Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington,
DC 20001-8002
Date Issued: January 18, 2000
Case No. 1998-CAA- 12
David F. Hoch Complainant
v.
Clark County Health District Respondent
Before: Stuart A. Levin,
Administrative Law Judge
For Complainant:
Richard Segerblom, Esq.
Sangeeta Singal, Esq.
For Respondent:
Mark J. Ricciardi, Esq.
DECISION & ORDER
This is a proceeding convened under the jurisdiction of the Clean Air Act
(CAA), 42 U.S.C. § 7622, as amended, and the regulations promulgated and published at
29 CFR Part 24 to implement the Act. By letter dated April 1, 1998, David F. Hoch filed a
complaint with the Department of Labor alleging that he was the target of discriminatory action
arising out of activities protected by the Act when he was transferred and denied access
to certain computer programs by his employer, the Clark County Health District, Clark County,
Nevada.
Following an investigation, the Regional Administrator, Occupational
Safety and Health Administration, U.S. Department of Labor, determined in an undated letter
that discrimination in violation of the Act was a factor in the decision to deny Hoch access to
certain computer programs. By letter dated August 3, 1998, the Employer requested a formal
hearing which convened at Las Vegas, Nevada, on October 5 and 6, 1999.
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At the hearing, the parties were afforded an opportunity to present evidence
and argument, and, thereafter, filed briefs and responses, the last of which was filed November
19, 1999. The findings and conclusions which follow are based upon my observation of the
appearance and demeanor of the witnesses who testified at the hearing and, after careful analysis
of the entire record in light of the arguments presented, the regulations, statutory provisions, and
applicable case law.
FINDINGS OF FACT
1. The Clark County Health District (CCHD) was created as the
governmental entity authorized to supervise public health programs in Clark County, Nevada,
and the cities within the county. One of its divisions includes the Environmental Health Division
from which an Air Pollution Control Division (APCD) emerged. During times relevant to this
proceeding, Dr. Otto Ravenholt was CCHD's Chief Health Officer and its Air Pollution Control
Officer. He served as CCHD's top executive for 35 years, until his retirement on May 8, 1998,
Tr. 142-3. He served at the pleasure of the Board of Health which supervised the District. Tr.
221-223.
2. David F. Hoch is employed by the ACPD as a Permit Specialist
II, in the Title 5 Operating Permit Section under the supervision of David Lee. Tr. 81. He has
worked for APCD for eight years. TR. 53-54. He has a degree in aeronautical science, Tr. 102.
3. Sometime in early 1990's, Hoch was assigned informal management
responsibility for APCD's Emission Reduction Credit Program (ERC). Tr. 227. The ERC
concept involves an emissions inventory, Tr. 72, and is designed to allow communities to
facilitate growth in industry while reducing the level of air pollution in the Las Vegas Valley. Tr.
54. The ERC program allowed firms to obtain from municipalities, and in some instances from
each other, credits and offsets for paving roads to reduce dust emissions. Two credit tons are
required to offset each ton of actual air pollution. Credits can be purchased from the county at
$615 each or at a discount on the open market for about $330 from firms which may no longer
have a use for their accumulated credits. Hoch's duties included assessing the pollution reduction
requirements of individual companies, quantifying road paving projects, and functioning as a
bank to keep track of firms which needed reductions and those which created reductions. Tr. 54.
The ERC information received by APCD is stored in the ERC computer database.
4. The ERC Program, at times relevant to this proceeding, was contained
in Section 12 of the Clark County Health District Regulations. It was promulgated and enforced
locally and was not effective as a measure in the State Implementation Plan until it was approved
by the Federal EPA effective June 10, 1999. RX 150. Hoch, from the earliest days of his
involvement with the ERC, understood that the ERC was an element of the Clark County Health
District Plan to attain the PM-10 Standard promulgated by EPA under the CAA. Tr. 396.
5. The record shows that EPA, on August 27, 1998, expressed
"concerns with the CCHD Section 105 Clean Air Act (CAA) program...," including
six enumerated areas specifically among which it listed the ERC road paving offset program. CX
22, pg. 197; See, Tr. 386-387.
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6. In the early '90's, CCHD supported two separate computer operations
to service its needs. Tr. 225. It brought in-house and centralized most of its computer
capabilities using a Windows-based system; however, APCD operated a separate computer
service maintained by Hoch and his supervisor, Micheal Naylor, Director of the Air Pollution
Control Division, to administer the ERC Program. Tr. 225-227. As a consequence, Hoch was
given a dual-boot computer capable of accessing both the ERC databases and the central
Windows-based District network. Tr. 355-356.
7. Sometime in 1996, Hoch expressed an interest in becoming Computer
Manager for the APCD, ERC program. Dr. Ravenholt, however, was unwilling to create a new
position which would entail a competitive recruitment. As a result, Hoch became frustrated with
the program and decided voluntarily that he would "like to be out of it...," Tr. 227,
and resigned from the ERC program in 1996.
8. In December, 1997, Hoch was interviewed by Keith Rogers, a reporter
for the Las Vegas Review-Journal. Tr. 54, 154. Rogers appeared at APCD offices
inquiring about the ERC Program. He was introduced to Hoch through Michael Naylor's office,
Tr.153. The record does not show, however, whether Rogers initiated the request that he be
provided access to Hoch or whether Naylor suggested to Rogers that he might want to interview
Hoch. At the time, Hoch was working in the Compliance Section of APCD under the
supervision of Mr. Sorden. Tr. 58. Before consenting to the interview, Hoch confirmed that
Naylor agreed he should proceed to meet with Rogers, and he did. Tr. 154. The record shows
that as early as July, 1996, APCD management, and Naylor in particular, were well aware of
Hoch's dissatisfaction and many of his concerns about APCD's implementation of the ERC
program. Tr. 121-124.
