DOL Home > OALJ > Whistleblower > Bauch v. Landers, 79-SDW-1 (ALJ Apr. 13, 1979) |
79-SDWA-1
In the Matter of
HERBERT J. BAUCH
Complainant
vs.
JOSEPH W. LANDERS, JR.
SECRETARY and AGENTS, STATE
OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL REGULATION
Respondents
Peter C. Clemente, Esq.
153 N.W. 15th Street Road
Miami, Florida 33125
For the Complainant
William P. White, Esq.
Vance Ridder, Esq.
Department of Environmental Regulation
2600 Blair Stone Road
Tallahassee, Florida 32301
For the Respondents
Before: WILLIAM NAIMARK
Administrative Law Judge
This is a proceeding under the Safe Drinking Water Act (Public Law 93-523; 88 Stat. 1660 et seq.; 42 U.S.C. 300f et seq.), hereinafter called the Ast. Herbert J. Bauch, hereinafter referred to as Complainant, filed a complaint on September 12, 1978 with the Department of Labor against
Joseph W. Landers, Jr., Secretary and Agent, State of Florida, Department of Environmental Regulation, hereinafter collectively referred to as Respondent.
The complaint alleged, in substance, that Respondent reassigned Complainant on August 14, 1978 from his position as Drinking Water Engineer to the position of Air Engineer at the instigation of Garett Sloan, Director of the Miami- Dade Water & Sewer Authority; that the reassignment was a discriminatory act in response to a malicious ruse by Sloan and resulted from complainant's efforts to enforce the Act - all in violation of Section 1450(i) of the Act.
Respondent, in addition to denying that it discriminated against Bauch by transferring him on August 14, 1978, raised several other defenses. It contended that (a) Respondent is not an Employer under the Act; (b) no jurisdiction exists herein since a state, or an agency thereof, cannot be sued in Federal court without its consent; (c) no jurisdiction exists, further, because the Secretary failed to complete its investigation within 30 days of the receipt of the complaint, and to notify Respondent of the results within such time period; (d) no regulations were promulgated and the Respondent was thus hindered in its adequate preparation of the case.1
Pursuant to due notice issued herein, and hearing was held before the undersigned on December 13 and 14, 1978, and on January 17, 1979.
Both parties were represented at the hearing, were afforded full opportunity to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, the parties filed briefs which have been duly considered.
Upon the entire record in this case, from my observation of the witnesses and their demeanor, and from all of the evidence adduced at the hearing, I make the following findings and conclusions:
1. Respondent State of Florida, Department of Environmental Regulation regulates through a permitting system.
It issues permits for the construction of, or addition to, water treatment plants, and authorizes the use of a plant to produce drinking water for the public. An approval letter indicates the applicant has built a facility, operated it for the required length of time and meets the standards after it has been sampled.
2. Complainant was hired by Respondent on November 9, 1976 as an engineer at its West Palm Beach, Florida location. In March 1977 Bauch was made a Drinking Water Engineer thereat, occupying position 0617, Engineer 4.
3. As a Drinking Water Engineer, Bauch reviewed recommendations of local programs, and prepared documentation, in the granting approval of applications or denying same; assisted in interpreting rules and regulations governing the Safe Drinking Water Act; participated in meetings; set up public drinking water programs; and coordinated Health Department programs in several counties. Although vested with authority to supervise other Engineers, many of the specialist positions were vacant, and supervision by Bauch was not significant. In general his task was to function in permitting (granting or denying permits for construction or modification of water facilities by utilities), and render technical assistance in the enforcement of the drinking water requirements under the Act aid its regulations.
4. Prior to his employment with Respondent, Bauch worked for Carol City Utilities. As a result of a meeting held in 1974 to coordinate certain activities, Bauch became emotionally upset thereat during the discussions. The testimony of Robert E. Evans, Jr., who was general manager of the utility it that time, reflects that Bauch was terminated as a result of his behavior at said meeting.
