DATE: December 11, 1995
CASE NOS. 94-TSC-3
94-TSC-4
IN THE MATTER OF
MARRITA M. LEVEILLE
and
DANIEL J. LEVEILLE,
COMPLAINANTS,
v.
NEW YORK AIR NATIONAL GUARD,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review are the Recommended Decisions and
Orders (R. D. and O.) issued on January 19, 1995, by the
Administrative Law Judge (ALJ) in these cases arising under the
employee protection provisions of six environmental statutes.[1]
The ALJ has recommended that the complaints be dismissed. I
disagree. Accordingly, the R. D. and O. is rejected in part as explained below, and the case is remanded to the ALJ for further
findings consistent with this decision.
FACTUAL BACKGROUND
The ALJ has thoroughly recounted the facts. R. D. and O. at
3-17. Briefly, Complainant Marrita Leveille and her spouse
Complainant Daniel Leveille allege that they were blacklisted by
Respondent New York Air National Guard in retaliation for
[PAGE 2]
engaging in protected activity during their tenure at Hancock
Field in Syracuse, New York. Mrs. Leveille was employed as an
Environmental Protection Specialist from October 1991 until March
1992 when all temporary employees, including Mrs. Leveille, were
terminated due to lack of funding. Thereafter, Mrs. Leveille
worked as an Environmental Protection Specialist for the Federal
Highway Administration and as an Environmental Inspector for the
State of Virginia.
Mr. Leveille, an electrical engineer, transferred to Hancock
Field in July 1989 and was promoted to base civil engineer in
November 1990. After he failed to receive "promotability"
language in performance evaluations, he accepted a position in
Sandston, Virginia, in October 1992, and in April 1994 he
transferred to the Pennsylvania Air National Guard.
Complainants allege that they were unlawfully blacklisted
because of conflicts with supervisors Major General Michael Hall
and Lieutenant Colonel Robert Purple. Mrs. Leveille testified
that she first advised Colonel Purple of the need to address
environmental hazards at the base on December 19, 1991, and that
he was not receptive. Several days before meeting with Colonel
Purple, Mrs. Leveille had met with National Guard Bureau
personnel at Andrews Air Force Base, Maryland. The Bureau had
requested that they meet to discuss the clean-up of nine
Superfund sites at Hancock Field.[2] Hearing Transcript (T.)
42; Exhibit (Exh.) C-46. On January 7, 1992, Mrs. Leveille
chaired a meeting of the Environmental Protection Committee.
Mrs. Leveille testified that she convened the meeting:
[t]o, basically, let the base members know what our
present status was on environmental concerns. It was
an introductory session. I was new to the job. I
thought it was important that they meet me and get an
understanding of what we had to face because there was
so much to clean up.
Although Colonel Purple was present, General Hall did not attend.
General Hall met with Mrs. Leveille on January 21, 1992, to
discuss a memorandum that she had prepared. The memorandum was
highly critical of a lack of "command interest" in environmental
hazards at Hancock Field. See R. D. and O. at 6-8.[3]
General Hall also attempted to discuss the fact that Mrs.
Leveille had tape-recorded a confrontation with Senior Master
Sergeant Jack O'Hara without O'Hara's knowledge. Hall again met
with Mrs. Leveille at the end of January. By then, he had arranged
for the New York State Department of Environmental Conservation
(DEC) to assist in addressing the environmental hazards on the
base. He informed Mrs. Leveille that he intended to work through
the DEC rather than involve the National Guard Bureau[4] and
that the DEC would inspect the base during the first week of
[PAGE 3]
February 1992. He subsequently rescheduled the inspection for
later in February because of a conflict with Mrs. Leveille's
training schedule.
In mid-February, General Hall learned that the National
Guard Bureau was sending an Environmental Compliance Assessment
and Management Program (ECAMP) team to audit the base after
having received photographs of environmental hazards from
Mrs. Leveille.[5] The ECAMP team, accompanied by Mrs. Leveille,
conducted the audit between February 18 and 21, 1992. On
February 19, 1992, Mrs. Leveille was notified that her position
would be eliminated effective March 7, 1992.
