In light of this overwhelming evidence, Respondent's claim that it was unaware that Ms. Anderson was engaging in protected activities on behalf of Metro lab workers is simply not credible, and I so find and conclude.
B. COMPLAINANT HAD A REASONABLE BELIEF THAT METRO'S PLAN TO ACCEPT WASTEWATER FROM THE LOWRY LANDFILL SUPERFUND SITE VIOLATED FEDERAL ENVIRONMENTAL STATUTES, AND SUCH REASONABLE BELIEF MOTIVATED HER PROTECTED ACTIVITIES.
Immediately upon her appointment to the Metro Board by Denver Mayor Wellington Webb on February 22, 1996, Ms. Anderson began researching the history of the Lowry Landfill through various public documents. She initially raised concerns to the Governor of Colorado about violations of "federal hazardous waste laws" following her discovery that the Lowry Bombing Range had been designated a "catastrophic risk zone." (CX 6) Ms. Anderson raised similar concerns about violations of federal environmental statutes during an appearance on a radio talk show on March 4 and 5, 1996. (CX 7, CX 8)
The union, following information specifically provided by Ms. Anderson to the Metro lab workers union concerning Metro's plan to accept wastewater from the Lowry Landfill Superfund Site, on August 20, 1996, sent a letter to the EPA insisting on the opportunity for public comment, as required by federal environmental statutes. (CX 41) Ms. Anderson raised the same issue, as well as public and worker safety concerns, in an April 26, 1997 article In These Times and in a May 22, 1997 article in the Boulder Weekly (CX 51, CX 52)
The EPA scheduled a public meeting to discuss Metro's plan to accept wastewater from the Lowry Landfill on April 2, 1997. At this meeting, Ms. Anderson raised concerns about the presence of plutonium and other radionuclides at the Lowry Landfill. (RX 2 at 36-38) Ms. Anderson cited an EPA contractor report she uncovered during her investigation of public documents which verified the presence of radioactive substances at the Lowry Landfill Superfund Site. (RX 2 at 37, lines 4-12. See also CX 11-38) Ms. Anderson's resulting concerns regarding the presence of plutonium and other radionuclides in the Lowry Landfill wastewater involves, inter alia , perceived violations of the Energy Reorganization Act and the Clean Water Act.
Ms. Anderson raised similar concerns about Metro's plan to accept wastewater from the Lowry Landfill both directly to the Metro Board, as well as through public interviews. For example, Ms. Anderson raised concerns about the violation of federal environmental statutes during a radio appearance on May 14, 1997. (See CX 54) Ms. Anderson also raises public and worker health and safety concerns in a June 26, 1997 article in the Boulder Weekly . (CX 64)
Respondent argues, perhaps tongue-in-cheek, that Ms. Anderson is not entitled to recover herein for its adverse actions against her because she did not have a "reasonable belief" that Metro's plan to accept wastewater from the Lowry Landfill Superfund Site potentially violated federal environmental laws. However, on July 31, 2000, the EPA Ombudsman issued a report which concluded that the "weight of evidence supports" citizens' claims that "uncertainty" exists concerning radioactive contamination of the Lowry Landfill Superfund Site. As a result, the Ombudsman recommends "further sampling and the development of sampling protocols to address the issue of the presence of radioactive material at the Lowry Landfill Superfund Site." (CX 94) Clearly, the government agency set up to protect the environment has found such concerns to be "reasonable" enough to require further testing at this Superfund Site. Thus, Complainant's opinions herein on this issue are reasonable, and I so find and conclude.
It is now well-settled that raising complaints about worker health and safety "constitutes activity protected by the environmental acts when such complaints touch on the concerns for the environment and public health and safety that are addressed by those statutes." Melendez v. Exxon Chemicals Americas, supra at p. 10. See also Jones v. ED&G Defense Materials, Inc., supra at p. 8, citing Scerbo v. Consolidated Edison Co. , Case No. 86-ERA-2, Sec'y Dec. and Ord. , Nov. 13, 1992, slip op. at 4-5. Because Ms. Anderson made repeated complaints concerning not only worker, but also public, health and safety issues covered by the federal environmental statues, these complaints constitute activities protected by the federal whistleblower laws, and I so find and conclude.
C. RESPONDENT'S ADVERSE ACTIONS AGAINST MS. ANDERSON WERE CLEARLY MOTIVATED BY ANIMUS CONCERNING HER PROTECTED ACTIVITIES.
Metro Director Ted Hackworth testified that, as a Director, Ms. Anderson raised issues about worker safety resulting from Metro's plan to accept wastewater from the Lowry Landfill. (TR 1440, lines 20-22) Mr. Hackworth did not feel it was appropriate for Ms. Anderson to be raising such issues when the Board had already approved the Lowry settlement prior to Ms. Anderson's arrival. (TR 1441, lines 10-25) Mr. Hackworth also testified that Ms. Anderson, in raising such issues concerning Lowry, "was harming the Denver position" on the Metro Board. (TR 1445, lines 12-13) For this reason, he testified rather animatedly before me that he did not want her to be reappointed to the Board. (TR 1445, lines 10-13) He admitted that Denver owns the Lowry Landfill. (TR 1445, line 21 - TR 1446, line 1) However, Mr. Hackworth did not believe that his representation of the interests of the Lowry Landfill on the Metro Board created any conflict of interest. (TR 1446, lines 2-8)
Mr. Hackworth testified that, in response to the issues raised by Ms. Anderson concerning the Lowry Landfill, other Board members commented: "we never should have let her on this Board..." (TR 1453, lines 14-15) Mr. Hackworth admitted telling "the individual that does the appointing" of Metro Directors that he "would hope that he didn't reappoint Adrienne Anderson." (TR 1454, lines 15-23)
After Ms. Anderson filed her whistleblower complaint in 1997, Mr. Hite testified that "the whole relationship [between Metro and Ms. Anderson] became very adversarial..." (TR 1417, lines 5-7) Clearly, this admittedly "adversarial relationship," and the resulting adverse treatment of Ms. Anderson, was a direct response to Ms. Anderson's protected activities of researching the background of, and speaking out against, Metro's plan to accept wastewater from the Lowry Landfill Superfund Site. The evidence clearly establishes that the adverse actions against Ms. Anderson, culminating in the denial of her reappointment to the Metro Board of Directors by the Mayor's office, were directly motivated by Ms. Anderson's protected activities on behalf of the Metro workers, and I so find and conclude.
In summary, the evidence in this closed record conclusively establishes that Respondent was well aware of Adrienne Anderson's obvious affiliation with the Metro lab workers union. The evidence also establishes that Ms. Anderson's affiliation with the Metro lab workers union, and her protected activities on behalf of such workers, prompted a campaign of retaliation against Ms. Anderson. These protected activities were clearly undertaken as the result of a good faith belief that Metro's plan to accept wastewater from the Lowry Landfill violated federal environmental statutes.
