Between 1993 and 1997, Mr. Ilgenfritz was employed at the steam plant on
the grounds of the United States Coast Guard Academy. During the first couple of years of that
employment, Mr. Ilgenfritz also served as the Hazardous Material Coordinator for the steam
plant. In that capacity, he engaged in at least three protected activities. First, in the fall of 1995,
he reported an oil spill under an emergency generator. Second, in 1996 he reported the improper
disposal of a grit blaster5 which was
hazardous material. And, third in 1996 he reported improper handling of paint chips that
contained hazardous material.
This case, involves the personality conflict between a disgruntled
employee and a supervisor who doesn't share his responsibilities with employees. From 1991 to
1993, Mr. Ilgenfritz, who had been hired as a boiler plant mechanic, worked as a mechanic in the
steam plant. In 1993, responding to environmental concerns, the United States Coast Guard
Academy (USCGA) established the Hazardous Materials Coordinator duty in various sections.
At that time, Mr. Bergeron selected Mr. Ilgenfritz as the first Hazardous Materials Coordinator
for the steam plant. Mr. Ilgenfritz performed that collateral duty over the next couple of years,
with one break during a portion of 1994. In 1996, Mr. Bergeron assigned the Hazardous
Materials Coordinator collateral duty to another steam plant employee to enable other workers to
become proficient in the environmental area.
In preparation for a presidential visit in 1996, Mr. James Simmons, the
supervisor of Mr. Bergeron, ordered the disposal of unused equipment sitting around in the steam
plant. One of the items was a grit blaster. Following Mr. Simmons' order, Mr. Bergeron, with
Mr. Ilgenfritz's help threw the grit blaster in a dumpster. Later, Mr. Ilgenfritz complained about
the improper disposal of the grit blaster. Throughout the complaint process, Mr. Ilgenfritz did
not raise a hazardous materials issue regarding the grit blaster. His complaint about the grit
blaster involved the disposal of government property and was not a protected activity under the
environmental statutes.
After Mr. Simmons observed plant employees lingering around a desk in
the steam plant, he ordered Mr. Bergeron to remove the desk. Complying with that direction,
Mr. Bergeron removed the desk and phone. The removal of the equipment was not retaliation.
And, even though Mr. Bergeron limited Mr. Ilgenfritz's access to a computer, Mr. Ilgenfritz
could still use the computer for boiler plant operator functions. There is no continuing pattern of
retaliation between the events which occurred in 1996 and the 1998 separation action.
Consequently, Mr. Ilgenfritz's October 2, 1998 complaint about a hostile work environment in
1996 is untimely.
Due to shoulder problems, which developed during Mr. Ilgenfritz's
mechanic work in 1994, 1995, and 1996, Mr. Ilgenfritz left the USCGA in the spring of 1997 and
received disability compensation for over a year. In light of manpower shortages at the boiler
plant and based on medical information that Mr. Ilgenfritz was physically unable to return to his
job as a mechanic, Mr. Bergeron initiated separation action to permit a new permanent worker to
be hired. Commander Eric Brown, and not Mr. Bergeron, made the final decision to separate
Mr. Ilgenfritz from government service. The separation action is not a disciplinary measure and
did not involve retaliation. The USCGA treated Mr. Ilgenfritz's separation in the same manner
as another boiler plant employee who was separated due to a physical inability to return to work.
[Page 5]
When Mr. Ilgenfritz elected to apply for disability retirement, USCGA
personnel assisted him in preparing the application. Mr. Bergeron received the retirement paper
work on August 22, 1998 and forwarded it directly to the appropriate authorities on August 31,
1998. There was no retaliatory motive behind the delay and it did not prejudice Mr. Ilgenfritz's
efforts to obtain a disability retirement.
The comments in the 1997 appraisal, even though adverse, are true
observations about Mr. Ilgenfritz's performance. In addition, the appraisal was completed in
June 1997 and available for Mr. Ilgenfritz's review. As a result, his complaint of retaliation in
November 1998 due to the performance appraisal is untimely.
Issues
1.
Whether Mr. Ilgenfritz's October 2, 1998 complaint of a retaliatory hostile work
environment was timely.7
At the hearing I admitted, without objection, CX 1 to 58 and CX 7 to 119 as the
complainant's exhibits. Based on an objection from respondent's counsel, I did not admit CX 6
for identification (TR page 60).9 I also
admitted RX 1 to 13, without objection.10
In environmental whistle blower cases, the complainant has an initial
burden of proof to make a prima facie case by showing (1) the complainant engaged in a
protected activity; (2) the complainant was subjected to adverse action; and, (3) the evidence is
sufficient to raise a reasonable inference that the protected activity was the likely reason for the
adverse action. Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18,
1996), and Passaic Valley Sewerage Commissioners v. United States Depart. of Labor,
No. 92-3261 (3rd Cir. Apr.16, 1993)(available at 1993 U.S. App. LEXIS 7906).
