate of attorney Birmingham is $180.00 and of attorney Solitero, $165.00 an hour. I reject Respondent's opposition to the payment of any legal fee whatsoever because of the mandatory "shall be assessed" language contained in §1367(c). Particularly, Respondent disputes payment for the amount of time claimed for legal and computer research; exhibit preparation such as photos and their enlargement showing the destruction of the discharge sample; video taped rehearsals to review and critique McMahan's testimony prior to hearing; and the photocopy cost of a seven-inch stack of decisions submitted along with the post-hearing brief. If all of these objections were credited it would amount to less than $8000.00 and only reduce the requested fee to $39,389.50.

    Among the factors to be considered in determining the appropriate amount of a legal fee are whether the case involved novel, complex, and difficult issues; whether the hours of legal representation were directed to and commensurate with the necessary work done; and the benefit (monetary or otherwise) that was obtained for the client. In whistleblower cases consideration is also given to the contribution that the legal services had with respect to the administration and enforcement of the Act. Complainant's attorneys list other factors (See post-hearing brief at p. 43) but do not demonstrate how they impacted upon or related to the $46,389.50 fee amount that has been requested.

    Respondent did not direct its fee reduction objections to unrelated and unnecessary work for which payment is now sought. In fairness, both sides moved far beyond the parameters of this litigation and each expended large amounts of representational time in responding to the other. In either instance I am unable to find that they (see discussion under "Other Matters") were reasonably related to the prima facie elements necessary to show a violation of §1367(a).

    Finally, no monetary award or benefit has been achieved for McMahan and the payment of $39,389.50 plus costs of ,369.29 will be realized solely by his attorneys. An order issued under §1367(c) is intended to made the employee whole by having the violator pay the amount the employee has reasonably incurred in connection with the institution and prosecution of the proceeding. In good conscience, I cannot conclude that it was reasonable for Complainant to have incurred costs and fees in the amount of $40,758.89 and will therefore recommend that Respondent be assessed, as the person committing the within violation, $20,379.39 or 50% less than has been requested. This fee is most substantial and will fulfill the objective of formulating a proper whistleblower remedy.

    Based upon all of the foregoing, I conclude that:

(1). Respondent is subject to §1367(a) of the Act;

(2). Complainant was an employee and engaged in protected activity by reason of the fact that he caused to be filed and instituted a proceeding for violations and enforcement of the Federal Clean Water Act.

(3). Complainant was discriminated against with respect to his terms and conditions of employment when subjec-to a disciplinary reprimand and accompanying job transfer;

(4). Respondent knew of and had reason to know that Complainant engaged in protected activity;

(5). The retaliation against Complainant was motivated

by Complainant's having engaged in protected activity; and

(6). Respondent has not established the existence of a valid business justification for its decision to transfer Complainant, nor has Respondent proven that Complainant would have been disciplined even if the protected activity had not occurred.

    Under the authority contained in 33 U.S.C. §1367(b), it is recommended that the Secretary of Labor direct the Respondent, California Water Quality Control Board, San Diego Region, to abate the violations found herein and provide the following relief as necessary to effectuate the purposes of the Federal Clean Water Act and its employee protection provisions:

    1. reinstate Complainant, Lance McMahan, to his former position with the Enforcement Unit;

    2. expunge from its record all memoranda or reference to the disciplinary action taken against Complainant, Lance McMahan, including any reference to the February 1, 1990 reprimand;

    3. post a written notice for a period of thirty days advising its employees that the disciplinary remand of the Complainant, Lance McMahan, has been expunged and that he Complainant has been reinstated to the Enforcement Unit;

    4. pay to Complainant's attorneys, Eve Birmingham and Hector E. Solitero, Esquires, costs and expenses as hereinbefore determined, in the amount of $20,379.39.

       MELVIN WARSHAW
       Administrative Law Judge

Washington, D.C.

MW/bdw

NOTICE OF APPEAL RIGHTS: Despite the waiver of the time requirement contained in 29 C.F.R. §24.6 the Secretary of Labor shall have 60 days following the issuance of this recommended decision and order to issue a final order in accordance with §24.6(b)(2). Within 60 days after the issuance of a final order any aggrieved party may file a petition for review in the United States court of appeals for the circuit in which the violation occurred pursuant to 29 C.F.R. §24.7(a).