EX 122           Respondent's Objection to Complainant's Request to        5/18/99
                 Admit Documents into Evidence.

EX 123           Respondent's Post Trial Brief.                            5/18/99

EX 124           Respondent's Motion to Bifurcate or In the Alternative    5/19/99
                 To Extend Time for Final Brief.

ALJ EX 91        Order Scheduling Filings Related to Fee Petition.         5/20/99

CX 129           Attorney Landry's Motion to Modify and Amend              5/28/99
                 Legal Fees.

EX 125           Respondent's counsel's letter dated June 24, 1999,        6/28/99
                 regarding recent United States Supreme Court 
                 decisions pertaining to Respondent's Eleventh 
                 Amendment argument.

EX 126           Respondent's Post Trial Brief Re: Damages and              7/2/99
                 and Attorney's Fees.

CX 130           Attorney Robins's letter dated June 29, 1999 relating      7/2/99
                 statutory and case law citations concerning the 
                 Eleventh Amendment issue.

CX 131           Attorney Landry's June 2, 1999 letter citing the           7/2/99
                 General Laws of the State of Rhode Island.

EX 127           Respondent's counsel's letter dated July 6, 1999,          7/8/99
                 in response to Attorney Landry's July 2, 1999 letter.

CX 132           Complainant's Reply Brief in Opposition to                7/14/99
                 Respondent's Post-Trail Brief Re: Damages and
                 Attorney Fees.

CX 133           Amendment to Fee Petition by Public Employees for         7/14/99
                 Environmental Responsibility, Todd Robins, Attorney
                 for Complainant.

CX 134           Affidavit of Attorney Todd E. Robins of Public            7/14/99
                 Employees for Environmental Responsibility
                 Regarding PEER's Petition for Attorney Fees and Costs.

CX 135           Complainant's Reply Post Trial Brief Re: Attorney         7/16/99
                 Fees of Joel D. Landry, with supporting affidavits.

CX 136           Complainant's Motion to Expand the Record.                7/16/99

EX 128           Respondent's Objection to Complainant's Motion            7/26/99
                 To Further Expand the Record.

   The record was closed on July 26, 1999, as no further documents were filed.

   This matter has a number of unresolved evidentiary disputes pending, that must be resolved prior to proceeding with this Recommended Decision and Order. Specifically, Complainant has submitted two motions to admit new evidence and the Respondent has submitted one such motion; all motions have been opposed. (EX 120; EX 128; CX 122; CX 126 at 13, 21, 161; CX 136) Further, at the hearing, this Judge reserved ruling on the admissibility of a number of documents. (CX 37-38)

   I find and conclude, based upon my review of the documents submitted and the arguments of parties, that it is in the interest of fairness and justice that all motions to expand this record be GRANTED and that all evidence be admitted. Further, I hereby ADMIT any and all documents for which admission was reserved at the hearing. I wish to caution, however, that this Judge has kept in mind all of the objections raised regarding specific evidence in determining the probative weight of such evidence, particularly in the case of unsigned documents, or where the opposing party did not have adequate opportunity for cross or rebuttal.

   Lastly, at the opening of this hearing, I took under advisement Complainant's Motion to Compel the testimony of Director McLeod. (CX 1) I find and conclude that this record is sufficiently supported on all claims, and that the hearing testimony of Director McLeod is not necessary, especially as the record does contain his deposition testimony. Accordingly, Complainant's Motion is hereby DENIED.

hazardous waste program. (TR 2507-11, 2837-38) Mr. Gagnon also testified that he never had any difficulties working with Complainant. (TR 2505) Further, he testified that he never recalled requiring Complainant to rewrite any enforcement documents. (TR 2538) Mr. Gagnon also testified that Complainant was a successful supervisor who handled problems and issues effectively and properly. (TR 2523) Additionally, James Fester, RIDEM's Associate Director for Regulation prior to 1996, testified that he felt Complainant was "doing a good job" prior to the reorganization, and he encouraged her to apply for the title upgrade to Supervising Environmental Scientist in 1994. (TR 75, 928)

   Prior to the reorganization, Complainant was also quite successful in running the RCRA program. Between 1992 and 1995, when Complainant directed the program, RIDEM conducted an average of 87 RCRA generator inspections, 19 formal notices of violations with penalties, 64 informal letters of deficiency and 83 total enforcement actions. According to Gagnon, the enforcement cases were carried out in a timely and appropriate fashion, and none, to his knowledge, were overturned. (TR 2559-60) Complainant testified that prior to the reorganization she never had an enforcement case under her supervision overturned, dismissed or otherwise compromised as a result of incomplete or inadequate documentation by RCRA inspection staff. (TR 5132) Complainant also noted that the only complaints received during this time period were from the regulated entities themselves. (CX 126 at 7) On October 1996, EPA issued a multi- media review which reviewed files from 1994-1995 and which was generally favorable to RIDEM and its RCRA program. (CX 2) RIDEM, however, has pointed out that some criticisms were raised concerning RIDEM procedures and settlement penalty actions. (EX 80) Further, RIDEM notes that the EPA issued another audit in 1998, conducted by the EPA's Office of Inspector General (OIG), which examined RIDEM files from 1996-to early 1998. This report contained criticism of both pre- and post-reorganization cases, and shall be discussed later in this summary of evidence. (CX 29; CX 99)

1996 reorganization, Complainant said that the relationship between RIDEM and the EPA deteriorated, and her continued good relations with EPA officials placed her in an awkward position with her new supervisors, whose policies and actions were the subject of substantial EPA criticism. (TR 511-22)

Planned Reorganization

Principal Sanitary Engineer over the State/Municipal Facilities section. (CX 35) He was also Complainant's immediate supervisor. RIDEM posits that Mr. Mulhare was selected, in part, because of his history of aggressive enforcement. (TR 993-94) Further, he has a master's degree in civil and environmental engineering. (TR 3407) Mr. Mulhare's prior experience was as a licensed professional engineer, focusing on groundwater contamination and oil spill clean-up issues. (TR 3405-20) He did not have experience working with a prescriptive, federally funded regulatory program involving routine inspections and enforcement of violations. (CX 101) Despite RIDEM's claim that Mr. Mulhare was enforcement-minded, testimony presented indicated that Mr. Mulhare's prior work had an emphasis on cleaning up sites on a voluntary basis, and that he preferred wearing the so-called white hat, rather than the black hat. (TR 1272-73, 5117) Complainant also offered testimony that she felt that Mr. Mulhare had a general reputation for being vindictive, and keeping lax hours. Further, Ms. Joan Taylor, an RCRA inspector under Complainant, testified that she suspected Mr. Mulhare of attempting to distort and tarnish her performance record in retaliation for her disagreements with him on a particular enforcement case. (TR 1223-25) Mr. Mulhare reported directly to Mr. Dean Albro.

   Mr. Albro, at this time, was the chief of RIDEM's wetlands programs. He had no training or experience with the RCRA program, or any federally-authorized, federally funded enforcement program, because the wetlands program was state run. (TR 4736) Mr. Albro was slated to become the Chief of the OCI.