5. The record further reflects that Complainant was employed by Ray L. Hart and Associates between January 1972 and June 1974. According to the testimony of Edwin Kellerman, vice-president of said firm, Bauch was discharged for threatening another employee.
6. During his employment with Respondent Agency, Complainant Bauch has encountered difficulties in dealing with applicants. Some of these involved behavioral problems
attributed to Bach's personality, while others concerned the employee's approach to requirements imposed upon applicants. The foregoing included the following:
7. All of Respondent's supervisors and managers concede, and I find, that Bauch was very knowledgeable, was a competent engineer, and could be described as technically capable. The ratings he received and the comments of his supervisors, during his tenure, were as follows:
8. Complainant continued to receive merit increases attached to the position of Engineer 4, and was awarded permanent status on October 28, 1977. His technical competence and capability was, during his tenure as a drinking water engineer, unquestioned by Respondent.
9. A meeting was held on June 14, 1978 at the County Office of the Dade County Department of Environmental Resources anagement (DERM) to discuss and explore the application of chloramine treatment for finished water. The meeting was called by DERM because of excessive amounts of trihalomethanes in the water produced through chlorination. The meeting was called by DERM and was precipitated by reason of MDWSA's proposed use of chloramines. Various representatives of DERM, MDWSA, Respondent, Environmental Protection Agency, as well as private individuals, attended the session.
10. Prior to the aforesaid meeting Duke asked Bauch to attend the session on behalf of Respondent. Bauch reviewed the water system file for MDWSA, and he prepared a memo dated June 13, 1978 addressed to Colin Morrissey of DERM from Straham, Duke and Bauch re the use of chloramines as a disinfectant. The memo, alluding to the fact that MDWSA'a water
system disclosed the presence of bacteriological organisms, stated that the Respondent could not accept cloramines as a substitute for the maintenance of the "legally required minimum free chlorine residual of 0.2 ppm". It also mentioned six techniques which were necessary to rectify the problems with MDWSA's water system, and emphasized that rechlorination was necessary after a flushing procedure was followed. The memo was distributed to those in attendance at the meeting.
11. MDWSA's Director, Garret Sloan, took umbrage at the contents of the memo prepared by Bauch. He stated there were many errors in the review, and took issue with the alleged responsibility of the Authority to wholesale purchases as well as the number of samples required to be taken. Sloan felt that Bauch's decisions were slanted against MDWSA; that the data prepared by Bauch was incorrect; and that the agency should not be required to accept the conclusions concerning chloramines. Since the meeting was called to discuss the advisability of using chloramines, Sloan was upset that the decision had already been made to deny their use. The Director remarked that much of the data was fabricated, and asked Dykes "if he had to take this stuff" and whether there was not some recourse. Dykes replied that Sloan could have it reviewed by Landers, and the Director said he would try to prevent Bauch from regulating his system.
12. Subsequent to the June 14 meeting Sloan telephoned Landers, stating he felt the attitude of DER's West Palm Beach office re the use of chloramines was wrong; that he waited three months for the meeting and it was not fruitful; that the method had been used in many cities and should be considered; and remarked that Bauch was not in sympathy with the treatment, but was rigid and almost arrogant as well as abusive. Landers told Sloan to put his comments in a letter and forward it to the Secretary.4
13. By letter dated July 27, 1978 Sloan wrote to Landers, pointing out that the six techniques mentioned by Bauch were ill advised and urging that the use of chloramines be reconsidered and Bauch's memo be withdrawn. Sloan stated that Bauch had harrassed the Authority in the past and the Engineer's attitude continued in the present instance. In a letter written to Landers on the following day, Sloan referred to correspondence in the past which was initiated by Bauch
and included derogatory statements re MDWSA. Sloan commented on the fact that at the June 14 meeting no discussion as to chloramines was permitted; that bitter statements were made and nothing constructive accomplished.
