U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: October 24, 1994
CASE NO. 85-TSC-00001 [1]
IN THE MATTER OF
ROBERT SAWYERS,
COMPLAINANT,
v.
BALDWIN UNION FREE SCHOOL DISTRICT,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the June 20, 1991, Recommended
Decision and Order (1991 R.D. and 0.) of the Administrative Law
Judge (ALJ) in this case arising under the employee protection
provision of the Toxic Substances Control Act (TSCA), 15 U.S.C.
§ 2622 (1982). The ALJ found that Complainant Sawyers did
not sustain his burden of showing that his protected conduct was
a substantial or motivating factor in the decision of Respondent
Baldwin Union Free School District (the District) to bring
disciplinary charges against him, and recommended dismissal of
the complaint.
Both parties filed briefs before me. A recitation of the
facts will focus the discussion.
I. The Facts
Sawyers worked for the District as a teacher of industrial
arts at Baldwin Harbor Junior High School (Harbor Junior High)
for more than 30 years until his retirement. 1986 T. 5-6; 1991 T.
16. [2] In the 1970's, Sawyers became concerned about certain
conditions in Harbor Junior High that he considered to be
hazardous to health and safety. Beginning in 1978, he sent
numerous notices and complaints about the conditions to his
union, his principal, the superintendent of schools, the school
[PAGE 2]
board, State and Federal government agencies, and elected public
officials. 1991 T. 17-20, 36-37.
The same year, Sawyers learned that he has melanoma, a
cancer. CX 18 p. 2. He filed a workers' compensation claim with
the District alleging that conditions in his work environment
caused his cancer. 1987 R.D. and 0. at 2; 1985 T. 319. As a
result of the claim, the state workers' compensation board paid
the District $1000 to compensate Sawyers. The District held the
funds for six months to a year before it released the money to
Sawyers. 1985 T. 319-320; 1987 R.D. and 0. at 2. Over the years,
Sawyers had appeared at various hearings in his workers'
compensation case, but the District first required him to take
leave for such an appearance in March 1983. 1991 T. 31-32, 51.
[3]
Sawyers and industrial arts teacher Robert Glatman filed a
grievance in 1979 under the provision of the teachers' collective
bargaining agreement concerning unsafe and hazardous condition.
1985 T. 308-309; 1987 R.D. and 0. at 2. The grievance cited as
health hazards the presence of asbestos and the absence of
adequate ventilation in Harbor Junior High. 1985 T. 308. The
superintendent denied the grievance. 1985 T. 309; 1987 R.D. and
0. at 2.
With Sawyers' permission, arbitration of the grievance was
delayed while the union and District formed a committee to
attempt to resolve the dispute over the purportedly unsafe
conditions. 1985 T. 309. The District hired a company to inspect
the school for hazards. 1985 T. 311. When the District declined
to provide copies of the inspection report to the employee
members of the committee, the grievance proceeded to arbitration.
1987 R.D. and 0. at 2. The arbitrator held that the union should
be allowed to have a company of its own choosing inspect the
allegedly unsafe conditions. 1985 T. 314. Assistant
Superintendent Almenoff specified such restrictive conditions for
the inspection that, in the union's opinion, the chosen company
was not able to conduct an adequate study. 1985 T. 315; CX 74;
1987 R.D. and 0. at 2. [4] In subsequent negotiations, the
District refused to permit the unsafe conditions clause to remain
in the contract, and the union members ratified it without such a
clause because they were unwilling to strike over the issue. 1985
T. 314-315.
In March and April 1982, there were two meetings of
industrial arts teachers to which Sawyers was not invited. Union
grievance chairman James Morrow called the first meeting because
other industrial arts teachers claimed that the union was
representing Sawyers, Glatman, and former department chairman
Ronald McIntyre to the detriment of teachers with less seniority
who might lose their jobs as a result of the complaints. 1985 T.
328; 1987 R.D. and 0. at 3. Morrow did not invite the three
[PAGE 3]
complainants because he wanted the other teachers to talk freely.
Id. Industrial arts teacher Tim Chambers reportedly said at the
meeting that the complaints would cause others to lose their jobs
and that Sawyers "has got to be stopped." 1985 T. 329. [5]
McIntyre revealed that Chambers used the same phrase about
stopping Sawyers in a telephone conversation during that school
year. 1991 T. 118-119.
A week or so later, the chairman of the high school
industrial arts department called a meeting of all of the
District's industrial arts teachers with the exception of the
same three complainants. 1985 T. 330; 1987 ~R.D. and 0. at 3-4.
