DATE: February 14, 1994
CASE NO. 87-TSC-1
IN THE MATTER OF
RONALD POOLER, [1]
COMPLAINANT,
v.
SNOHOMISH COUNTY AIRPORT,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This complaint was filed under the "whistleblower" provision
of the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622
(1988), and its implementing regulations at 29 C.F.R. Part 24
(1993). On March 10, 1988, the Administrative Law Judge (ALJ)
issued a Recommended Decision and Order (R.D. and O.) denying the
complaint, and pursuant to 29 C.F.R. § 24.6, the R.D. and O.
is now before me for review and issuance of the final decision.
After carefully considering the entire record, including the
parties' briefs, I agree that the complaint must be denied. [2]
The ALJ's recommended decision is accepted, as clarified and
supplemented below.
BACKGROUND
Complainant had been employed as Respondent's Airport Public
Safety Supervisor, or the equivalent, since 1980. R.D. and O. at
6. As the Airport Public Safety Supervisor, it was (at least)
Complainant's duty to inspect, report, and make recommendations
regarding any airport safety matters, including those involving
hazardous substances. Transcript (T.) at 118. On December 31,
1986, Complainant observed personnel from Respondent's
Maintenance Department improperly dumping and burying ten 55-
gallon drums of suspected toxic waste material on airport
property. Subsequently, on January 27, 1987, Complainant was
[PAGE 2]
suspended without pay for five days; on February 5, he was
suspended again pending an internal "predetermination" hearing;
and then on March 16, Complainant was demoted from his position.
Complainant contends that Respondent took these actions against
him because: 1) he reported the illegal dumping incident to
management and to several government agencies, 2) he disclosed to
a newspaper reporter the existence of his written report on the
incident, and 3) he filed this complaint. See Complaint
dated February 13, 1987; T. at 584; Complainant's Memorandum of
Authorities at 9. Respondent maintains that it imposed the
initial suspension because Complainant failed to intervene or
stop the dumping incident, and that later, upon discovering and
confirming the actual extent of Complainant's culpability, it
suspended and demoted him.
I agree with the ALJ's general legal conclusions. The ALJ
found that although Complainant established a prima facie case of
retaliatory discrimination, Respondent's proffered reasons for
the sanctions were legitimate and not pretextual. [3]
Alternatively, the ALJ was convinced that even if to some extent
Complainant's protected activity was causally related to
Respondent's decisions to impose sanctions, Respondent would have
treated Complainant no differently absent the protected activity
and would have taken the same actions against Complainant. R.D.
and O. at 20.
DISCUSSION
I. Complainant's First Suspension
A. The Prima Facie Case
Complainant correctly alleges that he engaged in a number of
protected activities. Complainant engaged in a protected
activity when he reported the dumping incident to Donald Bakken,
the airport manager, on December 31. R.D. and O. at 11; T. at
679. It is protected conduct for an employee to internally
report actual or reasonably perceived violations of the TSCA.
Crosby v. Hughes Aircraft Co., Case No. 85-TSC-2, Sec.
Dec. and Ord., Aug. 17, 1993, slip op. at 24-26, and cases cited
therein, appeal docketed, Crosby v. Reich, No. 93-
70834 (9th Cir. Oct. 18, 1993); Wagoner, slip op. at 11-
12. [4]
Similarly, Complainant's written, follow-up report, dated
January 2 and submitted to Bakken on January 5, is protected
because it documents some of the details of the perceived
violation and raises other issues attendant to the violation.
R.D. and O. at 11; T. at 681-82. [5] Contrary to Respondent's
arguments, the report is not rendered unprotected simply because
it was made after the dumping incident occurred and was not
"designed" to prevent or avoid the violation. Respondent's
Memorandum at 15; see, e.g., Conaway v.
Valvoline Instant Oil
[PAGE 3]
Change, Inc., Case No. 91-SWD-4, Sec. Fin. Dec. and Ord.,
Jan. 5, 1993, slip op. at 2-4 (reporting improper disposal of
tank which caused oil leakage is protected); Adams v. Coastal
Prod. Operators, Inc., Case No. 89-ERA-3, Sec. Dec. and Ord.
of Rem., Aug. 5, 1992, slip op. at 8-9 (photographing oil spill
is protected). It is elementary that an employer's
awareness of the alleged violation does not defeat the protected
status of a report of that violation. Furthermore, reporting a
violation of the statute is protected notwithstanding the
complainant's motives for making the report, though his motives
may bear on other issues in the case. SeeGuttman v.