The totality of this closed record, including the logical inferences to be drawn therefrom, leads ineluctably to the conclusion that Respondent has failed to advance any legitimate reasons for its adverse actions against Ms. Anderson. Therefore, Ms. Anderson is entitled to relief for the harm she has suffered as a result of Metro's adverse, disparate and discriminatory actions against her.
Complainant requests that the Administrative Law Judge order Respondent to rescind its threatening April 16, 1997 letter, issue a public apology and promise not to retaliate against her or others in the future. Complainant also asks the Judge to order Respondent to pay compensatory damages to her in the amount of $500,000 for damage to her professional reputation and loss of future income, and a minimum of $50,000 for the mental anguish and emotional distress caused by Metro's adverse actions.
Complainant also intends to seek recovery of all expenses incurred, including reasonable attorney fees for the prosecution of her complaint, as provided by applicable environmental statutes.
Respondent posits, perhaps "tongue in cheek," "The adversarial relationship between Anderson and the Board was the natural result of the filing of this lawsuit." I disagree completely with that statement for the basic reason that this lawsuit was not filed until May 2, 1997 and that the demonstrated animosity towards the Complainant began almost immediately after Mayor Webb appointed her to the Metro Board on February 22, 1996, well over one year prior to filing her Whistleblower complaint. Mr. Hackworth was well aware of Anderson's union and environmental activities and set in motion the process to discredit Ms. Anderson. While Respondent cites a lack of legal and formal notification from Ms. Anderson that she was the authorized representative of the Metro lab workers, the Board was well aware of her union activities, as extensively summarized above.
I also note that OCAW sent a check in the amount of $5,000.00 (CX 71) to assist her with her litigation expenses in recognition of her efforts in the union's behalf as a Metro Board member. All connected with this case knew about Anderson's labor-friendly activities and her constant efforts on behalf of OCAW, especially as the prior collective bargaining agreement between Metro and OCAW had expired in 1993.
Respondent cites Occam's Razor in support of its position that Ms. Anderson is not an authorized representative of OCAW. I disagree. The simplest explanation is that Respondent not only knew that Ms. Anderson was labor-friendly but also that she was the authorized representative of OCAW as she was put on the Board to represent the interests of the union members, and I so find and conclude.
Respondent further submits that in order for an activity to be protected under the whistleblower statutes, the person must have an actual belief in a violation of the statute and that belief must be reasonable. Moreover, a belief that the environment may be negatively impacted by an employer's conduct is not sufficient to invoke the whistleblower provisions of environmental laws. Respondent concludes, "But not once does she allege any of the environmental laws at issue." (Emphasis added)
I disagree completely. This entire case is about a dedicated, conscientious and public-spirited citizen who, in following in the tradition of Karen Silkwood, Erin Brockovitch, A. Ernest Fitzgerald, Casey Ruud and others, has spent her entire adult life in pursuing union and environmental activities and in attempting to correct perceived wrongs and problems in society. Complainant's beliefs, in my judgment, are reasonable and well-founded, based upon her years of research into the problems and remedial action taken with reference to the so-called Superfund Sites by the federal and state governments. That some in authority disagree with her interpretations and opinions do not render her beliefs unreasonable, and I so find and conclude, especially as the basis of those disagreements are, for the most part, personality conflicts.
On the basis of the totality of this closed record and having observed the demeanor and having heard the testimony of a most credible and obviously distressed and depressed Complainant, I make the following:
D. FINDINGS OF FACT
1.) Complainant Adrienne Anderson was appointed to the Metro Wastewater Reclamation District Board of Directors by Denver Mayor Wellington Webb on February 22, 1996.
2.) Prior to this appointment, Ms. Anderson's name and resume were submitted to the Mayor's office by the Metro lab workers' union, the Oil, Chemical and Atomic Workers ("OCAW").
3.) OCAW had asked, and was granted, the opportunity to nominate a candidate to serve on the Metro Wastewater Board to represent the Metro workers' interests.
4.) Ms. Anderson had an initial confirmation hearing before the Denver City Council's Public Works Committee in May 1996.
5.) Because Denver City Councilman and Metro Board member Ted Hackworth did not attend the May Public Works Committee meeting, he asked that Ms. Anderson be brought back to a second Public Works Committee meeting on June 4, 1996, so that he could personally question her.
6.) During both the May and June 1996 Public Works Committee meetings, Ms. Anderson indicated that she was appointed by Mayor Webb to the Metro Board to represent the Metro employees.
7.) In June, 1996, while Ms. Anderson's confirmation by the Denver City Council was delayed, the Metro Board approved, as part of a proposed settlement of pending litigation concerning clean-up of the Lowry Landfill Superfund Site, a plan to accept wastewater from that Superfund Site for processing and distribution through the Metro Wastewater system.
8.) Adrienne Anderson's appointment to the Metro Board was confirmed by the Denver City Council in June 1996.
9.) As a member of the Metro Board of Directors and as a representative of Metro workers, Complainant Adrienne Anderson raised concerns about the safety, legality and potential hazards of Respondent's planned participation in the clean-up of the Lowry Landfill Superfund Site - specifically, the acceptance of hazardous waste from this Superfund Site for processing and distribution.
10.) Complainant established that she engaged in the following protected activities:
a.) researching the history of the Lowry Landfill since her appointment by Mayor Webb on February 22, 1996;
b.) attempting to raise her concerns about Metro's plan to accept wastewater from the Lowry Landfill during Board and Committee meetings;
c.) speaking out against Metro's plan to accept wastewater from the Lowry Landfill to public officials and to the public through the media;
d.) speaking out against Metro's plan to accept wastewater from the Lowry Landfill in an EPA public hearing held on April 2, 1997;
e.) participating in Congressional investigations into the Lowry Landfill;
f.) requesting, on June 25, 1997, a special Board meeting to investigate public and worker health and safety concerns raised by Metro employees;
g.) sharing the results of her research, and her concerns about Metro's plan to accept wastewater from the Lowry Landfill, with Metro employees and the Metro lab workers union; and
h.) organizing employee and public opposition to Metro's plan to accept wastewater from the Lowry Landfill.
11.) Complainant's protected activities resulted in Respondent engaging in the following adverse actions:
(a) cutting her off or ruling her out of order during Board meetings;
(b) keeping her from voting on the Lowry settlement by delaying her confirmation by the City Council until June 1996;
(c) ordering her off Metro property in March 2000 when she appeared for a press conference to voice her concerns about the Lowry settlement;
(d) denying her requests to distribute material concerning the Lowry Landfill to the Metro Board or to put this issue on the Metro Board agenda;
(e) denying her June 25, 1997 request for a special Board meeting to investigate public and worker health and safety concerns raised by Metro employees;
(f) forcing her to make Open Records Act requests for information, and then charging her for such information;
(g) monitoring her activities and public statements;
(h)circulating derogatory e-mails and other communications about her;
(i) subjecting her, via an April 16, 1997 letter, to a special disclaimer requirement which was not imposed on other Board members, specifically Ted Hackworth; and
(j) communicating its desire to the Denver Mayor's office that she not be reappointed to the Metro Board, which resulted in her failure to be reappointed.