[6] According to a teacher who was present, Assistant
Superintendent and District safety officer Howard Schivera said
at the second meeting that Sawyers' actions were going to cost
jobs because the District could not afford to take all the
corrective actions that Sawyers sought. 1985 T. 331 (Morrow).
McIntyre indicated that a few years earlier Schivera had made
similar statements about the cost to comply with Sawyers' safety
requests. CX 44, p. 1.
When McIntyre lost his position as acting department
chairman in 1981, Harbor Junior High Principal John Fitzsimmons
informed him that the District had saved all of the other
department chair jobs except his, and that McIntyre "made a fatal
mistake when [he] sided with Sawyers." 1991 T. 98; CX 8, Par. 15;
CX 44, p. 3. Fitzsimmons told McIntyre in June 1982 that he "had
Sawyers" but McIntyre let Sawyers "slip through my fingers." 1991
T. 101; CX 44, p. 4.
Under a state "right to know" law, Sawyers filed a number of
requests to determine the identity of a substance that he found
in Harbor Junior High and suspected was asbestos. 1985 T. 316.
When the District did not respond promptly to the requests,
Sawyers and the union contacted the State Attorney General's
office for assistance in February 1983. 1991 T. 46. Nancy
Stearns of that office met with District officials some time
between March and June that year in an effort to avoid litigation
under the right to know law. 1985 T. 316; 1991 T. 46. Stearns
reported that the meeting proceeded amicably until District
officials learned that Sawyers had made the underlying complaint
to the Attorney General's office, at which point the meeting
became hostile. 1985 T. 317; 1987 R.D. and 0. at 2.
In his 1982 teaching evaluation, Sawyers was described as an
"extremely knowledgeable" industrial arts teacher with "very good
technical skills in almost all areas" and fine classroom control.
CX 58. The evaluation noted without comment Sawyers' 20 days'
absence due to illness through May 14 of that year. Id.
Sawyers had been absent from teaching on many days since
June 1978 for treatment for cancer. 1991 T. 32. After the visit
by the members of the state Attorney General's staff in Spring
[PAGE 4]
1983, the District for the first time notified Sawyers that it
would require him to bring a doctor's note for any future
absences. Id. Fitzsimmons testified that normally a
doctor's note was required for absences of five consecutive days
or more, and only Sawyers was required to produce such a note for
shorter absences. 1985 T. 197-198, 287. [7] Assistant
Superintendent Almenoff explained that pursuant to a directive to
identify personnel with "excessive absences," Sawyers was one of
several District workers who were required to produce a
physician's statement for each absence. 1991 T. 216; see
RX 17 and 18. When Sawyers proffered a physician's note
concerning his cancer treatment, Almenoff rejected it as
inadequate. 1985 T. 323-324; 1987 R.D. and 0. at 4.
Fitzsimmons told McIntyre that he had the head custodian
lock a telephone in 1983 to keep Sawyers from using it. 1991 T.
122. Sawyers confirmed that the custodian told him the same
reason for locking it, 1991 T. 80, and that he had used that
telephone on a few occasions to call government officials
concerning his safety complaints. 1991 T. 84. Fitzsimmons
testified that he locked the custodians' phone "because we didn't
know who was using the phone." 1985 T. 242.
McIntyre learned that the school secretaries were directed
not to make photocopies for Sawyers' benefit, although they were
willing to make copies for McIntyre. 1991 T. 123. Sawyers
reported that the restriction against his using the copying
machines began about a year after he started filing complaints
about hazardous conditions. 1991 T. 79.
Sawyers complained that Fitzsimmons sometimes referred to
his "crazy obsession about asbestos," 1991 T. 82, CX 57, and
McIntyre confirmed Fitzsimmons' use of the phrase when referring
to Sawyers. 1991 T. 106.
A significant event in the relationship between Sawyers and
the District occurred in March 1983. On March 3, Sawyers made a
verbal and a written request to Fitzsimmons asking the identity
of the material that workers had been chipping and removing in
the area of the school's boilers, which were close to the
industrial arts classrooms in which Sawyers taught. 1985 T. 165;
RX 1. Sawyers asked for a confirmation that there was no asbestos
in the material "before I subject myself and my students to a
possible health hazard." RX 1.
In response, Fitzsimmons assigned Sawyers' shop classes that
day to classrooms distant from the boiler room. RX 9, March 3,
1983, Memo from Fitzsimmons to Sawyers. The next day, a company
hired by the District, TAKA, placed air sampling machines at the
school, one in the boiler room and one in the corridor outside
the industrial arts classrooms in which Sawyers usually taught.
1985 T. 252-253; 1987 R.D. and 0. at 3. In a personal
[PAGE 5]
confrontation at the end of the school day, Chambers asked
Sawyers what he had been doing in front of the air sampling
machine in the corridor. RX 10/CX 56; 1987 R.D. and 0. at 3.