9. During his interview with the press, Hoch recalled Rogers asking him
if he believed the ERC Program was mismanaged and "off" by large sums of money,
and if so, by how much. Tr.55. Hoch recalled telling Rogers that he did not know what the
balance was, but acknowledged that it could be off by millions of dollars when both sides of the
equation are considered. Id. Following the meeting, Naylor debriefed Hoch; and while Hoch
sensed that Naylor was nervous about the interview, Naylor had no specific reaction Hoch could
recall. Tr. 154.
10. At the time Hoch spoke with the Review-Journal in
December of 1997, the Clark County ERC Program was included in the Nevada State
Implementation Plan (SIP) which was submitted for consideration and approval by the EPA
under the CAA. Tr. 104-105, 141-142; Tr. 384-385, 388-390.
11. Approximately two weeks after the interview with Hoch, on
December 26,1997, an article by Keith Rogers appeared in the Review-Journal. The
article noted that the offset credit program was out of balance, and quoted Hoch as describing the
task of maintaining the account as a "tracking nightmare." CX 14, pgs. 65-67. The
article further noted Hoch's concerns about lack of staffing and computer problems at APCD
which failed to account for billings and assessments for 1994 and 1995, and again quoted Hoch:
"The bottom line is, we don't know what the correct balance is. We could be talking some
large numbers here. It could be potentially in the millions...." Id.
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12. Dr. Ravenholt found the article uncomplimentary of the District's
management in failing to bring the ERC "up to speed after having been involved for
several years with it." Tr. 228. He was generally surprised at Hoch's suggestion quoted in
the article that the ERC could be out of balance by millions of dollars, Tr. 258, and he was
embarrassed by the reporter's impression of the condition of the Program. Tr. 265. Dr.
Ravenholt testified "...it was not complimentary to the District's management...." Tr.
228. He was admittedly surprised by the magnitude of the potential ERC imbalance mentioned
in the article, and noted "I served at the pleasure of the Board (of Health). If I couldn't
take on remedying something that might be that far out of whack, you know, what am I doing in
that role?" Tr. 258. Michael Sword was hired as an Assistant Director in APCD and was, in
the summer of 1996, assigned the task, among others, of computerizing the ERC Program. Tr.
227-228. Dr. Ravenholt testified, however, that "the program was still not running as it
needed to" in December of 1997. Tr. 228.
13. The article prompted Dr. Ravenholt to refocus on the ERC problems
and the need for central management oversight of the program. He decided that the only solution
was to transfer the ERC databases from the separate computer system operated by APCD to the
central computer system with a standard database and documentation of all software innovations.
Tr. 229-230. Because of his expertise with the ERC database, Hoch's assistance was sought
during the period January through March,1998, in transferring the database to the central
administration. Tr. 232.
14. Following publication of the article, Assistant Director Sword, Tr.
336, sent a memorandum to Hoch, dated December 29, 1997, asking Hoch to substantiate the
quote in the Roger's article that "millions of dollars have been overlooked by management
in the ERC Program." CX6, pg. 18. Hoch responded by memo dated December 31, 1997.
He reiterated that he had stated, and was quoted in the article as stating, that the balance is
indeterminate and "could be millions." Hoch then described, in detail, the
methodologies of calculating emissions and offsets and shortcomings in the accounting system at
the time which could account for millions of dollars in errors. CX9, pgs. 45-48.
15. On January 14, 1998, Naylor and Sword advised Hoch that they
were planning to transfer him to the Title V, Federal Permit Section of APCD as Hoch had
previously requested, but they first deemed it necessary to transfer him to the NSR (New Source
Review) Section under the supervision of Elizabeth Gilmartin so that Hoch could "develop
the necessary fundamental NSR permitting skills." RX 102; Tr. 172. The record shows
that two new hires in the Title V were not first trained in the NSR Section. Tr. 400. Indeed, the
record fails to show that any other Permit Specialist in the Title V Section ever went through
NSR Section training. See, Tr. 240. Dr. Ravenholt , however, doubted Hoch would be
happy in the Title V Section without preparatory training. Tr. 245.
16. About a year and a half prior to this assignment, Hoch and several
other employees at APCD filed a grievance opposing a decision to hire Elizabeth Gilmartin as an
APCD supervisor. Hoch and the others alleged that she was not qualified for the job. Tr. 170-
172. The grievance was filed with Naylor, and Sword was aware of it at the time Hoch's transfer
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to Gilmartin was ordered. Tr. 59-60. Of the new employees assigned to Gilmartin's section, only
Hoch had been a party to the grievance, Tr. 203-204; the others were new hires. Tr. 208. Hoch
had been highly critical of Gilmartin, Tr. 110, and testified not only that he had not spoken to
Gilmartin in over a year, Tr. 149-150, but that, as a result of the grievance, animosity existed
between them.
17. With the transfer to Gilmartin, Hoch believed his job was in
jeopardy and feared that Gilmartin would attempt to fire him. Tr. 59-60, 135-136. The record
shows that two other employees who had participated in the grievance against Gilmartin were
already assigned to NSR when she took over. Tr. 136; Tr. 172; Tr. 202. One dropped off the
grievance before the assignment and the other had a strained relation with Gilmartin. Tr. 139-
140, 148. When she learned that Hoch was assigned to her section, Gilmartin initially expressed
concerns to her superiors about the reassignment. Tr. 196.
18. Gilmartin testified that during the time Hoch worked under her
supervision, she was told by Sword that Dr. Kwalick, Assistant Chief Medical Officer, and Dr.
Ravenholt's successor, "wanted him fired" if he did not perform, that Sword did not
want Hoch "doing computer work," and that Sword himself was hired to "fire
people. [E]specially the people on the grievance." Tr. 173-174, 176, 203, 205. Sword
could not recall telling Gilmartin that Dr. Kwalick wanted Hoch fired, Tr. 353, and he denied
claiming that he had been hired to fire people. He acknowledged, however, that he may have
said that he was hired to "clean house." Tr. 353-54.