12.) On May 2, 1997, Complainant filed a pro se complaint with the U.S. Department of Labor alleging that Respondent Metro Wastewater Reclamation District violated the employee protection provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610, the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. §6971, the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. §1367, and the Energy Reorganization Act ("ERA"), 42 U.S.C. §5851.
E. CONCLUSIONS OF LAW
1.) Complainant Adrienne Anderson's whistleblower complaint lies within the jurisdiction of the Energy Reorganization Act, 42 U.S.C. §5851(l)(a).
2.) Complainant Adrienne Anderson is an "authorized representative of employees" under the applicable language of the employee protection provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610, the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. §6971, and the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. §1367.
3.) Complainant is a "person acting pursuant to [employees'] request" under the Energy Reorganization Act ("ERA"), 42 U.S.C. §5851.
4.) From her initial appointment to the Board of Directors of the Metro Wastewater Reclamation District, Ms. Anderson engaged in activities protected under the whistleblower statutes applicable to her complaint.
5.) Respondent Metro Wastewater Reclamation District was fully aware of, and in fact specifically monitored, Complainant's protected activities.
6.) Complainant suffered adverse actions by Respondent.
7.) Complainant established, and many of Respondent's witnesses even admitted, a causal link between Respondent's adverse actions against Complainant, and Complainant's protected activities.
8.) Respondent failed to establish any reasons for its adverse actions against Complainant, other than her protected activities.
9.) Complainant is entitled to compensatory damages, as well as to affirmative relief, and this relief will be discussed below.
I shall now discuss the two (2) complaints filed by the Complainant post-hearing.
B. COMPLAINANT'S COMPLAINTS OF DECEMBER 15, 2000 AND JANUARY 15, 2001
1. BACKGROUND AND ETIOLOGY
As part of pre-hearing discovery, Respondent's public relations officer, Steve Frank, was served with a subpoena duces tecum requiring him to produce memoranda, e mails and other documents in which Adrienne Anderson's name was mentioned. In response to this subpoena, Mr. Frank produced a number of e mails which contained critical remarks concerning Ms. Anderson, and which had been widely disseminated over the world wide web. (CX 102-108)
Ms. Anderson, upon learning during the course of the hearing of Metro's concerted covert efforts to discredit her, has suffered great emotional distress:
"During the rest of the hearing as a result of learning this, I was nauseous, dizzy, developed severe headaches, suffered from severe insomnia requiring medication, and suffered an exacerbation of a TMJ disorder, worsened during periods of distress over Metro's discriminatory and retaliatory actions." (February 5, 2001 Affidavit of Adrienne Anderson, p. 3, par. 19)
During the November 2000 hearing, Steve Frank testified that he applied for and received a public relations award from the Water Environment Federation (WEF), a national lobbying group promoting, inter alia , the use of industrial sewage sludge as fertilizer. However, Mr. Frank denied that these materials contained any reference to Ms. Anderson. (February 5, 2001 Affidavit of Adrienne Anderson, p. 3, par. 20.) When subsequently confronted with unequivocal documents to the contrary uncovered by Ms. Anderson through her CORA requests, Mr. Frank admitted that he "inadvertently and unintentionally" misstated the facts concerning this package. (May 14, 2001 Affidavit of Steve Frank, p. 5, par. 19)
Following the November 2000 hearing, Ms. Anderson submitted a Colorado Open Records Act (CORA) request to Metro on December 6, 2000. Ms. Anderson asked to review any and all documents related to Steve Frank's nomination and receipt of a public relations award. Ms. Anderson submitted a companion CORA request to review documents related to Metro's suspension of the Lowry Landfill hazardous and radioactive discharge. (February 5, 2001 Affidavit of Adrienne Anderson, p. 3, par. 23)
On December 11, 2000, Metro informed Ms. Anderson that it could not respond to her CORA requests within the requisite three day time period because of unspecified "extenuating circumstances." (See EX 11 to February 5, 2001 Affidavit of Adrienne Anderson.) Ms. Anderson also learned that, once the requested documents were made available by Metro, she would not be permitted to bring in any means of recording the documents, such as a computer, scanner and tape recorder, as she had in the past. Finally, Metro quintupled the cost of photocopies from 25 cents per page to .25 per page. This increase was apparently implemented two weeks after Ms. Anderson's prior CORA request in May 1999. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, pars. 26-27, and attached Exhibits 12, 13)
Following Ms. Anderson's CORA document review in May 1999, Metro also restricted CORA document reviews to Tuesdays and Thursdays - the precise days during which Ms. Anderson is usually in Boulder teaching her classes at the University of Colorado. (See EX 12 to February 5, 2001 Affidavit of Adrienne Anderson.) These actions constitute additional retaliation against Ms. Anderson's protected activities, and I so find and conclude.
Despite the unreasonable restrictions placed upon Ms. Anderson's review of requested documents, she was able to easily locate a number of critical items which had not been disclosed by Metro Wastewater in response to the subpoena served on Steve Frank. (February 5, 2001 Affidavit of Adrienne Anderson, pp. 4-5, pars. 34-36, and attached EXS. 16-19) As the result of the new evidence she discovered through her post-hearing CORA requests, as well as the unreasonable restrictions placed upon her access to documents requested via CORA, Complainant filed additional complaints against Respondent Metro Wastewater Reclamation District on December 15, 2000 and January 5, 2001. These complaints were filed under the Energy Reorganization Act of 1974, 42 U.S.C. 5851; Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Superfund (CERCLA), 42 U.S.C. 9610; Water Pollution Control Act, 33 U.S.C. 1367; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 U.S.C. 7622; and Toxic Substances Control Act, 15 U.S.C. 2622.
These additional complaints have now been consolidated with the instant action. The parties engaged in discovery, submitted additional evidence via affidavit and deposition, and have filed supplemental and final reply briefs. To remedy these additional retaliatory actions, Complainant seeks declaratory and affirmative relief, compensatory damages for emotional distress and damage to her reputation, and punitive or exemplary damages.
2. THE UNREASONABLE RESTRICTIONS PLACED ON MS. ANDERSON'S ABILITY TO REVIEW DOCUMENTS REQUESTED UNDER CORA IN DECEMBER 2000 AND JANUARY 2001 CONSTITUTE RETALIATION AGAINST MS. ANDERSON FOR HER PROTECTED ACTIVITIES.
Research and the gathering of evidence in support of a whistleblower complaint is a type of activity that has been held to be covered by the employee protection provisions referenced at 29 C.F.R. §24.1(a). Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), slip op . at p. 10. Ms. Anderson's December 2000 and January 2001 CORA document requests to Respondent clearly constitute protected activities, and I so find and conclude.