Passaic Valley Sewerage Commr's, Case No. 85-WPC-2, Sec. Fin.
Dec. and Ord., Mar. 13, 1992, slip op. at 20, aff'd sub
nom., Passaic Valley Sewerage Commr's v. United States
Dep't of Labor, 992 F.2d 474 (3d Cir. 1993). [6]
Complainant also engaged in protected activity over the next
several weeks when he contacted the Washington State Department
of Ecology (DOE) and the Snohomish County Department of Health
(Health Department), providing copies of his January 2 report,
and when he spoke to a local newspaper reporter, confirming the
incident and divulging the existence of his report. R.D. and O.
at 12; T. at 211, 246. Complainant's cooperation and
communications with local authorities and the media are protected
activities because these contacts are tantamount to preliminary
steps in a "proceeding" under the TSCA which could expose
employer wrongdoing. Helmstetter v. Pacific Gas & Elec.
Co., Case No. 91-TSC-1, Sec. Dec. and Rem. Ord., Jan. 13,
1993, slip. op. at 5, 7; cf. Donovan v. R.D. Andersen Const.
Co., Inc., 552 F. Supp. 249, 251-53 (D. Kansas 1982)
(employee's communication to the media protected because it could
result in institution of Occupational Safety and Health
Administration proceedings).
Finally, Complainant engaged in protected conduct when he
filed this TSCA complaint. Filing a complaint of employer
retaliation under a statutory employee protection provision
is protected. Bassett v. Niagara Mohawk Power Co., Case
No. 86-ERA-2, Sec. Fin. Dec. and Ord., Sept. 28, 1993, slip op.
at 7.
The question becomes whether the evidence is sufficient to
raise an inference that these protected activities were likely
reasons for Complainant's January 27 suspension. This TSCA
complaint cannot be a cause of the suspension because the
complaint was not filed until February 13. Hasan v. System
Energy Resources, Inc., Case No. 89-ERA-36, Sec. Fin. Dec.
and Ord., Sept. 23, 1992, slip op. at 7-8, aff'd sub nom.,
Hasan v. Reich, No. 92-5170 (5th Cir. May 4, 1993).
The decision to suspend Complainant was made by Richard
Fowler, who supervises the airport and five other major divisions
[PAGE 4]
of county government. T. at 800, 841, 688. Bakken informed
Fowler of the dumping incident on January 5, and Fowler was given
a copy of Complainant's January 2 report. T. at 683, 800, 804-
805. The report itself explains that Complainant had contacted
the Health Department and DOE. See CX A27. Thus, Fowler
was aware of Complainant's report and his government contacts,
and probably knew that Complainant had provided copies of his
report to the government agencies. T. at 212. On January 20,
Fowler received a telephone call from a reporter who also
requested a copy of Complainant's January 2 report, and Fowler
complied. T. at 820-21. The ALJ inferred that Fowler believed
Complainant had informed the reporter about the existence of the
report, R. D. and O. at 12, and I agree that Fowler suspected
Complainant as the source. Seealso T. at 863.
Since Fowler suspended Complainant on January 27, shortly after
he became aware of Complainant's incriminating report and its
dissemination to governmental authorities and the press, an
inference is raised that these whistleblowing activities were
likely reasons for Complainant's suspension. SeeAbu-
Hjeli v. Potomac Elec. Power Co., Case No. 89-WPC-1, Sec.
Fin. Dec. and Ord., Sept. 24, 1993, slip op. at 12-13 (temporal
proximity between protected activity and adverse action may be
sufficient to establish causal element of prima facie case).
B. Rebuttal, Pretext, and Dual Motives
Respondent proffered a legitimate, nondiscriminatory reason
for the suspension, and Complainant has not met his ultimate
burden of showing that Respondent's articulated reason was a
pretext and that the real reason for the suspension was
retaliation. St. Mary's Honor Center v. Hicks, 113 S. Ct.
2742 at 2756 (1993). While Fowler admits that he did not approve
of certain aspects of Complainant's report and also admits that
he was annoyed by the press inquiries, Fowler claims that he
suspended Complainant solely because he believed that Complainant
failed to take appropriate action to stop the dumping incident.
