ARB CASE NO. 01-034
ALJ CASE NO. 2000-WPC-0004
DATE: March 31, 2003
In the Matter of:
GABRIEL BOSTAN,
COMPLAINANT,
v.
CITY OF CORONA,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Thomas M. Johnson, Esq., Karen E. Helland, Esq., Law Office of Thomas Johnson, Diamond Bar, California
For the Respondent: Jack B. Clarke, Jr., Esq., Trang Tran, Esq., Law Offices of Best, Best & Krieger LLP, Riverside, California
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Federal Water Pollution Control Act of 1972, as amended ("Act" or "FWPCA"), 33 U.S.C.A. § 1367 (West 2001). Complainant Gabriel Bostan filed a written complaint alleging that Respondent City of Corona violated the Act when, because of his protected activity, it failed to continue his employment beyond the probationary period. After a formal hearing, a Department of Labor Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D. & O.) finding that Corona had established, by a preponderance of the evidence, that it had terminated Bostan's employment for non-discriminatory reasons. Bostan appealed this R. D. & O., and we now AFFIRM the denial of Bostan's claim.1
1 Citations to the record are as follows: Recommended Decision and Order (R. D. & O. ___); Hearing Transcript (TR ___); Joint Exhibit (JEX ___); Complainant Exhibit (CEX ___); Respondent Exhibit (REX ___); ALJ Exhibit (AEX ___).
2 An electronic copy of the ALJ's R. D. & O. can be found at: http://www.oalj.dol.gov/public/wblower/decsn/00wpc04a.htm.
3 "Wasting" is the process which permits solids to pass through the treatment plant without building up in the oxidation ditch. TR 131.
4 33 U.S.C.A. § 1367(a) reads as follows: "No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter."
5McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
6 With respect to the January 6, 1999 demotion, we concur with the ALJ's finding that the demotion did not constitute an adverse action because Prentice immediately rescinded it, and Bostan suffered no identifiable harm. R. D. & O. at 7. Accord Griffith v. Wakenhut Corp., ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 10-11 (ARB Feb. 29, 2000).
7 We disagree, however, with the ALJ's finding that Prentice had decided as early as November 1999 to terminate Bostan. R. D. & O. at 8. See TR 284-86.