Complainant's Initial Reaction

   In June of 1996, Complainant learned of the proposed specifics of the reorganization from Mr. James Fester, the Association Director for Regulations. (TR 74-75) Mr. Fester, incidentally, suggested that Complainant be promoted to Supervising Environmental Scientist, as part of the reorganization. (TR 75) Complainant testified that Mr. Fester told her that, essentially, her RCRA job would not change except that she would not longer be involved or responsible for the permitting section of the program. (TR 85) He did, however, inform her that she would gain the additional responsibilities of two additional programs, of which she did not have any supervisory experience: underground storage takes, and the solid waste program.. (TR 85)

   Between June and September 1996, Complainant raised a number of concerns about the proposed reorganization. She expressed her concerns to a number of individuals, but mainly Mr. Albro and Mr. Fester. (TR 81; CX 4; CX 102) Complainant's concerns included the following: the reorganization would affect a change from enforcement to compliance which would compromise and violate the RCRA; that her position was essentially being downgraded because she would be subject to an additional layer of supervision, in contrast to her job description, a change which she viewed as a demotion (TR 412, 424); that Mr. Mulhare should not be her supervisor due to his lack of experience with the RCRA, and his anti-

Official Reorganization

   On September 23, 1996, the reorganization became official, as authorized by Executive Order No. 96-8, issued by Governor Lincoln Almond. (EX 2; EX 3) Mr. Szymanski stated that over 100 employees of the 500 staff were shuffled in the process. (TR 1890) The reorganization, in part, removed the inspection and enforcement components from the Department's environmental regulatory programs, and placed all those functions in the centralized Office of Compliance and Inspection (OCI). Complainant's RCRA program was thus split apart with the policy and permitting function, together with the non-enforcement functions associated with the solid waste and UST programs, now falling under the newly formed Office of Waste Management (OWM), while the RCRA generator enforcement program, as well as the enforcement components of solid waste and UST, were made subcomponents of OCI. (TR 903)

   Complainant's position as Supervising Environmental Scientist was re-assigned to the OCI. (EX 2) Complainant's supervisory responsibilities were decreased, and she was now responsible for only supervising four inspectors in the RCRA hazardous waste generator, UST and sold waste enforcement sections. Complainant testified, however, that she lacked both training and experience as to the newly assigned UST and solid waste enforcement. (CX 21) Further, Complainant's chain of command also changed. Whereas, prior to the reorganization, Complainant reported directly to a division chief, after the reorganization, Complainant was placed under the immediate supervisory control of Michael Mulhare, the Supervising Sanitary Engineer. (CX 35; EX 2) Complainant testified that she was the only Supervising Environmental Scientist at RIDEM who was placed in a position subordinate to another supervisor, another example of disparate treatment. (TR 105; EX 3)

Complainant's Post-Reorganization Reaction

   Complainant continued to raise her concerns after the reorganization became official, both within and outside of RIDEM. In October of 1996, Complainant took her complaints to Ms. Marcaccio, in Human Resources, particularly raising her concerns about Mr. Mulhare's enforcement abilities. (TR 121) Ms. Marcaccio testified that Complainant expressed her concerns about reporting to Mr. Mulhare because Complainant said that he was a lair and untrustworthy, and that he had little knowledge of the RCRA program. (TR 2193) Complainant also drafted a memorandum expressing her concerns about the integrity of the program, and relating to aspects where she felt she could be most useful. (TR 121) Complainant also expressed her fear that she was being set up for termination, which Ms. Marcaccio later denied. (CX 102)

   Ms. Marcaccio, in light of Complainant's concerns, scheduled a meeting on October 3, 1996, between herself, Complainant, Mr. Albro, Mr. Szymanski and Mr. Fester. (TR 2193) At this hearing Complainant again expressed her concerns that the reorganization was adversely impacting both her career and the RCRA program. (TR 102) Complainant argued against Mr. Mulhare as a supervisor based on his strong dislike for enforcement actions. (TR 102, 2198) Further, Complainant discussed the change in

procedures that had occurred since the reorganization went into effect. Namely, Complainant noted that Mr. Mulhare had returned several reports for further information, and multiple reviews, which she found both violated the prior procedure regarding snap-shot inspections, and also violated the EPA and RCRA's requirement of timely enforcement. (TR 134-38)

   Complainant also testified to the mood of the October 3, 1996 meeting. Specifically, she complained that the others in attendance were "very abusive" and confrontational, and told her that she had no redress for her complaints. (TR 122) Complainant noted that Mr. Szymanski merely demanded that she give 110% in her current position. In all, Complainant testified that she "felt very attacked and demoralized." (TR 122-23)

   Ms. Marcaccio also testified about the meeting, noting that Complainant was extremely emotional. Ms. Marcaccio stated: "She cried very hard, had trouble speaking, had to stop and calm herself down before she could continue." (TR 2196) As a result, Ms. Marcaccio suggested that Complainant contact RIDEM's Employee Assistance Program (EAP). (TR 2199-2200). In fact, Ms. Marcaccio claims that she called EAP for Complainant because Complainant was so agitated, Ms. Marcaccio had to dial the phone. (TR 2299-2300).

   Complainant sought treatment for her emotional condition, which she attributes to her "being constantly questioned, criticized, attacked. My work was being undermined by my superiors. My subordinates were losing respect for me." (TR 383) During the next few months Complainant had sporadic contact with EAP. EAP counselor, Judith Hoffman, advised Complaint to seek treatment through her own health insurance program with Harvard Community Health. (TR 384) Complainant did, and began seeing both Ray Cooney and also Dr. Carre who both suggested that she get away from the stressful environment. (CX 37) Additionally, within days of these events in early October, Complainant's husband, Joe Migliore, who also works at RIDEM, approached Mr. Fester and had a confidential conversation with him to advise Mr. Fester of the stress and health problems Complainant was experiencing as a result of the Department's treatment of her, and asked whether there was anything Mr. Fester could do. (TR 990) Complainant testified that she continued, and continues, to have stress related problems allegedly caused by Respondent's conduct. In fact, from September to mid-October of 1997, Complainant was out of work for five weeks on stress leave. (TR 162)

   During this period, Ms. Marcaccio would often respond to EAP calls and provide information on Complainant's mental state. (TR 2214, 2303) During these meetings, Ms Marcaccio passed along information concerning Complainant's alleged problems at work for inclusion in Complainant's file. (CX 39) For example, an October 10, 1996 entry notes that Ms. Marcaccio described Complainant as an "aggressive" and "headstrong" woman who "doesn't like/respect her new boss who threatened to quit" and "exaggerates his mistakes." (CX 39) Further, Ms. Marcaccio even divulged to the counselor the purported contents of the supposedly confidential conversation

between Complainant's husband and Fester, stating that "husband went to [associate director] and said marriage and health compromised." (CX 39) Finally, Marcaccio noted that "some directors want to discipline her for not assuming her responsibilities and moving on with the reorganization." (CX 39) Complainant was unaware that Ms. Marcaccio was making these phone calls and even talking to the EAP counselor.

   Following the October 3, 1996 meeting, Complainant continued to raise her concerns to RIDEM employees. On October 28, 1996, Complainant spoke with both Mr. Albro and Mr. Szymanski to report that Mr. Mulhare was micro-managing her and leaving her out of the loop on decisions. (CX 102) Around this time, Mr. Szymanski advised Complainant to bring her concerns directly to Mr. Albro, and that Mr. Mulhare would be subject to some form of discipline if he continued to antagonize her.