In March 1992, Mrs. Leveille began looking for employment.
On May 18, 1992, Mr. Leveille, who continued working at Hancock
Field, complained to the Office of the Inspector General (IG)
about his wife's termination and about a number of environmental
hazards on the base. Immediately following a meeting with the
IG, Mr. Leveille was relieved of responsibility for the base fire
department.[6] Thereafter, he received performance evaluations
which did not recommend him for promotion.
In February 1993, Mrs. Leveille was hired by the Federal
Highway Administration to prepare environmental impact statements
in Raleigh, North Carolina. She received favorable progress
reports through the end of March but testified that the
employment relationship then deteriorated after Karen Bobo, her
training coordinator, informed her that Colonel Purple had
criticized her for "going around" her supervisors. T. 70-71.
This communication occurred during an April 12, 1993, meeting in
Washington, D.C. Mrs. Leveille testified:
I found out through a meeting . . . I was called to.
The people in Washington, D.C. were very concerned
about what Lieutenant Colonel Purple had to say about
me. They, I think, couldn't believe that this was
really true, and they wanted to discuss it further
. . . . Karen Bobo is my training coordinator and I
spoke with her that day. [S]he specifically said that
Lieutenant Colonel Purple provided negative information
about me, and they no longer wanted me to work for them
because of what he had to say.
T. 70. According to Mrs. Leveille's notes of the meeting,
Ms. Bobo said "We heard you have a problem -- go around your
supervisors -- I just want you to know that won't happen here --
or you will be gone." Exhibit C-21. Mrs. Leveille testified
that she resigned her employment in May 1993 because of distress
over Colonel Purple's comments.
By letter dated May 20, 1993, Mrs. Leveille's attorney
advised Colonel Purple that negative or derogatory information
[PAGE 4]
provided about Mrs. Leveille because of her whistleblower
activities would constitute illegal blacklisting and threatened
to initiate legal action if Respondent released such information.
Exhibit C-38.
In June 1993, Mrs. Leveille was hired by the State of
Virginia. In December 1993, her government vehicle broke down
during field inspections. She testified: "[My co-workers] did
not come out to pick me up and bring me back to the office, so I
obtained my own ride back." T. 88. Upon her return, one of the
engineers asked if she was upset with them for not giving her a
ride and referred to comments by Colonel Purple about her
supposed propensity for violence. Mrs. Leveille also testified
that when she interviewed for employment at the State of Virginia
Department of Environmental Quality (DEQ) in January 1994, the
interviewer demonstrated less interest in hiring her than
previously expressed, and she suspected that Purple had provided
a negative recommendation.
Colonel Purple testified that he was not aware that
Mrs. Leveille had worked for the Federal Highway Administration
or the State of Virginia and that he had never spoken to any of
her co-workers. T. 346. Purple also denied that he had been
contacted by the DEQ interviewer.
Complainants filed discrimination complaints under the
employee protection provisions of the environmental statutes on
January 6, 1994. The Wage and Hour Division, Employment
Standards Administration completed its investigation on
February 24, 1994.
DISCUSSION
The ALJ's summary of the legal standard in whistleblower
cases is substantially correct. See R. D. and O. at 17-
19. With reference to his discussion of Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981), I note
that once a respondent proffers a legitimate nondiscriminatory
reason for taking adverse action and thus successfully rebuts the
presumption of discrimination raised by the prima facie
case, the complainant must prove that the respondent's reason was
not the true reason for the adverse action and that the
protected activity was. Cf. St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993) (Title VII, Civil Rights Act of
1964). Proving only that the proffered reason was unbelievable
does not compel a finding for the complainant. Rather, the trier
of fact must find intentional discrimination in order for the
complainant to prevail.
