ARB CASE NO. 02-001
ALJ CASE NO. 00-TSC-002
DATE: June 30, 2003
In the Matter of:
TINA DIERKES,
COMPLAINANT,
v.
WEST LINN-WILSONVILLE
SCHOOL DISTRICT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Thad Guyer, Esq., T.M. Guyer and Friends, PC, Medford, Oregon,
For the Respondent: Peter R. Mersereau, Esq., Mersereau & Shannon, LLP, Portland, Oregon.
FINAL DECISION AND ORDER
Tina Dierkes filed a complaint against Respondent, the West Linn-Wilsonville School District, under the employee protection provisions of the Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2622 (West 1998). She alleged that the school district retaliated against her and created a hostile work environment due to her contacts with state and federal agencies and her complaints, expressed internally and at public meetings, about the possible presence of PCBs (polychlorinated bi-phenyl), asbestos, and other toxic substances in her workplace. The Administrative Law Judge (ALJ) found that Dierkes had failed to establish a hostile work environment and that the school had established that its adverse action in imposing a performance goal was not motivated by Dierkes' environmental advocacy. Dierkes appealed to the Administrative Review Board (ARB). We affirm the denial of Dierkes' complaint.
Finally, we have carefully reviewed the record and find that it supports the ALJ's findings of fact. We adopt the findings of fact and conclusion of law in the ALJ's recommended decision, attached and incorporated herein, as supplemented by the additional findings and conclusions above. In sum, we determine that Dierkes failed to prove that her protected activity motivated, in whole or in part, the imposition of Goal Three, that a preponderance of the evidence established that Respondent would have imposed Goal Three absent Dierkes' protected activity, that Dierkes has not established the existence of a hostile work environment, and, therefore, that Respondent has not violated the TSCA. Therefore, we AFFIRM the ALJ's decision and DENY Dierkes' complaint.
SO ORDERED.
JUDITH S. BOGGS
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The following abbreviations will be used: hearing transcript, TR; Complainant's exhibit, CX; Respondent's exhibit, RX; Recommended Decision and Order, R. D. & O.
2 Dierkes is a contract teacher, subject to renewal every two years, and is evaluated on a two-year cycle. TR at 349-51.
3 Dierkes alleged that at one of the meetings, the school district superintendent, Dr. Roger Woehl, told her to sit down. TR at 119. 175-76.
4 As the ALJ pointed out, Gelbrich never indicated that he would discipline Dierkes if she failed to come to him first with her concerns, no discipline ever took place, and no notation was placed in her personnel file as a result of his statements. R. D. & O. at 25. Moreover, Gelbrich never indicated that Dierkes should not continue to contact outside government agencies as she deemed appropriate.
5 We note that, consistent with the legitimate non-discriminatory reason proffered for imposing Goal Three (i.e., Dierkes' unprofessional pattern of communication), the goal focused on the form of her communications with others, not the content. Dierkes has not shown that the Respondent's rationale was pretextual.
6 The ALJ noted correctly that the Secretary has adopted the analysis developed in Title VII race and sex discrimination cases, citing Smith v. Esicorp, Inc., 93-ERA-16 (Sec'y Mar. 13, 1996), which quoted West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995). R. D. & O. at 27. In Williams, slip op. at 12-13, we stated that a complainant must establish, by a preponderance of the evidence, the following elements:
1) that he engaged in protected activity;
2) that he suffered intentional harassment related to that activity;
3) that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment;
4) that the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant.