DOL Home > OALJ > Whistleblower > Greenwald v. The City of North Miami Beach, 78-SDW-1 (ALJ Mar. 15, 1978) |
Case No. 78-SDWA-1
GLENN M. GREENWALD
Complainant
vs.
THE CITY OF NORTH MIAMI BEACH
Defendant
NORMAN L. LEOPOLD, Esquire
KAREN S. LEOPOLD, Esquire
Interama Building, Suite 115
16666 Northeast 19th Avenue
North Miami Beach, Florida 33162
For Complainant
ICHAEL F. ESTOK, Plant Supervisor
City of North Miami Beach
Department of Public Utilities
2080 N.E. 160th Street
North Miami Beach; Florida 33162
HERBERT CHERNOV, Director of Personnel
City of North Miami Beach
17011 N.E. 19th Avenue
Miami Beach, Florida
For Defendant
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
Statement of Case
This case arises under the Safe Drinking Water Act (Public Law 93-523; 88 Stat. 1660 et seq.; 42 U.S.C. 300F et seq.) hereafter called SDWA or the Act. Mr. Glenn M. Greenwald filed a complaint on December 20, 1977 alleging
that he was discharged in violation of Section 1450(i) of the SDWA (§ 42 U.S.C. 300 J-9(i)). The Complaint contends that the violation was either (1) the result of two separate acts by the City, the first of which occurred on August 26, 1977, when Mr. Greenwald received notification from the city manager of his dismissal, and the second of which took place on December 1, 1977, when the Civil Service Board dismissed the Petitioner, or (2) the sole result of Mr. Greenwald being dismissed by the Civil Service Board on December 1, 1977, which act was a continuation of the process of the City and which act by the City was not final until the decision of the Board was made, at which time the Greenwald had exhausted his administrative remedies.
Pursuant to a Notice of Hearing issued February 13, 1978 a hearing was held before the undersigned on February 21 and 22, 1978 in Fort Lauderdale, Florida.
Both Mr. Greenwald and the City of North Miami Beach
were represented at the hearing, were afforded full
opportunity to be heard, to adduce evidence and to examine as well
as cross-examine witnesses. Thereafter, briefs were filed
with the undersigned which have been duly considered.1
Upon the entire record in this case, from my observation
of the witnesses and their demeanor, and from all of the
testimony and evidence adduced at the hearing, I make the
following Recommended Findings of Fact, Conclusions of Law
and Order.
1. Mr. Glenn Greenwald was employed by the City of North
iami Beach to serve in the position of chemist, a civil
service position, for the public utilities department.
2. Mr. Glenn Greenwald served a six months' probationary
period, after which time his superiors, Mssrs. Van Loon and
Estok,2 the director and plant supervisor
respectively,
recommended that Mr. Greenwald be awarded a permanent
position, a merit increase, and that he be elevated to civil
service status, all based upon his performance and abilities
as chemist.
3. Part of Mr. Greenwald's responsibilities as chemist
was to take routine samples of the city's water supply as it
reached the consumers, to test those samples physically,
chemically and biologically to ensure their consistent
purity and potability, and to answer complaints by consumers
of the city's water supply.
4. On Tuesday, August 23, 1977, Mr. Greenwald, in
taking routine samples of water, discovered only a trace of
free available chlorine at a residence located at 800 N.E.
182nd Terrace, North Miami Beach, Florida. Free available
chlorine is an essential disinfectant required to be
maintained in the public drinking water. A "trace is between
zero and .05 parts per million. A "trace" is below the level
usually available in the water system of North Miami Beach
and was considered abnormal.
5. Upon further examination of the water at the suspect
residence by Mr. Greenwald, he noted that the turbidity was
excessively high, the taste was peculiar, and the color and
odor were unusual.
6. Mr. Greenwald began to run more tests on the samples
in his laboratory, including the test for coliform bacterial
which he later found-to be present in the sample.3
7. On the evening of August 23, 1977, Mr. Greenwald
requested a routine nighttime flushing of the immediate area
surrounding the subject household, which flushing was never
conducted. A flushing is a procedure whereby all the fire
hydrants in a given or defined area are opened. This in
effect flushes out all the old water, cleans out impurities
and sediment and replaces the old water with new water.
