DATE: June 20, 1991
CASE NO.: 85-TSC-00001

IN THE MATTER OF

ROBERT SAWYERS
    Complainant

    v.

BALDWIN UNION FREE SCHOOL DISTRICT
    Respondent

BEFORE: AINSWORTH H. BROWN
    Administrative Law Judge

   This matter has been pending before the office of Administrative Law Judges since an order of remand by the Secretary of Labor of October 5, 1988. It was transferred to my docket on June 5, 1990. The hearing was held in Westbury, New York on January 7 and 8, 1991. Closing arguments were not submitted until mid-May 1991.

   The dispute in this matter revolves around an incident alleged to have occurred in the mid-afternoon of March 4, 1983. The Respondent School District brought disciplinary charges against the complainant Sawyers for tampering with a testing apparatus. The administrative adjudication resulted in Sawyers being suspended for the ensuing school year without pay. He seeks restoration of his salary for that year in this proceeding because he believes that the action by the District was discriminatory against him because of his protested activity as a whistleblower. The District counters that the disciplinary action was sought solely due to the grave seriousness of Sawyer's action in contaminating the test results by dropping particles of asbestos material in the apparatus, material that was shown to be

too large to being airborne. Sawyer denied at the recent hearing that he committed the act in question. A fellow industrial arts teacher, Chambers, observed Sawyers waving a white envelope over the testing apparatus, but did not actually see any matter falling from the envelope or paper in the apparatus. In the state hearing Sawyers denied the allegation claiming instead that he was waiving a white tissue several feet away from the test equipment to gain Chambers' attention to the equipment. Thus, while the two persons who were witnesses to the action agree that a white paper product was waived, they disagree as to what type of paper product and whether it contained anything that was dropped into the test equipment. The analysis of the contents of what material was contained in the equipment as of March 4 is not seriously challenged except indirectly as to the reliability of the testing firm. I find that the material taken from the equipment contained substances that would be too heavy to be airborne. Thus, the question is presented is whether the circumstances of the material found in the testing machine coupled with Chambers' testimony in the state hearing are sufficient to support a finding that Sawyers committed the act of tampering of which he was accused.

   At the State hearing, a witness who did not appear to have "An axe to grind" testified to the effect that Sawyers admitted the act of contamination. This witness, Mr. Nolfo, testified that Mr. Sawyers said to him, talking about Chambers, "Well, he claimed that I threw something in the machine. So what if I did? F - it. Let's drive them crazy up there." While, in later state testimony Mr. Sawyers disclaimed using such an expletive, I find the tenor of Mr. Nolfo's testimony persuasive in supporting Mr. Chambers' version that the white paper was over the test machinery, and not where Sawyers placed it in his version of the incident. (TR 1035).

   This finding is made in the recognition that the atmosphere in the School District, at least in the junior high school where Mr. Sawyers worked was filled with mistrust and tension between the District and the Union and that there was friction within the union membership. The latter observation is supported by Mr. Nolfo's response on cross-examination at page 100 of CX-109. "I feel that are some people in my organization who have their own goals and are using one against the other, making a hero of one and crucifying another, which is totally wrong."

   At page 8 of the State Panel decision it observed that the District was "riven with conflict over the extent and manner of coping with health and safety hazards relative to shop equipment and materials." (CX-109). This was apparent also from McIntyre's and Morrow's testimony at the recent hearing. I also recognized that the School District's management and some teachers viewed Sawyers as a "mellon buster", and similar less polite designations. The fact that Fitzsimmons and others in management were greatly displeased with Sawyers does not by itself color the action by the School District, although it is a factor calling for heighten scrutiny of the charges leveled against Sawyers. Several of the defenses mounted in the state proceeding and some of which were renewed or alluded to in the proceedings involved an "agreement" between Fitzsimmons and Chambers to avoid doing anything about what Chambers observed, and the descriptions of various discriminatory acts visited against Sawyers such as making him use personal leave for attendance at his own workers compensation hearings, preventing the use of the copying machine and the telephones, and requiring medical documentation for sick leave. While I perceive that these actions were practiced by the District I also find that they did not taint the action taken by the District concerning the tampering charge. Those actions might have made a case for discrimination, but there was no nexus shown between those actions and the fact of the March 4, 1983 incident.

   While there was testimony about an "agreement" in both state and federal proceedings it was not always consistent between whom the agreement was made and whether it was merely not to make a written report. Before me it was purportedly between Fitzsimmons and Chambers and in the state action there was one between Chambers and Sawyers. There was nothing described that would prevent the District from proceeding with the charges that were brought and the fact that Sawyers wrote a document to Fitzsimmons within a week after the fateful March the 4th smacks of a preemptive attack to challenge Chambers, veracity. As pointed out in detail in the State Panel determination Sawyers writing undermined his own credibility. The testimony before me as to these various actions by the District should not obscure the fact that the evidence preponderates to support the fact that Sawyers was unfortunate enough to be "caught in the act" by the desultory circumstances of Chambers happening to walk by at the wrong time. Even though Chambers was concerned about Sawyers' methods that fact does not establish that he fabricated what he

says he observed. His reluctance to get "involved" in what he subsequently got involved in is an understandable natural human reaction not to be hurtful to a fellow worker. Moreover, to avoid the acrimony that infected the District versus Sawyers situation is readily understandable.

   Having decided that Sawyers did the act with which he was charged I have to determine the bona fides of the District's process in seeking to discipline him. In addition to the testimony of Dr. Almenoff that only the March 4 incident was on School Board's mind, the testimony of Mrs. Deller was convincing that despite the strife in the school system over Mr. Sawyers' various complaints that the basis for bringing the charges was solely premised on his act of tampering. While the witness and the Board were aware of, and the Board discussed the Complainant's propensity to file complaints and what his reaction would be in that context should the Board file charges against him that fact only establishes that they acknowledged the possible implications of the action. The fact that they might "buy more trouble" fails to establish that they were discriminating against a whistleblower.

   I find in reviewing Mrs. Deller's testimony and recalling her demeanor that was impressive as to her sincerity, and her business-like approach to her School Board responsibilities that the only motivating factor leading the School Board to file the charges was the gravity of the act involved. Further, whether Mr. Sawyers was considered one of the best teachers" is not germane. The context of the description by Mrs. Deller was that the inquiry was more rhetorical to bring focus to the discussion by the Board as to what was really the issue.

   Mr. Sawyers contends that the Board's bad motivation is shown by a purported four month delay in making the charges against him. The testimony; however, shows that the Board had an investigation of the charges, discussed them at meetings, and consulted with its legal counsel before the formal action was taken in June 1983. This pace of deliberation does not by itself impute any bad motivation in the action taken.

   In his closing argument, Mr. Sawyers asserts that the principal, Mr. Fitzsimmons, "sandbagged" Mr. Chambers. Not only is there nothing to support that contention, but the sandbagging, if any, is more likely what Sawyers was practicing by whatever

his understanding was with Chambers about not putting anything in writing. (See CX-109, TR 118).

   In conclusion, following the rule in Mt. Heathy City School District Board of Education v. Doyle, 429 U.S. 279 (1977) I find that Mr. Sawyers has not sustained his burden of showing that his federally protected conduct was a "substantial", or motivating factor in the decision to bring charges against him.

   I recommend that the Secretary DISMISS the complaint filed by Mr. Sawyers.

       Ainsworth H. Brown
       Administrative Law Judge