U.S. DEPARTMENT OF THE NAVY
MARE ISLAND NAVAL SHIPYARD
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
The complaint in this case alleges a violation of the
employee protection provisions of Federal environmental statutes,
including the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA), 42 U.S.C. § 9610 (1982).1
1 Although this complaint was given
an "ERA" case number by the
Office of Administrative Law Judges, it does not involve
allegations or claims under the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1982).
(21) "person" means an individual, firm,
corporation, association, partnership,
consortium, joint venture, commercial
entity, United States Government, State,
municipality, commission, political
subdivision of a State, or any interstate
body;
(Emphasis supplied).
3 Rule 12(b) provides that
"[e]very defense in law or fact . . .
shall be asserted in the responsive pleading" or by motion made
before pleading.
4 As the ALJ noted, the Navy, in
its June 15, 1988, Pre-Trial
Statement, stated its view that the Federal government as an
employer was not subject to the environmental whistleblower
provision, but the Navy neither expanded on this statement nor
briefed it before the ALJ. D. and O. at 50.
5 As discussed in detail at pp. 16 -
47 infra, the conduct of
complainant and the actions of the Navy giving rise to this case
occurred between September, 1986, and April, 1987, thus extending
well beyond October 17, 1986.
6 That the Federal facilities
provision of CERCLA does not
specifically mention the whistleblower provision does not alter
by conclusion. Cf. State of Maine v. Department of Navy, 702 F.
Supp. 322, 327 (D. Me. 1988).
7 I also reject the Navy's
argument that I lack authority to
issue an order to another Federal agency because only the
President has such power. Where I find that a violation has
occurred, CERCLA directs me to require that the violator take
action to abate the violation, and to provide appropriate relief
authorized by the statute, 42 U.S.C. § 9610(b). I have no
discretion to ignore this statutory directive. Cf. U.S. v.
Nixon, 418 U.S. 683 (1979).
Furthermore, that Congress may not have provided
specifically for funds in the Department of Navy's budget for
relief for environmental whistleblowers retaliated against by the
Navy is not a basis for concluding that Federal employees are not
covered by CERCLA. "It has long been established that the mere
failure of congress to appropriate funds, without further words:
modifying or repealing, expressly or by clear implication, the
substantive law, does not in and of itself defeat a Government
obligation created by statute." New York Airways, Inc. v. United
States, 369 F.2d 743, 748 (Ct. Cl. 1966).
(b) Any employee who has authority to take, direct
others to take, recommend, or approve any personnel
action, shall not, with respect to such authority--
* * * *
(8) take or fail to take a personnel action
with respect to any employee or applicant
for employment as a reprisal for--
(A) a disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, or
(ii) mismanagement, a gross waste of
funds, an abuse of authority, or a
substantial and specific danger to public
health or safety, if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive Order
to be kept secret in the interest of
national defense or the conduct of foreign
affairs; or
(B) a disclosure to the Special Counsel of
the Merit Systems Protection Board, or to
the Inspector General of an agency or
another employee designated by the head of
the agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences--
(i) a violation of any law, rule, or
regulation, or
(ii) mismanagement, a gross waste of
funds, an abuse of authority, Or a
substantial and specific danger to public
health or safety;
9 This Joint Explanatory
Statement, which explains the new
provisions of an earlier bill (S. 508), was adopted by Congress
as part of the legislative history of S. 20 which was enacted as
the WPA of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) See
135 Cong. Rec. § 2781 (daily ed. March 16, 1989) (statement of
Senator Levin):
[T]his, legislative history is controlling as to the
intent of Congress in the interpretation of S. 20.
Of particular importance is the joint explanatory
statement issued upon final passage of S. 508 in the
last Congress. This joint explanatory statement
expresses the mutual understanding [of] the Senate and
House floor managers of the bill as to the intent of
its provisions.