19. Gilmartin had never been advised about the terms under which she
should fire any other subordinate. Tr. 205-206. Gilmartin testified that she was also asked to
investigate Hoch by surreptitiously monitoring his work on the computer. Rowles and Karl
Munninger, the District's Administrative Services Manager, authorized Jon Reed to provide her
with Hoch's passwords and advised her that by using them she could sit in her office and view
what Hoch was doing without his knowledge. Tr. 176-181, 207, 391-392; See, CX 13,
pg. 64. She understood that the password allowed for "2 connections concurrent,"
CX 13, pg. 64; Tr. 393. She was not, however, told why they wished her to monitor Hoch. Tr.
181.
20. Munninger admitted that Gilmartin was provided with Hoch's
password, Tr. 293, and that typically passwords were not given out, Tr. 318, but he denied that
she was given the capability to remotely view Hoch's work. He also denied that Gilmartin was
asked to spy on Hoch. Tr. 292, 331. He explained that "2 connections concurrent"
meant that the Hoch account could be logged-on to two computers at the same time, and it was
therefore possible to verify exactly what he could and could not access. Tr. 410. It would not, he
claimed, permit her to monitor what Hoch was working on at the time or follow his keystrokes.
Tr. 410. He testified that Gilmartin was given Hoch's passwords solely for the purpose of
verifying exactly what Hoch could and could not access. Tr. 293, 331, 410. Gilmartin denied
she was given the passwords to verify Hoch's access. She testified she personally went to Hoch's
computer to verify his access. Tr. 197.
21. Gilmartin testified that it was not normal procedure for supervisors
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at APCD to monitor the work of subordinates in the manner Munninger and Rowles suggested
that she monitor Hoch. Tr. 392. Ordinarily, she did not have remote access to her subordinates
last-name computer files from her terminal. Id; Tr. 394. If a staff member was absent
and she needed access to something in their files, she would transmit a request through a
supervisor who would forward it to the computer section. They, in turn, would retrieve the file
and forward it to her. Tr. 394. She had never had the type of direct access to a worker's files that
Rowles and Munninger provided to Hoch's files, Tr. 185, and she was aware of no other
supervisor at her level who had such capability. Tr. 208. She had never been asked to monitor
another employee. Tr. 206.
22. Munninger initially claimed that supervisors had access to all
employee work files in their section, Tr. 412, and he denied that Gilmartin was given any greater
access than other supervisors had to their employees' files. Tr. 414. He subsequently
acknowledged, however, that supervisors did not routinely have direct access to the employee's
last-name files unless requested by the employee. Tr. 413. The passwords he gave Gilmartin
provided access to Hoch's last name file. Tr. 413-415.
23. Gilmartin did not use Hoch's passwords and did not monitor his
work surreptitiously. Tr. 185. She rejected the suggestion that she was given Hoch's passwords
merely to verify his complaints that he could not log on to the network. She testified specifically
and credibly that she was asked to monitor his activities on the computer. Tr. 197.
24. Despite concerns expressed by both Hoch and Gilmartin, Gilmartin
was neither hostile nor vengeful as Hoch's supervisor, and Hoch was able get along with her.
She took no adverse action against him, gave him a decent performance evaluation, and initiated
no disciplinary action against him. Tr. 109-110, 152. He incurred no demotion and no reduction
in pay or benefits. Tr. 111. Hoch completed the NSR training in about six months, and received
the transfer to the Title V Section he had requested. Tr. 110-111; 172-173.
25. During the investigation of Hoch's complaint by OSHA, Gilmartin
was interviewed by an OSHA investigator. As a result of her testimony before OSHA in
connection with Hoch's complaint, she was the target of harassment and retaliation which
resulted in a complaint filed by Gilmartin against the District under that Clean Air Act. OSHA
found in Gilmartin's favor, and the District did not request a hearing. Tr. 188-192; CX15, pgs.74-
75, 78, 79.
26. The record shows that Hoch was having problems with his computer
and filed a Data Processing Service Request (DPSR) on February 17, 1998. RX 179. DPSR's
are processed through supervisory channels and eventually assigned to a technician to perform
the work. Tr. 113-114. Hoch's dual boot machine was unique in APCD, and had the potential for
more technical difficulties than other machines. Tr. 322-23
27. In late 1997 and early 1998, the District experienced a series of
glitches, bugs, viruses, malfunctions, and, in some instances, acts of actual sabotage of its
computer systems and software. Tr. 232, 252; Tr. 272-277; Tr. 354-355; Tr. 371; Rx 111; Rx
172; Rx 177; Rx 178. In a January 31, 1998, memorandum, Munninger, for example, explained
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that security of the APC database was tightened to restrict APC staff access to the extent
"defined by Mike Sword." Tr. 277; Rx 178. District management did not, however,
accuse or target Hoch as someone who harmed the data, Tr. 234; Tr. 297, but allegedly, because
he had a DPSR pending on March 4, 1998, his computer was the first, and in fact the only
computer, to have Access 7 deleted. Tr. 250, 255.
28. On March 3, 1998, a technician, Paul Orillion, was creating and
revising a program designed to facilitate the transfer of ERC billing data to the central computer.
When he returned from a lunch break, he found that he was locked out of his program. Tr. 232-
233; 278. Orillion reported the problem to Munninger, his supervisor, and they determined that
owner of the database "container" had been changed from Orillion to
"unknown," thus locking out Orillion. Tr. 278-279, 282, 330. Munninger
determined, in consultation with Microsoft Access technical support, that a change of ownership
of the "container"could only be accomplished by using a separate security file and
transferring Orillion's database container to a new container by a fairly sophisticated computer
end user. Tr. 280, 304, 329-330.