Sawyers told Chambers that he considered the question to be
harassment and he and Chambers together went to speak with
Fitzsimmons, who was busy at the time. 1985 T. 234; 1987 R.D. and
0. at 3. After Sawyers had left for the day, Chambers informed
Fitzsimmons that he had observed Sawyers waving an envelope in
front of the machine. 1985 T. 256. Sawyers spoke with
Fitzsimmons about the incident on the next school day, Monday,
March 7. 1985 T. 258. Two days later, Sawyers sent Fitzsimmons a
memorandum reiterating his right to know if the material in the
boiler room was asbestos, criticizing the validity of the air
testing method the District used, and memorializing their March 7
conversation, including Sawyers' denial of tampering with the air
sampling machine. RX 8; see also 1987 R.D. and 0. at 3;
1991 T. 41-42 (Sawyers' denial of tampering).
Fitzsimmons showed Sawyers' memorandum to Chambers, who
became upset. 1985 T. 266. Fitzsimmons asked Chambers for a
written statement. 1985 T. 267. On March 13, 1983, Chambers
provided a statement, RX 10, in which he related that after
seeing Sawyers waving something in front of the air sampling
machine, Chambers entered a shop classroom and saw Sawyers
leaving the metal shop storage room. Chambers further stated
that after Sawyers left the school on March 4, Chambers found a
crumpled white piece of paper with "small flecks on it" on the
floor of the shop metal storage room and gave it to Fitzsimmons.
Id. Sawyers did not learn of the existence of Chambers'
written statement until months later at a state disciplinary
hearing. 1991 T. 60.
On March 16, 1983, Fitzsimmons sent to Sheldon Fuchs, the
District's Plant and Facilities Manager, a memorandum forwarding
Chambers' written statement about the incident. CX 55.
Fitzsimmons wrote:
It seems to me that this report (Chambers' written
statement], the results of the tests in question,
and the fibers left in the envelope Mr. Chambers
found in metal shop storage room all point to the
fact that tampering with the test results did occur.
It is my opinion that we should present all of the
above information to our district lawyer and pursue
any legal action appropriate under the law.
Id. Chambers expected that Fitzsimmons would have the
crumpled white paper analyzed, but he never heard any more about
it.
CX 41.
[PAGE 6]
At the time of these occurrences, the "professional
behavior" clause in the teachers' union contract provided in
relevant part that:
All reprimands, warnings, or disciplinary action
for an alleged infraction should be in camera.
When a reprimand, warning or disciplinary action
is to be in writing and included in the teacher's
records, the teacher shall receive a copy within
twelve (12) school days of the alleged infraction
and will be signed by the teacher concerned as an
indication of acknowledgement of receipt, and not
necessarily approval or disapproval of contents.
CX 110, p. 30. Sawyers did not receive a written disciplinary
notice within 12 school days. T. 337-339; CX 44, p. 4
(McIntyre); CX 45, p. 3-4 (Morrow). Rather, he learned more than
two months after the incident that Fitzsimmons was recommending
his discharge mainly because of the alleged tampering. 1991 T.
81-82.
In a March 21, 1983 letter, TAKA sent the District the
official. results of the air testing it had performed on March 4.
RX 14. The report stated that particles of chrysotile asbestos
too large to have been airborne were found in the testing machine
that had been placed in the corridor near the industrial arts
shops. Id. at p. 1. [8] TAKA analyzed a bulk sample of
the school's boiler insulation and found that it was 30% amosite
asbestos. Id. It concluded that since no chrysotile
asbestos was found in the boiler insulation, "either the ceiling
above the air sampler was disturbed during the sampling and
contains chrysotile which fell into the filter or someone
contaminated the filter." Id. at p. 2. TAKA further stated
that on March 16, 1983, it removed three samples from the ceiling
tile above the area in the hall where the air samples were taken,
and that the samples did not contain chrysotile asbestos. RX 13.
The report stated in summary:
1) The airborne fiber counts (of amosite asbestos] are
within NIOSH guidelines and therefore are considered safe.
2) A party o[r] parties unknown contaminated sample #6
the two hour hall air sample.
3) The contamination took place between two and four
P.M. on March 4, 1983.
RX 13, p. 2.