T. at 817; RX 19. The ALJ believed Fowler and found that
Respondent suspended Complainant based on its perception of
Complainant's non-feasance. R.D. and O. at 19. [7] As further
explained below, I agree with the ALJ's decision to credit
Fowler's explanation. SeePogue v. United States Dep't
of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991); seealsoBeavers v. Secretary of HEW, 577 F.2d 383,
386-88 (6th Cir. 1978).
At the time Fowler suspended Complainant, he knew that
Complainant had received prior information from a member of the
maintenance crew that this incident might occur. Instead of
approaching the Maintenance Department supervisor, Robert
Humphreys, or making any attempt to contact Bakken or Tom Winters
of the Health Department, with whom Complainant had worked on
[PAGE 5]
similar matters in the past, Complainant assumed a vantage point;
observed the incident as it unfolded; and then approached
Humphreys and notified Bakken -- after the burial. R.D. and O.
at 8-11. [8]
Complainant argues that Fowler's reason for his suspension
is a pretext because direct intervention in safety matters, and
particularly those involving the Maintenance Department, was not
expected or desired of him. In support of his arguments,
Complainant points to three occasions, two in early 1986 during
which Complainant alleges he was told not to pursue certain
safety matters, and a third in 1985 when he alleges he was told
not to interfere in Maintenance Department matters. T. at 127,
142-44, 149, 328. I am unpersuaded that these isolated incidents
actually deterred Complainant from intervening in this matter,
which was so particularly within his expertise. See T. at
264. The record shows that Complainant routinely would contact
airport tenants directly and independently regarding any
potentially hazardous situations he detected and would attempt to
mitigate or remedy the problem. T. at 250-53, 257; RX 5. The
incident with the Maintenance Department in 1985 involved a
matter outside of Complainant's job responsibilities, T. at 328-
29, and the incident in March 1986 arose because Complainant was
too "heavy handed" with a tenant, T. at 256. The record also
shows that at about the same time, in March 1986, Complainant was
instructed by Bakken to pursue and investigate a safety matter,
and to contact the tenant involved. T. at 145. Furthermore, as
late as the summer of 1986, Complainant had cited the Maintenance
Department for safety violations. T. at 280, 333. In any event,
it is not clear that Fowler was aware of these incidents or had
any reason not to have expected the Airport Public Safety
Supervisor to take some affirmative action to abate or eliminate a
potential public safety hazard. [9]
It was also reasonable for Fowler to have thought that
Complainant had sufficient time to act. Based on Complainant's
early discussions and January 2 report, Fowler and Bakken were
led to believe that Complainant had about two hours between the
time that the burial actually occurred and the time that
Complainant first was "paged . . . to respond." CX A27.
Complainant watched from his vantage point for longer than 30-45
minutes. T. at 803. Although Complainant insists that he had no
conclusive evidence of wrongdoing on which to act until it was
too late, see T. at 307-308, he obviously had sufficient
suspicion to stake out the area. Complainant also had specific
knowledge that these ten barrels contained suspected toxic
materials, T. at 250, 621, and again, I find that it was
entirely reasonable that Fowler expected Complainant to take some
type of
[PAGE 6]
preventative action on the basis of his strong suspicions.
Seealso R.D. and O. at 19.
Furthermore, I am not persuaded that Complainant's report
and his dissemination of the report more likely motivated Fowler.
Despite Complainant's implication of wrongdoing, Respondent
insisted on full disclosure of this incident to the governmental
authorities. Complainant himself testified that Bakken
specifically directed him to cooperate with the Health
Department. T. at 294. According to Complainant, from the very
beginning, Bakken was in full willingness to cooperate with all
the authorities. T. at 295. There is no indication that Fowler
disapproved or disagreed. To the contrary, on January 5, Fowler
himself initiated efforts "to coordinate with the state and
federal agencies and to expedite the proper removal of these
barrels." T. at 623. [10]
For years Complainant had reported the presence of hazardous
situations or conditions on airport property, and possible
airport liability, with no repercussions or adverse employment
actions taken against him. E.g., CX B10 dated in 1985; CX
B15 and CX B16, dated in 1982; seeMonteer v. Milky Way
Transp. Co., Inc., Case No. 90-STA-9, Sec. Fin. Dec. and
Ord., Jul. 31, 1990, slip op. at 4 (evidence of ongoing
complaints without adverse action militates against causation).
