DATE:  November 3, l993
CASE NO: 93-WPC-14

IN THE MATTER OF

GEORGE GALLIAN

          Complainant

     v.

CITY OF SULLIVAN, INDIANA
Herman Smith, Mayor

          Respondent

APPEARANCES:

           George Gallian
           Sullivan, Indiana
           Pro Se

           Douglas E. Followell
           City Attorney
           City of Sullivan, Indiana
           For The Respondent

BEFORE:

           Bernard J. Gilday, Jr.
           Administrative Law Judge

                      RECOMMENDED DECISION AND ORDER 

This proceeding arises under the employee protection provisions
of the Federal Water Pollution Control Act, 33 U.S.C. Section
1367 (1988) and the regulations issued thereunder, 29 C.F.R.
Section 24.5.

A complaint sounding in discriminatory employment practices was
filed by George Gallian against the City of Sullivan, Indiana on
July 12, 1993 with the U.S. Department of Labor. A fact finding
investigation was instituted and conducted by the Wage and Hour 
[PAGE 2]
Division.  The District Director, the duly authorized agent of
the Secretary of Labor, on August 13, 1993, found and informed
the Parties that the complaint is meritless.  Complainant's
appeal and request for Formal Hearing was filed on August 17,
1993.

Pursuant to notice issued on August 24, 1993, a Hearing was held
on September 8, 1993 at Terre Haute, Indiana at which the Parties
had ample opportunity to present testimony and to argue the
contested issues.  Upon the filing of the Transcript of Proceed-
ings[1]  on September 28, 1993, an Order Closing Record issued. 
Therein it was provided that on November 1, 1993, the record in
this case closed and that, on or before such date, the Parties
may, but need not, file Proposed Findings of Fact and Conclusions
of Law.  On October 29, l993, Complainant filed slightly more
than two pages of arguments which are based entirely on asserted
facts which are not in evidence.  Since consideration may only be
given to evidence which was admitted at the Formal Hearing, all
of Complainant's references to and arguments regarding matters
which are not in the record, cannot be considered in adjudication
of this case.

                             Background

The City of Sullivan is the County Seat of Sullivan County,
Indiana and has a population of 4669 (Tr 142). In the early
1960's, after considerable exploration and study, city officials,
faced with an antiquated and dilapidated sewage system and a
Federal mandate to construct and operate a new system, installed
a new concept in sewage disposal, known as a lagoon sewage
disposal system (Tr 133).  Two separate lagoons were constructed,
each of which is surrounded by dams and designed to contain raw
sewage.  The main or primary lagoon consists of three oxidation
ponds, into each of which is fitted a deep lift station which
pumps raw sewage into the pond.  Algae purifies, to a degree, the
raw sewage and, after purification, relatively clean water flows
from the lagoon (Tr 134).  The ponds are fed by pumps at the end
of main sewer lines, one of which is in the center of the city
and the other is located on the west side thereof (Tr 136).  A
separate one pond lagoon serves the city's east side.  In normal
weather conditions, this system operates efficiently and effec-
tively.  During 1992 and 1993, the State of Indiana conducted
numerous sewage treatment inspections.  During 1991, the city
expended approximately 1.4 million dollars for improvements of
this facility and it is currently under a State of Indiana
mandate to submit an upgrade plan for this plant by January 1,
1994 (Tr 68).  The city concedes that the lagoon system is old, 
[PAGE 3]
that waste water floods the ponds, particularly during and after
heavy rains, and that inflow cannot be accommodated due to city
growth (Tr 68).  A well qualified engineering firm has been
retained and the upgrade plan is nearing completion.
                               ISSUE 

Respondent, on the record, agreed and admitted that Complainant
did engage in protected activity, that Respondent was aware of
this activity and that Respondent took some employment action
which was adverse to Complainant (Tr 26 & 27).  It was also
agreed and admitted that the sole issue for resolution is:

For What Reason or Reasons was Complainant Discharged (Tr 27).

                          FINDINGS OF FACT

1. Complainant, a Class II Engineer, was hired in 1989 by Herman
Smith, who has served as the Mayor of Sullivan for eighteen
years, as the Waste Water Treatment Plant Manager and as Street
Commissioner (Tr 66 & 70).  Complainant was not provided with a
job description, he was given "a free reign to do whatever he
wanted to do" and the only complaint from Mayor Smith was that
Complainant kept the lagoons a "little bit too high because you
are losing dirt off that bank" (Tr 74).