[PAGE 7]
In April 1983, Sawyers telephoned the United States
Environmental Protection Agency (EPA) to complain about asbestos
in the District's schools. CX 7. As a result, Julius Brodsky of
the EPA telephoned Building and Grounds Manager Fuchs to offer a
voluntary inspection of the schools to provide technical
assistance on compliance with EPA regulations, since the EPA
would have mandatory school inspection authority beginning in
June 1983. CX 47, p. 1. Fuchs set an appointment for an EPA
visit in early May. Id. The attorney for the District
promptly phoned Brodsky and asked if Sawyers had provided
information to the EPA; Brodsky confirmed that Sawyers had done
so. Id. Brodsky also explained that at the time, the
District was not required to permit EPA to visit. Id. The
attorney called back later that day to say that the District
would not meet with the EPA. Id. at p. 2. See also 1985
T. 314-318.
After the date the EPA obtained mandatory inspection
authority, EPA Regional Asbestos Coordinator Freiberger inspected
the District's schools. CX 47. Freiberger explained that in
light of the information provided by Sawyers and the District's
refusal to permit voluntary inspection, the Baldwin District was
one of the first in the region to be inspected. CX 43. The EPA
issued a "Notice of Noncompliance" informing the District that it
was in violation of the regulation governing friable asbestos-
containing materials in schools. CX 67; 1987 R.D. and 0. at 5.
Regarding Harbor Junior High, the EPA cited the District's
failure to sample and analyze exposed friable insulation on pipes
in classrooms and boiler room (or claim exemption) and failure to
compile and maintain records. Id. at 2. As a result, the
Superintendent of Schools sent a notice to all teachers advising
that there were asbestos hazards in the schools, including Harbor
Junior High. CX 45, p. 2.
In May 1983, the schoolboard passed a resolution directing
Sawyers to consult a psychiatrist it had chosen in order to
ascertain Sawyers' fitness to teach. 1991 T. 33, 174-175; 1987
R.D. and 0. at 4. Morrow knew of no other cases in which the
school board directed a teacher to undergo a psychiatric
examination 1985 T. 312. The District considered the
psychiatrist's report, RX 15, to be inconclusive. 1991 T. 177-
178. The psychiatrist did not find Sawyers unfit to teach. RX
15.
Sawyers' May 1983 teaching evaluation noted absences of 28
1/2 days through May 13 and stated that the absences "have
interfered with continuity of instruction." CX 57. It faulted
Sawyers for his "obsessive concern over asbestos materials he
perceives to be dangerous to the school population" and his
mentioning such concerns to students during class. Id.
The
[PAGE 8]
evaluation continued:
His obsession with his health and the environmental
factors which he believes have contributed to his
illness tend to intrude into and interfere with the
work of the classroom. The degree to which his
obsession has progressed may best be illustrated by an
incident which occurred on March 4, 1983, when Mr.
Sawyers actually tampered with a testing instrument to
produce a reading of airborne asbestos which was false
and inaccurate.
Id. Fitzsimmons rated Sawyers' teaching "unsatisfactory"
and recommended termination of Sawyers' employment. Id.;
1985 232-233. [9]
At a meeting concerning what action to take in light of the
allegation of tampering, school board members acknowledged that
if the District took legal action against Sawyers, it would "look
awful" because an environmental issue was involved and Sawyers
had a propensity to file complaints. 1991 T. 267-269. The school
board decided that it would take action against even the "teacher
of the year" if he or she were accused of tampering With the air
sampling machine and the test results indicated that tampering
had occurred. 1991 T. at 269-270. The school board voted in June
1983 pursuant to the state education law governing discipline of
tenured teachers that there was probable cause to charge Sawyers
with conduct unbecoming a teacher, neglect of duty, and
immorality concerning the alleged tampering. 1991 T. 179, 277;
see RX 12. The District suspended Sawyers from teaching
pending a hearing and a final determination on its recommendation
that Sawyers be discharged. RX 12 p. 6.
A hearing lasting many days over a period of six months
ensued. See CX 109. In July 1984, a two-member majority
of the hearing panel found that Sawyers had tampered with air
sampling machine and was guilty of conduct unbecoming a teacher,
neglect of duty, and immorality. CX 60, p. 42. The majority
recommended his reinstatement and a fine of $2000. CX 60, p. 45;
1987 R.D. and 0. at 5. The third panel member dissented on the
ground that the charges had not been proven. CX 108.
The President of the school board testified that the board
was outraged at the panel majority's "slap on the wrist" of a
$2000 fine and appealed, seeking the penalty of discharge. 1991
T. 278-280; 1987 R.D. and 0. at 5. The State Commissioner of
Education modified the penalty to a one year suspension without
pay. CX 6; 1987 R.D. and 0. at 5. Sawyers did not seek court
review of the Commissioner's decision. 1989 T. 10.
[PAGE 9]
II. Prior Proceedings
The Area Director of the Wage and Hour Division found that
the District violated the TSCA and ordered reinstatement of
Sawyers to his teaching position. CX 20; 1987 R.D. and 0. at 2.