29. Munninger met with Sword on March 4 to discuss the Orillion lock
out. Munninger complained that such interference was jeopardizing his progress in transferring
the ERC database to the central Computer. He testified, and Sword confirmed, that he and
Sword came up with a strategy to limit APCD staff computer access to folders and files they
specifically needed to perform their job functions, and they decided to remove Access 7, a
software database manager which included the ERC database, Tr. 72, from all APCD staff
members whose job did not require access to it. Tr. 282; 358. Munninger testified further that he
lacked the resources to reprogram all staff computers at the same time, and accordingly, he and
Sword agreed that Sword would list individuals who did not need Access 7 data, and thereafter,
Access 7 would be deleted over time beginning with staff members who had pending DPSR's.
Tr. 283-284. Sword testified that he never gave Munninger the list they had discussed. Tr. 378.
30. Although Hoch was not deemed a particular security risk, Tr. 234;
Tr. 297, his computer was the first one targeted for removal of Access 7. Munninger and Sword
disagree whether this was intentional. Munninger testified:
Q. Now, did you have a plan as to how were you going to
accomplish this removal of Access 7 in terms of timing?
A. In reviewing the pending data processing requests, we
noted that we already had a repair order request in from
David Hoch." Tr. 283.
Later, Munninger again addressed the selection of Hoch's computer:
Q. And, did he (Sword) mention any particular
employees that he wanted you to start with?
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A. No, other than the fact that David Hoch had a
pending DPSR in the hopper. We decided to start
out with that and then secondarily with other Specialists.
Q. So, did he at that point tell you to go change Mr.
Hoch's computer and start with his?
A Right, to go ahead and focus on the boot-up problem
with David Hoch's computer." Tr. 306.
Munninger testified that he and Sword specifically discussed and agreed
that Hoch's computer should be first to undergo reprogramming. Tr. 308.
31. In contradiction to Munninger, Sword testified:
Q. Now, did you ever ask Mr. Munninger to somehow
target David Hoch for this?
A. No.
Q. Did you suggest or direct Mr. Munninger to start with
David Hoch?
A. No. Not that I recall.
Q. I mean were you aware of the big stack of DPSR's
that were somewhere in data processing?
A. I'd seen them. There was a couple-
Q. Right. But, I mean were you aware of who might be in
there or on top or on the bottom?
A. Well, yes and no. I mean , most of the data
processing requests require my signature. I mean,
that's the routine is for me to sign those things to authorize
the work.
Q. But, I mean-
A. So I had- I had probably seen- I mean, I knew I had
signed a lot of them. There was no two ways about that.
Q. You mean, as you sit here today, can you say
that on March 4th, talking to Mr. Munninger, you
knew there was one in there from David and that's the one
you wanted targeted first?
[Page 9]
A. No, actually I have looked at that and it does not have
my signature on it at all. I was totally unaware that one
was in there.
Q. So, how did you and Mr. Munninger decide you were
going to get to all of these computers to do this
Access 7?
A. Well, there weren't very many people to do very
many tasks. So, we decided that as- as things came up
on routine data processing requests, that we would take
care of those things in that order and in that fashion. Tr. 359-
360. See also, Tr. 377-379.
32. Sword thus contradicted Munninger and denied that he was aware
of Hoch's pending DPSR, and he denied any recollection of directing Munninger to target Hoch's
computer, Tr. 377-378. Further, contradicting Munninger, he testified that he did not have the
work orders when he discussed the matter with Munninger, and, therefore, could not have pulled
out Hoch's DPSR. Tr. 379.
33. From day to day, Munninger's shop may have a stack of 50 to 75
pending service requests submitted by staff either by telephone or written DPSR's. Tr. 334-335.
Within approximately one hour after Munninger's meeting with Sword, Administrative Services
removed Hoch's computer from his office. Tr. 307-309.
34. On March 4, 1998, a technician, Rocky Gerzel, from the
administrative section of the District, accompanied by Sword, entered Hoch's office and removed
his computer. Tr. 62. Gerzel acted upon the orders of Munninger, his supervisor. Tr. 268.
When Gerzel returned the computer later that day, the software program, Access 7, had been
removed. Tr. 60. Access 7 was a database manager which included the ERC database. Tr. 72.
35. The record shows that the removal of Access 7 started and ended
with Hoch. Tr. 286. In addition, Hoch's network access was circumscribed to his own personal
directory and to the NSR tracking files. Tr. 287. Munninger testified that it was never his intent
or Sword's intent to remove from Hoch's computer access to information he needed to do his job.
Tr. 291, See, Rx 183. The part of the ERC database Hoch could not access was the
registry roll of credits showing what companies needed and what they accomplished or failed to
accomplish and the billing information. Tr. 72.
[Page 10]
36. By memo dated March 4, 1998, Hoch advised his supervisor,
Gilmartin, of the new limitations which had been placed upon his computer access and suggested
that the software had been removed in retaliation for his statements to the Review-
Journal in December of 1997. CX 9, pg. 49.
37. On March 5, Hoch discovered that he was unable to access the
network server to retrieve information from the "general folder," the DAVIDH
folder, containing the first names of APCD employees, and available to all of Hoch's co-
workers. Compare, CX 4 pg. 13 (Copy of Hoch's PC screen) with CX 4 pg. 14
(Copy of PC screen of Co-worker). Tr. 74, 76. He was virtually completely cut off from the
network. Tr. 166-118, 137. Databases available to other Permit Specialist II's, and files,
reference materials, and documents Hoch had been working on were no longer accessible to him.
Tr. 73. RX 114, pg. 177. Sword testified that to the best of his knowledge Hoch was never cut
off from the network, and his "privileges had never been changed." Tr. 381. Sword
claimed he "never understood why those problems existed or persisted." Tr. 377.
Munninger, however, acknowledged that Hoch's "network access was circumscribed to his
own personal directory and to NSR tracking files." Tr. 287. Munninger claimed that this
was done based upon "A list of files ... that we obtained from APCD management."
Tr. 287. Sword acknowledged that he discussed giving Munninger a list of files that he wanted
removed from various computers, but he denied that he gave Munninger such a list at their
March 4 meeting, and he could not recall ever giving such a list. Tr. 378.