The ALJ found that Mrs. Leveille engaged in protected
activity when she submitted two memoranda in January 1992 and
that the environmental whistleblower provisions protected
Mr. Leveille against discrimination motivated by his wife's
protected activity. R. D. and O. at 19-20, 24. I agree with the
[PAGE 5]
ALJ's analysis and adopt these findings. I find that
Mrs. Leveille also engaged in protected activity when she raised
concerns about environmental hazards with the National Guard
Bureau, see discussion, infra, and that Mr.
Leveille engaged in protected activity when he reported
environmental hazards to the IG.
Mrs. Leveille does not contend that her termination was
retaliatory. The weight of the evidence shows that budget
constraints which necessitated the elimination of temporary
employees constituted the legitimate, nondiscriminatory reason
for the termination. R. D. and O. at 8; T. 235-252, 272-275,
332-334. With regard to Mr. Leveille's performance evaluations,
the ALJ is correct that any complaint is untimely. R. D. and O.
at 24-25. The evaluations were discrete incidents occurring at
particular points in time and as such would not be part of any
continuing violation. Mr. Leveille knew that he and his wife had
made environmental complaints and that the lack of promotability
language could have been retaliatory, which should have "alerted
[him] to act to protect his rights." OFCCP v. CSX
Transportation, Inc. (CSX Transportation), Case No. 88-OFC-
24, Sec. Rem. Dec., Oct. 13, 1994, slip op. at 22-23, quoting
Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585 (D.Minn.
1978). Moreover, the record is devoid of evidence that
Respondent blacklisted Mr. Leveille. Id. at 25. The only
remaining issue, then, is whether Respondent blacklisted Mrs.
Leveille by providing adverse employment references because she
engaged in protected activity.
Mrs. Leveille testified about two instances where she
learned through co-workers and a training coordinator that
Colonel Purple had provided adverse references to her employers
and one instance where she suspected that Purple had provided an
adverse reference to a prospective employer. This testimony is
not corroborated, Purple denied speaking to Mrs. Leveille's co-
workers or being aware that she worked for the respective
employers, and the ALJ declined to make any findings on whether
Purple in fact provided adverse references. Although the
discrimination complaints were timely as to these allegations,[7]
the evidence does not support a finding that blacklisting
occurred. Complainants, whose burden it was to prove the
allegations, simply failed to produce the witnesses necessary for
substantiation.
The record shows, beyond peradventure, that Colonel Purple
provided an adverse employment recommendation to a business known
as Documented Reference Check.[8] On November 2, 1993, a
contractor contacted Purple by telephone to inquire about
Mrs. Leveille's former employment. R. D. and O. at 13-16.
Purple stated that Mrs. Leveille worked in a temporary
[PAGE 6]
environmental position and was terminated because "we layed off
all our temporary people." He also stated that he was not aware
that she had achieved any noteworthy accomplishments or projects
during her tenure and joked that the only employee she supervised
was her husband. He stated that the close working relationship
between husband and wife interfered with their job performance,
criticized Mrs. Leveille's "interpersonal skills," and agreed
with the interviewer's suggestion that she was a "combative" and
"argumentative" employee. When asked whether he would hire
Mrs. Leveille, he answered "No, I would not." When asked whether
that was because of her poor interpersonal skills, he answered
"Yes, that is part of it." He stated that she had no problems
with attendance or tardiness and that she had been a productive
employee "[u]ntil the interpersonal skill interfered." When
asked whether he had anything further to add, Purple stated "No
sir. I think you know how to listen between the lines."
See Exh. C-4 (transcript of telephone conversation).
On December 9, 1993, Mrs. Leveille received a report of this
conversation by telecopier and later received a copy by mail.
Filed on January 6, 1994, within 30 days of the report's receipt,
the discrimination complaints were timely as to this alleged
violation.