The District sought a hearing before an ALJ. CX 13.
After hearings in 1985 and 1986, the ALJ issued a decision
in which he recommended dismissal because the complaint was not
timely filed. 1987 R.D. and 0 at 11. on review, the Secretary
found that the complaint was timely and remanded for further
proceedings. Oct. 5, 1988, Sec. Decision and Order of Remand. A
new ALJ was assigned to the case after remand.
On remand, the District moved for summary judgment, arguing
that under the doctrine of collateral estoppel, the determination
of the state hearing panel that Sawyers was guilty of tampering
with the air sampling machine precluded his complaint under the
TSCA whistleblower provision. Resp. Motion of August 7, 1990 at
15. The ALJ denied the motion because "there are different
standards and issues in the controversy in this forum as
contrasted with the state proceeding." Oct. 12, 1990, Order
Denying Motion to Dismiss.
After further hearings on the merits, the ALJ issued a
Recommended Decision and Order in which he found that Sawyers did
not sustain "his burden of showing that his federally protected
conduct was a 'substantial' or motivating factor in the decision
to bring charges against him," and recommended dismissal. 1991
R.D. and 0. at 4.
III. Preliminary Issue
After the hearing closed, Sawyers submitted letters and
documents that were not proffered at the hearing. Under the
applicable regulation, the record is closed at the conclusion of
a hearing, absent a showing that new and material evidence became
available which was not available prior to the close of the
hearing. See 18 C.F.R. §18.54(a) and (c). Sawyers
did not argue that the documents he tendered constituted new and
material evidence that was not available prior to the close of
the hearing. Accordingly, the submissions listed below and their
attached documents are not part of the formal record in this
case, except to the extent that some of the attached documents
are pleadings, decisions, or orders already in the record of this
case.
1. August 22, 1994, letter from Sawyers to the Secretary of
Labor.
[PAGE 10]
2. January 25, 1994, letter from Sawyers to the Secretary.
3. September 10, 1991, letter from James Morrow to the
Secretary.
4. June 25, 1991, letter from Sawyers to the Secretary.
These submissions have been placed with the record but are not
made a part of it and have not been considered in reaching this
decision.
Although it was submitted prior to the close of the hearing,
the June 17, 1985, letter and enclosures from Mr. Al Fam to the
Administrative Law Judge then assigned to this case likewise are
not record evidence and have not been considered.
IIII. Analysis
A. Res Judicata and Collateral Estoppel
Respondent argues that under the doctrines of res judicata
and collateral estoppel, the finding of the state disciplinary
panel that Sawyers was guilty of tampering must be considered
conclusive in this case. Resp. Br. at 2; Resp. P-H Br. at 42,
n.8. Res judicata, or claim preclusion, provides that "a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that [first] action." Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 467 n.6 (1982). Res
judicata does not apply where "'[t]he plaintiff was unable to
rely on a certain theory of the case or to seek a certain remedy
because of the limitations on the subject matter jurisdiction of
the courts.'" Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 382 (1985) (citation omitted);
Owens v. New York City HousingAuthority, 934 F.2d
405, 410 (2d Cir.), cert. denied, 112 S.Ct. 431 (1991).
Collateral estoppel, or issue preclusion, prevents the
relitigation of issues that were actually decided by a court and
necessary to its decision if the parties had a full and fair
opportunity to litigate them. Kremer, 456 U.S. at 467
n.6, 480481; Owens, 934 F.2d at 409.
Courts have applied the doctrines of res judicata and
collateral estoppel to administrative decisions where the agency
was acting in a judicial capacity and resolved disputed issues of
fact that were properly before it. See, e.g.,
University of Tennessee v. Elliott, 478 U.S. 788, 799
(1986). The state hearing panel in this case was acting in a
judicial capacity and had the authority to decide the charges of
misconduct, or tampering with the air sampling machine, that the
District
[PAGE 11]
brought against Sawyers. See N.Y. Educ. Law § 3020-
a.1, 3.
In this case, res judicata does not bar the Secretary from
deciding whether the District violated the TSCA because Sawyers
was unable to present his TSCA discrimination claim in the state
proceedings. See Marrese, 470 U.S. at 382; Owens,
934 F.2d at 410. The hearing panel considered only the issue of
Sawyers' misconduct. See N.Y. Educ. Law § 3020-a.1
(hearings concern charges brought against a teacher). The issue
of whether a party has violated the TSCA's employee protection
provision is reserved to the Secretary of Labor under 15 U.S.C.