38. By memo dated March 5, Hoch advised Gilmartin that he believed,
in further retaliation for his disclosures to the Review-Journal, his access to the
network server had been restricted. He also informed her that earlier that day he met with Sword,
who told him that Access 7 was a faulty piece of software and would be deleted from all personal
computers at APCD, and that Hoch was being "paranoid" about what had been done
to his computer. Tr. 78; 363-64; CX 9 pg. 50.
39. The record reflects that Access 7 was not completely deleted from
the computers of any of Hoch's co-workers, Tr. 78-79, 250, 255, 313. In a strictly limited fashion,
some Access 7 security files were removed from the computers of some staff members, Tr. 300;
Tr. 363.
Dr. Ravenholt intervened because of "volatility... within the
group," Tr. 250, to "calm down the situation," and he reversed the decision to
delete Access 7. He had never specifically approved Sword's plan, Tr. 252-255, but generally
wanted his staff to remedy the computer problems in APCD. Having received information from
Gilmartin on March 6 that Hoch was "very disturbed," Tr. 236, about what had been
done to his computer, Dr. Ravenholt met with Hoch that day to diffuse the situation and reassure
him that his job was secure. Tr. 236. Dr. Ravenholt confirmed that, although he did not know
precisely which programs Hoch needed to perform his duties in the NSR Section, Hoch asserted
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a need for Access 7, supported perhaps by Gilmartin, and he ordered the program restored. Tr.
250. Subsequently, on a date not disclosed in this record, Dr. Ravenholt directed that Access 7
be restored to Hoch's computer. Tr. 250. As Sword would later testify, "I got overruled by
Dr. Ravenholt who decided to give it back to him. He wouldn't remove it from everyone's
computer. " Tr. 362-63, Tr. 313. The record further shows that Munninger and Sword
acted within approximately one hour of the Orillion incident to remove Hoch's computer. The
record fails to show, however, that they acted to remove Access 7 from any other employee at
any time prior to Dr. Ravenholt's intervention.
40. On March 10, 1998, Hoch was called to a meeting attended by Dr.
Ravenholt; Dr. Kwalick; David Rowles, Director, Administrative Services; Naylor; Sword;
Gilmartin; and Hoch. Tr. 90. Hoch understood the meeting was convened to offer him an
apology for the limitations placed on his computer, and his input was sought in troubleshooting
the Orillion lock-out problem. Tr. 401-404.
41. By memo dated March 18, 1998, Hoch recounted what he regarded
as the elements of an apology, and basically expressed his dissatisfaction that those who attended
the meeting failed to convey the appropriate contrition. He testified, however, that the meeting
was generally friendly and not hostile. Tr. 145. Although Hoch complained that he had not
received an explanation for the removal of Access 7 from his PC, CX 9, pgs. 55-56, as a result of
this meeting, Access 7 was essentially restored to his computer. Tr. 77, 80, 91.
42. The Clark County Board of Health convened a special meeting on
March 12, 1998, to consider, among other issues, the ERC Program. Tr. 97-98. Dr. Ravenholt
and other officials of APCD participated at the meeting; and in the context of discussing the ERC
Program, David Rowles specifically commended Hoch, and others, who helped develop the ERC
database. Rx 120.
43. Hoch requested, on March 12, 1998, and Dr. Ravenholt approved,
a leave of absence from April 1 through April 30, 1998. Tr. 112,118. Hoch testified
that he requested leave because he "felt pretty bad emotionally...," Tr. 130, but
the leave was not urgent, and he was able to come to work and perform his job. Tr. 130.
44. Dr. Ravenholt twice met with Hoch to afford Hoch an opportunity
to explain his concerns about his computer access. Tr. 132, 134. Hoch believed Dr. Ravenholt
was attempting to find out the facts. Tr. 138.
45. Dr. Ravenholt's memo approving the leave noted that while Hoch
may have felt that his work environment was hostile, Dr. Ravenholt sought to reassure Hoch that
he should not misconstrue good faith efforts to improve APDC programs as directed against him
personally. RX 123. In approving the leave, Dr. Ravenholt advised Hoch that he would be
required to use his annual leave first, then he would be placed on leave without pay. Hoch's
benefits were also adjusted to reflect a month of leave without pay, consistent with standard
[Page 12]
procedures. Tr. 131-132. The same day, Hoch received a memorandum from Sword, who
sought to assure him that his service to the District was valued and appreciated. Tr. 376; Rx 116,
pg. 179.
46. Before commencing his leave, Hoch, on March 20, 1998, filed a
DPSR requesting certain network privileges, and Sword approved his request. RX 179, Tr. 117.
47. On May 1, 1998, Hoch, upon returning from the leave of absence,
discovered that his network privileges had not been restored. In a memo to Gilmartin, Hoch
advised her that he still did not have access to computer files he needed to perform his job, and
Gilmartin confirmed by observation of Hoch's computer screen that files available under her log-
in name were not available under his log-in name. CX 9, pg. 57, Tr. 92-93; Tr. 197, 201.
48. Sword testified that he wanted Hoch to have access to the
directories he needed to do his job, and could not understand why he was experiencing
difficulties: "I just wanted to get him up and running and get it behind us." Tr. 362.
He had twice checked with the Administrative Section to confirm that Hoch's problems were
addressed, Tr. 364, and spoke with Munninger about fixing Hoch's problems. Tr. 380.
49. Following Hoch's complaints to his supervisor and Sword, Tr. 81,
his network privileges were eventually restored on or about May 8, 1998. Tr. 80; Tr. 366; Rx
204. Sword testified that he was unaware that Hoch had any restrictions on his access to the
network, Tr. 381-382, and no one ever determined why Hoch was cut off from the network to the
extent that he could not perform his job. Tr. 382. Yet, Munninger acknowledged that he
circumscribed Hoch's computer network access privileges based on an alleged list he received
from "APCD management." Tr. 287. The record shows Sword was supposed to
prepare the list, but he could not recall ever actually drafting it or giving a list to Munninger.
