U.S. Department of Labor
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
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
RECOMMENDED DECISION AND ORDER
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.
FINDINGS OF FACT AND CONCLUSIONS OF
LAW
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
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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."
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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
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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
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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.
RECOMMENDATION
I recommend that the Secretary DISMISS the complaint filed
by Mr. Sawyers.