   Complainant continued to draft numerous memoranda addressing her concerns with the reorganization and Mr. Mulhare's adverse effect on the RCRA. Complainant testified that Mr. Mulhare would review cases and order Complainant to weaken the language in enforcement documents. (TR 500) Additionally, both Mr. Albro and Mr. Mulhare began sending enforcement documents back for revisions, and also requiring multiple re-inspections of facilities. Complaint testified that she and her staff felt that their compliance inspections were being compromised by these instructions. (TR 5137) Complainant also said that she and her staff were confused as to the new rules that Mr. Albro and Mr. Mulhare sought to put in place. (CX 103; CX 79) Complainant's main concern was that the new procedures were essentially inconsistent with, and inappropriate for, the requirements of the RCRA program, and that the new "enforcement" policy was actually preventing enforcement from being completed in a timely and appropriate fashion. (TR 5133) Complainant also voiced concerns that she was being placed in a situation by her superiors where she was being set up to fail. In support, she noted that she was placed in a working environment with Mr. Mulhare, despite the known significant differences in their beliefs as to how the RCRA program should be enforced. Further, Complainant argues that she was given conflicting or untruthful messages from her superiors on how to proceed with specific cases. She also noted that it was well known that her post-reorganization position conflicted with her job description, in terms of her supervision.

despite her long experience and expertise with the RCRA program. (TR 3902-03) In an October 29, 1996 memorandum to Mr. Szymanski, Mr. Mulhare indicated that Complainant created "personnel problems" and was the "crux of the problem" whose "impact on the program needs to be limited not expanded." (CX 11)

   Officials with the EPA were also aware of Complainant's concerns, and problems stemming from the reorganization with RIDEM. Complainant's position required a great deal of contact with EPA officials, and she spoke with Richard Piligian, of the EPA's RCRA oversight office for Rhode Island, and told him that she did not feel that RIDEM's RCRA work was proceeding appropriately and in a timely manner. (TR 132) According to Complainant, Mr. Piligian had inquired of Mr. Fester whether a change in enforcement philosophy had occurred. (TR 5123) Mr. Fester allegedly denied any change, prompting Mr. Piligian to comment the same day to Complainant, "Do they think we're idiots?" (TR 5124)

   The major conflicts between Complainant and RIDEM have been well documented in this record through numerous RIDEM enforcement cases where disagreements arose. I pause to note that this Court's authority does not encompass the issues of which party was correct regarding the substantive decisions or actions taken in RCRA enforcement cases. Rather, this Court's concern is only whether or not Complainant was discriminated or retaliated against for engaging in protected activity. Thus, while I have reviewed closely this entire record, in the interest of both brevity and clarity, I shall only summarize those enforcement cases and conflicts which have the most bearing on Complainant's claims and RIDEM's defenses.

Investigation of Complainant in 1997

   In light of Complainant's continued complaints, and the expected filing of an EEO complainant, the RIDEM supervisors called a meeting in January 29, 1997 to discuss Complainant's situation, and to conduct an investigation of her activities. The meeting was attended by Mr. Albro, Mr. Szymanski and Ms. Marcaccio. At the meeting, the parties began gathering information concerning Complainant and developed a plan to investigate Complainant. At the conclusion of the meeting, the parties agreed to meet again to discuss their findings and determine an appropriate level of discipline.

   The EPA, upon receipt of the two conflicting FSRs, undertook an investigation as to whether RIDEM was allocating the federal RCRA grant properly, and federal auditors looked into the issue. (TR 537) On March 7, 1997, Bob Mendoza, the EPA Rhode Island State Program Manager, wrote to Mr. Fester noting that the apparent "shift" in funds was made without approval from the EPA, and also indicated that RIDEM would have to reallocate the carry over money. Mr. Mendoza then requested a detailed accounting of the cost shift.

1995, however, Complainant determined that the materials were paint "product," rather than "waste," based upon representations by the company's owner and according to normal practice and procedure. (EX 35; TR 1336) As a result of Complainant's jurisdictional determination which was approved by her chain of command at the time, CIU was unable to prosecute Chase Paint for criminal RCRA violations, and Complainant alleges that Mr. Cappelli was upset because his hopes for a high-profile "bust" were dashed. In January of 1997, Mr. Cappelli suggested to both Mr. Mulhare and Mr. Albro, that Complainant had close ties to Frank Chase, the owner of the Chase Paint facility, and that Complainant may have altered files in order to support her exculpatory waste determination. (TR 4216)

previously disciplined by Complainant. Ms. Angell was subsequently transferred to the Office of Waste Management. Complainant testified that she had heard a from a colleague that Ms. Angell was making disparaging personal and professional comments about Complainant. (TR 511; EX 5) Complainant then wrote Ms. Angell a memo stating that she was aware of Ms. Angell's comments, and that if such actions continued, Complaint would "have no alternative but to contact my attorney to seek legal remedy." (EX 5)

   Ms. Marcaccio learned of Complainant's memo from Ms. Angell's union representative, and she then instructed Mr. Albro to discuss the matter with Complainant. (EX 5) On December 19, 1996, Mr. Mulhare and Mr. Albro called a meeting with Complainant to discuss this issue, and to specifically instruct her not to use state letterhead to threaten legal action against another employee. (TR 514, 4165-66) Complainant agreed not to do it again. Respondent described the meeting as an official disciplinary counseling session, and that Complainant was advised to go through her supervisors when a dispute arises involving an individual in another unit. (TR 4166) Complainant, however, testified that Mr. Albro merely made an off-hand comment at the end of the meeting that, "If you have a problem with something, let Mike handle it." (TR 5159-60)

   (4) Hellested Issue

   The final issue addressed concerned Complainant's interaction with Leo Hellested, a Supervising Engineer overseeing the RCRA component of Office of Waste Management. During the reorganization period, Complainant had close contact with Mr. Hellested concerning a number of issues. On January 15, 1997, Complainant sent a memo to Mr. Hellested concerning a few "ongoing coordination and division-of-labor issues between their two units." Two weeks later, a problem arose regarding one of the issues, and Complainant went to Mr. Mulhare to address the issue. (TR 5160, CX 103, 1/28/97)

   On January 28, 1997, that same day, Complainant called Mr. Hellested to check on an unrelated issue. Complainant then expressed concern about reports that a member of Hellested's staff was telling other staff that Complainant's response letter on the treatment-in-tanks issue was incorrect and too harsh on regulated entities. (CX 113) Complainant, however, stated that her letter was correct, and he offered to help Mr. Hellested's staff member on the issue. According to Complainant, Mr. Hellested became very defensive and territorial, and stated that Complainant should probably not be involved. (CX 103, 1/18/97; CX 113). As to Complainant's request to help Mr. Hellested's staff, he screamed at Complainant that she should not talk to his staff and then ended the call. Both Complainant and Taylor remember that at no time during the conversation did Complainant raise her voice. (TR 1216)

   Complainant stated that she was appalled at Hellested's tone and manner, and immediately called Terry Gray, Mr. Hellested's supervisor, and left a message on his voicemail stating that she had offered her assistance to Mr. Hellested and then had been verbally attacked by him. (CX 103, 1/28/97).

At the hearing, Complainant acknowledged that she may have said, "Who the hell does he think he is?," referring to Mr. Hellested. (TR 5163) After leaving the message, Complainant immediately went to Albro's office to report the incident to him, but he had left for the day. (TR 5162)

   The next day, Complainant again went to Mr. Albro's office and learned that Mr. Gray had already contacted Mr. Albro about the confrontation and voicemail message. (CX 113) Mr. Albro and Mr. Mulhare questioned Complainant about the incident. (CX 113) Complainant presented her side of the story and them asked them if they would supporter her. (CX 113) Mr. Albro responded that it was "premature" to discuss support, since the whole story was not known. (CX 3)

Written Reprimand

reprimanded orally, and also that she never was notified that disciplinary action was being considered. (CX 103, 3/3/97; CX 49) Thus, she did not have an opportunity to respond to the allegations. (TR 1470, 2224) Ms. Marcaccio, however, stated that Respondent has no legal duty to inform an employee prior to issuing a reprimand. (TR 2325) Further, Mr. Albro and Mr. Mulhare felt that their December 19, 1996 conversation served as an oral reprimand. Ms. Marcaccio also stressed that Complainant never contested, denied, or appealed the March 1997 letter. (TR 2310)

   On March 14, 1997, after receiving her written reprimand, Complainant filed a supplemental claim to the EEO/Human Rights Commission, adding Cappelli as a named party. (CX 49) Complainant alleged that the recent complaints were in retaliation for the jurisdictional concerns she had raised on several occasions regarding enforcement action.