Compare, Tr. 287, 308, with Tr. 378. Munninger testified that he and Sword
"agreed" to start with Hoch "until Sword could get a listing of files the other
specialists needed access to in order to perform their job function...." Tr. 308. Sword
could not recall giving Munninger any list during their meeting, Tr. 378, and specifically denied
suggesting to Munninger that he start by deleting files from Hoch's computer. Tr. 377-379.
50. Hoch believes that he no longer has a career future with APCD. His
confidence in APCD management has eroded, and he senses his colleagues are skeptical of him.
He feels frustrated and believes other employers would be reluctant to hire him because he is a
whistleblower, and he senses his co-workers are skeptical of him. He and his wife "agonize
over these things quite often." Tr. 99-100. He seeks redress from the CCHD in the form
of damages and computer training for approximately two years, leading to a BS degree in
computer science. Tr. 101-102.
Discussion I.
Hoch's Disclosures
The activity for which Hoch claims Clean Air Act (CAA) protection arose
out of a December, 1997, interview he granted to reporter Keith Rogers of the Las Vegas
Review-Journal, a local morning newspaper with daily circulation of about 160,000 serving
[Page 13]
southern Nevada. Apparently, Rogers was investigating the operation of the ERC Program at the
offices of the Air Pollution Control Division (APCD) of the Clark County Health District
(CCHD). The ERC Program was devised, in theory, to reduce the level of airborne inhalants in
the Las Vegas Valley by requiring businesses to earn credits or pay fees for producing pollutants,
thereby generating funds for paving to reduce dust emissions from dirt roads. According to Dr.
Otto Ravenholt, Clark County's former Chief Health Officer, APCD cooperated fully with
Rogers' inquiry, providing him with documents to review and staff personnel to interview.
Hoch, it seems, became entangled in the web of Rogers' research. Rogers
apparently sought an interview with Hoch as someone knowledgeable in the workings of the
ERC program who could assist him in preparing his article. Before agreeing to speak with
Rogers, Hoch sought and received the approval of APCD management. Obligingly, Michael
Naylor, Director of APCD, specifically authorized Hoch to meet with Rogers.
Hoch spoke with Rogers "on the record," candidly describing,
in detail, the shortcomings in the ERC Program and volunteering critical opinions about
Program management to no real surprise among his supervisors. While APCD management
questioned Hoch's estimate that the ERC Program could be millions of dollars out of balance,
his criticism of the ERC Program was no secret around APCD. Earlier in his career, he
shouldered responsibility for maintaining the ERC database, and at one time unsuccessfully
urged APCD to create a new position titled ERC Data Manager, for which he considered himself
uniquely well-suited. Some suggest that Hoch's antipathy toward the ERC program emanates
from his disappointment over the rejection by his superiors of his idea to create the Data Manager
job; however, no one disputes Hoch's in-depth appreciation of the flaws which existed in the
ERC Program. He had, prior to the Rogers interview, voiced his concerns, in house, to his
APCD supervisors, and apparently felt constrained by few inhibitions in providing a rich bounty
of ERC Program defects to Rogers.
On December 26, 1997, a by-line article, authored by Keith Rogers,
appeared in the Review-Journal. It was highly critical of APCD's ERC Program
administration and drew, with attribution, upon the Hoch interview material. Although Rogers
relied upon a number of different sources, the article, citing Hoch, described ERC methods of
maintaining pollution charges and offsets as a "tracking nightmare," disclosed
APCD delinquencies in its billings, revealed the program could be out of balance by
"millions" of dollars, and that it was beset by computer problems and under-staffing.
Rogers went on to report Hoch's observation that "some consensus" existed in
respect to fixing the Program, but "nothing ever happens." Upon reading the article,
Dr. Ravenholt found it uncomplimentary to APCD's Management, and Hoch alleges, as a result
of his forthcoming disclosure to the media, he was subjected to discriminatory, retaliatory
adverse job actions.
[Page 14]
II.
Burden of Proof
The CAA, as amended, provides, in part, as follows:
No employer may discharge or otherwise discriminate against any employee
with respect to his compensation, terms, conditions, or privileges of employment
because the employee...
(1) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this chapter or a
proceeding for the administration or enforcement of any requirement
imposed under this chapter or under any applicable implementation plan,
(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 proceeding or in any manner in such a
proceeding or in any other action to carry out the purposes of this chapter. 42 U.S.C.
§ 7622 (a)(1)-(3).
The burden of proof under this statutory scheme rests with the Employee to
establish that (1) the party charged with discrimination is an employer subject to the Act, (2) the
employee engaged in protected activity, (3) the employer took adverse action against the
employee, and (4) the protected conduct was the likely reason for the adverse action.
See,Deford v. Sec. of Labor, 700 F.2d 281, 286(6th Cir. 1983);
Mackowiak v. University Nuclear Systems, Inc. 735 F.2d 1159, 1162 (9th Cir.
1984); Sherrod v. AAA Tire and Wheel Co., 85 CAA 3 (Nov. 23, 1987).
CCHD does not dispute its status as a covered employer under the Act; however, it denies Hoch
engaged in any protected activity or was the target of any discriminatory action by ACPD
management. Hoch's conversations with the Review-Journal's reporter, it contends,
played no role in any decision it made affecting his work environment, and it rejects his
contention that he was a victim of any retaliation.
III.
Protected Activity
Now, the threshold question presented in this adjudication is whether
Hoch's interview and disclosures to the Review-Journal's reporter constituted protected
activity under the Clean Air Act. CCHD advances a multi-pronged attack on the notion that
Hoch engaged in any covered activity. In its opinion, neither the interview nor Hoch's
disclosures warrant protection since the ERC Program, at the time the interview was conducted,
was not part of the Clean Air Act or its implementing regulations. Although it was eventually
approved by the EPA effective June 10, 1999, the ERC Program was promulgated by the Clark
County Health District as Local Rule 12 and, as such, at times relevant to this proceeding, was
unenforceable by the Federal EPA. Consequently, in CCHD's considered judgment, none of
Hoch's disclosures involved an actual violation of the Act, and Hoch never demonstrated a
reasonable belief any violation occurred.