Although in response to written interrogatories and in a
pre-hearing deposition Colonel Purple denied that the telephone
conversation took place, he admitted at the hearing to making the
above-referenced statements. T. 354-355. As the ALJ found,
Purple declined to mention any of Mrs. Leveille's protected
activity, stating "instead that the spousal relationship, her
being a combative and argumentative employee and her otherwise
having poor interpersonal skills were the reasons why he would
not hire [her]." R. D. and O. at 22. However, the comment that
interpersonal skills were only part of the problem and the
reference to "listen[ing] between the lines" suggest other
reasons that Purple hesitated to broach. During the early 1994
Wage and Hour Division investigation of Complainants'
discrimination complaints, Purple represented to the Wage and
Hour investigator that he released only Mrs. Leveille's dates of
employment, position, grade and rate of pay in response to third
party inquiries. T. 363-364.
Also in evidence is employment information provided to the
United States Office of Personnel Management (OPM) which is
limited under the Privacy Act because a source requested
confidentiality. See Exhibits C-27 and C-67.[9] Dated
September 10, 1993, the information was made available in
response to Complainants' May 14, 1993, Freedom of Information
Act (FOIA) request. Based on the placement of the deleted source
listing in the context of Mrs. Leveille's employment history,
[PAGE 7]
Exh. C-27 at 4, the absence of Colonel Purple's name elsewhere on
the listing,[10] and the notation that Mrs. Leveille was
"discharged because of company cutback in workforce or change in
skill needs," Exh. C-67 at 4, see T. 85, I find that
Purple submitted the information. The source involved stated
that he would not recommend Mrs. Leveille for government
employment or a government security clearance and included
explanatory comments which were redacted for purposes of the FOIA
response. I agree with the ALJ that Complainants received "a
copy of the reference response with sufficient data . . . to
permit an identification of the source" only after the
discrimination complaints were filed, and I approve amendment of
the complaints to include this alleged violation. R. D. and O.
at 21.
In a July 1994 deposition, Colonel Purple testified that he
would not recommend Mrs. Leveille for government employment
because she had filed the instant discrimination complaints.
T. 361-362, 370.[11] That explanation would not have appeared
in the OPM information, however, since the information was
submitted prior to September 10, 1993, and Complainants did not
file discrimination complaints until January 1994. There is no
evidence that Respondent knew about any intent on the part of
Complainants to file complaints.
While General Hall and Colonel Purple were critical of
Mrs. Leveille and Purple provided adverse employment
recommendations, questions arise as to whether their motivation
was retaliatory. Both Hall and Purple testified that their
opinion of Mrs. Leveille had nothing to do with her reports of
environmental noncompliance, and consistent with past practice
Hall notified the media of the anticipated ECAMP audit.
Moreover, both supervisors had worked closely with the DEC when confronted with environmental hazards on the base and continued
to do so. T. 286-288, 384-385.
Instead, the supervisors focused on Mrs. Leveille's
inability to interact effectively with co-workers. See T.
283-294, 318-319, 322-324. General Hall testified, for example,
that covertly tape-recording a confrontation with Sergeant O'Hara
"was not the way to build the kind of trusting relationships that
she would need to have if she were to be an effective coordinator
of the base environmental program."[12] T. 283-284. Hall
similarly criticized her deportment in his presence. He
testified:
We sat in my office . . . and I asked her to review
with me the environmental situation on the base. At
that time she handed me a report and said, "It's all in
there. You can read it," which was not my idea of what
I was going to get in terms of a briefing from a staff
person who had concerns about the base. I thought a
verbal review of the situation and some discussion was
[PAGE 8]
called for.
T. 284. The tone of the report also "fit into the pattern [he]
was concerned about . . . that she needed assistance in
development of the personal skills necessary to make her more
effective in her job." Id. See n.3, supra.
Lieutenant Colonel Richard Mueller, Mrs. Leveille's
administrative supervisor and a base management analyst,
testified to receiving feedback from numerous quarters about
arguments initiated by Mrs. Leveille with co-workers when
arranging for acquisitions, i.e., that she "was demanding, not cooperative. [S]he pretty much wanted to do what
she wanted to do when she wanted to do it." T. 255-259.