   Complainant also noted that prior to the reorganization, she had never been subject to discipline. Further, she said that she had never been formally chastised regarding the representations she made to the EPA. (TR 114) She noted that the reprimand was based on the financial disclosures, which were no different than the disclosures she had made in the past and for which she was never reprimanded for in any way. (TR 115) The reprimand, however, is more about her encounter with Mr. LaForge, rather than the substantive issue concerning the carry-over funds. (EX 40)

Conflicts after the Written Reprimand

   Complainant testified that following her written reprimand, she continued to be subject to harassment in retaliation for her criticism of RIDEM's enforcement policies. Complainant also testified that her supervisors were trying "to undercut [her] with [her] own staff." (TR 144) She testified that Mr. Mulhare encouraged her staff to bypass her, and that she was left out of meetings with her supervisors, the EPA, and national organizations. (TR 145) Complainant also testified that she was denied training for almost every request she made, and that she also testified that she was being treated differently than other employees in regard to flex time. (TR 146-47) Ms. Marcaccio, however, testified that Complainant's flex time request was denied because her submission did not include a schedule of when she was planning to work, therefore there was uncertainty as to whether she was going to be available during 'core hours.' (TR 2318)

"Non-Performance" Memos

the goal of turning Complainant's criticisms of them against her. (TR 5171-72) Thus, Complainant noted that the actual reason for the delays in the cited cases resulted from the procedures and policy actions taken by her supervisors regarding re-inspections, and continual changes to and iterations of the drafts. Complainant also stressed that her supervisors never once sat down with her in a constructive manner to discuss her performance on any of the cited cases. (TR 5170)

T.D. Mack Case

   Mr. Albro also stated that he was "confused" by Complainant's December 12, 1997 memo and had several people review it, including Mr. Mulhare. Upon review, Mr. Mulhare noted the discrepancy between the facts in paragraph 8 and the new facts in the emergency response file Mr. Leo had shown him, Mr. Albro then raised this issue to his superiors. (CX 23; CX 54) Eventually, it became clear that Complainant's response was made without reference to certain facts. In short, Respondent alleges that Complainant never compared the NOV with Mr. Nero's report for accuracy.

unnecessarily delaying the enforcement action against T.D. Mack. (CX 25) Interestingly, this notice was issued one day before the reprimand would be removed from her file. The following day, on March 3, 1998, Mr. Bob Nero was given an oral reprimand by Mr. Albro for his role in inserting "inaccurate facts" in the draft NOV. (CX 26)

of same facilities and "RIDEM's perception that Rhode Island's legislature doesn't want a strong and aggressive environmental enforcement presence." (TR 264-65)

   Complainant and her staff determined that an administrative penalty was warranted. They drafted an NOV and forwarded it to Mr. Mulhare. (TR 294; EX 113) For the next several months, Mr. Mulhare took no action on the NOV, other than requesting more information or changes. Complainant testified that she repeatedly raised concerns over Mr. Mulhare's delay. Then, on March 17, 1998, Mr. Mulhare announced that he wanted another inspection of the facility. Complainant strongly objected, as she felt there was sufficient information to go forward with the NOV, and that any further reinspection would unnecessarily delay the enforcement action. (TR 5224)

   Nevertheless, on March 23, 1998, John Leo, of the emergency response unit, inspected the American Shipyard site and videotaped the problematic site. Mr. Leo observed several compromised containers, which had worsened since the last inspection. Further, he noted some containers were "leaking," in "advance state of decay," and with "spillage" problems. (CX 32) He also noted that this served a strong threat to both the environment and public health, as the shipyard was located on the harbor in Newport. (TR 1341) Mr. Leo testified that he showed Mr. Mulhare the video that same day. (TR 1342-44)

Complainant Goes to PEER and the EPA

   Following this third inspection, no action was taken on the case. Complainant continued to raise questions about the status of the NOV. (CX 32; CX 78) This lack of action discouraged and upset Complainant, and she testified that she felt that the environmental and public health threat was strong. Further, she felt that Mr. Mulhare and RIDEM were violating the RCRA's requirements for timely and appropriate enforcement. Accordingly, Complainant testified that she took her information to Mr. Piligian at the EPA, as well as Attorney Robins at PEER and the media, in order to instigate action and highlight RIDEM's violation of the RCRA. (TR 329) Complainant also informed Mr. Mulhare that she had shared this information with her attorney. (TR 329) Subsequently, on October 7 and 8, 1998, stories concerning American Shipyard appeared in both the Newport Daily News, and the Providence Journal, respectively. (CX 32) In both stories, PEER representatives are quoted as stating that containers of hazardous waste at the shipyard had leaked. (CX 32) This press disclosure raised concerns both inside and outside of RIDEM.

   RIDEM presented evidence of their immediate concern over the safety of the site and environment. Mr. Szymanski testified that his foremost concern was whether or not there were leaking barrels at the American Shipyard site. He noted that both press articles cited to leakage, while his understanding was that there was no leakage. Accordingly, on October 9, 1998, Mr. Szymanski wrote to Complainant requesting that she "review the file on this case immediately and provide . . . a determination based on the evidence in the file as to whether there were barrels leaking at this facility." (CX 32) He requested a response by the close of business that day. (CX 32) Mr. Szymanski testified that his verbal order was that Complainant not consult with anyone else, however, his written instructions were not as adamant. (TR 1783)

Mr. Albro's request to discipline Complainant. Mr. Szymanski met with RIDEM Director Andrew McLeod and Ms. Marcaccio to discuss both the PEER petition and any potential action against Complainant. (TR 1798-1801) It was decided that Director McLeod would write to Complainant to seek an explanation.

   At this meeting, Complainant told Ms. Blair about four instances since 1990 that RIDEM officials sought to use federal RCRA monies or assets for non-federal programs. (TR 284, 312-13) Further, Complainant discussed the issues surrounding the 1996 Financial Status Report. Finally, Complainant said that RIDEM had improperly placed enforcement personnel whose salaries are covered by federal grant monies on a state payroll account to facilitate enforcement staff reductions. On July 15, 1998, PEER filed a formal submission, on Complainant's behalf, to the EPA OIG summarizing her complaints and her July 8, 1998 discussion with Ms. Blair. This filing included supporting documentation. PEER also released the information to the news media.

he verbally corrected Mr. Silverman's misunderstanding after he read a copy of Mr. Silverman's letter to Attorney Robins. (TR 1824)

   On October 14, 1998, Complainant filed her third complaint, alleging that RIDEM's efforts to "gag" her communications with federal officials constituted unlawful retaliation under the RCRA employee protection provisions. Specifically, Complainant alleges that RIDEM's actions served "to prevent Complainant from making further protected disclosures to federal oversight officials." (ALJ EX 64)

Current Position

reason for subjecting the Complainant to adverse action, and as a result, Complainant has met her claim for intentional discrimination and is entitled to damages. If, however, a reviewing authority concludes that Respondent has provided legitimate, non-discriminatory reasons for its actions, then I find and conclude that Complainant has proven that any such reasons are pretext, as shall now be discussed.