The portion of the October 2, 1998 complaint relating to a hostile work
environment, other that the September 3, 1998 separation action, is DISMISSED AS
UNTIMELY. The remaining portion of the October 2, 1998 complaint alleging an unlawful
September 3, 1998 separation action, and the November 3, 1998 complaint alleging a
discriminatory
[Page 55]
performance appraisal for April 1996 to March 1997 are DISMISSED.
RICHARD T.
STANSELL-GAMM
Administrative Law
Judge
Washington, D.C.
NOTICE OF REVIEW: 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, United States Department of
Labor,
Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC
20210.
Such a petition 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).
[ENDNOTES]
1In the initial complaints, counsel for
the
complainant cited the following statues: the Toxic Substance Control Act 15 U.S.C. §
2622; the Solid Waste
Disposal Act (Resource Conservation and Recovery Act (RCRA)), 42 U.S.C. § 6971; the
Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610;
the Safe Drinking
Water Act, 42 U.S.C. § 300J-9; and, the Federal Water Pollution Control Act, 33 U.S.C.
§ 1367 (this last
statute led to the "WPC" designation in the case title). At the conclusion of the
hearing, complainant's
counsel indicated relief was being sought only under CERCLA and RCRA (Transcript, page 823
).
2The following notations appear
in this
decision to identify specific evidence: CX - Complainant exhibit; RX - Respondent exhibit; ALJ
- administrative law
judge exhibit; and, TR - Transcript of hearing. Inadvertently, in the hearing, I did not identify
the November 23, 1998
Notice of Hearing as ALJ I and the December 3, 1998 Order of Continuance as ALJ II.
7Respondent's counsel conceded
there is
no timeliness issue as to the portion of the October 2, 1998 complaint that addresses the
separation action (TR, pages
34 and 35).
8Complainant's counsel labeled all
the
exhibits, "plaintiff's exhibits." As previously indicated, I will refer to the exhibits
using "CX"
for complainant exhibit.
9CX 6 for identification is
attached to the
record.
10Respondent's counsel used
RX 14 for
identification to refresh a witness' recollection. He did not offer the document into evidence. RX
14 for identification
is attached to the record.
11The form has an
administrative error
indicating the closing date of the appraisal period as March 31, 1992.
13The caption of this e-mail
indicates
Mr. Bergeron sent it to Mr. Ilgenfritz. However, based on the comments in the e-mail, it appears
Mr. Ilgenfritz and not
Mr. Bergeron wrote the e-mail.
19By the time of the hearing,
Lieutenant
Commander Brown had been promoted to Commander.
20Mr. Bergeron used the term
HWC for
Hazardous Waste Coordinator.
21The parties were not able to
stipulate
that Mr. Ilgenfritz's request for a hearing concerning the performance appraisal was timely. The
letter from OSHA to
Mr. Ilgenfritz dismissing his November 3, 1998 complaint is dated December 18, 1998 (ALJ V).
Mr. Sawyer's fax to
the Office of Administrative Law Judges requesting a hearing on the matter, and the transmission
confirmation receipt,
are dated December 23, 1998 (ALJ VI). Based on these dates and in the absence of contrary
evidence, I find Mr.
Ilgenfritz's request for a hearing regarding the performance appraisal was timely within the
provisions of 29 C.F.R.
§§ 24.4 (d) (2) and (3).
22See the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §
9610 (b), and the Solid
Waste Disposal Act (Resource Conservation and Recovery Act), 42 U.S.C. § 6971 (b).
23A complaint is deemed filed
on the
date of mailing. 29. C.F.R. § 24.3 (b) (1).
24The U.S. Court of Appeals
for the Sixth
Circuit utilizes a five part test that focuses on lack of actual or constructive knowledge of the
filing requirements,
diligence, prejudice to the opposing party, and reasonableness of the ignorance of the law;
although, ignorance of the
law alone is not sufficient to warrant equitable tolling. Andrew v. Orr, 851 F.2d 146,
151 (6th Cir. 1988). The
Secretary has indicated that the Andrew analysis should be applied in cases arising in the
Sixth Circuit.
Rainey v. Wayne State University, 89-ERA-8 (Sec'y May 9, 1991). However, Mr.
Ilgenfritz's case arose in
the Second Circuit. In cases outside the Sixth Circuit, the Secretary has applied the framework in
used by U.S. Court
of Appeals for the Third Circuit. See Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y
Sept. 29, 1989) [citing
School District of the City of Allentown, 657 F.2d 16 (3d Cir. 1981)], aff'd
sub. nom.Doyle V. Secretary of Labor, No. 89-7863 (11th Cir. 1989).
25See also McCuistion v.
Tennessee
Valley Authority, 89-ERA-6 (Sec'y Nov. 13, 1991).
26Even if the last act is not a
violation
of an environmental employee protection provision, it may still be relevant as to the actor's
discriminatory intent which
may be probative on the issue of a systematic pattern of discrimination. Egenrieder v.
Metropolitan Edison
Co./G.P.U., Case No. 85-ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4.
27Whether each of these
incidents
amounts to a protected activity will be discussed later.