Furthermore, General Hall testified that he was not
motivated by Mrs. Leveille's contact with the National Guard
Bureau that precipitated the ECAMP audit and that he welcomed
ECAMP involvement. T. 294, 325-326. Colonel Purple testified
that he also welcomed the audit. T. 341-342. The ALJ found,
however, that one of the reasons for providing "any adverse
[employment] reference(s)" would have been Mrs. Leveille's
unwillingness to accept General Hall's authority, i.e.,
"'going behind the back' of General Hall." R. D. and O. at 23.
The ALJ stated:
It was not the raising of the complaints which caused
the problem. Rather, it was [Mrs. Leveille's]
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 [her] 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 . . . . He was the person "in charge."
[Mrs. Leveille's] obvious unwillingness to accept this
does not constitute protected activity.
R. D. and O. at 23.
According to the ALJ, then, General Hall decided to proceed
largely in-house and involve only the State regulator, thereby
prohibiting Mrs. Leveille from making a Federal complaint. This
finding, however, also would condone an employer mandate that all
environmental complaints be handled internally with no recourse
to any external regulatory agencies, depending upon what the
person "in charge" determined to be the "correct route." This
practice clearly is prohibited. Saporito v. Florida Power and
[PAGE 9]
Light Company, Case Nos. 89-ERA-7, 89-ERA-17, Sec. Ord., Feb.
16, 1995, slip op. at 5-7, quoting Secretary of Labor, Mine
Safety and Health Admin. on Behalf of Pack v. Maynard Branch
Dredging Co., 11 FMSHRC 168 (1989), rev. denied, 896
F.2d 599 (D.C. Cir. 1990) (policy prohibiting miners from
reporting hazards to Mine Safety and Health Administration would
itself be prohibited). The record shows that General Hall was
concerned with the internal/external dichotomy, but not
exclusively as the ALJ found. Hall testified:
It didn't concern me at all that she would address
issues with the National Guard Bureau. I was concerned
that those issues, in my mind, hadn't been fully
discussed within the 174th fighter wing or with the
Headquarters New York Air National Guard before going
to the National Guard Bureau. There was -- in terms of
an appropriate way of doing business issue here, you
are to follow that path to the National Guard Bureau
rather than direct, and I think there were many
conversations that took place direct without previous
discussion within the wing.
T. 326. This testimony brings to bear the chain-of-command cases
that the ALJ sought to distinguish. R. D. and O. at 23. To the
contrary, an employer may not, with impunity, discipline an
employee for failing to follow the chain-of-command, failing to
conform to established channels, or circumventing a superior,
when the employee raises an environmental health or safety issue.
Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290
(9th Cir. 1991); Ellis Fischel State Cancer Hospital v.
Marshall, 629 F.2d 563, 565 (8th Cir. 1980), cert.
denied, 450 U.S. 1040 (1981); Pillow v. Bechtel
Construction Co., Case No. 87-ERA-35, Sec. Rem. Dec., Jul.
19, 1993, slip op. at 22-23, appeal docketed, No. 94-5061
(11th Cir. Oct. 13, 1994); McMahan v. California Water Quality
Control Board, San Diego Region, Case No. 90-WPC-1, Sec.
Dec., Jul. 16, 1993, slip op. at 4-5; Nichols v. Bechtel
Construction Co., Case No. 89-ERA-44, Sec. Rem. Dec., Oct.
26, 1992, slip op. at 17, aff'd, 50 F.3d 926 (11th Cir.
1995).
Such restrictions on communication -- whether by the "person
in charge" or through adherence to the "chain-of-command" --
would seriously undermine the purpose of the environmental
whistleblower laws to protect public health and safety. I find
that Mrs. Leveille was protected when she contacted the National
Guard Bureau with her concerns, irrespective of any preference on
the part of Respondent to limit Federal regulatory involvement.
Cf. Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926,
931-932 (11th Cir. 1995) (employee raising particular, repeated
[PAGE 10]
concerns about safety procedures protected under whistleblower
provision of Energy Reorganization Act).