   I find and conclude that Complainant has presented adequate evidence to prove not only that the Respondent's proffered reasons for any adverse action pretext, but also that the Complainant was harassed and subject to disciplinary action in retaliation for engaging in protected activity. Leveille v. New York Air Nat'l Guard, 1994-TSC-3/4 (Sec'y Dec. 11, 1995). Respondent alleges that Complainant was subject to disciple in based upon her professional failures, and repeated instances of refusing to follow supervisors' orders. I find and conclude, however, that Complainant has proven that those reasons are invalid, and that the real motivation concerned retaliation against her because of her protected activity. I conclude that Complainant has proven that Respondents intentionally discriminated against her for engaging in protected activity.

   I find that Respondent's reasons are pretext and that RIDEM's adverse actions were discriminatory in retaliation for Complainant engaging in protected activity. First, I find that RIDEM's purported reasons for the 1997 written reprimand are pretext. Complainant had raised a number of concerns about the reorganization, both before and after, noting how the RCRA program was being compromised. I find and conclude that this prompted Respondent to take disciplinary action against Complainant. I find that the investigation in early 1997 and the reprimand were invalid for a number of reasons: First, I find that Mr. Albro and Mr. Mulhare began a detailed investigation of Complainant for the purpose of bringing disciplinary action against her. Second, the information obtained and manufactured during that investigation, and relied upon by Respondent in issuing the written reprimand, was highly unreliable. The allegations of Mr. Cappelli, Mr. LaForge and Mr. Hellested were all extremely biased, and that bias was well known to Mr. Albro and Mr. Mulhare. Mr. LaForge has a strong dislike of Complainant, and was attempting to "get" her, per the testimony of Ms. Raddatz. There was also compelling evidence that Mr. Cappelli's statements were unfounded, retaliatory, and incorrect. Further, Mr. Cappelli's reputation for holding a grudge was known to Mr. Mulhare and Mr. Albro, who also knew that Mr. Cappelli remained upset over Complainant's jurisdiction determination in the Chase Paint case. Third, I find that Respondent violated their own disciplinary procedure by issuing a written reprimand prior to counseling and an oral reprimand. Ms. Marcaccio testified that the usual disciplinary procedure would be modified in extreme situations, yet there was no evidence of why an increased penalty was justified at this time. Further, I find that the December 19, 1996 conversation between Mr. Albro, Mr. Mulhare and Complainant did not constitute a counseling/oral reprimand session, and also that their instruction for her not to speak directly to others was unclear and suspect. Fourth, I find that the allegations regarding misuse of state stationery would be valid, had not Mr. Albro also utilized State stationery for much the same purpose. Next, I note that Complainant acted entirely appropriately in regard to the financial summary report issue. The fact that RIDEM had sent in two, very different FSRs, indicated to the EPA that something was amiss. Thus, this was not only embarrassing for RIDEM, but also proper grounds for an EPA investigation. At all times, Complainant's actions were appropriate,

however, Mr. La Forge's retaliatory intent was not. Finally, I am most moved by the fact that Complainant was not provided an opportunity to respond to the biased, one-sided allegations that formed the basis of the reprimand. Therefore, I find and conclude that Mr. Mulhare and Mr. Albro were frustrated by Complainant's protected activity, and decided on rail-roading Complainant through a retaliatory, disciplinary procedure, in hopes of stifling her concerns.

   Next, I find Respondent's reasons for the Complainant's one-day suspension pretext, as the actual motivation was retaliation for her protected activity. Respondent argues that she was disciplined for delaying the process, relying on incorrect information, and failing to respond to supervisors' orders. I find such reasons pretext. Complainant raised protected and repeated concerns over the T.D. Mack case. She responded to all of Mr. Albro's memoranda and provided backup information which supported her findings. Even Mr. Szymanski, who disciplined her on grounds that she failed to respond to Mr. Albro's memoranda, testified that she did in fact respond. I find this entire T.D. Mack disciplinary occurrence a set-up against Complainant for discriminatory purposes. First, Complainant was reprimanded for not reviewing factual information, which she credibly testified was not in the file at the time of her review. Second, Complainant responded to all requests and adequately supported her position, which in itself was protected activity. Third, Mr. Albro utilized the procedure of asking for more information as a method of disciplining Complainant, as is readily apparent from the highly damaging evidence that Mr. Albro sent materials concerning the T.D. Mack case to Mr. Silverman at the EPA to devise a theoretical penalty to be used in connection with disciplining Complainant. (CX 86; CX 90) Further, I find and conclude that the entire internal proceeding was a sham. Mr. Szymanski was anything but an impartial arbitrator. Rather, he had been engaging in discussions about disciplining Complainant for over one year, based on Mr. Albro and Mr. Mulhare's complainants that Complainant's memoranda and concerns were a frustration. Further, Mr. Szymanski ordered the suspension without addressing Complainant's counsel's concerns. I also note that despite RIDEM's concerns about delays, the actual T.D. mack NOV was not issued until May of 1998. Rather, I find that the Complainant had exerted a great deal of pressure on RIDEM supervisor's based upon her safety concerns. Further, Complainant's contact with the EPA resulted in a great deal of pressure on RIDEM. Thus, in summary, I find and conclude that Respondent manufactured a disciplinary procedure as a method of retaliating against Complainant.

   Next, I find and conclude that Director McLeod's memoranda concerning the T.D. Mack case, and the PEER press release and withdrawal petition were acts of harassment designed to intimidate Complainant for her engaging in protected activity. Initially, I note that concern over the extent of an environmentally dangerous site, is certainly a reason for a supervisor to request more information from an underling. However, Director McLeod's reasoning is highly suspect. First, while he was concerned with the correct information and the real dangers of the site, at no point did he order investigators to revisit the site to determine the immediate threat to the environment. Further, while he was allegedly concerned about confidential information being released, he himself opened the entire file to the press. I find that the real intent of his memoranda was to intimidate Complainant with "corrective action" for raising her concerns outside of RIDEM to the EPA and PEER. Specifically, I find and conclude that Director McLeod's threat of adverse

action should Complainant not comply, is nothing more than a bold threat based upon discriminatory motive. Complainant had a reasonable concern that RIDEM was not taking appropriate action on the American Shipyard case, and by releasing that information, it served to bring attention to RIDEM's failures. I note that whether or not there were leaking barrels at the site is not relevant to this inquiry, as I have found that Complainant's concern, and her testimony on this matter, was reasonable and credible. That embarrassment prompted Director McLeod's retaliatory memoranda. Complainant was not insubordinate, and properly responded to those memoranda, requesting that he speak with her attorney. Further, I find and conclude that the purported interest in finding out the facts about the site was pretext, and that the memoranda strictly sought to intimidate Complainant for engaging in protected activity.