Rather, Complainant admitted that Bakken had given him latitude
to proceed with vigor in controlling tenant problems, which had
fostered positive working relationships with outside agencies.
T. at 265-66; CX B10.
There is other evidence demonstrating Respondent's genuine
environmental concerns that dissuades me from finding that
Complainant's protected reporting motivated his suspension. In
early 1985, Complainant drafted an extensive memorandum which set
forth responsibilities and requirements for the disposition of
many hazardous waste materials. RX 4. The memorandum was
approved and issued by Bakken. T. at 666-67. In the summer of
1986, Bakken met with consultants concerning specific hazardous
waste problems at the airport and discussed the possibility of
initiating a hazardous materials audit. T. at 674-75. When
the ten drums or barrels in question here were first brought to
Bakken's attention in June 1986, Bakken was "adamant" about
wanting the contents of the barrels tested. T. at 160-62,
673. [11] Complainant further testified that Bakken was
distressed about "the [December 31] dumping actually happening,"
T. at 220, and that Bakken was greatly concerned about securing
the area and preventing any further seepage. RX 28 at 7.
In sum, I find that Respondent imposed the mild sanction of
suspension not because Complainant reported the incident, but
because Complainant, who was particularly knowledgeable and
[PAGE 7]
capable of taking some action to subvert the dumping incident,
failed to do so.
I also agree with the ALJ that even assuming that
Complainant's suspension was partially motivated by prohibited
and legitimate reasons (the dual motive analysis), Respondent met
its burden. R.D. and O. at 14, 18-20; seegenerallyIvory v. Evans Cooperage, Inc., Case No.
88-WPC-2, Sec. Fin. Dec. and Ord., Feb. 22, 1991, slip op. at 6-
7. It is clear that Fowler and Bakken believed from the very
outset that Complainant had failed to communicate and handle the
situation properly and that they planned to take disciplinary
action against Complainant. Complainant testified that Bakken
immediately was "distressed about the evolution going so far,"
was dissatisfied with the way in which Complainant handled the
incident, and thought Complainant was "guilty of wrongdoing." T.
at 220-21. Complainant further admits that during an initial
briefing with Fowler, Fowler "cut me off and started telling me
about that I should have stopped it, that there was going to be
some action taken." T. at 220. The record documents that at the
end of this January 5 interview, Fowler queried why Complainant
did not exercise a reasonable attempt to stop the operation. RX
17 at 3; T. at 810-11. As late as January 21, Fowler again
expressed agitation with the procedure that had taken place,
stated that the burying of the barrels was "a situation that
should never have developed," T. at 687, and told Complainant
that his department "had handled it all wrong." T. at 215. The
record supports Fowler's explanation that the only reason he
waited until January 27 to suspend Complainant was the delay in
receiving results of laboratory testing of the contents of the
barrels. T. at 816, 629. At that time, Fowler disciplined both
Complainant and Humphreys, as managers. T. at 558, 863. [12]
Considering these very early indications to Complainant that
discipline would be forthcoming, the leniency of Complainant's
discipline, and the degree of Complainant's discipline in
relation to that imposed on Humphreys, I further agree with the
ALJ that even assuming that protected reporting was a motivating
factor, Respondent has shown that it would have suspended
Complainant even in its absence. R.D. and O. at 14, 19, 20.
II. Complainant's Second Suspension and Demotion
Fowler testified that he had closed the investigation and
considered Complainant's suspension of January 27 to be a final
disciplinary action until he received additional allegations
against Complainant from Complainant's staff. T. at 859, 865.
The ALJ believed this explanation and I too find it entirely
credible under the circumstances. See R. D. and O. at 13,
15; seealso T. at 475. It is undisputed that as
of January 27, Fowler and Bakken had no knowledge that
Complainant actually
[PAGE 8]
received information and suspected the impending dumping incident
as early as December 29, and had taken elaborate steps to catch
Humphreys and his crew in the act. T. at 225, 221, 817. On or
about January 30, Complainant's staff came forward with, not only
this information, but also with allegations that Complainant had
asked them to "lie for him." T. at 778. As the ALJ concluded,
Complainant's demotion of March 16 was based on Fowler's
reasonable perception that Complainant had failed to meet
acceptable standards of conduct and failed to exercise suitable
discretion and judgment expected of management and supervisory
personnel. RX 29; R.D. and O. at 15-20. The second suspension
and demotion were not motivated by any retaliatory animus under
the TSCA, [13] but even applying the dual motive analysis, I am
convinced that Complainant does not prevail.