8. On the morning of Wednesday, August 24, 1977,
r. Greenwald discovered that the sample taken from the
suspect household the day before yielded a positive coliform
bacteria reading (+1).
9. Mr. Greenwald returned to 800 N.E. 182nd Terrace
during the morning of August 24 and did some additional
testing of the water and discerned the free chlorine was still
only at the trace level and the combined or residual chlorine
was at the .8 level, a relatively low count. He also took a
sample to measure the coliform count. The results of this
test would not be available until the next day, August 25th.
Concerned by the presence of the coliform, coupled with
results of tests showing only a tract of free available chlorine,
high turbidity,4 and abnormal taste odor
and color.5
r. Greenwald first looked for Mr. Estok,6 and when he
didn't find him Mr. Greenwald approached Mr. Van Loon, the
department head, and explained to Mr. Van Loon his findings
and intuitive suspicions. Mr. Greenwald recommended that Mr.
Van Loon permit a daytime flushing of the area in order to
prevent any potential harm to the residents of that household.
10. Mr. Van Loon, citing his trust in Mr. Greenwald's
judgment, ordered that the daytime flushing of the suspect
area take place.
11. When Mr. Estok learned from Mr, Van Loon of the
daytime flushing, he questioned the basis upon which the order was
issued and proceeded to the area being flushed, seeking an
explanation from Mr. Greenwald.
12. At the flushing site, Mr. Greenwald noted that the
water being flushed contained unusual amounts of heavy black
sludge.
13. Mr. Estok questioned the Petitioner at the flushing
site as to why the latter had asked for the daytime flushing,
and Mr. Greenwald repeated his reasoning and findings to Mr.
Estok as he had done to Mr. Van Loon. Mr. Estok said that he
was very disturbed that a daytime flushing had been ordered
in an affluent area of the city.
14. A flushing, whether conducted during the day or at
night, causes no harm. Flushings are routinely conducted,
as they serve to cleanse the distribution lines and to ensure
a potable water supply. The record fails to establish that
the daytime flushing conducted on August 24, 1977, at Mr.
Van Loon's direction, caused any harm to the area residents.
15. Mr. Estok is not a chemist and apparently did not
run any independent tests of the water at 800 N.E. 182nd
Terrace prior to the daytime flushing.
16. The recommendation by Mr. Greenwald to his
department head to flush the suspect area during the day provoked
r. Estok and Mr. Van Loon into ordering Mr. Greenwald to
appear at a 3:00 meeting on August 24, 1977.
17. At the 3:00 meeting, Mr. Van Loon, Mr. Greenwald,
and Mr. Estok were present. Mr. Van Loon and Mr. Estok
advised Mr. Greenwald that they did not feel the daytime
flushing was justified. Mr. Greenwald again stated the
considerations that prompted him to request the daytime flushing.
r. Van Loon advised Mr. Greenwald that if he could not follow
order he should consider resigning. Mr. Greenwald asked a few
times if he was being fired. Mr. Van Loon advised him that
he was not being fired. Rather, Mr. Van Loon wanted to
consider the matter further and would advise Mr. Greenwald the
next day what action would be taken. They were to meet again
at about 12:00,noon on August 25, 1977.
18. Also at this meeting of August 24, 1977, Mr.
Greenwald told Mr. Van Loon to notify the health department of
this problem and to notify the residents of the household that
they should refrain from drinking the water until the problem
was corrected.7 Mr. Van Loon instructed
him not to notify
the residents off the household that there was a problem with
their water.
19. The area surrounding 800 N.E. 182nd Terrace was
flushed again during the night of August 24, 1977, at Mr.
Estok's request.
20. On August 25, 1977, the results of a sample taken on
August 24, 1977, at 800 N.E. 182nd Terrace indicated the
presence of at least eleven large coliform colonies (+11). In
addition, the other tests revealed abnormal circumstances
affecting the water at that address. Mr. Greenwald was
particularly concerned with the low level of free available chlorine,
coupled with excessive turbidity and high PH.8 Mr. Greenwald
advised Mr. Estok of the (+11) coliform count and Mr. Estok
told Mr. Greenwald to go back to the premises and perform
further tests.
21. While Mr. Greenwald was running further tests at
800 N.E. 182nd Terrace, Franklin Cohen, a resident of that
household, asked Mr. Greenwald why continued testing was
necessary. Mr. Greenwald told Franklin Cohen that there had
been some problems with the water, and that the Cohens should
not use the water until they were informed that the problem
no longer existed.