   Next, I find RIDEM's action in requesting the EPA to cease all communication with Complainant to be highly discriminatory and severely damaging to Complainant's reputation. I find and conclude that Mr. Albro's testimony that he felt that Complainant's contact with the EPA should be curtailed is unconvincing. Complainant had previously, and repeatedly, provided information to the EPA critical of Mr. Albro and the RIDEM program. Such information was used by the EPA in conducting an audit of the RCRA program, RIDEM's use of federal funds, and served as a basis for PEER's withdrawal petition. Suffice to say, RIDEM failures, highlighted by complaints to the EPA and others, created a great deal of external pressure and embarrassment for Mr. Albro and other RIDEM supervisors. I find that because of Complainant's repeated protected disclosures to the EPA, Mr. Albro and Mr. Szymanski sought to prevent Complainant's contact with the EPA. Despite the contradictory testimony on the extent of contact to be allowed, RIDEM sought to curtail Complainant's access to the EPA, and such motivation was an intent to discriminate.

   Finally, I find that Complainant's claims of general harassment and retaliation are valid, as RIDEM engaged in continuous discriminatory action, lacking any legitimate motive. First, I find and conclude that Complainant was subject to general harassment based on her complaint about the planned reorganization. Respondent seeks to overly simplify the situation, by alleging that Complainant is merely a disgruntled employee who was upset at not being able to report directly to a division chief. I disagree. While I do not find that entire reorganization discriminatory, I do find specific aspects of it adversely affecting Complainant in a retaliatory way. The placement under Mr. Mulhare was in direct violation of her job description, and placed her in a position where conflicts were sure to arise. I also note that while the EPA reports were critical of some of the pre- organization cases that Complainant was involved with, she credibly testified that they involved long running enforcement and jurisdictional disputes between the EPA and RIDEM. I find and conclude that she credibly explained the difference between professional differences of opinion, and the more severe conflicts between herself and RIDEM over actions that were in violations of the RCRA itself. I also find that from the fall of 1996 through 1997, Complainant was systematically isolated, subordinated and micro-managed, as she continued to raise concerns with the improper enforcement of the RCRA by RIDEM. Further, I find and conclude that the so-called non-performance memoranda drafted by Mr. Mulhare and Mr. Albro are nothing more than a veiled attempt to blame Complainant for the same problems that she had raised to her supervisors and the EPA. Further, I find Mr. Albro's actions and motivation for inquiring into Complainant's conversation with Ms. Blair of the EPA highly discriminatory. I also find Complainant's response to Mr. Szymanski's request regarding the

American Shipyard case proper and not insubordinate. Mr. Szymanski's written request did not expressly prohibit Complainant from contracting and relying on the investigators, and her actions were appropriate.

   In summary, I find and conclude that Complainant raised a great deal of concerns over the proper enforcement of the RCRA, and financial matters at RIDEM. Her actions were the source of a great deal of pressure for RIDEM management from the EPA, PEER and, eventually, the public. Further, RIDEM has been severely criticized and embarrassed by Complainant's protected activity. As a result, I find and conclude Respondent has clearly, continuously, and illegally discriminated against Complainant through harassment, disciplinary procedures, and outright threats. Accordingly, I find and conclude that all of Respondent's purported, legitimate reasons for taking adverse actions against Complainant are, in fact, pretext. Complainant has met her burden of proving that Respondent has intentionally discriminated against her for engaging in protected activity concerning the proper enforcement of RCRA. As such, Complainant is entitled to an award of damages.

   First, however, I, very briefly, wish to touch upon the issue of dual motive analysis. Under dual motive analysis, a Respondent must establish, by a preponderance of the evidence, the existence of a legitimate reason for the taking of adverse employment action against a complainant, and that the Respondent would have taken the same action even if the employee had not engaged in protected conduct. See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Martin v. The Dept. of the Army, 1993-SDW-1 (Sec'y July 13, 1995).

   This Judge only reaches the dual motive analysis if I determine there is a legitimacy to the Respondent's stated reason for the adverse employment action, a conclusion which I have specifically rejected for the aforementioned reasons. Even so, I find and conclude the Respondent has failed to present sufficient evidence that they would have taken the same action if Complainant had not engaged in protected activity, because the evidence establishes that Respondent's actions and positions were motivated entirely in response to Complainant raising quality concerns.

   This Judge, having found the Respondent in violation of the aforementioned whistleblower statutes, may issue a recommendation on damages to be awarded to Complainant. Complainant requests front pay, back pay, compensatory damages, equitable relief, and attorney fees and costs.

Reinstatement/Front Pay

   Complainant originally testified that she was seeking reinstatement to her full former duties. In her post-hearing brief, however, Complainant notes that she no longer seeks to continue her employment with RIDEM. Following this lengthy and contentious hearing, Complainant concludes that the "retaliatory animus" "pervades her entire chain of command," and that "restoration of her former

duties and position would not suffice to make her whole." Thus, Complainant concluded that the "only acceptable remedy is to leave state service entirely, with just compensation." (CX 126 at 202) Rather, Complainant requests an order of front pay for two years in the amount of $150,000.00.

that the employment relationship between Complainant and RIDEM long ago reached the point of no return and that Complainant's supervisors manifested such blatant hostility towards her for not being a 'team player.' Such hostility was readily apparent in the courtroom as each witness testified against Complainant, several not even looking in her direction, except when absolutely necessary. Complainant, in my judgement, cannot return to work at RIDEM. Therefore, I find and conclude that reinstatement of Complainant to her prior duties is not advisable. Accordingly, I find and conclude that an award of front pay if justified in this matter, once Complainant leaves her employment with RIDEM, and she has indicated in her post-hearing brief that she will shortly do so.

1995) (decided pursuant to an analogous provision of the STA). Where appropriate, a complainant may recover an award for emotional distress when his or her mental anguish is the proximate result of respondent's unlawful discriminatory conduct. See Bigham v. Guaranteed Overnight Delivery, 1995-STA-37 (ALJ May, 8, 1996) (adopted by ARB Sept. 5, 1996); Crow v. Noble Roman's Inc., 1995-CAA-8 (Sec'y Feb. 26, 1996). See also Blackburn v. Metric Constructors, Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991). Complainant bears the burden of proving the existence and magnitude of any such injuries; although, as a caveat, it should be noted that medical or psychiatric expert testimony on this point is not required. Crow v. Noble Roman's, Inc., 1995-CAA-8 (Sec'y Feb. 26, 1996); Lederhaus v. Paschen, 1991-ERA-13 (Sec'y Oct. 26, 1992); Jones v. EG&G Defense Materials, Inc., 1995-CAA-3 (ARB Sept. 29, 1998).

   I find that Complainant has submitted sufficient evidence justifying a claim for compensatory damages based on her severe emotional pain and suffering cause by Respondent's discriminatory conduct. Complainant has testified concerning how, as a result of RIDEM's alleged discrimination and harassment, she has suffered substantial emotional, physical and professional harm. (TR 381-93) Additionally, Complainant has submitted medical records from Nephrology Associates, Harvard Pilgrim Healthcare, the RIDEM Medical Monitoring Program, and the RI EAP, to substantiate her claim. (CX 36-39) These records reflect a two year period of Complainant's suffering from severe stress, sleep disorders, anxiety and symptoms of clinical depression. (CX 36-39) The records of Dr. Stephen Zipin indicate serious stress disorder and problems during 1996 through 1998. (CX 36; CX 62; CX 64; CX 65; CX 67) Further, in late 1997, Complainant met with Counselor Raymond Cooney, and psychiatrist Dr. Giselle Corre, both of whom noted the "severe stress from work-related issues," and recommend that Complainant take time off from work on stress leave. (CX 61) As a result, Complainant then took five weeks of stress leave in September and October of 1997, as well as other occasional days off. (TR 387) Complainant also alleges that she has been emotionally strained, and that her family has been severely impacted by her stress. In fact, her husband, Joseph Migliore, relayed his concern about Complainant's stress and its effect on their family to Mr. Fester who shared this information with Ms. Marcaccio.

hand, argues that Complainant has failed to present sufficient evidence to document her claim.