[Page 15]
In a related discussion in its post-hearing brief which addresses an issue
raised at trial, the District considers the implications which necessarily flow as a consequence of
the ERC Program's inclusion as part of a State Implementation Plan (SIP). Incorporated into
Nevada's SIP, CCHD's ERA Program was submitted to the Federal EPA for its consideration
and approval under the Clean Air Act. In this context, CCHD urges rejection of Hoch's
criticisms as protected activity because he disclosed them as a source to a reporter rather than as
a participant in the Notice and Comment period provided by EPA in connection with its
consideration of the SIP. CCHD finds no congressional intent to extend whistleblower
protection under such circumstances. Finally, CCHD rejects the essence of Hoch's disclosure as
protected subject matter because it involved allegations of what CCHD describes as complaints
about general mismanagement in the ERC Program, not specific complaints about health and
safety. For the reasons set forth below, I find each of the District's contentions devoid of
persuasive merit.
A.
When A Local Rule
Triggers CAA Coverage
CCHD emphasizes the status of its ERC program as a local rule at the
time the alleged protected activity occurred, and contends that complaints about mismanagement
of a local rule would not rise to the level of a violation of the CAA or its implementing
regulations. Consequently, jurisdiction to adjudicate Hoch's complaint under the CAA is, in its
view, lacking. CCHD misperceives the issue.
Whether a local rule conceived as a measure to facilitate environmental
improvement may be administered in a way which does not simply fail to achieve its objective,
but actually violates or fosters violations of the CAA, is not really the issue presented by the facts
developed in the record of this proceeding. The record shows that the District's ERC Program
was not simply a matter of local interest. Indeed, the ERC Program was proffered to EPA as a
plan to address the Las Vegas Valley region designation as a PM-10 (particulate matter)
nonattainment area under the CAA. 42 U.S.C. §7407. Both the nonattainment
designation and Nevada's State Implementation Plan (SIP) to address it are broadly governed by
provisions of the CAA as administered by EPA. 42 U.S.C. §§ 7407, 7501, and
7504.
Prior to its approval by EPA, the ERC Program may have been, as CCHD
contends, enforceable only by local authority, but obviously the program's strengths and
weaknesses were not merely a matter of local concern. The District's ERC program was
submitted by state officials, who considered it a viable plan, to federal authorities, who evaluated
it under jurisdiction conferred upon them by the CAA. The ERC was pending before the EPA
when Rogers interviewed Hoch.
Nevertheless, construing the CAA in the narrowest possible sense, CCHD
argues that Hoch is entitled to no protection because he disclosed no violation of the CAA, nor
[Page 16]
did he reasonably perceive a violation of the statute. In its view, Abu-Hjeli , 89 WPC
1, and Minard v. Nerco Delamar Co., 92 SWD 1 (Sec., 1994), and
Crosby v. Hughes Aircraft Co., 85 TSC 2(Sec. 1993), support the view that
CAA protection covers disclosures involving CAA violations, not disclosures about purely local
environmental codes.
The protections afforded by the CAA, however, are not limited to
disclosures of violations or suspected violations, as CCHD maintains. Participation in CAA
enforcement proceedings is only one aspect of CAA whistleblower coverage. The CAA also
provides a shield against discriminatory retaliation for those who assist or are about to assist in a
proceeding " for the administration... of any requirement imposed under this Act or under
any applicable implementation plan," or in "any other action to carry out the
purposes of this Act." See, Section 7622(a)(1), (3). As the foregoing discussion
of the statutory scheme Congress devised under the CAA amply demonstrates, the entire process
of designating nonattainment areas, drafting and submitting SIPs, and consideration and action
by EPA broadly encompasses congressionally delegated responsibilities generally considered
elements associated with an agency's "administration" of its congressional mandate.
In this context, EPA's inability to enforce the ERC Program prior to its approval of the SIP is
irrelevant, because the ERC Program was part of the SIP for which Nevada was seeking EPA
approval. CCHD's suggestion that its ERC Program was a purely local initiative which afforded
Hoch no protection simply ignores EPA's responsibility to administer the Act by evaluating the
Program's merits in connection with its consideration of Nevada's SIP. It is thus unnecessary to
decide whether disclosures relating to a purely local environmental initiative could ever trigger
CAA protections; whatever status a purely local program might enjoy, CCHD's ERC Program
migrated into the ambit of CAA coverage when the State incorporated it into its SIP and
submitted it to EPA for approval.
B.
Blowing the Whistle on
Mismanagement
CCHD next argues that a careful evaluation of Hoch's disclosures reveals,
in essence, a concern not about violations of the CAA, but circumstances which amount merely
to instances of mismanagement. Hoch told Rogers about billing delinquencies, shortcomings in
financial record keeping, computer, and staffing problems. CCHD believes applicable case law
rejects such complaints about mismanagement as a basis for affording a worker the benefits of
whistleblower protection. Aside from the fact that Hoch's comments were not limited to
instances of program mismanagement, but further questioned the effectiveness of the ERC
concept which EPA was then evaluating, the case law relied upon by CCHD is otherwise
distinguishable.
[Page 17]
The deficiency in CCHD's analysis of the case law stems from its failure to
differentiate the various contexts in which disclosure of mismanagement may occur. A worker
who, for example, disclosed that a defense contractor was "mischarging" its
proprietary projects to its defense contract was not entitled to environmental whistleblower
protection, and in fact, he conceded the point at his hearing. Such conduct had no bearing on any
environmental issue. Crosby, supra at pg. 2. Similarly, CCHD relies upon
Deveraux v. Wyoming Assoc. of Rural Water, 93 ERA 18 (Sec. 1993), as
authority for the proposition that complaints about inaccurate records, mismanagement, and
waste are not protected under the federal acts. Although the Secretary in Deveraux
determined that a timely complaint had not been filed, thus rendering further discussion of the
case largely moot, for the sake of analysis, I consider it.