2. On June 11, 1993, Complainant was removed as Street Commis-
sioner by Mayor Smith, who decided that Complainant's many
activities, including his service as a voluntary deputy, a
reserve deputy and a SWAT Team member, prevented him from devot-
ing proper and sufficient time and effort to his Waste Water
Treatment Plant Manager position (Tr 71).  While Mayor Smith was
dissatisfied with Complainant's practice of sending other employ-
ees to the lagoon to perform Complainant's work, Mayor Smith did
not reduce Complainant's salary (Tr 72).  Complainant accepted
the demotion  and thereafter Complainant received two weeks
salary for a Florida vacation (Tr 43 & 72).  Max Wright was
appointed Street Commissioner (Tr 118).

3. Complainant appeared at a City Council meeting the day he was
removed as Street Commissioner to propose a confined entry
program, a matter over which Council had no jurisdiction (Tr 71). 
An argument erupted between Complainant and Mayor Smith (Tr 71).

4. From on or about June 1, 1993 to June 14, 1993, Complainant
made complaints to Mayor Smith, the City Attorney, the Board of
Public Works and City Council about bypasses he considered 
[PAGE 4]
illegal, a defective elevator shaft, false reports and raw sewage
water pollution.  Complainant stated that his approach to this
case is "I am trying to get clarified here is, I am not going on
my conduct. I am going strictly on my work performance and there
was nothing wrong with my work performance" (Tr 19).  Complainant
admitted that "I had ran my mouth - I am not disputing that"
(Tr 47).  Complainant maintains that he was discharged on
June 23, 1993 by Mayor Smith because Mayor Smith's words, then
addressed to Complainant, were "you don't want to play the game"
(Tr 45).

5. On June 23, 1993, Mayor Smith, on behalf of Respondent,
offered Complainant the opportunity to resign.  When Complainant
refused to execute a resignation instrument, Mayor Smith stated
"Okay, then you are out of here" (Tr 78).  Mayor Smith's stated 
reason for discharging Complainant was dissatisfaction with
Complainant's conduct and his job performance (Tr 86).

6. On one occasion, probably in May or June, 1993, Complainant
was instructed by Mayor Smith to furnish to City Clerk/Treasurer,
Myrna Gail Power, the payroll record for employees supervised by
Complainant on Monday rather than Tuesday for the reason that Ms.
Power and her Deputy would be in attendance at an Indiana Associ-
ation of Cities and Towns Clerk-Treasurer seminar.  This was to
insure that employees would be paid without delay. Complainant
did not submit the payroll record until Wednesday (Tr 81 & 146).

7. Complainant threatened to take the lives of Mayor Smith and
Clerk-Treasurer Power and any State Official who attempted to
revoke his license (Tr 72, 77, 141).  No threat was made directly
to Mayor Smith or to Clerk-Treasurer Power.  Complainant was
usually armed, he appeared at a City Council meeting with a
weapon in his possession and Clerk-Treasurer Power found it
necessary to acquire a gun permit, carry a weapon and to cover    
office windows when working at night (Tr 77 & 141). 

8. At a time not identified, Complainant requested city employee,
Wayne Owings, to sign a job description which verified that
Owings is qualified to operate a bucket truck and a backhoe.
Owings, who is not so qualified, refused Complainant's request
(Tr 89).  Complainant also informed Owings that chemical meter
readings which Owings had taken were too high to forward to the
State (Tr 91). 