   I note, that in Varnadore v. Oak Ridge Nat'l Laboratory, 1992-CAA-2/5 and 1993-CAA-1 (ALJ June 7, 1993), the Administrative Law Judge found that the complainant was not entitled to an award of compensatory damages based upon adverse health consequences where the Complainant's evidence was merely speculative.

   I find and conclude, that upon review of the evidence, Complainant has more than adequately proved that she has suffered physical consequences, as a result of Respondent's actions, and that such actions have resulted in higher co-payment for Complainant, as well as general adverse health conditions. I find that Complainant has candidly and honestly testified to the circumstances surrounding her kidney transplant that occurred prior to the 1996 reorganization. Complainant alleges that her fragile physical health condition has worsened and she has suffered additionally as the direct result of her work-related stress. (TR 377) Complainant also had joint problems, and requested a closer parking space. (TR 379) This condition prompted Mr. Albro to object to her engaging in field inspections. Complainant is also on medication for high blood pressure, and her levels increased during this period, according to her nephrologist, Dr. Zipin. (TR 388) I find that Complainant's physical condition, as impacted by her work-related stress and anxiety, is well documented in the medical records of Dr. Zipin and the EAP. (CX 39; CX 36; CX 63)

   Accordingly, based upon the medical records submitted, coupled with Complainant's testimony, I find that Complainant is entitled to compensatory damages based on her adverse health condition. Further, after a comparison of these facts to other whistleblower cases involving compensatory damages based on adverse medical conditions, I find and conclude that Complainant is entitled to an award of $50,000.00.

   Loss of Career and Professional Reputation

   Complainant is seeking ,500,000.00 in compensatory damages based upon her loss of career and professional reputation directly caused by Respondent's discriminatory conduct. Complainant alleges that her professional reputation has been irreparably harmed by Respondent's actions of 'bad-mouthing' Complainant to individuals both inside and outside the agency. (TR at 5231) Complainant stresses that this action is particularly damaging in light of her professional circumstances: mainly, she has a very narrow career specialty, and that her physical and family limitations require her to stay in Rhode Island. Complainant alleges that her career is ruined and that she no longer wishes to work for RIDEM because of the deterioration of her relationship. Respondent, however, argues that "Complainant's reputation is exactly what she made it," i.e., by not being a team player. Further, Respondent highlights that the EPA audits were critical of cases under Complainant's control both before and after the reorganization. Therefore, Respondent reasons that her reputation with the EPA was already negative.

   I find Complainant's situation most compelling on the grounds that her professional reputation has been repeatedly and severely tarnished by Respondent's retaliatory actions. Further, I find and conclude that the facts of this case are much more severe than any other whistleblower case to date.

   In Van Der Meer v. Western Kentucky Univ., 1995-ERA-38 (ARB Apr. 20, 1998), the ARB awarded a complainant $40,000.00 in compensatory damages for loss of professional reputation where Complainant was "physically escorted from his classroom by the campus police, in front of his students, and then hustled through gathering up some personal effects from his office under the watchful eye of the police." The Board found that the extraordinary and very public action against the complainant "surely had a negative impact on [the complainant's] reputation among the students, faculty and staff at the school, and more generally in the local community."

   I find that Complainant's reputation has suffered severely at the hand's of RIDEM. Complainant has been criticized directly, and through veiled, posted memoranda, in front of her staff. Her reputation among her RIDEM superiors is ruined. She has repeatedly been criticized openly to both outside entities contracting with RIDEM, as well as, and most significantly, EPA officials. All of these actions serve to severely curtail Complainant's chance of obtaining comparable work in the Rhode Island community. I note that Complainant's situation is made much more severe by a number of special factors, including the fact that she must remain in the Rhode Island area for health and family reasons. Further, Complainant is an acknowledged expert in the RCRA program, which severely limits her employment prospects beyond RIDEM and the EPA. Thus, I agree with Complainant's allegation that "Respondent's actions to damage her reputation leave her with few if any mitigative options for finding fulfilling and appropriate new employment in her area of expertise."    I noted, that like the complainant in Van Der Meer, Mrs. Migliore was subject to discriminatory actions that were quite public, such as the postings around RIDEM office that, while not mentioning Complainant by name, clearly indicated that her complaints were unfounded. Further, RIDEM's criticisms to the EPA were very public tarnishing of her professional reputation among the environmental community. I find, however, that the facts of the present case are much more egregious than those in Van Der Meer. The complainant in Van Der Meer was a college professor, whose skills could translate to other university, colleges or schools. Further, there was no impediment to his travel. Complainant, on the other hand, is an expert is an extremely specialized field where she developed over thirteen years experience with RIDEM. Her experience is limited to this specialized field, and now her reputation has been ruined among RIDEM employees, the Region One EPA, and the Rhode Island Community in general.

   I find it terribly unfortunate that Complainant's professional reputation could become so scarred, merely for raising safety and environmental concern with Rhode Island's Department of Environmental Management. I recognize that the posting of this decision, as shall be addressed below, will go to some length to try to resurrect Complainant's tarnished reputation. Nevertheless, I find and conclude that Respondent's actions have been so egregious in ruining Complainant's reputation among other RIDEM employee's, undermining her staff, and discrediting her with the EPA, that Complainant is entitled to significant compensatory damages for her loss of reputation.

   According, upon my review of relevant case law and the facts of this matter, I find and conclude that Complainant is entitled to an award of $250,000.00 in compensatory damages based upon damage to her professional reputation.

   Total Compensatory Damages

   Accordingly, I find and conclude that Complainant is entitled to compensatory damages totaling $400,000.00, based upon her mental anguish, adverse health consequence, and damage to her professional reputation. I note that this award is higher than any other award previously awarded by an administrative law judge, however, I base my decision on my finding that this case presents a factually scenario so severe as to warrant significant compensatory relief. This Judge has concluded that Complainant has presented a most compelling case of repeated and continuous discrimination and retaliation that has resulted in Complainant suffering greatly at the hands of RIDEM, most particulary her mental health has been compromised, and her professional reputation has been destroyed, perhaps forever.

Insurance Coverage

compelling, documentary evidence. Accordingly, I hereby adopt and modify Complainant's alternate argument. I hereby Order Respondent to maintain Complainant's current package of benefits for two years following her termination of her employment relationship with RIDEM. I note, however, that if Complainant obtains new employment, with benefits, within the two-year period, a reduction in coverage is appropriate and necessary.

Other Equitable Relief

protected activity. Thus, Respondent should not provide a negative reference based solely or in part on Complainant's protected disclosures. Nevertheless, this Court refuses to order Respondent to write a compromise letter of recommendation with Complainant.

   Finally, Complainant requests that Respondent, and its officers, "be ENJOINED from providing anything but positive references and comments with respect to Complainant to prospective employers, members of the news media, and any other individual who may inquire about Complainant in the future." (CX 126 at 209) (emphasis in original). I find and conclude that this request is too broad. Rather, I hereby recommend that Respondent be Ordered to cease all discriminatory action, and refrain from taking retaliatory action against Complainant in the future based upon her protected activities as noted in this Recommended Decision and Order. Should Respondent engage in discriminatory conduct in the future, Complainant's proper avenue of relief is through filing a new complaint with the Department of Labor.