To prevail on a whistleblower complaint, a complainant must establish that the respondent took adverse and discriminatory employment action because she engaged in protected activity. A complainant initially may show that a protected activity likely motivated the adverse action. A complainant meets this burden by proving (1) that she engaged in protected activity, (2) that the respondent was aware of the activity, (3) that she suffered adverse and disparate employment action, and (4) the existence of a causal link or nexus, e.g. , that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Jones v. ED&G Defense Materials, Inc. , 95-CAA-3 (ARB Sept. 29, 1998), slip op. at p. 7, citing Kahn v. United States Sec'y of Labor ,64 F.3d 261, 277 (7th Cir. 1994).
The restrictions imposed by the Respondent on CORA document requests were imposed by Respondent a mere two weeks after Ms. Anderson's May 1999 document request. Respondent admits that its review of its CORA document production policy occurred in early 1998 - after Ms. Anderson had filed her original complaint against Respondent and had engaged in some CORA document reviews at Metro. (May 3, 2001 Affidavit of Betty Ann Trampe, p. 2, par. 4.) Respondent further cavalierly admits that its decision to disallow the reproduction of documents by reviewees was "in direct response to" Ms. Anderson's May 1999 records review - and thus was directly motivated by Ms. Anderson's protected activity. (May 3, 2001 Affidavit of Betty Ann Trampe, p. 2, par. 10.) These adverse actions so closely follow Ms. Anderson protected research and evidence gathering activities that a retaliatory motive may be inferred, and I so find and conclude. Jones v. ED&G Defense Materials, Inc., supra.
Ms. Anderson has conducted an estimated 30-50 reviews of various municipal, state or federal public records using the Freedom of Information Act, Colorado Open Records Act or parallel acts in other states. She has never before been asked to pay .25 per page for copies, or been prohibited from bringing recording devices or computers with her to assist in such review. Metro now charges seven times more for copies of public records than the Colorado Department of Health and Environment, which charges only 18 cents per page. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 28, and attached EX 14)
Metro has offered no rational explanation or justification for this increase in photocopy fees, or for the restriction in availability of records to the only two days of the week Ms. Anderson teaches - Tuesdays and Thursdays. Metro was well aware of Ms. Anderson's teaching schedule at the time it made these changes. (See May 25, 2001 Supplemental Affidavit of Adrienne Anderson, page 1, par. 1.) In contrast, the Colorado Health Department provides public access to its records Monday through Friday. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 29, and attached Exhibits 12, 14, 15)
Because of the restrictive schedule set by Metro to review the documents requested by Ms. Anderson, she was forced to arrange for such review immediately after administering an exam in Boulder on Tuesday December 19th. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 31.) In fearful anticipation of what she would discover during this document review, Ms. Anderson developed a severe headache with neck and jaw spasms on the morning of the 19th. She sought treatment for the headache and spasms over the lunch hour, and then proceeded to Metro to conduct the document review. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 32)
Ms. Anderson, upon arriving at Metro, was escorted to a room and was placed under constant personal surveillance while she reviewed the requested documents. Ms. Anderson has never been subjected to such intimidating treatment during any prior document review at any public agency. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 33.) Respondent also admits that its surveillance of Ms. Anderson's review of the requested documents was unique to Ms. Anderson. (Affidavit of Trampe.) Despite this intimidating surveillance, Ms. Anderson was able to easily locate a number of critical items which had not been disclosed by Metro in response to the subpoena served on Steve Frank. (February 5, 2001 Affidavit of Adrienne Anderson, pp. 4-5, pars. 34-36, and attached EXs. 16-19)
Clearly, Ms. Anderson has established a prima facie case that these unique and unreasonable restrictions on CORA document requests constituted retaliatory actions intended to impede her future requests for such documents, and I so find and conclude.
3. THE EVIDENCE DISCOVERED BY MS. ANDERSON DEMONSTRATES THE UNRELIABILITY OF STEVE FRANK'S TESTIMONY .
During the November 2000 hearing, in addition to failing to disclose a number of defamatory "e mails" and memoranda which had been subpoenaed, Steve Frank testified under oath that Metro had never hired an outside public relations agent. (Tr. 926, lines 4-6.) Documents subsequently obtained by Ms. Anderson constitute clear evidence to the contrary.
These documents reveal that Mr. Frank had personally arranged for Metro's retention of outside public relations agents from 1997 through 2000. Mr. Frank personally received the public agents' memos and reports on their activities. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 37, and attached EX 21-33.) Mr. Frank also personally received, and authorized payment of, invoices for such public relations agents' services. (February 5, 2001 Affidavit of Adrienne Anderson, p. 4, par. 37, and attached EXs. 34-48.) At the very least, these documents render the testimony of Mr. Frank completely untrustworthy and unreliable, and I so find and conclude.
4. THE UNDISCLOSED E MAILS AND WEF AWARD DOCUMENTS CONSTITUTE ADDITIONAL EVIDENCE OF DEFAMATION AND DAMAGE TO MS. ANDERSON'S REPUTATION WHICH CAUSED MS. ANDERSON ADDITIONAL EMOTIONAL DISTRESS .
During the course of the hearing held before this Administrative Law Judge in November 2000, Ms. Anderson learned that, in addition to the retaliatory acts about which she originally complained, Metro had "engaged in a behind-the-scenes campaign of defamation to destroy " her "personal credibility and professional reputation. " (See February 5, 2001 Affidavit of Adrienne Anderson, par. 15.) As noted above, following this hearing, Ms. Anderson submitted requests for documents under the Colorado Open Records Act.
