DATE ISSUED: June 17, 1994
CASE NO: 93-WPC-11
In the Matter of
RONNIE CARSON, JR.,
Complainant,
v.
TYLER PIPE COMPANY,
Respondent.
APPEARANCES:
Ronnie Carson, Pro se
727 South Donnybrook
Tyler, TX 75701
For the complainant
Tracy Crawford, Esquire
Ramey & Flock
500 First Place
Tyler, TX 75702
For the respondent
BEFORE: DONALD W. MOSSER
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection provi-
sion of the Safe Drinking Water Act [42 U.S.C. § 300j-9(i)],
the Water Pollution Control Act [33 U.S.C. § 1367] and the
regulations promulgated thereunder [29 C.F.R. Parts 18 and 24].
[PAGE 2]
Complainant, Ronnie Carson, Jr., timely filed a complaint
with the Secretary of Labor (Secretary) on May 19, 1993 essen-
tially alleging that Tyler Pipe Company (Tyler) discriminated
against him in violation of the above-cited statutes and regula-
tions. The Secretary, through his duly authorized agents,
investigated the complaint and determined that there was no
reasonable cause to believe that Tyler discriminated against Mr.
Carson in terminating his employment.
By telegram received June 29, 1993, the complainant opposed
the finding of the Secretary and appealed his determination. I
conducted a formal hearing on November 4, 1993 at Tyler, Texas at
which time the parties were afforded the opportunity to present
both documentary and testimonial evidence. Since the parties
formally waived the procedural time constraints, the record
remained open until February 18, 1994 for the filing of simulta-
neous original briefs or closing arguments by complainant. The
findings of fact and conclusions of law as set forth in this
decision are based on a thorough review of the evidentiary record
and consideration of the well-written arguments of complainant
and counsel.[1]
ISSUE
The sole issue in this case to be resolved is whether Tyler
Pipe Company's discharge of Ronnie Carson, Jr. was in violation
of the employee protection provisions of the Safe Drinking Water
Act or the Water Pollution Control Act.
FINDINGS OF FACT
Respondent, Tyler Pipe Company, engages in water treatment
processing. It maintains two water treatment facilities at
Tyler, Texas. The Mason-Dixon (MD) and South plants receive
untreated water and through a series of chemical treatments and
mixings alter the untreated water to acceptable levels for
release. (Tr. 171). Once the water is at approved levels of pH,
the water is released at outfall locations into a local stream.
The pH levels are designated by permits through the State of
Texas. Water not meeting the required pH levels cannot be
released by Tyler or Tyler will be in violation of its permits.
Tyler hires and trains its own employees. There are opera-
tional manuals for equipment, operations and process which were
approved by an outside source for training purposes. (Tr. 25).
Water treatment operators are not trained using manuals and do
not operate under a standard operating procedures manual. (Tr.
170). Instead, the operators are trained via an apprenticeship
[PAGE 3]
situation. New employees are more accident prone than experi-
enced operators, so Tyler practices the policy of putting a new
employee with an experienced operator. The new employee stays
with the operator several weeks or months if needed, until Tyler
feels the employee is adept enough to perform the tasks without
direction. (Tr. 39, 170). Due to the apprenticeship method and
a set of "unwritten standards" for the water treatment depart-
ment, operators know how to perform their jobs. (Tr. 170). Each
operator may use a different routine, but all operators basically
perform the job functions in the same manner. (Tr. 286).
Respondent also utilizes a "chain of command" system for
problems or emergencies within its plants. An operator, when
confronted with a problem which is beyond his training or experi-
ence, is to notify the lead man on the shift, if there is one.
The next level is the supervisor. The lead man or operator is to
notify a supervisor of the problem. The supervisor, if unable to
resolve the situation, is instructed to notify the technical
service manager. (Tr. 37, 38). From the technical service
manager, the chain continues into the upper management of Tyler,
if necessary, to alleviate the problem. This system is known and
understood by Tyler operators. (Tr. 40).
Ronnie Carson, Jr. began working for Tyler as a water
treatment operator approximately five years ago. (Tr. 168).
Through his training at Tyler and state-approved classes, Carson
obtained a certification as a D operator. (Tr. 169). This
certification indicates Carson has met the water treatment
certification requirements for the State of Texas, but does not
mean Carson is entitled to any more autonomy as an operator at
Tyler Pipe Company. (Tr. 34).