ORDER
Accordingly, Complainant has failed to prove discrimination
under the TSCA, and the complaint IS DENIED. [14]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The caption is modified to correct the spelling of
Complainant's first name.
[2] Although the parties were afforded an opportunity to
respond to the ALJ's decision, only Respondent filed a brief
before me. Both parties filed briefs before the ALJ.
[3] The burdens of production and persuasion applicable in
whistleblower cases under the TSCA are set forth in Wagoner v.
Technical Products, Inc., Case No. 87-TSC-4, Sec. Fin. Dec.
and Ord., Nov. 20, 1990, slip op. at 5-7, and Dartey v. Zack
Co. of Chicago, Case No. 82-ERA-2, Sec. Dec. and Fin. Ord.,
Apr. 25, 1983, slip op. at 6-9. SeealsoPillow
v. Bechtel Constr., Inc., Case No. 87-ERA-35, Sec. Dec. and
Ord. of Rem., Jul. 19, 1993, slip op. at 14-15.
[4] It is uncontested that Complainant reasonably perceived a
violation of the TSCA. Respondent admits that subsequent testing
of the contents of the barrels confirmed that the disposal was
improper. T. at 630.
[5] In the conclusion of his report, Complainant adds, "we have
accumulated a substantial amount of information implicating
higher level airport personnel . . . ." Respondent's Exhibit
(RX) 13, Complainant's Exhibit (CX) A27. The report also
includes a list of federal, state, and local laws possibly
violated; an estimate of the costs incurred; and Complainant's
recommendation of disciplinary action for the participants. I
note that the violation need not comprise the only or even the
predominant subject of a protected report or complaint.
SeeScerbo v. Consolidated Edison Co., Case No. 89-
CAA-2, Sec. Dec. and Ord., Nov. 13, 1992, slip op. at 5 n.4.
[6] My holding that Complainant's report to Respondent is
protected also appears consistent with Brown & Root v.
Donovan, 747 F.2d 1029, 1035 (5th Cir. 1984), which held that
an analogous whistleblower provision protects employees who
provide competent government officials with direct information.
The record shows that Fowler reported directly, and Complainant
reported indirectly, to the County Executive, T. at 837, who
should be viewed as a "competent organ of government" within the
meaning of Brown & Root, 747 F.2d at 1036. SeealsoGuttman, slip op. at 12 n.7.
[7] The ALJ properly noted that the relevant inquiry is
Fowler's perception of his justification. Moon v. Transport
Driver's Inc., 836 F.2d 226, 230 (6th Cir. 1987).
[8] Complainant and Humphreys had a well-known and long-
standing bad relationship. T. at 151-54, 676-77. "[E]mployees
were saying that they were ready to draw up divorce papers . . .
." T. at 153. Fowler and Bakken were aware of this
communication problem. T. at 677, 804.
[9] There is no evidence or allegation that Fowler and Bakken -
- either directly or indirectly -- ordered, participated in, or
condoned the dumping incident.
[10] The ALJ stated:
It seems clear that higher level management was vitally
interested in resolving the problem created by the
dumping, cooperated with other appropriate agencies and
authorities, and did not intend to cover it up.
R.D. and O. at 12. I agree.
[11] The barrels were placed in a secured bunker at the airport
pending testing and were to be removed and disposed of along with
some 300 barrels of waste located at the county fairgrounds. T.
at 644-46.
[12] Fowler decided to suspend Humphreys for ten days without
pay. T. at 817.
[13] Assuming that Fowler knew Complainant filed this TSCA
complaint on or about February 19, see County Legal
Document 3, the complaint post-dates and, therefore, cannot be a
cause of his February 5 suspension. Hasan, supra.
Nor is it a likely cause of the March 16 demotion because by
February 13, Fowler already had threatened, not to demote, but to
discharge Complainant. See Complaint dated February 13,
1987.
[14] Relying on 15 U.S.C. § 2622(e), Respondent
alternatively contends that Complainant cannot seek protection
under the TSCA. Although the ALJ referred to Section 2622(e),
R.D. and O. at 14, in the final analysis, he did not rely on that
provision to recommend denial. R. D. and O. at 20. In view of
my agreement with the ALJ that Respondent has prevailed on the
merits, I decline to address the arguments pertaining to Section
2622(e).