During a CORA document review on December 19, 2000, Ms. Anderson was able to locate easily a number of defamatory items which had not been disclosed by Metro in response to the subpoena served on Steve Frank. (February 5, 2001 Affidavit of Adrienne Anderson, pp. 4-5, pars. 34-36, and attached EXs. 16-19) One of these items was a June 27, 2000 "e mail" from Steve Frank to Robert Adamski in which Mr. Frank describes Ms. Anderson's term on the Metro Wastewater Board of Directors as "two years wreaking havoc." When asked by Mr. Adamski whether his defamatory remarks concerning Ms. Anderson could be passed on to others, Mr. Frank responded, "Be my guest." (EX 16 to February 5, 2001 Affidavit of Adrienne Anderson, page 1)
In a July 6, 2000 "e mail" to Robert Adamski, Mr. Frank further comments:
"Let's face it. There are, I believe, some people who just don't know how to tell the whole truth. And there are others who want to believe people like us and the EPA are lying to them. ..... Who (sic) are you going to trust? If they choose to trust Adrienne Anderson after she has been proven wrong in every instance when her side's information was subjected to a truth test in the courts, I can't help that." (EX 17 to February 5, 2001 Affidavit of Adrienne Anderson) (Emphasis added)
In an April 6, 1999 letter to the Managing Editor of a Windsor newspaper, The Fence Post , Mr. Frank referenced and enclosed the critical column written by the Denver Post's Al Knight. (EX 18 to February 5, 2001 Affidavit of Adrienne Anderson) This column was also sent to the Commerce City Beacon by Metro in response to questions from that newspaper about worker health and safety concerns over the Lowry discharge. (February 5, 2001 Affidavit of Adrienne Anderson, par. 62)
On December 21, 1999, Ms. Anderson conducted an additional document review at Metro Wastewater. During this review, she discovered that, contrary to Mr. Frank's testimony during the November 1999 hearing, a major section of the materials submitted for a public relations award involved Metro's smear campaign against Ms. Anderson:
"I was astonished and outraged to find that one entire section of the binder was devoted to the Lowry controversy, with references to characterizing me as a dissident board member who has lied about the presence of radioactive material at Lowry. Metro's Steve Frank had submitted this defamation and disinformation campaign against me for a national PR award from this sludge industry promotion group in 1998 while I was still seated on the Metro Board as the workers' representative." (February 5, 2001 Affidavit of Adrienne Anderson, par. 53 and attached EXs. 65, 66) (Emphasis added)
In his affidavit prepared in response to Ms. Anderson's additional complaints, Mr. Frank cavalierly admits that he placed Ms. Anderson's credibility at issue. (May 14, 2001 Affidavit of Steve Frank, page 4, par. 16.) These common tactics of defamation and character assassination are further illustrated by Mr. Frank's self-described "attack" on Dr. Ron Forthofer, a scientist who also dared to criticize the Lowry wastewater plan. (See May 25, 2001 Supplemental Affidavit of Adrienne Anderson, page 16, par. 57 and attached exhibits 117-119)
The discovery of these additional defamatory materials on December 21, 1999 caused Ms. Anderson great emotional distress:
"While I attempted to control my personal reactions during the records review at Metro, I could not control my stressreactions when Metro asked that we break for lunch. As I went out to my car in the Metro parking lot, I was overcome with sobs of outrage and disgust, which I expressed in a cell phone call while still in Metro's parking lot to a friend, who was watching my children ... I went to my friend's home for a sandwich, briefly played with my children, and then drove back to Metro Wastewater to continue the review. I was still so upset over what I had learned during the morning session - that Metro would even lie to a federal judge to cover up what they had done to destroy me professionally - I had to pull over as I neared the plant, and threw up my lunch. After regaining my composure, I continued the review from 1-4 pm, during which time I saw still further upsetting documents. I went home with a severe headache, continued nausea, knots in my stomach, and in a state of disbelief at what I had seen." (February 5, 2001 Affidavit of Adrienne Anderson, p. 8, par. 57) (Emphasis added)
Ms. Anderson summarized the emotional distress she has suffered as a result of Metro's retaliatory actions against her:
"I must acknowledge that I have suffered tremendously from Metro's attacks on me - physically, emotionally, financially and spiritually - with unwarranted distress and disruption to my family, as well. I have suffered severe insomnia, hives, abdominal distress, skin disorders ... and other stress-related physical reactions that have been exacerbated during periods of MRD's heightened attacks, and worsened further in the last two months since learning the scale of Metro's outrageous action, requiring more aggressive treatment." (February 5, 2001 Affidavit of Adrienne Anderson, p. 10 , par. 64) (Emphasis added)
These undisclosed "e mails" and WEF award documents constitute additional evidence of defamation and damage to Ms. Anderson's reputation justifying an additional award of damages to Ms. Anderson for emotional distress, and I so find and conclude. Ms. Anderson seeks an additional $150,000 in compensatory damages for the additional harm she discovered to her professional reputation from November 2000 though January 2001 - as addressed through her second and third retaliation complaints - and for the resulting extensive emotional distress she has suffered, and continues to suffer to this day as a result of this persistent pattern of retaliatory treatment by the Respondent, especially during the pendency of these proceedings when the parties usually attempt to preserve the status quo until the matter is resolved.
The overwhelming evidence presented in this case establishes that Respondent's five-year history of illegal and retaliatory actions against Adrienne Anderson have adversely impacted her professional reputation and employment, perhaps irreparably. Despite her stellar career as an educator at the University of Colorado at Boulder since 1992 (Anderson Affidavit, EX 1), Ms. Anderson is now unemployed. During her employment with the University of Colorado, Ms. Anderson consistently ranked in the top 5% among faculty for her excellence in teaching and quality of courses offered over the last seven years. (Anderson Affidavit EXs.104-106 and 127) She received a University environmental leadership award in 1999, where the University's President acknowledged her "commitment to excellence in higher education." (Anderson Affidavit EX 127.) Nevertheless, Ms. Anderson's teaching contract, which expired in May 2001, has not been renewed by the University's administration, despite a request for renewal. (Anderson's April 20, 2001 deposition, Tr 4, line 18 - Tr. 6, line 24)
The preponderance of the evidence establishes that Metro's multi-year campaign of defamation and other discriminatory and retaliatory actions have caused extensive damage to Ms. Anderson's reputation and professional life, and future potential employment. Metro openly waged its illegal and discriminatory adverse actions in public during board meetings (often attended by public officials, members of the media, etc .) (See Anderson Affidavit EX 90), and secretly waged a defamation campaign based on false information behind-the-scenes to state legislators (CX 104), the media (Anderson Affidavit EX 69, Steve Frank's April 6, 1999 letter to The Fence Post publication), state regulators and others in Colorado and around the nation.
Metro hired outside PR agents for its Lowry damage control campaign, despite a published history of surreptitious actions (Anderson Affidavit EX 50-51) by these same firms and agents on behalf of various Lowry polluters to undermine Anderson's employment and thwart her public disclosures of their illegal activity. Metro also set up third party agents, including columnist Al Knight, to puppet their opinions for recirculation and republication to Metro's employees, media interested in the Lowry matter (Anderson Affidavit, ¶ 62) and others. That Metro's motive was to destroy Anderson's career for her protected activities is apparent in Steve Frank's chummy "e-mail" to Al Knight, who showed his close personal familiarity with Knight by informally addressing him as "Dear Al," and closing with "Hope you're well." In the "e-mail", Frank offers up damaging information suggesting Anderson's job was at risk, in clear hopes it would be published to discredit Anderson (CX 103) for Metro's purposes of retaliation and to blunt the impact of Anderson's public disclosures about their Lowry agreement and subsequent discharge permit.
In Van Der Meer v. Western Kentucky University , ARB Case No. 97-078, ALJ Case No. 95-ERA-38 (ARB Dec. Apr. 20, 1998), the complainant suffered little out-of-pocket loss, lost no salary, and other losses were non-quantifiable. The complainant was awarded, however, $40,000 in compensatory damages because the respondent took extraordinary and very public action against the complainant which surely had a negative impact on complainant's reputation among the students, faculty and staff at the school, and more generally in the local community; complainant was subjected to additional stress by the respondent's actions, and complainant testified that he felt humiliated. The ARB approved the award to Van der Meer of $40,000 because he suffered public humiliation and the respondent made a statement to a local newspaper questioning Van der Meer's mental competence.