During Carson's employment, he wrote letters to Tyler's
management concerning problems he perceived at the water treat-
ment plants. Specifically, on May 15, 1990 and May 22, 1992,
Carson wrote lengthy letters to Tyler expressing his concern over
several problems and offering suggestions for improvement at the
water treatment plants. The first letter, May 15, 1990, was
written to James Russell, the current president of Tyler. (CX
1). Russell subsequently contacted Carson and asked if he would
like to meet with him and a Mr. Milstead regarding the letter.
Russell, Milstead and Carson met to discuss the contents of the
letter and later Carson's supervisor also met with the complain-
ant about the letter. The discussion entailed the supervisor
requesting that if Carson wanted to write letters in the future,
that the supervisor be contacted before doing so. The supervisor
also requested Carson seek his help in composing and structuring
[PAGE 4]
future letters to make them more readable for management. (Tr.
127).
The second letter was May 22, 1992. (CX 2). This letter,
which was 39 pages, also addressed problems Carson perceived at
Tyler's facilities. Carson indicated there were supervisory
problems with Bob Skidmore, one of Carson's supervisors, as well
as problems with the falsification or records at Tyler. Carson
was again requested to meet with Tyler management to discuss the
contents of the letter. Skidmore first met with Carson to
address supervisory problems perceived by Carson. (Tr. 210).
The second meeting about this letter was with Lindsey Smith, the
manager of technical services at Tyler. (Tr. 238). During this
meeting, Smith attempted to address each of the accusations or
problems set forth by Carson. This meeting lasted approximately
two and one-half hours and did not encompass all points addressed
in the letter. Instead, Carson decided to terminate the meeting
before all points in the letter were addressed. Smith viewed
this meeting as a verbal reprimand of Carson; not for writing the
letter, but for leveling false accusations of record falsifica-
tions and for experimenting at the plant without a supervisor's
approval. Carson was not made aware that Smith viewed this
meeting as a reprimand.
Other disciplinary problems with Carson centered on his
reluctance to notify a supervisor and his refusal to clean out a
refrigerator. (Tr. 216). The refrigerator incident arose when
Carson refused to clean out the refrigerator in the break room at
the plant, claiming it was not part of his job. The other
incidents arose from Carson's reluctance to involve the supervi-
sors in problems encountered in the water treatment plant.
Carson typically chose to solve problems without the aid of
supervisors, as opposed to seeking their help.
Carson worked as a water treatment operator during the 11:00
p.m.-7:00 a.m. shift. His shift supervisor was Charles Shelton,
who was responsible for the plants and operators at both the MD
and South plants. (Tr. 264). Shelton spent approximately one-
half of his time with each set of operators, but if one plant was
short staffed, he would spend more time in that plant. Shelton
and all supervisors are reachable via telephone, radio or pager
and can be at locations within the plant within five minutes.
(Tr. 268).
On March 10, 1993, Jerry Mise, shift supervisor for the
3:00-11:00 p.m. shift, had been experiencing trouble with the 309
lime tank. The lime tanks, 309 and 310, are at the head of the
[PAGE 5]
water treatment process. These tanks release lime slurry into
the flashmixer, which mixes the lime and subsequently releases it
into the large recycle clarifier. This begins the pH adjustment
process for the water treatment. The 309 tank had been stopping
up on that day. Mise had tried to drain the tank but the lime
was too thick. He added water to the tank to try to thin out the
lime, but it would still not drain. Also, the lime was now too
thin to keep the desired pH level in the system. (Tr. 245).
Mise apprised Carson of the problems during the day, as Mr.
Carson was his relief.
Charles Shelton, the night supervisor, and the other 11:00
p.m.-7:00 a.m. operators were also apprised of the problems with
the 309 tank. Shelton told Carson and the other operator to
transfer the lime contents of the 309 tank into the 310 tank.
(Tr. 265, 266). Once the 309 tank was drained of its lime con-
tents, the objects blocking the outflow of the tank could be
removed. (Tr. 266).
To begin the process of transferring the contents of the 309
tank into the 310 tank, the valve allowing the lime to flow into
the flashmixer at the start of the treatment process must be
turned off. This valve was not shut off by Carson, thus the lime
flowed into the flashmixer and the water treatment system instead
of into the 310 tank. The additional lime in the system drove
the pH levels up to approximately 11, which is far out of compli-
ance with Texas' standard pH level of 8.5-9.5. (Tr. 181).