10 The alleged retaliation
against Complainant Pogue occurred
before the effective date of the 1989 WPA amendments. See infra
at pp. 16 - 47.
11 A critical element is defined
in an instruction from the
Commander of Mare Island as "[a]ny requirement of the job which
is sufficiently important that inadequate performance of it
outweighs acceptable or better performance in other aspects of
the job." C-13, p. 60. The instruction states "[i]t is the
policy of this Shipyard that when an employee is found to be
performing unacceptably in one or more critical elements . . .
action to remove the employee or change him/her to lower grade
will be taken . . . ." Id. at p. 58. See also 5 C.F.R.
§ 430.203 (1989).
13 The note continues
"[e]mployee's comments are attached," but
these comments are not in the record.
14 All the Departments at Mare
Island are referred to by their
code numbers. Nuclear Engineering is Code 2300. Code 380 is the
Production Engineering Division.
15 Some of these documents
actually tend to show that
complainant's supervisors had questions about her performance.
See, e.g., C-19, Progress Review of July, 1984, by Mr. Zebrowski,
noting three "areas of concern" but giving Complainant more time
to gain experience in those areas and "an opportunity to show
competence."
There is no explanation in the record for the hand written
statement on C-37 by Mr. Rosauro that he was Complainant's first
line supervisor from "2/85-8/85." As discussed above,
Mr. Zebrowski signed Complainant's official performance appraisal
covering the period October 9, 1984, to March 29, 1985.
Complainant requested a downgrade and transfer out of
Mr. Zebrowski's office on March 25, 1965, but it is not clear
when that was effected. After she transferred to the Production
Engineering Division, she was supervised by Mr. Stephens.
16 Mr. Kelly was the reviewer
of Mr. Stephens' March 31, 1986,
performance appraisal of Complainant. See R-63, pp. 600, 607.
17At the hearing, Complainant's
counsel objected to the
admission of this testimony as hearsay to the extent it was
offered to prove the truth of the facts asserted in the
statements testified to. T. 840. It was not hearsay, however
to the extent it was offered to show the nature and extent of
Mr. Noble's knowledge of Complainant's employment history. I
would also note that testimony is not inadmissible in these
administrative hearings for that reason alone. See 29 C.F.R.
§ 24.5(e); 29 C.F.R. § 18.44(b) (1989).
18 Mare Island has a formal
program under which employees may
submit what are called "Beneficial Suggestions." If a suggestion
is adopted, the employee is eligible for a cash award. See C-47.
19 Complainant apparently
planned to work from a desk in the
lobby of Mr. Loyberg's office, which is in a different location
from Mr. Noble's office. T. 1879; 1058-59. There is nothing in
the record to show that she ever discussed this with Mr. Noble or
obtained his permission.
20 In addition to the HP
computer, the loft, and the desk,
Complainant was involved in obtaining a filing cabinet and
bookcases for other employees, T. 342, and a lamp for the lobby
of Mr. Loyberg's office. T. 343.
21 The only work on the self
study assignment submitted by
complainant had to do with hazardous waste control, which had
nothing to do with noise control. T. 1093; R-69, p. 736.
22 Based on R-69, p. 742 and
Mr. Noble's testimony, at T. 1165,
it would appear Complainant was out of OHTD for about 35 minutes,
from 9:45 to 10:20. Based on Complainant's testimony, at T. 394,
Complainant was out of OHTD for about 15 minutes, from just
before 10 A.M. to 10:15.
23 On January 30, 1987, Mr.
Noble had to reissue this memorandum
as a Proposal to Suspend because he lacked authority to effect a
suspension, only to propose it. Complainant had the right to
have Mr. Tatum review the proposed suspension, and Mr. Tatum had
the authority to make the final decision. T. 1516; T. 396; C-
183. I would note that the original Decision to Suspend, C-179,
states "I am . . . recommending your suspension . . . . "
24 Mr. Loyberg testified that
Complainant once showed him a
report she had done on a piece of equipment that was not noise
hazardous. Mr. Loyberg told Complainant not to include that
assessment in her report because it had nothing to do with her
assignment. Complainant told Mr. Loyberg she wanted to include
it in the report "to show she had been doing things." T. 187 .