In this case, Anderson has clearly suffered damages to her professional reputation spanning at least a five year period and such retaliation continues to this date. During that time, she was subjected to virtually monthly public humiliation in board and committee meetings for the two years that Anderson served on Respondent's Board from 1996 through 1998 in front of other professionals, news reporters and others in the community where Anderson lives and in which she works. Additional damages have been suffered from Metro's widely distributed false information about Anderson and her professional career history to parties she has never met. Metro has made remarks questioning Anderson's mental competence and honesty and has maligned her entire professional credibility and history, and I so find and conclude.
A compensable injury may be "intangible" and "need not be financial or physical." Stallworth v. Shuler , 777 F.2d 1431, 1435 (11th Cir. 1985). In Doyle v. Hydro Nuclear Services , ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 1989-ERA-22 (ARB May 17, 2000), the ARB approved an award to that complainant of additional compensatory damages for the harm he suffered during the several years of a remand proceeding following an earlier order awarding damages. Comparing the circumstances of Complainant's situation with a similar situation in Leveille v. New York Air National Guard , ARB No. 98-079, ALJ Nos. 1994-TSC-3 and 4 (ARB Oct. 25, 1999), the ARB
awarded an additional $40,000, that when combined with the earlier ordered damages totaled $80,000 in compensatory damages. Ms. Anderson similarly seeks an additional award of compensatory damages, for damage to her reputation and emotional distress she has suffered as a result of Metro's retaliatory actions.
A total award of $150,000 for emotional distress has been upheld as not excessive. Moody v. Pepsi-Cola , 915 F.2d 201 (6th Cir. 1990). An award of $350,000 for mental anguish in a discrimination case has been similarly upheld. Lilley v. BTM Corp. , 958 F.2d 746, 754 (6th Cir. 1992). The nature, scale and clear malicious intent evident in the undisclosed, defamatory "e-mails" and WEF PR Award documents provided in support of Anderson's second and third complaints for retaliation constitute additional evidence of damage to Ms. Anderson's reputation. This damage to Ms. Anderson's reputation, and the additional emotional distress she suffered as a result, warrant an additional award of compensatory damages in the supplemental amount requested of $150,000, according to Complainant.
5. AFFIRMATIVE RELIEF IS ESSENTIAL TO REMEDY THE WIDESPREAD DEFAMATION AND DAMAGE CAUSED BY METRO TO MS. ANDERSON'S REPUTATION.
To remedy defamatory statements concerning whistleblowers, employers have been ordered to issue public retractions of statements adverse to complainants, which had been released to the news media. See e.g. Simmons v. Florida Power Corp. , 81-ERA-28/29, R. D&O of ALJ at 20 (December 13, 1989). Ms. Anderson similarly seeks a public apology, and a promise not to retaliate against her or others in the future for engaging in protected activity, to be published in the Denver Post , to be posted at all company bulletin boards at the Metro Wastewater facility, and to be circulated via the internet to all contacts identified in Steve Frank's derogatory "e mails."
Specifically, Ms. Anderson seeks a Cease and Desist Order prohibiting Metro's Board, employees, agents or contractors from distributing any Al Knight column (past or future) containing her name or referring to her in any way, or engaging in any future actions to malign Adrienne Anderson in any way to anyone, and I find and conclude that such relief is reasonable and necessary herein to remedy the wrong done to Complainant.
In Van Der Meer v. Western Kentucky University , 95-ERA-38 (ARB April 8, 1997), the ALJ found in favor of the complainant and recommended various forms of affirmative relief, including expungement of any reference to the adverse action against the complainant from all University files, and posting of the ALJ's recommended decision and order on all appropriate bulletin boards for a period of not less than sixty (60) days. In the instant case, Ms. Anderson has suffered a much more widespread and egregious campaign of defamation. She requests a similar order for affirmative relief to remedy the damage to her reputation she has suffered as the result of Respondent's concerted campaign of defamation, and I find and conclude that such relief is also reasonable and necessary herein.
6. THE ARROGANT AND CAVALIER TREATMENT OF MS. ANDERSON'S CORA REQUESTS, AS WELL AS THE EGREGIOUS DISSEMINATION OF DEROGATORY INFORMATION CONCERNING MS. ANDERSON, BY METRO ENTITLES HER NOT ONLY TO COMPENSATORY, BUT ALSO TO PUNITIVE DAMAGES .
Two of the environmental statutes under which Ms. Anderson's additional complaints arise - the Toxic Substances Act, 15 U.S.C. §2622(b), and the Safe Drinking Water Act, 42 U.S.C. §300j-9(i)(2)(B)(ii) - explicitly permit "where appropriate, exemplary damages." Punitive damages may be awarded to punish "unlawful conduct" and to deter its "repetition." BMW v. Gore , 517 U.S. 559, 568 (1996). The Secretary of Labor has held that exemplary damages are appropriate under certain environmental whistleblower statutes in order to punish an employee for wanton or reckless conduct and to deter such conduct in the future. Johnson v. Old Dominion Security , 86-CAA-3/4/5, (Sec'y May 29, 1991). The Secretary explained:
"The threshold inquiry centers on the wrongdoer's state of mind: did the wrongdoer demonstrate reckless or callous indifference to the legally protected rights of others, and did the wrongdoer engage in conscious action in deliberate disregard of those rights? The 'state of mind' thus is comprised both of intent and the resolve actually to take action to effect harm. If this state of mind is present, the inquiry proceeds to whether an award is necessary for deterrence." Id . at 29, citing the Restatement (Second) of Torts, §908 (1979). Accord, Pogue v. United States Dept. of the Navy , 87-ERA-21, (D&O on Remand Sec'y April 14, 1994).
An award of punitive damages is appropriate where "the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade , 461 U.S. 30, 56 (1983). Once the requisite state of mind has been found, the "trier of fact has the discretion to determine whether punitive damages are necessary, 'to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future.'" Rowlett v. Anheuser-Busch, Inc. , 832 F.2d 194, 205 (1st Cir. 1987). The appropriate standard to use in determining the amount of exemplary damages is the amount necessary to punish and deter the reprehensible conduct. CEH, Inc. v. F/V Seafarer , 70 F.3d 694, 705-6 (1st Cir. 1995); Ruud v. Westinghouse Hanford Co ., 88-ERA-33 (ALJ Mar. 15, 1996).