Carson and another operator discovered that the lime in tank
309 had gone into the water treatment system when they were
retrieving the objects from tank 309. The operators were unable
to hear any contents going into tank 310, which was next to tank
309. They lifted the top of the 309 tank and found that there
was a very small amount of lime in tank 310. The operator
checked the probe and found that the flashmixer was registering a
reading of 10.1, which indicated to the operator that the lime
had gone into the flashmixer. (Tr. 254). The operator told
Carson of the reading and to shut off the transfer, which would
stop the lime from flowing into the start of the system. Carson
told the operator that he had shut off the valve. (Tr. 255).
When the problem was discovered, Carson did not notify his
supervisor of the mistake. Had he brought the situation to the
attention of his supervisor, it could have been handled through
the supervisor. Mistakes are common in the water treatment
plants and generally are not considered grounds for termination.
Carson felt that he could handle the situation of the raised pH
[PAGE 6]
without notifying his supervisor. To lower the pH levels in the
system, Carson drained all of the tanks in the water treatment
plant. This draining included the dissolved metals clarifier
tank.
Complainant drained the tanks in an effort to neutralize the
high pH levels in the system. Draining the water tanks had the
effect of lowering the pH as well as flooding the water treatment
plant with approximately six inches of water within the contain-
ing walls. The draining of the tanks left the plant in a vulner-
able position if the area were to receive rain over the weekend.
Several pools in the area were designed to trap water and the
water was then transported to the MD and South treatment facili-
ties. The area within the containment walls were also used to
trap water during a rain. As the area within the walls was
already full with water, there would be nowhere for the rainwater
to be stored until the plant was operational again.
Carson saw Shelton during his shift, but did not inform him
that he had drained the dissolved metals clarifier. Complainant
indicated to Shelton that everything was normal, despite the
water within the walls. Shelton did not find out that Carson had
drained the dissolved metals clarifier until 7:00 a.m. the next
morning. (Tr. 266). As the shift changed, the relief operator
contacted Skidmore to find out why the dissolved metals clarifier
had been drained. Skidmore then asked Shelton, who knew nothing
about the draining until that time.
Skidmore asked Carson why he had drained the tank and
complainant indicated that he was now off the clock and would
discuss it at a later time. Skidmore went on to investigate the
problem, speaking to operators and investigating the condition of
the water at the plant. He typed up his assessment of the situa-
tion to present to Smith and complainant at a later time.
Smith, Skidmore, Shelton and Carson met the evening of March
11 to discuss the problems of the prior night. (Tr. 191). At
that time, Smith presented Carson with the typed results of
Skidmore's investigation. Smith and Skidmore were interested in
ascertaining Carson's version of the situation and obtaining an
explanation from Carson as to the reasons for his decision to
drain the dissolved metals clarifier. During the meeting, Carson
was very defensive and claimed that the treatment from Smith and
Skidmore was "harassment."
Carson had no explanation for his decision to drain the
dissolved metals clarifier except that he had authority over all
[PAGE 7]
of the fluids in the plant during his shift. Based on this
explanation, Smith felt it necessary to place Carson on suspen-
sion for the following three days, pending termination. He
stated that if he could fire Carson over these events, he would.
After the three day suspension, Carson was asked to meet in the
office of Mr. Fowler, human resources manager. During the
meeting in Fowler's office, the events of March 10 and 11 were
again discussed. Carson was asked for any additional explanation
which would explain his reasons for not contacting a supervisor.
Fowler listened to the discussion, but did not participate in the
decision for termination.
The meeting in Fowler's office ended with Carson's termina-
tion. The reason for Carson's termination was his failure to
notify his supervisor of the problems on March 10 and 11. After
termination, Carson reported to the Texas Water Commission (TWC)
that the Tyler water treatment plant was releasing water which
was out-of-compliance with its permits. This complaint was
investigated by the TWC and found to be meritless. No other
complaints or compliance problems have been reported to the TWC
or any other state or federal agency.