2622(b)(1), with judicial review of the Secretary's decision
available in the United States Court of Appeals. Therefore
neither the state hearing panel decision nor the education
commissioner's decision, which merely reviewed the panel
decision, see N.Y. Educ. Law § 3020-a.5, decided the
same claim presented to the Secretary, whether the District
discriminated against Sawyers because of his protected activity
under the TSCA.
I find that the state hearing panel afforded Sawyers a full
and fair opportunity to defend against the charge of tapering
with the air sampling machine [10] and therefore its finding
that Sawyers was guilty of misconduct and related charges is
binding on the Secretary pursuant to collateral estoppel.
B. Prima facie case
Accepting as true the state panel's determination that
Sawyers tampered with the air sampling machine, that finding does
not prevent Sawyers from establishing a prima facie case if there
is direct evidence of discrimination. See Owens, 934 F.2d
at 409-410. [11] Accordingly, I will examine whether Sawyers
established a prima facie case under the TSCA.
The employee protection provision of the TSCA provides in
relevant part:
No employer may discharge any employee or otherwise
discriminate against any employee with respect to the
employee's compensation, terms, conditions, or privileges
of employment because the employee (or any person acting
pursuant to a request of the employee) has--
(1) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this
chapter;
(2) testified or is about to testify in any such
proceeding; or
(3) assisted or participated or is about to assist or
[PAGE 12]
participate in any manner in such a proceeding or in any
other action to carry out the purposes of this chapter.
15 U.S.C. § 2622 (a).
To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected
activity, that he was subjected to adverse action, and that the
respondent was aware of the protected activity when it took the
adverse action. Complainant also must present sufficient
evidence to raise the inference that the protected activity was
the likely reason for the adverse action. Dartey v. Zack Co.
of Chicago, Case No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip
op. at 8.
The District concedes that Sawyers engaged in numerous
protected activities. Resp. P-H Br. at 40. [12] The District
took adverse action when it brought charges under the state education
law accusing Sawyers of misconduct and seeking his dismissal, and
simultaneously suspended him from teaching pending the final
outcome of the proceeding. There is no dispute that District
officials were aware of Sawyers' protected activities when they
brought the charges. Eg., 1985 T. 24, 244 (Fitzsimmons);
1991 T. 179 (Almenoff); 1991 T. 267 (school board president Deller).
As a result of Sawyers' protected activities, at least two
government agencies either attempted to visit or visited the
District between February and June 1983. 1985 T. 240-241. The
school board voted charges against Sawyers on June 15, 1983. I
find that the proximity between Sawyers' protected activities and
the adverse action was such that Sawyers raised the inference of
causation. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir.
1989) (temporal proximity sufficient as a matter of law to raise
inference of retaliatory motive); Goldstein v. Ebasco
Constructors, Inc., Case No. 86-ERA-37, Sec. Dec., Apr. 7,
1992, slip op. at 11-12 (causation established where seven or
eight months elapsed between protected activity and adverse action),
rev'd on other grounds sub nom., Ebasco Constructors
v. Martin, No. 92-4576 (5th Cir. 1993).
Substantial testimony and documentary evidence supports the
inference that Sawyers' complaints about asbestos and other toxic
substances in the school was a factor in the District's decision
to recommend that the school board bring the charges of
misconduct. The ALJ opined that [t]he fact that Fitzsimmons and
and others in management were greatly displeased with Sawyers
does not by itself color this action by the School District,
although it is a factor calling for heightened scrutiny of the
charges leveled against Sawyers." 1991 R.D. and 0. at 3. I agree
with the need for close scrutiny of the statements and actions of
[PAGE 13]
District officials in this case.
Fitzsimmons, who recommended Sawyers' discharge, readily
admitted that Sawyers had filed more safety and health complaints
than any other employee during his tenure as principal. 1985 T.
244. Fitzsimmons was aware that Sawyers' complaints caused
several government agencies to visit the schools in the spring of
1983 to determine compliance with various laws and regulations.
1985 T. 240 (State Department of Labor and Attorney General's
office).
Fitzsimmons' language revealed anti-whistleblower sentiment.
His routine use of the word "obsession" to describe Sawyers'
attempts to get the District to identify and rectify asbestos and
other health hazards in its schools seems unduly harsh and
judgmental, especially since two workers' compensation decisions
indicated that Sawyer's melanoma was work related. 1985 T. 319-
320; see CX 64, Memorandum of Decision of Workers'
Compensation Board dated Sept. 2, 1982. Even more telling are
Fitzsimmons' statements to McIntyre that siding with Sawyers on
safety issues was a fatal mistake, and that McIntyre had caused
Sawyers to "slip through" Fitzsimmons' fingers. 1991 T. 98, 101.
