ARB CASE NO. 01-021
ALJ CASE NO. 00-CAA-15
DATE: May 30, 2003
In the Matter of:
DIANA R. WILLIAMS,
COMPLAINANT,
v.
BALTIMORE CITY PUBLIC SCHOOLS
SYSTEM,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Diana R. Williams, pro se, Baltimore, Maryland
For the Respondent:
Brian K. Williams, Esq., Office of Legal Council, Baltimore, Maryland
FINAL DECISION AND ORDER
On or about December 14, 1999, Diana R. Williams, a mathematics teacher, filed a complaint with the United States Department of Labor alleging that her former employer, the Baltimore City Public Schools System (BCPSS), had suspended her without pay and then dismissed her because she reported numerous environmental safety and health complaints to both BCPSS and to government agencies. In these safety and health reports, Williams claimed that BCPPS employees and students were exposed to lead-based paint and asbestos at three schools, and that the drinking water at a fourth school contained lead. Williams alleged that her suspension and dismissal violated the employment protection provisions of the Safe Drinking Water Act, 42 U.S.C.A. § 3000j-9 (West 1991), the Toxic Substances Control Act, 15 U.S.C.A. § 2622 (West 1998), the Clean Air Act, 42 U.S.C.A. § 7622 (West 1995), and the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995) (hereinafter, collectively, the "Acts").1 The Department of Labor Administrative Law Judge (ALJ) who heard the case dismissed Williams's complaint.2 Williams appeals. The Administrative Review Board has jurisdiction to decide this appeal.3
1 Inexplicably, both the Department of Labor's Regional Supervisory Investigator and the ALJ indicate that Williams's complaint also alleges violations of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610 (West 1995) and the Federal Water Pollution Control Act, 33 U.S.C.A. § 1367 (West 2001).
2 Williams appears pro se. Her briefs to the Board barely address the ALJ's conclusions of law. Instead, she essentially quarrels with the ALJ's fact findings, arguing that "all of her whistleblowing were substantiated by voluminous evidence, were valid, and had substance due to the fact that all of the lead-based paint hazards and/or lead contaminated drinking water hazards at these schools had not been addressed or resolved . . . ." Complainant's Brief at 5. However, we have construed her briefs liberally, that is, we read them as asserting that the ALJ's conclusions of law were erroneous. See Young v. Schlumberger Oil Field Services, ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8 (ARB Feb. 28, 2003).
3See 29C.F.R. § 24.8(a) (2002) and Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002). The Board is not bound by either the ALJ's findings of fact or conclusions of law but reviews both de novo. See 5 U.S.C.A. § 557(b) (West 1996); Masek v. Cadle Co., ARB No. 97-069, ALJ No. 95-WPC-1, slip op. at 7 (ARB Apr. 28, 2000) and authorities there cited.
4 ALJ's Recommended Decision and Order (R. D. & O.) at 33-39.
7 However, the ALJ erred when she examined whether Williams had established a prima facie case. See R. D. & O. at 34 ("The Claimant in a whistleblower case initially has the burden of proving a prima faciecase by a preponderance of the evidence."). To establish a prima facie case, a complainant needs only to present evidence sufficient to raise an inference, a rebuttable presumption, of discrimination. As the Secretary and the Board have noted, a preponderance of the evidence is not required. Furthermore, when the respondent
produces evidence that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, the rebuttable presumption created by complainant's prima facie showing "drops from the case." Texas Department of Community Affairs v. Burdine, 450 U.S. at 255, n.10. Once the respondent has presented his rebuttal evidence, the answer to the question whether the plaintiff presented a prima facie case is no longer particularly useful. ‘The [trier of fact] has before it all the evidence it needs to determine whether ‘the defendant intentionally discriminated against the plaintiff." USPS Bd. of Governors v. Aikens, 460 U.S. at 715 (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. at 253).
Carroll v. Bechtel Power Corp., 1991-ERA-0046, slip op. at 11 (Sec'y Feb. 15, 1995) (Secretary's order enforced sub nom Carroll v. United States Dep't of Labor, 78 F.3d 352 (8th Cir. 1996)). Thus, after a whistleblower casehas been fully tried on the merits, the ALJ does not determine whether a prima facieshowing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the respondent discriminated because of protected activity.