Here, the nature and scale of Respondent's outrageous actions against Anderson and before this Court - as evidenced by documents obtained by Anderson under unduly stressful conditions, previously withheld illegally from her and this Court during the November 2000 hearing - shocks the conscience:
* Charging her more than 5 times the cost to obtain public records after May 1999 than she had paid previously, restricting her access for records' review at Metro to the very days Metro's management and key board members know she normally teaches in Boulder. (Anderson Affidavit par. 26-30; Supplemental Affidavit of Adrienne Anderson, par. 1; and compare CX 74 to Anderson Affidavit EX 11)
* Failing to provide several e-mails in response to the subpoena which bolstered Anderson's claims of retaliation and defamation. (Anderson Affidavit par. 34-36, and attached EXS 16-19)
* Steve Frank's denial that Metro had retained outside PR agents; and when found to have made false statements under oath, strained the bounds of credulity by claiming that the PR agent's work had nothing to do with Lowry, and I so find and conclude. (Anderson Affidavit, par. 37-40 and attached EXs. 21-48; Frank Affidavit at par. 10; Anderson Supplemental Affidavit, pars. 36 and 42, and exhibits cited therein)
* WEF's PR award, in which Metro submitted its hostile campaign against Ms. Anderson in support of a national award by this lobbying group while Ms. Anderson was still a sitting board member. After Ms. Anderson was removed from the Board, Frank enjoyed a trip to Orlando, Florida, where he was presented with a "Public Education" award for his outrageous actions. (Anderson EX 67)
* Metro management showing that it not only condoned Steve Frank's defamatory campaign against Anderson, but applauded his receiving an award for it by commenting "Way to go, Steve!" and publicizing it to all employees through the agency's internal newsletter. The endorsement of Frank's activities by management is further evidenced by Frank's statement: "I consider this to be the District's award, and I thank everyone here for their efforts." (Anderson Affidavit, par. 55 and EX 67)
* Attempting to further isolate Anderson by defaming those who have supported her in seeking remedy to reverse the Lowry discharge permit. In one outrageous example, Steve Frank associates a Boulder scientist and Congressional candidate urging caution over Metro's Lowry discharge plan as a "Nazi propagandist" in a communication to his boss, Steve Pearlman. Mr. Pearlman's tolerance for such outrageous behavior by his underling against citizen critics of Metro's permit for Lowry is apparent, as Steve Frank continues to be employed by this agency to date. (Anderson Supplemental Affidavit, EXS 117-119)
* Claiming that Anderson was "living a life as a double agent" (Metro's Response to Complainant's Post-Hearing Brief, p. 23, lines 5-6), without evidence and in the face of incontrovertible evidence that Anderson's actions on behalf of the workers have been consistently above board and known to Metro from the beginning and throughout Anderson's board tenure and to the present, and I so find and conclude. (Anderson Supplemental Affidavit EX 90 and 113; Anderson Affidavit EX 72)
The record is replete with evidence of outrageous, hostile, disparate, discriminatory and egregious behavior by Metro against Ms. Anderson, with continuing and even escalating retaliation and other violations of law while on express notice of the illegality of their actions, especially after the filing of the May 2, 1997 complaint herein and the ARB's decision. Such clear evidence of defamatory and discriminatory conduct, and Respondent's evident cavalier attitude towards its conduct, justifies an award of exemplary damages, and I so find and conclude.
Contrary to Respondent's arguments, Complainant's protected activities were undertaken pursuant to the requests of the employees of Metro, thereby affording Complainant the protection of the federal whistleblower statutes that she cited in her second and third complaints. In this regard, see Goldstein v. Ebasco Constructors, Inc., 86-ERA-36 (Sec'y, April 7, 1992). Accord, Passaic Valley Sewerage Commissioners v. Department of Labor , 992 F.2d 474, 479 (3d Cir. 1993).
In addition to this Congressional intent, the Department of Labor has administered and interpreted all seven environmental whistleblower laws through a single uniform body of law and regulation, 29 C.F.R. Part 24. The overwhelming conclusion is that the language of the various whistleblower statutes concerning "employees" must be interpreted consistently with this uniform intent and implementation.
Because the other whistleblower statutes provide that claims may be made by "authorized representatives," the language of SDWA, 42 U.S.C. §300j-9(i)(l); CAA, 42 U.S.C. §7622(a); TSCA, 15 U.S.C. §2622(a); and the ERA, 42 U.S.C. §5851(a)(1) which address "any person acting pursuant to a request of the employee" should be interpreted to allow claims made by employee representatives. Such an interpretation is entirely consistent with Congressional intent, legislative history and the implementing regulations, and I so find and conclude.
As a result of the hearing on the original complaint, I have already found and concluded that Ms. Anderson presented a prima facie case that she was an authorized representative of workers employed at Metro Wastewater. Respondent now argues that Ms. Anderson does not have standing to file her second and third complaints, citing the PACE Union's decertification in December 2000. Of course, this decertification occurred well after the majority of Ms. Anderson's protected activities occurred. Clearly, the December 2000 decertification is irrelevant to the issue of standing, and I so find and conclude.
In addition to requests by the employees' union, several lab workers personally regard Ms. Anderson as their representative, including Mr. Goddard (EX 72) and Melissa Reyes (EX 63, and pictured in EX 67). Former Metro employee Tony Broncucia testified that he approached Ms. Anderson because he was "concerned for the workers and the health risks going on." (TR 821, lines 10-11.) Former Metro employee Delwin Andrews contacted Ms. Anderson in May or June 1997 and asked for her assistance in getting his job back because he "knew that she represented the workers on the Board at Metro." (TR 234, lines 5-17.) He heard from other Metro employees "that she was representing the employees ... on the Metro Board." (TR 235, lines 3-4.) Decertification of the PACE union cannot possibly served to nullify such individual employees' requests for assistance. Certainly no requirement exists in the federal whistleblower laws that workers must remain unionized in order to ask someone to represent them on issues of environmental concern and public safety, and I so find and conclude.
The ARB's ruling in the instant case concerning the issue of an "authorized representative" clearly indicates that this term "encompasses any person requested by any employee or group of employees to speak or act for the employee or group of employees in matters within the coverage of the environmental whistleblower statutes." (March 30, 2000 Decision and Remand Order, ARB Case No. 98-087, pp. 7-8.) In its original brief
in support of its motion for summary judgment, Respondent conceded that, if Ms. Anderson is found to be an "authorized representative" of employees under the other whistleblower statutes under which she has filed, she is also a "person acting pursuant to a request of the employee" under the ERA. (Respondent's Brief, p. 3.) Because Ms. Anderson has readily established a prima facie case that she was an "authorized representative" of Respondent's employees, she clearly has standing to pursue her second and third complaints under the SDWA, 42 U.S.C. §300j-9(i)(l); CAA, 42 U.S.C. §7622(a); TSCA, 15 U.S.C. §2622(a); and the ERA, 42 U.S.C. §5851(a)(1).
Moreover, Complainant's second and third complaints are timely.