CONCLUSIONS OF LAW
This case arises under the Safe Drinking Water Act and the
Water Pollution Control Act as Ronnie Carson, Jr. was employed as
a water treatment operator for approximately five years by Tyler
Pipe Company. 42 U.S.C. § 300j-9(i) and 33 U.S.C. §
1367 and 29 C.F.R. Parts 18 and 24. Mr. Carson alleges that he
was fired by Tyler for a letter he wrote to Tyler officials
addressing the problems complainant perceived at Tyler's facili-
ty.
The Safe Drinking Water Act provides that no employer may
discharge any employee because the employee has:
(A) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under
this subchapter or a proceeding for the administration
of enforcement of drinking water regulations or under-
ground injection control programs of a State;
(B) testified or is about to testify in any such
proceeding; or
(C) assisted or participated or is about to
participate in any manner in such a proceeding or in
[PAGE 8]
any other action to carry out the purposes of this subchapter.
42 U.S.C. § 300j-9(i).
The Water Pollution Control Act provides that no person
shall fire or discriminate against any employee by reason of the
fact that the employee:
has filed, instituted, or caused to be 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.
33 U.S.C. § 1367(a).
The Federal regulations pertaining to employee complaints
based on these statutes are found at 29 C.F.R. § 24.1, et
seq. According to these regulations, a person violates these
federal laws if he discharges an employee because the employee:
(1) Commenced, or caused to be commenced, or is about
to commence or cause to be commenced a proceeding under
one of the Federal statutes listed in §24.1 or a
proceeding for the administration or enforcement of any
requirement imposed under such Federal statute;
(2) Testified or is about to testify in any such
proceeding; or
(3) Assisted or participated, or is about to assist or
participate in any manner in such a proceeding or in
any other action to carry out the purposes of such
Federal statute.
29 C.F.R. § 24.2.
It is well established that for a complainant to prove a
prima facie case under the statutes and regula-
tions, the evidence must demonstrate that the complainant was
engaged in a protected activity, that the complainant was termi-
nated by the employer, and that employer was aware of the pro-
tected activity when it took the adverse action. Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248 (1981); Mt.
Healthy City School District Board of Education v. Doyle, 429
U.S. 274 (1977). The complainant must also present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse
[PAGE 9]
action. Direct evidence is not required for a finding of causa-
tion. The presence or absence of a retaliatory motive is prov-
able by circumstantial evidence, even if witnesses testify that
they did not perceive such a motive. Ellis Fischel State
Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980),
cert. denied, 450 U.S. 1040 (1981). If the complainant
satisfies this requirement, then the evidentiary burden shifts to
the employer to prove that the employee was discharged for a
legitimate non-discriminatory reason. McCuistion v. Tennessee
Valley Authority, 89-ERA-6 (Sec'y Nov. 13, 1991).
Mr. Carson did not engage in protected activity, because he
made purely internal complaints. Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir. 1984). The Fifth Circuit
held in Brown & Root, Inc. v. Donovan that the filing of
an intracorporate quality control report is not protected activi-
ty under the Energy Reorganization Act of 1974, 42 U.S.C. §
5851(a)(3). Although this case does not involve the Energy
Reorganization Act, it does involve similar employee protection
provisions which, I believe, the Fifth Circuit would apply in
the manner it did to the above-cited case. To be protected, Mr.
Carson's activity would have had to involve the commencement of
or participation in a proceeding with an environmental regulatory
authority, not merely his internal letter writing. Although the
Secretary of Labor declines to follow Brown & Root
regarding internal complaints, I find that I am compelled to
follow the precedent of the Fifth Circuit and must conclude that
Mr. Carson's conduct is not protected activity. See Hasan v.
Nuclear Power Service, Inc., 86-ERA-24 (Sec'y June 26, 1991);
Bivens v. Louisiana Power & Light, 89-ERA-30 (Sec'y July
26, 1988); Willy v. The Coastal Corporation, 85-CAA-1
(Sec'y June 4, 1987).
Even if I should follow the Secretary and find that Mr.
Carson's internal letters constitute protected activity, I
conclude that the allegations contained in the letters are too
vague to qualify as protected activity. The charges contained in
both the May 15, 1990 and the May 22, 1992 letters were unsub-
stantiated. When the complainant met with various supervisors
regarding the letters, he provided no specific proof to support
the allegations. See Booker v. Brown & Williamson Tobacco
Co., Inc., 879 F.2d 1304 (6th Cir. 1989). Therefore, Mr.