A review of the trial judge's findings in Deveraux reveals that the
worker's complaints related to improper expense vouchers submitted by program managers and
were not concerned with "safety or pollution." Deveraux , supra,
ALJ D&O at 2-3. Unlike the EPA's consideration of the District's ERC Program here, the
District propounds no theory explaining what possible interest under the Energy Reorganization
Act the Nuclear Regulatory Commission ( NRC) had in the expense vouchers at issue in
Deveraux. In contrast, mismanagement in the operation of a nuclear power plant or
the handling of nuclear material would no doubt present another matter. Such mismanagement
might indeed involve issues which the NRC could conclude were pertinent to its administration
of its congressional mandate. As might be expected, complaints about mismanagement of this
type constitute a fairly basic and rather important form of protected activity.
Providing context to the line of cases discussed above, Passaic Valley
Sewage Commissioners v. Department of Labor, 992 F.2d 474 (3rd Cir. 1993),
affords a different perspective. In this case, the Court extended protection to an employee who
complained about the ad valorem user charge system adopted by Passaic Valley under
the Clean Water Act. The employee complained that the system was inordinately expensive,
inefficient, unreliable, and although approved by EPA, was not operating fairly to allocate user
fees. In many respects, the complaints of mismanagement and ineffectiveness he voiced
to his superiors were quite similar to the type of complaints expressed by Hoch to
reporter Rogers. Passaic Valley involved criticism of the administration of the Clean
Water Act directly through the implementation of the advalorem user charge,
while this matter involves criticism of a program pending EPA's approval pursuant to its
authority to administer the CAA. The Secretary determined that the Passaic Valley
employee engaged in protected activity and the Court agreed, and there is no reason to anticipate
that Hoch's complaints of mismanagement and ineffectiveness in a program pending EPA
approval should be treated any differently.
Nor do cases such as Aurich v. Consolidated Edison of New
York, Inc., 86 CAA 2 Sec. 1987), or Kesterson v. Y-12 Nuclear Weapons
Plant, 95 CAA 12 (ARB 1997), provide any useful guidance here. Aurich simply
involved a determination by the Secretary that occupational hazards related to indoor air quality
[Page 18]
are governed by OSHA regulations, not the CAA, while Kesterson, in pertinent part
cited by CCHD, observed that objections to tampering with evidence in a criminal proceeding or
fabricating reasons to fire an employee may be afforded protection under other statutes, but not
the environmental whistleblower laws. Unlike Aurich and Kesterson which
invoked non-environmental policy considerations, CCHD essentially and convincingly conceded
the applicability of the CAA when it submitted its ERC Program for inclusion in the SIP for the
purpose of addressing its air quality problem under the CAA.
For all of the foregoing reasons, I conclude that disclosure of
mismanagement which may adversely affect the administration of an environmental act, such as
those conveyed by Hoch to Rogers, properly constitutes protected activity warranting protection
under the CAA.
C.
Blowing the Whistle to the Media
The Secretary has determined that reports to the media may be protected
activity under the environmental acts, and CCHD does not argue to the contrary. It does contend, however, that Hoch's comments to the media are not protected in this
particular instance, because they involved claims of mismanagement and negligence, not outright
fraud, and, in any event, EPA's procedures contemplate a Notice and Comment period for
proposed SIPs. Since Hoch could have availed himself of the opportunity to submit his views
directly to the agency and did not do so, CCHD would deprive him of CAA protection.
Initially, the notion that an employee must pursue the formal channels of
communication provided by an agency for the receipt of information about violations of law or
comments about pending rules is not well-founded. In PassaicValley,
supra, the Court explicitly interpreted the statutory term "proceeding" as
reasonably encompassing "a range of complaint activity of varying degrees of formal legal
status." Passaic Valley, at 478. Indeed, purely internal complaints which may
never come to the attention of a federal regulator are generally regarded as protected activity.
See, Passaic Valley, supra; Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Pogue v. U.S. Departemnt ofLabor, 940 F.2d 1287 (9th Cir. 1991); Kansas Gas & Electric Co. v.
Brock, 780 F.2d 11505 (10th Cir. 1985), cert. denied , 493 U.S. 1011 (1986).
Surely, disclosures which prompt remediation are consistent with the fundamental policy
considerations underlying employee protection provisions of the environmental acts, and
extending the term "proceeding" to cover them comports with the purpose and
legislative history of the act. Passaic Valley, supra, at 478-479.
1 In Donovan, the court
approached the question a bit differently, finding coverage in the context of a complaint to the
media about an employee's OSHA concern, not because it viewed the communication itself as a
"proceeding" but rather because the communication could result in the institution of an
OSHA proceeding.
2 This observation is not offered
to shift the burden of proof to the Employer, but rather to note that the Employer, having cited a
case it considers analogous to this matter, lacks an essential record fact necessary to complete its
analogy.
3 While Dr. Ravenholt testified
that he thought Hoch's transfer was innocuous, believing he would be unhappy in the Title V
Section without prior permit training, there is no evidence that Dr. Ravenholt knew Gilmartin had
been told that his Assistant Chief, and soon to be successor, wanted Hoch fired.
4 This surveillance is not
included in Hoch's complaint as a separate claim of discrimination. It is, however, an element of
the overall discriminatory treatment he experienced.
5 The acts of retaliation alleged
by Gilmartin were set forth in a CAA complaint which she filed with OSHA. CCHD and
Gilmartin have since reached a settlement of her charges.
6 Hoch also seeks an order
authorizing punitive damages for violations which post-date the actions which are the subject of
this complaint and for any future violations. Yet, if further violations are established in future
proceedings, or if CCHD should violate any provisions of the order herein entered, appropriate
relief may them timely be considered. Authorization for punitive damages is, at this time,
unnecessary.