Colonel Purple "badmouthed" Mrs. Leveille to Documented
Reference Check and stated that he would not hire her. R. D. and
O. at 21-22. As discussed above, Purple's references to
harboring other, unstated reasons for his opinions suggest
illicit motivation, especially since the conversation, which
occurred in November 1993, followed the May 1993 letter from
Mrs. Leveille's attorney admonishing Purple not to denigrate her
because she had engaged in protected activity. The ALJ found
that "any adverse reference(s)" provided by Respondent concerning
Mrs. Leveille were motivated in part by her contact with the
National Guard Bureau. It follows that Purple's adverse
recommendation to Documented Reference Check also was motivated
by the protected activity.
Contrary to the ALJ's finding, R. D. and O. at 21-22, the
fact that Mrs. Leveille was not refused employment or did not
suffer "an actual employment injury" should not shield Respondent
from liability. Under the applicable regulations, "[a] person is
deemed to have violated the particular [environmental
whistleblower] law . . . if such person . . . blacklists . . .
any employee who has [engaged in protected activity]." 29 C.F.R.
§ 24.2(b)(1994). The term "blacklist" means "[a] list of
persons marked out for special avoidance, antagonism, or enmity
on the part of those who prepare the list or those among whom it
is intended to circulate; as where a trade-union 'blacklists'
workmen who refuse to conform to its rules . . . ." Black's Law
Dictionary 154 (5th ed. 1979).
Consequently, in the context of this case "blacklisting" is
simply marking an employee for avoidance in employment because
she engaged in protected activity, and communication of an
adverse recommendation is evidence of the decision to blacklist
the employee. Blacklisting is quintessential discrimination,
i.e., distinguishing in the treatment of employees by
marking them for avoidance. Purple, who was advised that he was
speaking to an employer in possession of Mrs. Leveille's resume,
see Exh. C-41,[13] essentially recommended that the
caller avoid employing Mrs. Leveille by stating that he (Purple)
would not hire her. In so doing, he made statements that "'had a
tendency to impede and interfere with [her] employment
opportunities.'" Earwood v. Dart Container Corp. and J & R
Schugel Trucking (Earwood), Case No. 93-STA-16, Sec. Dec.,
Dec. 7, 1994, slip op. at 5, quoting Ass't Sec'y of Labor for
Occupational Safety and Health and Leidigh v. Freightway
Corp., Case No. 88-STA-13, Sec. Dec., June 10, 1991, slip op.
at 3.
In Earwood, a blacklisting case brought under the
whistleblower provision of the Surface Transportation Assistance
[PAGE 11]
Act, the Secretary found "that effective enforcement of the Act
requires a prophylactic rule prohibiting improper references to
an employee's protected activity whether or not the employee has
suffered damages or loss of employment opportunities as a
result." There, the inquiry by the prospective employer was not
legitimate. Here, the caller was a contractor retained by
Documented Reference Check to elicit the same information
previous employers would pass on to prospective employers. Exh.
C-39. The only difference between Earwood and the
instant case is that the former employer in Earwood was
completely candid about his illegal motivation whereas Colonel
Purple was not. Under the findings made here, however, Purple's
adverse recommendation to Documented Reference Check evinced the
same retaliatory decision to blacklist.
I have found that Colonel Purple submitted information to
OPM concerning Mrs. Leveille. It is uncontroverted that the
information contains an adverse employment reference,
i.e., that the source (Purple) "would [not] recommend this
person
[Mrs. Leveille] for government security clearance or employment."
Exh. C-67 at 4. The reasons given for the recommendation were
redacted for purposes of the FOIA response because the source
requested confidentiality. Consistent with the ALJ's finding
that "any adverse reference(s)" provided by Respondent concerning
Mrs. Leveille were motivated in part by her contact with the
National Guard Bureau, I find that the protected activity
motivated Colonel Purple to submit the adverse recommendation to
OPM. Furthermore, Purple's admission that he would not recommend
Mrs. Leveille for employment because she engaged in the protected
activity of filing the instant discrimination complaint -- a
separate blacklisting decision -- convinces me that his previous
motive likewise was retaliatory.