9. Damon Mason, aged nineteen, was formerly employed by Respon-
dent as a laborer-maintenance man (Tr 101).  He was assigned to
dig ditches and fill potholes for the City's Street Department
and, in the course of time, he worked at the lagoon taking 
[PAGE 5]
samples, operating the lift station and applying lime (Tr 102). 
On April 29, 1992, after obtaining samples and while on his way
to the lift station, Complainant directed Mr. Mason to return to
the lagoon as turtles were trapped in an overflow value or a
pipe.  Complainant informed Mason that he was to correct this
condition even if he had to swim in the sewage (Tr 106). While
wearing just work clothes and gloves Mason entered a lidless pit,
removed some turtles and noticed a strong odor of hydrogen
sulfide gas (Tr 106).  Approximately forty-five minutes later,
after Complainant had removed a lid on the other side of the pit,
Mason obtained a rain suit, rubber boots, breathing apparatus and
an Ames meter to check for the presence of dangerous gas.  He
took Ames meter readings which established the presence of four
parts per million of hydrogen sulfide gas.  He was then fitted
with a paper filter mask and rain suit and instructed to enter
the pit (Tr 108).  When approximately three-quarters of the way
into the pit, Mr. Mason found the gas fumes too much for the
paper filter mask and he was forced to return to the surface. 
Complainant then instructed Mason to don the self-contained
breathing apparatus and to re-enter the pit.  After approximately
fifteen to twenty minutes in the pit, Mason experienced chest
pain and cough.  Complainant directed that he be brought to the
surface (Tr 109).  Thereafter, Mason was hospitalized and he
remains under treatment for a pulmonary condition.  Mr. Mason had
not undergone any pulmonary testing to determine his ability to
use the self-contained breathing apparatus and his experience in
the use thereof was limited to wearing the equipment as a
firefighter (Tr 113).  He has retained Counsel for the purpose of
instituting legal proceedings against Respondent (Tr 104). 
Complainant did not inform Mayor Smith of the events of April 24,
1993 (Tr 79).  The injuries to Damon Mason were not reported to
Respondent's Insurance Carrier for Workers' Compensation until
after Mason was discharged from the hospital (Tr 145).

10. Christopher Mark Thompson, employed by Respondent as a
laborer, was present at the lagoon on April 29, 1993 and observed
Complainant obtain a meter reading for the presence of hydrogen
sulfide (Tr 95).  He also observed Complainant complete a second
test which revealed a result of 3/4 on a scale of 1 to 4 in
toxicity (Tr 96).  Mr. Thompson was required to prepare and
submit a written report of what happened to Mr. Mason and he was
informed by Complainant that all that occurred on April 29, 1993
at the lagoon and the written report thereof were confidential
(Tr 97-98).

11. While Respondent maintains that raw sewage is not entering a
Sullivan County owned lake, known as Lake Sullivan, there is 
[PAGE 6]
credible contrary evidence, including Complainant's observations
made on June 17, 1993 (Tr 31, 32, 33 & 40).

                         CONCLUSIONS OF LAW

1. The Federal Water Pollution Control Act provides that:

     No person shall fire, or in any other way discriminate
     against, or cause to be discriminated against, any
     employee * * by reason of the fact that such employee
     * * has filed, instituted, or caused to be filed or
     instituted any proceeding under this chapter, or has
     testified in any proceeding or is about to testify
     in any proceeding resulting from the administration
     or enforcement of the provisions of this chapter.
     33 U.S.C. 1367(a).

2. Reporting internally what are considered violations of the Act
is a protected activity.  Goldstein v. Ebasco Constructors,
Inc.
Case No: 86-ERA-36, Sec. Dec. April 7, 1992.

3. Once a Complainant establishes a prima facie case, the burden
of production passes to the Respondent which must present rele-
vant evidence that, in taking employment action adverse to
Complainant, it was motivated by legitimate, nondiscriminatory
business reasons.  Where such evidence is offered and received,
Complainant then may proceed with proof which establishes that a
discriminatory reason more likely than not motivated Respondent
or that Respondent's explanation for its employment decision is
unworthy of belief.  Dartley v. Zack Company, 80-ERA-2
(1983).

4. Complainant's evidence established a prima facie case. Respon-
dent produced evidence that the reason for the undertaken adverse
employment action was legitimate and nondiscriminatory. Complain-
ant offered no evidence that Respondent's reason is pretextual,
though he was provided with the opportunity to do so (Tr 150, 151
& 152).

5. Employees engaged in statutorily protected activity may not be
disciplined for insubordination so long as the activities claimed
to be insubordinate are lawful and the character of the conduct
is not indefensible in its context.  NLRB v. Florida Medi-
cal Center, Inc., 576 F.2d 666 (5th Cir. 1978).