   Under the SWDA, a prevailing party in a so-called whistleblower case is entitled to recover costs for attorney fees and expenses. 42 U.S.C. § 6971. In this context, a party may be considered to have prevailed if he or she succeeds on any significant issue in litigation which achieves some of the benefits the party sought in bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). I have found and concluded that Complainant is a prevailing party, and thus, her counsels are entitled to a reasonable fee.

   In calculating attorney fees under the whistleblower statutes, an administrative law judge should usually utilize the lodestar method that requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate. See Clay v. Castle Coal and Oil Co., Inc., 1990- STA-37 (Sec'y June 3, 1994). The fee petition must be based on records providing details of specific activity taken by counsel and indicating the date, time and duration necessary to accomplish the specific activity. Sutherland v. Spray Sys. Envtl., 1995-CAA-1 (ARB July 9, 1996); West v. Sys. Applications Int'l, 1994-CAA-15 (Sec'y Apr. 19, 1995). Complainant's counsel has the burden to establish the reasonableness of the fees. West v. Sys. Applications Int'l, 1994-CAA-15 (Sec'y Apr. 19, 1995).

   In the present case, this Court must determine a reasonable and appropriate award for the three requested fees: Complainant's reimbursement request related to prior representation, the PEER fee petition, and Attorney Landry's fee petition.

Complainant's Original Counsels

   Complainant requests a reimbursement award of $6,250.00, in compensation for the retainer fee she paid in connection with this matter to her two previous attorneys. Complainant has submitted an

affidavit in support of this fee, stating that she has paid Attorney Fidelma Fitzpatrick a retainer of $2,250.00 and Attorney Patricia Andrews a retainer of $4,000.00. (CX 136)

   Respondent argues that this request should be denied because it is untimely, the documentation submitted was not subject to cross-examination, and that the Complainant's own affidavit notes that some of her prior counsel's time was spent on matters solely related to Complainant's State Superior Court action. Further, Respondent objects to the unsworn affidavit of Attorney Andrews. (EX 128)

   I noted that an administrative law judge determines the hourly rate by weighing the arguments and affidavits submitted by the parties. Smith v. Esicorp, 1993-ERA-16 (ARB Aug. 27, 1998). Further, the Administrative Review Board has held that a complainant's attorney fee petition must include adequate evidence of the reasonable hourly fee for the type work the attorney performed and consistent with the practice in the local geographic area of the hearing. See Fabricius v. Town of Braintree/Part Dept., 1997-CAA-14 (ARB Feb. 9, 1999); Van Der Meer v. Western Kentucky Univ., 1995-ERA-38 (ARB Apr. 20, 1998).

   Respondent is correct to note that an administrative law judge may reject time a complainant's counsel spends discussing the case with press. Fischer v. Town of Steilacoom, 1983- WPC-2 (ALJ May 2, 1993). Attorney Robins, however, asserts that while PEER "invested substantial time and resources in engaging in public advocacy, media communications and legal action in connection with Complainant's whistleblowing since May, 1998, as a matter of organizational policy PEER does not record as billable hours any of this time. Absolutely all of the time accounted for in my Fee Petition reflects time spent on matters directly connected with the litigation of this case." (CX 134) Thus, I find Respondent's argument regarding time spent talking to the press is moot.

   Next, I do accept Respondent's argument that a percentage reduction is warranted in Attorney Robins's fee. Generally, a respondent must make a specific objection to particular, itemized services which they find are excessive, duplicative, or inaccurate. Nevertheless, it is permissible for a respondent to make a general objection, requesting a percentage decrease in fee, where the fee, as itemized, is inadequately documented. In such situations, an administrative law judge has the authority and discretion to reduce the attorney fees by a percentage for work on "policy arguments and peripheral and irrelevant issues" or other strong reasons for a downward departure. See Smith v. Esicorp, 1993-ERA-16 (ARB Aug. 27, 1998).

   Accordingly, I hereby approve an attorney fee of $76,650.00 for PEER, and Attorney Robins, based upon 511 hours of time billed at $150.00.

   Landry Fee Petition

reasonable in light of the complexity of this case. Further, Attorney Landry states that the time expended at the hearing was not excessive in light of the number of issues involved and the fact that the testimony of several RIDEM employees led to further documentary evidence that had not been brought to light previously.

   As discussed under Attorney Robins's fee, I find that this matter was well litigated by all parties. I find, however, that some of the time spent questioning witnesses, and preparing for this case was duplicative. Further, I find that the time expended by both Attorney Robins and Attorney Landry together, is not fully documented to allow for itemized reductions. Thus, I find this case presents an appropriate situation for a percentage reduction in the hours approved. See Varnadore v. Oak Ridge Nat'l Laboratory, 1992-CAA-2/5; 1993-CAA-1 (ALJ Sept. 22, 1994). I find that some of the hours spent questioning witnesses, and time spent discussing the case between co-counsel is duplicative, and to let the hours stand as requested would be unfair and unreasonable to Respondents. Therefore, I find and conclude that a five (5%) percent reduction in the hour for Attorney Landry, from 759 to 721.1, is appropriate.

   Accordingly, I hereby approve of an attorney fee of $180,275.00 for Attorney Joel D. Landry, based upon 721.1 hours of time billed at $250.00 per hour.

Costs & Expenses

   I noted that a successful complainant is entitled to reimbursement of the costs in bringing and prosecuting the complaint. I find that Complainant's supplemental filing adequately documents the costs and expenses incurred by Attorney Robins and PEER. (CX 134) Further, I find and conclude that the requested costs and expenses are fair and reasonable under the circumstances. Therefore, I grant and approve Complainant's request for $18,099.83.

   Based upon the foregoing findings of fact, conclusions of law and upon the entire record, I RECOMMEND Complainant Beverly M. Migliore be awarded the following remedy:

1) Respondent, Rhode Island Department of Environmental Management, shall pay to Complainant an award of $150,000.00 in front pay, upon her resignation from RIDEM.

2) Respondent shall pay to Complainant an award of $15,000.00 in back pay. Further, I recommend that Complainant be awarded prejudgement interest on the award of back pay, as calculated under 26 U.S.C. § 6621.

3) Respondent shall pay Complainant compensatory damages in the amount of $400,000.00 representing mental anguish, adverse physical health consequence, and loss of professional reputation.

4) Respodent shall pay Complainant $3,125.00 in damages, based on her expenditure of money for two retainer agreements with prior counsel.

5) Respondent shall a pay an attorney fee award of $76,650.00 to Attorney Todd Robins, of PEER, based upon 511 hours of attorney time billed at $150.00 per hour.

6) Respondent shall a pay an attorney fee award of $180,275.00 to Attorney Joel Landry based on 721.1 hours of attorney time at $250.00 per hour.

7) Respondent shall a pay an award of $18,099.83 to PEER, and Attorney Robins, as reimbursement for in costs and expenses.

It is FURTHER RECOMMENDED that

8) Respondent maintain Complainant's current health and life insurance policies for a period of two (2) years following her resignation from RIDEM.

9) Respondent shall immediately expunge Complainant's personnel file of record of the one-day suspension, written reprimand, and any other negative references relative to her protected activity.

10) Respondents shall post a written notice in a centrally located area frequented by most, if not all, of Respondent's employees for a period of sixty (60) days, advising its employees that the disciplinary action taken against Complainant has been expunged from her personnel record and that Complainant's complaints have been decided in her favor.

11) Respondent shall also forward a copy of the Final Order of the Administrative Review Board and/or

Secretary of Labor to the EPA, Region One office in Boston, and further shall make a copy of said order available upon request by other RIDEM employees or other individuals.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).