The information containing Purple's adverse recommendation
remains filed with OPM and is and has been accessible to
government employers. Having an adverse reference on file with a
central government employment agency and accessible for hiring
decisions and decisions concerning security is tantamount to
having an adverse performance appraisal on file in an employer's
personnel office and accessible for decisions pertaining to
promotions and layoff. According to OPM, "[o]ther agencies
requesting [Mrs. Leveille's] investigative file will receive a
copy unsanitized. The retention schedule for [the] investigative
file is fifteen years." Exh. C-67. Respondent thus engaged in
adverse action, i.e., discriminated against Mrs. Leveille
with respect to compensation, terms, conditions, or privileges of
employment.
Since protected activity motivated Respondent at least in
part when providing references, analysis under the "dual motive"
[PAGE 12]
discrimination model is required.[14] Carroll v. Bechtel
Power Corporation, Case No. 91-ERA-46, Sec. Dec., Feb. 15,
1995, slip op. at 10, appeal docketed, No. 95-1729 (8th
Cir. Mar. 27, 1995). Cf. Mt. Healthy City School Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977) (once a plaintiff
carries the burden of proving that his conduct was protected and
a motivating factor in the defendant's decision not to rehire
him, the burden shifts to the defendant to show by a
preponderance of the evidence that it would have made the same
decision even in the absence of the protected conduct).
Respondent thus assumes the risk that illegal and legal motives
for adverse action "merge and become inseparable." Passaic
Valley Sewerage Comm'rs v. United States Dept. of Labor, 992
F.2d 474, 482 (3d Cir.), cert. denied, 114 S.Ct. 439
(1993). Here, Respondent failed to meet its burden to prove that
Colonel Purple would have taken the same action for
nondiscriminatory reasons alone. See, e.g., T. 328-389
(Purple).
CONCLUSION
Complainants proved that Respondent retaliated against
Mrs. Leveille by blacklisting her and by providing adverse
employment recommendations on two occasions, and Respondent
failed to prove that it would have done so in the absence of
protected activity. Complainants thus have prevailed on a
portion of the complaints. Accordingly, Respondent is ordered to
refrain from blacklisting Mrs. Leveille, to post and circulate
this decision at Hancock Field, Syracuse, New York, and to
withdraw any adverse reference pertaining to Mrs. Leveille on
file with the United States Office of Personnel Management. This
case IS REMANDED to the ALJ for findings on compensatory damages
and costs and expenses, including attorney fees, reasonably
incurred in bringing the complaints.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
These statutes include the Toxic Substances Control Act
(TSCA), 15 U.S.C. § 2622 (1988); Safe Drinking Water Act
(SDWA), 42 U.S.C. § 300j-9(i) (1988); Clean Air Act (CAA),
42 U.S.C. § 7622 (1988); Solid Waste Disposal Act (SWDA), 42 U.S.C.
§ 6971 (1988); Water Pollution Control Act or Clean Water
Act (CWA), 33 U.S.C. § 1367 (1988); and Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA),
42 U.S.C. § 9610 (1988).
[2]
When she met with Colonel Purple on December 19,
Mrs. Leveille explained that "[t]he National Guard Bureau was
sending the draft reports of . . . two superfund sites to [her],
and they'd indicated that the . . . reports were extremely
damaging to the base." She also suggested that he could call the
New York State Department of Environmental Conservation "and let
them know that we were in serious violation" or "call the Guard
Bureau and get their assistance on the matter." Hearing
Transcript (T.) 45-46.
[3]
In the memorandum, Mrs. Leveille criticized General Hall,
the Air Commander, for failing to attend the January 7 meeting.
Hall testified that having just returned from leave, he was not
aware that the meeting was taking place. The memorandum
"strongly advise[d] the Air Commander to completely read this
report" and to contact the Environmental Branch of the Air
National Guard Readiness Center and the Judge Advocate General
about it.