28Mr. Ilgenfritz also recounted
that one
day he found a derogatory comment about him on a sign in the work place. But, he doesn't know
who wrote the
comment. In addition, Mr. Ilgenfritz in August 1997 found that the lock on his tool locker had
been cut. In this case,
the record establishes a co-worker and not any supervisor cut the lock. I have not
included these two incidents
because the evidence does not establish that a supervisor was involved. I also have not included
the last performance
appraisal. Although it was accomplished in May 1997 and would have ordinarily fallen within
the hostile environment
time frame, Mr. Ilgenfritz was not aware of the appraisal until October 1998. As a result, the
appraisal was not part of
the work environment Mr. Ilgenfritz experienced during the relevant time frame of 1996 to
September 1998.
29In a fully litigated case, the
analysis
of a prima facie case may not serve any useful purpose since the final decision will rest on
the complainant's
ultimate burden of proof. See Carter v. Electrical District No. 2 of Pinal, 92-TSC-11
(Sec'y Jul. 26, 1995).
The parties in Mr. Ilgenfritz's case spent three days fully litigating the present case. However, I
find the working
through the prima facie elements useful since the ultimate burden of proof still involves
many of the elements
covered in the prima facie analysis. In addition, if the complainant, even in a fully
litigated hearing, fails to
establish an element of the prima facie case, evaluating whether an ultimate burden of
proof is met may not
serve any purpose.
30However, a complainant's
inability
to specify the controlling environmental regulation is not determinative of whether he or she
engaged in a protected
activity. See Oliver v. Hydro-Vac Services, Inc., 91-SWD-1 (Sec'y Nov. 1, 1995);
31The United States Court of
Appeals
for the Second Circuit has jurisdiction in this case because the incidents occurred in New
London, Connecticut. The
Secretary in Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986)
interpreted the Second
Circuit case Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982) as support
for including internal
reports.
32Mr. Ilgenfritz believes he did
mention
to CWO Eybel that the grit blaster was part of a hazardous waste stream. However, I find more
reliable CWO Eybel's
definite recollection that Mr. Ilgenfritz did not mention any environmental
concern about the grit
blaster. As a result, I find Mr. Ilgenfritz did not inform CWO Eybel that the grit blaster
presented an environmental
hazard.
33Mr. Bergeron doesn't
remember
whether the paint chips were hazardous material. I do not believe his testimony is sufficient
contrary evidence to Mr.
Ilgenfritz's testimony that he did tell Mr. Bergeron about the paint chips. As a result, regardless
of whether Mr.
Bergeron now remembers the information, I find Mr. Ilgenfritz did inform Mr. Bergeron of the
problem.
34Mr. Ilgenfritz believes that
since he
told CWO Eybel that the grit blaster was part of a hazardous waste stream and CWO Eybel
eventually talked to Mr.
Bergeron about the grit blaster, Mr. Bergeron must have known about his environmental concern.
However, both Mr.
Bergeron and CWO Eybel testified Mr. Ilgenfritz did not mention to them any environment
problem with the grit
blaster. In addition, Mr. Berkman did not pass on to Mr. Bergeron, Mr. Ilgenfritz's
environmental complaint about the
machine. I find the preponderance of the evidence indicates Mr. Bergeron did not know Mr.
Ilgenfritz had made an
environmental report about the grit blaster.
35Based on CDR Brown's
credible
testimony, I find he only had knowledge of the paint chip report as a protected activity. He was
not aware of the oil
spill report. Although Mr. Ilgenfritz did discuss the grit blaster incident with CDR Brown, he
did not share his
environmental concern. And, there is no evidence Mr. Berkman passed on Mr. Ilgenfritz's
environment concern about
the grit blaster to CDR Brown. Even if CDR Brown had been aware of the environmental
problem with the grit blaster
disposal, October 1996 still remains the latest date he became aware of Mr. Ilgenfritz's activities.
As the result, the
analysis concerning temporal proximity doesn't change.
36At the hearing, Mr. Bergeron
indicated
that rather than hire another mechanic, they filled Mr. Ilgenfritz's position with an operator. Mr.
Bergeron
acknowledged he had long believed the steam plant only needed one mechanic. However, there
is no evidence in the
record that LCDR Stephanos or CDR Brown were influenced by, or even aware of, Mr.
Bergeron's concept that the
ideal work force at the plant included only one mechanic.
37At the close of the hearing, I
gave the
complainant's counsel permission to provide case cites on the issue of damages for Mr.
Ilgenfritz's shoulder injury.
On March 4, 1999, I received a post hearing brief consisting of seven pages and containing
numerous case cites. On
March 5, 1999, I received from counsel for the respondent a Motion for Appropriate Relief
asking that I disregard the
brief from complainant's counsel on the grounds that I only gave permission for a list of cases but
complainant's
counsel had submitted a brief. On the same day, complainant's counsel provided a Response to
the Motion for
Appropriate Relief indicating the brief was filed in response to my request to provide case
authority on damages.
Considering my recommended order in this case, I will not address the issue of damages or the
subsequent brief, motion,
and response.