6. The right to engage in statutorily protected activity permits
some leeway for impulsive behavior which is balanced against the
employer's right to maintain order and respect in its business by
correcting insubordinate acts.  A key inquiry is whether the 
[PAGE 7]
employee has upset the balance that must be maintained between
the protected activity and shop discipline.  Crown Central
Petroleum Corp. v. NLRB, 430 F.2d 724 (5th Cir. 1970).

7. The issue of whether an employee's actions are indefensible
under the circumstances turns on the distinctive facts of the
case.  NLRB v. Leece-Neville Co., 396 F.2d 773 (5th Cir.
1968).

8. Abusive or profane language coupled with defiant conduct or
demeanor justify an employee's discharge on the ground of insub-
ordination.  Dunham v. Brock, Secretary of Labor, 794 F.2d
1037 (5th Cir. 1986).

9. Opposition conduct, including unreasonably hostile or aggres-
sive acts, may provide a legitimate, independent and        
nondiscriminatory basis for the imposition of sanctions.  EEOC
v. Crown Zellerback Corp., 720 F.2d 1008 (9th Cir.
1983).

10. The time interval between the protected activity and the
adverse employment action is a matter for consideration. 
Ivory v. Evans Cooperage, Inc., Case No. 88-WPC-2,
Sec. Dec. February 22, 1991.  The evidence establishes that
Complainant made no complaints of violations after June 14, 1993
(Tr 45).  His  discharge on June 23, 1993 was not abrupt, impul-
sive or hasty employment action by Respondent.  See Couty v. U.S.
Department of Labor, 886 F.2d 147 (8th Cir. 1989). 

                             DISCUSSION

The record establishes that Respondent fully met and totally
answered Complainant's prima facie case.  The City of Sullivan
has demonstrated wholly legitimate, nondiscriminatory, business
reasons for Complainant's discharge and there is no credible
evidence that Respondent's proffered reasons were pretextual.
Respondent's testimonial evidence establishes that Complainant's
failure to devote adequate time and effort to his Water Treatment
Supervisor position, be it due to numerous other activities or
otherwise, his failure to present a payroll as directed, his
direction of the unfortunate events of April 24, 1993 which
resulted in injury to Damon Mason and his attempt to induce a
subordinate to verify unpossessed work skills demonstrate that
Complainant's work performance was unsatisfactory.

It is also abundantly clear that Complainant's conduct is inde-
fensible.  Complainant did not deny that he had made threats to
kill Mayor Smith, Clerk-Treasurer Power and any State Official
who attempt to restrict or revoke his license.  It is appalling
that some of Respondent's employees found it necessary to obtain 
[PAGE 8]
a gun permit, to be armed while at work and to cover windows
when working at night because, as Complainant conceded, "I had
ran my mouth" (Tr 47).  Such behavior, be it impulsive or other-
wise, not only interferes with valid management objectives, its
unreasonably hostile, if not defiant nature, tends to destroy
order and respect for authority.  Complainant's conduct coupled
with his unsatisfactory job performance establishes that Respon-
dent had a legitimate business interest in disciplining Complain-
ant.

What then must be addressed is whether Respondent's adverse
employment action was motivated by the good reason of legitimate
business interest or the bad reason of Complainant's engagement
in protected activity.  In short, the question is what role, if
any, did each motive play.  A preponderance of the evidence in
this case, as herein set forth, establishes that even if Com-
plainant had never made a complaint about raw sewage pollution,
real or imagined illegal bypasses, or unsafe, unacceptable sewage
disposal methods, Complainant would have been discharged by
Respondent given his aggressive, antagonistic attitude and
conduct and the manner in which he did or did not perform his
assigned duties.  All of the circumstances surrounding the
adverse employment action demonstrate that Respondent was not
motivated by animus towards Complainant's protected activities.

                         RECOMMENDED ORDER

WHEREFORE, IT IS RECOMMENDED that the Complaint, filed by George
Gallian on July 12, 1993, be DISMISSED.


                                   BERNARD J. GILDAY, JR.
                                   ADMINISTRATIVE LAW JUDGE


[ENDNOTES]
              
[1] The following abbreviation is used:  "Tr" - transcript of
proceedings.