Carson is unable to prove a prima facie case.
Assuming arguendo that Mr. Carson did engage in
protected activity when he submitted his letters to the company,
he would have to prove that the cause of his discharge was the
protected activity. McCuistion, 89-ERA-6. To accomplish
this, complainant must present evidence sufficient to raise the
inference that the
[PAGE 10]
protected activity was the likely reason for the adverse action.
There is no direct evidence of discrimination in this case, but
such evidence may be circumstantial, "i.e. 'proof that the
discharge followed the protected activity so closely in time as
to justify an inference of retaliatory motive.'" Schweiss v.
Chrysler Motor Corp., 987 F.2d 548 (8th Cir. 1993)
(quoting Rath v. Selection Research, Inc., 978 F.2d 1087,
1089 (8th Cir. 1992)). In this case, Mr. Carson's discharge
occurred almost one year following his May 1992 letter. The
events in this case are not close enough in time to justify an
inference of retaliatory motive.
There are other examples of circumstantial evidence. A non-
exhaustive list includes: (1) a hostile attitude of the employer
to the complainant, (2) knowledge of the complainant's protected
activity, (3) disparate treatment of the complainant, (4) failure
to give a prior warning to the employee regarding the reason
advanced for the discipline, (5) prior condonation of the conduct
for which employee is now disciplined, and (6) departure from
established employment practices. Stephen M. Kohn, The
Whistleblower Litigation Handbook: Environmental, Health and
Safety Claims § 3.16 (1990). Although the complainant
and his supervisors had some problems before his termination, I
do not find that they were hostile to him. The complainant had
been warned in the past about his failure to confer with a
supervisor when there were problems. I do not find that any of
the above-listed examples or any other possible examples suffice
to raise the inference that protected activity was the likely
reason for the adverse action.
If, however, Mr. Carson were able to prove a causal connec-
tion between his alleged protected activity and his dismissal,
the burden then shifts to the employer to articulate a legitimate
nondiscriminatory reason for the dismissal. Burdine, 450
U.S. at 253. In this case, the employer argues that its sole
reason for discharging complainant was his work performance that
the company considered grossly negligent. His conduct on March
10 and 11, 1993 led to his dismissal, according to the employer.
Several employees of Tyler credibly testified during the
hearing that when mistakes occur, such as the mistake made by Mr.
Carson on March 10, 1993, the operator should proceed through the
chain of command and not take the matter into his own hands.
There was credible testimony that there was a recurring problem
of Mr. Carson failing to talk to a supervisor about problems that
arose during his shift. (Tr. 232). Complainant had been warned
about this problem in the past. He was urged to make his super-
visors aware of any problems, not to try to deal with them on his
own. He chose to ignore this advice. I therefore find that the
employer has asserted a legitimate nondiscriminatory reason for
its dismissal of the complainant.
The employee may still carry his burden by showing that the
reason proffered by the employer is in fact a pretext. NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983);
NLRB v. Wright Line, a Division of Wright Line, Inc., 662
F.2d 889 (1st Cir. 1981). I reiterate Tyler had a legitimate
reason for dismissing Mr. Carson. The complainant tried to do
too much on his own at Tyler, failing to seek the advice and
assistance of coworkers and supervisors, after being warned
several times that his job required the involvement of supervi-
sors. The problems that arose on March 10, 1993 because of
complainant's failure to heed this advice "is the straw that
broke the camel's back". Therefore, I do not find that the
employer's reason is pretext.
In conclusion, I find that Mr. Carson's purely internal
letter-writing was not protected by the statutes involved in this
case. However, even if that action constituted protected activi-
ty, I conclude that Mr. Carson has not established that he was
discharged from his employment because of that protected activi-
ty.
ORDER
For the above-stated reasons, it is hereby recommended to
the Secretary of Labor that the complaint of Ronnie Carson, Jr.
under the Safe Drinking Water Act and the Water Pollution Control
Act be dismissed.
____________________________
DONALD W. MOSSER
Administrative Law Judge
[ENDNOTES]
[1] References in this decision to ALJX, CX and RX respectively
pertain to exhibits of the administrative law judge, complainant
and respondent. The transcript of the hearing is cited as Tr.
and by page number. The surnames of the many individuals in-
volved in this case are used for convenience purposes.