Mrs. Leveille also detailed Colonel Purple's unreceptive reaction
to her environmental concerns, complained that her "modular
furniture and computer requirements" had not been met, objected
to being assigned to an "underling" supervisor which "ha[d]
proven to be a hindrance to [her] environmental mission," and
admonished that "Hancock Field as a whole [was] out of control
concerning the protection of the environment and the people that
work in it." Mrs. Leveille also provided General Hall with
photographs of environmental hazards at Hancock Field. T. 58-59;
313.
[4]
General Hall explained that in the State of New York the
DEC was the signatory for the United States Environmental
Protection Agency and "the sole source point of regulatory
guidance." T. 281.
[5]
Complainants' Exhibit 31 suggests that the ECAMP team
consisted of Federal environmental experts from the Department of
the Air Force. Mrs. Leveille testified that the ECAMP team
consisted of "members of the Air National Guard Bureau that do
this on a daily basis. They do nothing but conduct inspections
all over the United States. There were inspector generals as
well as attorneys." T. 63.
[6]
Colonel Purple testified that the fire department received
an unsatisfactory rating during a May 1992 Unit Effectiveness
Inspection and that he personally assumed the supervisory duties
in order to correct the rating. According to Purple, the
unsatisfactory rating could have precluded receipt of upgraded
airplanes. T. 347-351. Mr. Leveille testified that he was not
responsible for the rating. T. 390-393.
[7]
These incidents suggest serial adverse action. While they
occurred more than 30 days before the discrimination complaints
were filed, the complaints were timely because the final
reference in the series, provided to Documented Reference Check
and discussed below, did occur during the 30-day
limitations period. CSX Transportation at 23.
[8]
"Documented Reference Check is an agency that will verify
any negative or derogatory information that a previous employer
is providing about you to other potential employers." T. 90
(Leveille). See Exhs. C-39, C-40.
[9]
Initially, Colonel Purple testified that he did not recall
submitting an OPM form for Mrs. Leveille, but added that he has
completed them in the past and consistently requests
confidentiality when doing so. T. 353. Later, when asked:
"You're not denying that you filled out such a form on Marrita
Leveille, are you," he answered: "I think I did. I -- I don't
know." When asked: "And, in fact, you believe you very well may
have filled this out, correct?" he answered: "May have. I've
done those in the past for other employees quite commonly since
1975, because I've been in the personnel side for a long time."
T. 370.
[10]
Mrs. Leveille had listed Colonel Purple as her supervisor
at Hancock Field. T. 85-86; Exh. C-27 at 8.
[11]
At the hearing, Purple initially contradicted his
deposition response. When asked whether the instant complaints
served as a basis for his belief that Mrs. Leveille should not be
employed by the Federal government, Purple answered: "No.
That's a statutory right of any government employee." When
confronted with his deposition response, Purple admitted stating
that he would not recommend her for government employment because
she had filed the complaints, but explained that "it was not the
reason I would use." T. 362.
[12]
General Hall conceded, however, that Sergeant O'Hara "had
a reputation for being loud and argumentative when he disagreed
with your opinion." T. 322.
[13]
The caller stated: "I have a resume here from a former
associate of yours, a Marrita M. Leveille. You may know her as
May. I could better understand how to work with her here, if I
understood what she did there."
[14]
Alternatively, the protected activity may have served as
the sole motivation for not recommending Mrs. Leveille for
employment, and the proffered nondiscriminatory reasons may have
been pretextual. In seeming contrast to the statements provided
to Documented Reference Check, T. 343-345, Colonel Purple
elsewhere agreed that Mrs. Leveille was not a problem
employee as far as he was concerned but that she was not popular.
He also agreed that some employees in her position as an
environmental inspector tend to ruffle feathers when they "find
problems and someone else has to do a lot of work with them to
fix them
. . . ." See T. 359-360.