22. Mr. Greenwald attended the 12:00 meeting with Mr.
Van Loon and Mr. Estok on August 25, 1977. Mr. Greenwald
informed them that he enjoyed his job and would not resign,
particularly because subsequent test results had confirmed
his initial suspicions about the water at 800 N.E. 182nd
Terrace, and because he felt that the had acted in a prudent
manner.
23. Based upon the tests conducted by Mr. Greenwald
and the results thereof, and upon the testimony of expert
witnesses it is concluded that Mr. Greenwald acted prudently
in advising his department head of the condition, in requesting
a daytime flushing, and in informing the household
residents of the potential health hazard.
24. Mr. Greenwald was then told that he was fired and
that he should turn in all city property, after he told Mr.
Van Loon that he had notified the Cohens of the water situation.
25. On the evening of August 25, 1977, the suspect area
was flushed for a third time. It is not known at whose
request or instructions.
26. The fact that the water may be unsafe at one
isolated residence could be explained by a number of reasons,
including a cross-connection with another source of water.
27. Mr. Greenwald received a notice of removal from the
city manager of North Miami Beach, dated August 26, 1977.
28. Pursuant to civil service procedure, Mr. Greenwald
filed for an appeal of such decision before the Civil Service
Board. The Civil Service Board, on December 1, 1977, upheld
the action of the city manager in discharging Mr. Greenwald.
Section 1450(i)(2)(A) of the SDWA provides, in part that
"Any employee who believes he has been discharged . . . . in
violation of paragraph (1) may, within 30 days after such
violation occurs, file a complaint with the Secretary of Labor. . ."
Mr. Greenwald filed his complaint with the Secretary of
Labor on December 20, 1977 alleging in effect two incidents of
discrimination, first the discharge on August 26, 1977 and
secondly the December 1, action of the North Miami Beach Civil
Service Board in affirming the August 26, 1977 discharge.
Article XIII, Section 79, Appeals, of the North Miami
Beach Charter provides, in part:
"Pursuant to regulations of the Board, the City Manager
may suspend, demote, or otherwide discipline any employee
in the classified service . . . . ."
The City Manager, pursuant to the aforesaid provisions
of the Charter, has exclusive authority to "hire and fire"
employees of the City of North Miami Beach, not otherwise
excluded from his jurisdiction by other provisions of the
charter. Where the City Manager has disciplined and/or
suspended an employee, the employee may appeal that determination
to the Civil Service Board for review of the action taken by
the City Manager.
In the matter of Glenn M. Greenwald, the City Manager
exercised his right to terminate any city employee, and did
so by terminating the employee. Mr. Greenwald chose to seek
remedial action through the Civil Service Commission. The
appeal hearing process was undertaken by the Board, and, after
a considerable period of time, the Board found no legal
justification for interfering with the decision of the City Manager
to terminate Greenwald.
In International Union of Electrical Radio and Machine
Workers, AFL-CIO v. Robbins and Myers, Inc., 97 S. Ct. 441
(1976) the Supreme Court held that the existence and
utilization of collective bargaining grievance or arbitration
procedures did not have the effect of deferring the effective date
of the discrimination to the conclusion of the arbitration or
grievance procedures. Rather the Court held that the
statute of limitations started to run as of the date of fire
because the alleged discriminatee was fired and stopped work,
and stopped receiving pay and benefits as of the date she
was fired.
Further the Court would not toll the 90 day statute
of limitations period for filing a claim with the Equal
Employment Opportunity Commission for the time utilized in
the processing of the grievance because the two rights and
remedies are totally independent and the pursuit of rights
under one set of procedures did prevent the hearing of rights
under the other.
It would seem this reasoning would be equally applicable
in the instant case. The rights of appeal through the city's
civil service procedures are independent of the rights
guaranteed by the SDWA. Although some distinction could be
drawn between the effect of contractional appeals procedures
and civil service appeals procedures, the Court cited as
authority Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.
Ct. 171 (1975) which was a case where the Court reached the
same conclusion where the two independent rights involved were
both statutory.
In the subject case it is noted that Mr. Greenwald did
not work after his discharge on August 25, 1978 and he
received no pay or benefits for services performed after that
date. Further the Civil Service rights exercised by Mr.