Further evidence of Fitzsimmons' animus toward Sawyers'
whistleblowing activities includes McIntyre's testimony that
Harbor Junior High secretaries were directed not to photocopy
documents for Sawyers' benefit since Sawyers was causing problems
for the District. 1991 T. 123. In addition, I find Fitzsimmons'
stated reason for locking the custodians' telephone, that he did
not know who was using it, 1985 T. 242, to be disingenuous. The
shop rooms were very close to that telephone, and Sawyers
admitted that he sometimes used it to reach governmental agencies
concerned with safety and health. I agree with the ALJ that
Fitzsimmons locked the telephone and forbade Sawyers' use of the
copier, 1991 R.D. and 0. at 3, and I find that he did so either
to harass Sawyers or to prevent him from making additional safety
and health complaints.
District administrators' hostility toward Sawyers'
complaints did not stop with Fitzsimmons. I find that Assistant
Superintendent Schivera also exhibited such hostility when he
stated to more than one person that it would be prohibitively
expensive for the District to make all the corrections that would
resolve Sawyers' health concerns. 1985 T. 331 (Morrow); CX 44, P.
1 (McIntyre statement). Schivera, who served as the District's
Safety Officer, was involved in the process leading to the
charges, 1985 T. 228, 267-268, and did not appear at the hearing
or contradict the statements attributed to him.
In addition, the meeting between the State Attorney
General's office and the District over the right-to-know law
turned sour when the District learned that Sawyers had made the
[PAGE 14]
complaint at issue. Clearly, Sawyers and the District were at
odds.
The District, which concededly had asbestos in its schools,
1991 T. 281, at least twice declined to permit government
agencies to inspect the schools. The reluctance to permit
inspections at no cost to the District leads me to conclude that
the District did not want to know the extent of the problem.
Sawyers, however, persisted in trying to get the District to
rectify the hazards he identified in Harbor Junior High.
In view of this substantial, direct evidence of anti-
whistleblower animus on the part of District officials including
Fitzsimmons and Schivera, I find that Sawyers established a prima
facie case of a TSCA violation.
C. Respondent's burden of articulating a legitimate
reason for bringing charges
Once Complainant made a prima facie case, Respondent had the
burden of proffering a legitimate, nondiscriminatory reason for
taking the adverse action. Dartey, slip op. at 8. The
state hearing panel's determination that Sawyers tampered with
the air sampling machine establishes that there was a legitimate
reason for bringing charges against Sawyers. Of course, at the
time it decided to bring charges, the District did not yet have
the ruling of the hearing panel. Consequently, I will examine
the evidence before the school board when it voted.
A written statement from Chambers strongly indicated that
Sawyers had tampered with the air sampling machine, RX 10, and
the testing company's report found that non-airborne chrysotile
asbestos had contaminated the machine during the period in which
Chambers observed Sawyers near the machine. RX 13. I find that
the evidence considered by the school board provided a legitimate
reason to bring the charges, and therefore that the District met
its burden of production in this case.
D. Dual Motive Analysis
I have found that the District had both a legitimate reason
for bringing charges and an impermissible one, evidenced by
Fitzsimmons' and Schivera's expressed animus against Sawyers for
his whistleblowing. When the employer's adverse action against
the employee was motivated by both prohibited and legitimate
reasons, the dual motive doctrine applies. Dartey, slip
op. at 8-9; Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, 287 (1977). In such a
case, the employer has the burden to show by a preponderance of
the evidence that it would have taken the same action concerning
the employee even in the absence of the protected conduct.
Dartey, slip op. at 9; Mt.
[PAGE 15]
Healthy, 429 U.S. at 287; Price Waterhouse v.
Hopkins, 490 U.S. 228, 252 (1989) (plurality opinion);
Consolidated Edison Co. of New York v. Donovan, 673 F.2d
61, 62 (2d Cir. 1982). The employer bears the risk that the
influence of legal and illegal motives cannot be separated.
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1164 9th Cir. 1984); Guttman v. Passaic Valley Sewerage
Comm'rs, Case No. 85-WPC-2, Final Dec. and Order, Mar. 13,
1992, slip op. at 19, affirmed sub nom.Passaic Valley
Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474 (3d
Cir. 1993).
In examining the bona fides of the school board's decision to
bring charges, the ALJ credited the testimony of school board
president Deller, who explained that the board members decided
that they would bring the charges if the accused teacher were
someone other than Sawyers. 1991 T. 169-170; 1991 R.D. and 0. at
4. In the ALJ's opinion, the school board's frank discussion
about Sawyers' "propensity to file complaints" did not establish
that they were discriminating against a whistleblower, but rather
that they "acknowledged the possible implications of the action"
Id. at 4. According to the ALJ, Deller "was convincing
that despite the strife in the school system over Mr. Sawyers'
various complaints that the basis for bringing the charges was
solely premised on his act of tampering." 1991 R.D. and 0. at 3.