25 Complainant introduced
what she described as a computer
printout of noise control assessments she had done. C-255. She
conceded, however, that she never gave this printout to
Mr. Noble; this printout was not even generated until after
Complainant had been transferred out of OHTD. T. 2061-62.
Mr. Noble testified he never saw the other printouts introduced
by complainant. C-252, 253, 254, 256.
26See the extensive
cross references in CERCLA to the other
environmental statutes, e.g.: 42 U.S.C. § 9601 (10), (14), (22),
and (24).
27 Although it is not clear from
the record whether Respondent
was aware of these contacts, Complainant's internal hazardous
waste reports and the letter to the Shipyard Commander are
sufficient protected activity to establish coverage.
28Complainant's hazardous
waste reports and her letter to the
Mare Island Commander raised potential violations of CERCLA. For
example, Hazardous Waste oversight Program Surveillance Report
#18 of September 26, 1986, (C-85) found "numerous problems" with
the PCB waste storage building. C-85 at p. 440. PCBs are listed
as Hazardous Substances under CERCLA by the Environmental
Protection Agency. See, 40 C.F.R. § 302.4 (1989), Table 302.4,
at page 135.
29 I have considered
Complainant's hazardous waste reports in
their entirety, in evaluating the evidence to determine if
Complainant has carried her burden of proof.
30 Complainant testified that
she wanted to transfer to get into
"more nuclear type work." T. 606. But she was transferring out
of the Nuclear Engineering Division, where her job title was
nuclear engineer (which was her background and experience), to
the Production Engineering Division, where her job title was
Mechanical Engineer.
31 Complainant argues that the
time estimated by Mr. Noble for
producing the list of noise hazardous areas, 8-10 hours, would
have meant Complainant would have had 90 seconds to read and
assess each site described in the Naval Hospital report.
Complainant's Response Brief on Review at 106. But the original
assignment gave complainant from October 28, 1986, to November 7,
1986, to develop the initial list. R-69, p. 696. Using
Complainant's arithmetic approach, she would have had over 8
minutes to read each site report and assess whether it was a
noise hazard. But, more importantly, Mr. Noble did not base his
appraisal on Complainant's failure to meet the original due date
for the list. It was based on her failure to produce any
significant work, other than the list, from October 28, 1986, to
January 16, 1987.
32 The ALJ found that an
exhibit summarizing the disciplinary
actions taken against shipyard employees since 1982, R-64,
demonstrated disparate treatment of Complainant for two reasons.
First, there are no professional employees on the list, which
the ALJ found incredible. D. and O. at 44. Second, there is
no evidence that the same employee was disciplined twice within
three weeks. Id. (Apparently, the ALJ was referring to the
3-day suspension, issued on January 29, 1987, for conduct on
January 26, 1987, and the reprimand, formally issued on
February 20, 1987, for conduct which took place on December
1987.)
Neither the ALJ nor Complainant has explained why the
disciplinary records of nonprofessional employees should not
be compared to the treatment of a professional employee.
presumably they would not suggest that professional employees
should be held to some different, lower standard of behavior and
conduct. Moreover, if Complainant relies on disparate treatment,
it was Complainant's burden to show that there were other,
professional or nonprofessional, employees who were not engaged
in whistleblowing but who engaged in similar disruptive and
insubordinate conduct repeatedly in a short period of time, who
were not disciplined for it as was Complainant.
To the contrary, R-64 shows that many employees have received
significant discipline, such as a reprimand or suspension, for a
first offense, while Complainant received a number of warnings
(not included in her personnel file) before being reprimanded and
suspended. Some employees have been removed for one act or a few
acts which do not equal Complainant's combined inadequate
performance and irresponsible conduct.