Greenwald are independent of the rights created by the Act and
they did not prevent Mr. Greenwald from filing a complaint
under the SDWA. Accordingly, in light of International Union
of Electrical Radio and Machine Workers, AFL-CIO v. Robbins
and Myers, Inc., supra, I am constrained to conclude that M
Greenwald's complaint under the SDWA was untimely because it
was filed more than 30 days after his August 26, 1978
discharge.9
In light of the foregoing it concluded that because Mr.
Greenwald's complaint was not timely filed it should be
dismissed.
In the event the Secretary of Labor should conclude that
the complaint was, timely filed, it recommend that he further
concluded that the discharge of Mr. Greenwald constituted a
violation of Section 1450(i) 1(c) of the SDWA.
The purpose of Section 1450 of the Federal Safe Drinking
Water Act is to assure the public that it is being provided
with safe drinking water. The Act was passed in response to
growing concern that the public has not been adequately aware
of the potential danger to health to which it is exposed from
drinking contaminated or inadequately treated water. This
unawareness has led to a demand for public and private action
to correct and prevent the public health threat in drinking
water. (Safe Drinking Water Act, House Report No. 93-1185,
July 10, 1974).
Mr. Greenwald was discharged because, after noticing
certain abnormalities in the water located at 800 N.E. 182nd
Terrace, requested of his supervisor that the area water be
flushed. The City, on the other hand, contends that the
dismissal of Mr. Greenwald was the result of his advising the
people who resided at the house in question that there were
certain suspicions as to the quality of their water and that it
would be best for them not to drink it until further tests
could be taken, after being sufficiently instructed not to
communicate with residents, as well as his recommending that a
daytime flushing take place in that area.
In either event, the discharge of Mr. Greenwald would
be a violation of the Act. As the testimony elicited the
expert witnesses shows, Mr. Greenwald acted prudently throughout
the entire incident, both in requesting of his supervisors
that the area should be flushed and also, when realizing that
his supervisors were refusing to notify the affected residents
of possible contamination, in so notifying the residents at
800 N.E. 182nd Terrace.
Section 1450(i)(1) of the Safe Drinking Water Act
provides that no employer may discharge or otherwise discriminate
against any employee with respect to his compensation, terms,
conditions or privileges of employment because such employee
or any person acting pursuant to a request of such employee has:
The act of the City in discharging Mr. Greenwald for
requesting the flushing or for notifying the residents at that
address is a violation of subsection (C) of Section 1450(i)(1).
As the facts clearly establish, it was simply out of concern
and regard for the public safety that Mr. Greenwald approached
his supervisor, the department head, and told him of his
findings and intuitive suspicions. To punish or discriminate
against a chemist for recommending a procedure which, at worst,
would be a precautiodary step, would be to demand that all
subordinates at all levels remain silent if so instructed until
harm has occurred or is imminent.
SAMUEL A.
CHAITOVITZ
Dated: March 15, 1978
1 The brief filed on behalf of Mr.
Greenwald was received on
arch 7, 1978.
2 Mr. Estok was Mr. Greenwald's
immediate supervisor.
3 Coliform is a bacteria group
that is usually used as an
judicator of pollution
4 Mr. Greenwald did not measure
the turbidity, but by
"observing the water concluded it was abnormally high.
5 There was evidence of low
chlorine in other homes in the
area tested but they did not indicate positive coliform
results.
6 Mr. Estok was at another plant
where he could have been
reached by telephone.
7 It is not clear but apparently
r. Van Loon and Mr. Estok
though Mr. Greenwald had stated he had already told the
residents that the water was unsafe.
8 It is not clear exactly on which
date the PH was tested.
It was tested in the laboratory, not at the site.
9 Mr. Greenwald also alleges that
the action by the Civil
Service Board in affirming his discharge constituted a separate
violation of the SDWA, No evidence was introduced to support
a conclusion that the Civil Service Board, in refusing to
reinstate Mr. Greenwald or to set aside the action of the city
manager, was in any way motivated by Mr. Greenwald's action in
attempting to carry out the purposes of the SDWA. Accordingly,
it is determined that the record is insufficient to conclude
that the action of the Civil Service Board of North Miami
Beach violated the SDWA.
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Administrative Law Judge
Washington, D.C.
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