Contrary to Respondent's arguments, Ms. Anderson's second complaint was primarily prompted by the testimony of Ted Hackworth on November 16, 2000. On November 16, 2000, Ted Hackworth testified that other Board members complained to him about Ms. Anderson and the concerns she raised. He testified that other Board members said "we should never have let her on this board." (TR 1453, lines 10-15.) He also cavalierly admitted that he hoped that Ms. Anderson would not be reappointed to the Board, and communicated this hope to a member of the Mayor's staff. (TR 1454, lines 13-23)
Ms. Anderson timely filed her second complaint within 30 days of Mr. Hackworth's testimony - on or about December 15, 2000. Therefore, this complaint is timely. Likewise, the third complaint is also timely with reference to the disparate treatment that prompted that complaint.
Moreover, that Complainant may be a public figure is irrelevant and constitutes no defense to her whistleblower complaint. Respondent cannot use a claim of public status as a shield of immunity against responsibility for its public defamation and humiliation of Ms. Anderson. Even if Ms. Anderson should be declared in another forum a public figure, such public status would not excuse Respondent's campaign of retaliation for which it is liable under the federal whistleblower statutes.
C. RELIEF ORDERED
Accordingly, in view of the foregoing Findings of Fact and Conclusions of Law and keeping in mind the continuing egregious, disparate and discriminatory treatment of the Complainant by the Respondent, especially the events after completion of the formal hearings on November 16, 2000, and while the initial complaint was under advisement by this Administrative Law Judge, I find and conclude that the Complainant is entitled to the following relief and that such relief is reasonable and necessary to remedy the wrongs done to Complainant by Respondent through its agents, representatives and employees:
1. The Respondent shall immediately expunge and delete from Complainant's personnel file any and all negative references, including deletion of that highly threatening letter from Respondent to the Complainant.
2. The Respondent shall pay to Complainant the amount of $150,000.00 as compensatory damages for the injury to her professional reputation and loss of future income caused by the Respondent's continuing egregious, disparate and discriminatory treatment.
3. The Respondent shall also pay to the Complainant the amount of $150,000.00 as exemplary or punitive damages because of the Respondent's willful, wanton and reckless conduct, and to serve as a deterrent to Respondent and others in the future.
4. The Respondent shall also pay to the Complainant the amount of $125,000.00 for the mental anguish, emotional distress and severe depression caused by Respondent's continued egregious, discriminatory and disparate retaliation against Complainant for the past five years at least.
5. The amounts awarded herein shall be paid to the Complainant within twenty (20) days of issuance of this decision and interest on any unpaid amounts thereafter shall be subject to interest at the appropriate rate specified in 26 U.S.C. § 6621 (1988). In this regard, see Van Beck v. Daniel Construction Co., 86-ERA-26 (Sec'y Aug. 3, 1993).
6. The Respondent shall immediately cease and desist from retaliating against the Complainant and its other employees because of their protected activity.
7. The Respondent shall also provide a copy of this ORDER without comment, via first class mail, to each of the following within 14 days of the date of the ruling:
* All Metro board members serving at any time from June 1, 1996 to the present;
* Mayors of all Metro member municipalities;
* All county commissioners in Adams, Arapahoe, Elbert and Jefferson Counties;
* All members of the Denver City Council;
* Metro's entire list of print and electronic media contacts in Colorado, including eastern Colorado rural publications (I-70 Scout and Fence Post ), the Colorado Daily, Boulder Weekly, Westword, Denver Post/Rocky Mountain News, Colorado Labor Advocate , KOA Radio, TV Channels 2,4,6,9, 12 and 31;
* The Colorado Governor, all Colorado state legislators, and the Colorado U.S. Congressional and Senate Delegation;
* Al Knight and each of the editorial board members of the Denver Post ;
* Metro's mailing list receiving the "Dear Neighbor" letter;
* The Water Environment Federation;
* EPA Administrator Christie Whitman, Region VIII Acting Administrator Jack McGraw and National Ombudsman, Robert J. Martin;
* Colorado Department of Public Health and Environment Director Jane Norton;
* Editor, Christian Science Monitor ;
* Lou Dobbs, CNN's "Money Line";
* The Water Environment Federation's Executive Director, Public Relations Director Nancy Blatt, and all members of the Board of Directors;
* President Elizabeth Hoffman and all the Regents of the University of Colorado at Boulder;
* Colorado AFL-CIO;
* PACE 5-477; and
* Operating Engineers Union Local 1.
8. The Respondent shall also provide, by notarized statement, a complete listing to Adrienne Anderson, through her attorney, by certified mail, of all individuals receiving the above, and certifying the date upon which they were sent, and identifying the party complying with this requirement.
9. The Respondent shall also provide a copy of the Order, via electronic mail, to each of the following within 14 days of the date of this ORDER .
* Metro's District Post Office for all employees, with a "cc" to Adrienne Anderson at the e-mail andersa@mho.com; and
* All recipients of any e-mail of Steve Frank's marked as an exhibit in this case, with a "cc" to Anderson.
10. The Respondent shall also prominently post the ORDER in all common areas in buildings frequented by Metro employees, and post it on all bulletin boards for 90 days, within 14 days of the date of the Order , along with a notice of employees' protected rights to speak about worker safety concerns without fear of reprisal or retaliation.
11. The Respondent shall also, within 14 days of this ORDER , take out a full page paid ad in the news section of the Denver Post , for publication in its Sunday edition, issuing a letter of apology to Adrienne Anderson for its illegal and retaliatory acts on behalf of workers'
safety and health concerns over the Lowry Landfill Superfund Site discharge permit, which includes plutonium and other radioactive material, co-signed by Metro Manager Robert Hite, Chairman of the Board Richard Walker, and Ted Hackworth, Chairman of the Operations Committee, with the content provided to Anderson's counsel for approval thereof prior to publication, and also stating that Metro will not continue discriminatory and illegal actions against workers or their representatives for having engaged in protected activity, and referring readers to the DOL website where readers may read the entire decision.
12. The Respondent, within fourteen (14) days of this ORDER, shall prominently post the Order and letter of apology to Anderson on Metro's website at www.metrowastewater.com under both the "New" and "Hot Topics" sections to appear consecutively for the following 120 days.
13. Complainant's attorney, within thirty (30) days of receipt of this decision, shall file a fully itemized fee petition relating to the legal services rendered and litigation costs incurred in her representation of Complainant herein. A copy of the petition must be sent to Respondent's counsel who shall then have fourteen (14) days to comment thereon. Complainant's counsel shall then have ten (10) days to file a response.
DAVID W. DI NARDI
Boston, MA
[ENDNOTES]
1
2
3
4
5
6 See e.g. Pennsyl v. Catalytic , 83-ERA-2 (Sec'y Jan. 13, 1984), slip. op. at 3 (looking to MSRA when deciding that refusal to work unsafely could be protected activity under ERA.)
7
8
(TR 665, l. 24 - 666 l. 2; RX 30).
9 See, Trimmer v. U.S. Dept. of Labor , 174 F.3d 1098, 1102 (10th Cir. 1999).
10
11
12
13 Robert's Rules of Order .
14
15
16
17
18
19
20
21 See audiotape recording of June 17, 1997 Board meeting included with Complainant's supplemental submissions on December 21, 2000.)