Based on Deller's sincere demeanor, the ALJ found that "the only
motivating factor leading the School Board to file the charges
was the gravity of the act involved." Id. at 4.
I have considered the ALJ's credibility assessments in light
of "the consistency and inherent probability of testimony,"
Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951),
and have given them great weight because the ALJ "'sees the
witnesses and hears them testify. . . .'" Pogue v. U.S. Dept.
of Labor, 940 F.2d 1287, 1289 (quoting NLRB v. Walter Mfg.
Co., 269 U.S. 404, 408 (1962).
After carefully weighing the evidence and the credibility
assessments of the ALJ, I find that the District established that
the school board would have brought the charges against any
teacher similarly accused of tampering with the air sampling
machine, and would have brought the charges against Sawyers even
if he had not engaged in protected activities. Accordingly, the
complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] We retain here the docket number used by the Administrative
Law Judge in the 1991 Recommended Decision and Order. A
different Administrative Law Judge issued an earlier Recommended
Decision and Order in this case on March 13, 1987 (1987 R.D. and
O.), in which he found that the complaint was not timely filed.
The Secretary found the complaint timely and remanded to the ALJ
in a decision issued October 5, 1988. The two earlier decisions
listed the case as No. 85-TSC-1.
[2] Hearings in this case were held in 1985, 1986, 1989, and
1991. Since several of the transcripts begin with page 1,
transcript references will include the year.
[3] The Assistant Superintendent for Personnel, Dr. Phyllis
Almenoff, testified that the District's policy required an
employee to take personal leave for an appearance at a hearing
that concerned his own personal gain. 1991 T. 214. Almenoff did
not know that Sawyers had not been required to take personal
leave when he testified at his workers' compensation hearings in
the past. Id.
[4] On at least two other occasions, the District refused to
permit voluntary safety inspections by Federal agencies, the
Occupational Safety and Health Administration, 1985 T. 314, 318,
and the Environmental Protection Agency. 1985 T. 318.
[5] Chambers did not testify at the Department of Labor
hearing, although the District indicated that he was available to
testify if subpoenaed. 1985 T. 168.
[6] The three complainants were invited to a third meeting of
all of the District's industrial arts teachers that was called by
the president of the teachers' union. 1985 T. 330.
[7] Sawyers testified that prior to 1983, he had absences of
five consecutive days and was not asked to, and did not, produce
a physician's note concerning those absences. 1991 T. 65.
[8] The teachers' union did not have the opportunity to test
the contaminating material that TAKA found in the testing
machine. 1985 T. 367. The principals of TAKA destroyed or
disposed of the material after testing it. Id.; CX 18, p.
3-4; 1987 R.D. and 0. at 3.
[9] All of Sawyers' teaching evaluations prior to 1983 rated
him an "excellent" or "superior" teacher. 1991 T. 28.
[10] The hearing was judicial in nature, afforded the
opportunity to introduce and object to evidence and to cross
examine witnesses, and both Sawyers and the District were
represented by counsel.
[11] In Owens, as in this case, a state agency filed
disciplinary charges against its employee for various incidents
of alleged misconduct. After a hearing pursuant to state law, a
hearing officer upheld the charges and recommended dismissal,
which the agency implemented. In a subsequent federal court
action, the employee argued that the state agency had discharged
her because of her age. The United States Court of Appeals for
the Second Circuit concluded that the state finding of
misconduct, although not disputed, did not prevent the plaintiff
from establishing a case of age discrimination because the
plaintiff presented direct evidence of discrimination.
[12] The Secretary has ruled that complaints that relate only
to conditions at the work place and do not touch upon general
public safety and health are cognizable only under the employee
protection provision of the Occupational Safety and Health Act,
29 U.S.C. § 660(c) (1982). Aurich v. Consolidated Edison
Co. of New York, Inc., Case No. 86-CAA-2, Remand Order, Apr.
23, 1987, slip op. at 4. Sawyers' various complaints concerned
the safety of the District's students as well as its employees,
and therefore were protected under the TSCA. See,
e.g., RX 5, reflecting Sawyers' concern for students'
health if certain material contained asbestos. See also,
Johnson v. Old Dominion Security, Case Nos. 86-CAA-3, 4,
5, Final Dec. and Ord., May 29, 1991, slip op. at 14. (complaint
about unsafe or unhealthful conditions in a work place which
affect the environment protected under the TSCA).