14. Shortly after the foregoing letters were written Straham spoke to Duke re the need to fill the position of Air Engineer in the West Palm Beach office which had been vacant since the past November. Duke suggested that Bauch would be well qualified in view of his excellence as an Engineer. Straham remarked that Landers had received a letter from Sloan re the June 14 meeting about the use of chloramines; that there were complaints as to Bauch's behavior and the Authority not receiving reimbursed treatment. Duke replied that Bauch may have misunderstood the intent of the Department.
Straham further commented that reassigning Bauch might be the challenge needed to satisfy Bauch's drives and cause him to take a different approach to some situations. Also, it would solve the problems of continuing reactions and resistence which were encountered from people with whom Bauch dealt. It was further agreed to move Jim Williams, who was also a capable engineer but not as volatile, into Bauch's position as drinking water engineer.
15. On August 11, 1978 Duke spoke to Bauch re the assignment to Air Engineer. The Supervisor stated that the problem of Bauch's antagonism with Sloan and others in Dade County could result in his losing his job since it had continued over the years; that Bauch could not perform effectively, and he suggested the transfer be accepted. Bauch protested that he did not want the new job, but Duke urged him to reconsider in view of Sloan's refusal to deal with Bauch and the problems which existed between them.
16. On the same day, August 11, Bauch informed Straham he didn't want the reassignment. The Manager suggested that the new job gave Bauch a chance to go into another field, to separate himself from the backlog of hard feelings since he wouldn't work with Sloan, and to deal with other people. Straham told Bauch if he didn't accept, Landers might order his dismissal in light of the hostile relationship between Bauch and Sloan. Realizing that he might be dismissed for
insubordination, Bauch accepted5 the transfer to Air Engineer which became effective on August 14, 1978.
17. In a memo dated August 31, 1978 from Respondent's official Stephan J. Fox addressed to Landers, which resulted from Landers asking Fox to investigate the June 4 incident, Fox advised the Secretary that Sloan had spoken to Straham re the June 14 meeting. Fox referred to the fact that Straham was aware of the long standing hostility between Sloan and Bauch. He stated that Straham had taken action to minimize the contact between Sloan and Bauch, since the latter would be reassigned from the Public Water Supply System to the Industrial Waste Water and Air Section.
18. The position of Air Engineer, to which Bauch was transferred from drinking Water Engineer, involved his being a supervisor over several areas of expertise: air, solid waste, dumps, land fills, and industrial waste water. His duties included a review of five people to assure that the work is technically correct and that permits are issued which meet requirements. Bauch assigns tasks to the Engineers and specialists. He also supervises a clerk-typist and two temporary employees handling inventory.
In his new position Bauch works in the same location; countinues to be supervised by Duke; and receives the same salary and benefits as Air Engineer which accompanied the position of Water Engineer. He still has some contact with outside applicants though some of these would involve different firms or agencies. Record facts reflect that Bauch is doing an excellent job as Air Engineer, and that management is very pleased with his performance since the transfer.
The statute which gives rise to this proceeding protects employees from discriminatory action directed toward them as a result of certain endeavors to pursue its enforcement. Section 1450(i) provides as follows:
Complainant insists that his transfer on August 14, 1978 to the position of Air Engineer was within the provisions of the foregoing statute.6 He argues that Respondent's action was precipitated by his attempt to require MDWSA to comply with the safe drinking water standards under the Act; and that by reason of Sloan's dissatisfaction with the requirements adopted by DER, as well as efforts to avoid compliance therewith, he effected the discriminatory transfer of Bauch from Water Engineer to Air Engineer.
Respondent takes the position, inter alia, that Bauch was moved to the Air Engineer job in order to fill a vacancy which had existed for many months. It maintains, in its brief, that the decision was managerial in nature; and that, it did not stem from Sloan's complaints of Bauch's attitude, were any of the complaints the motivating factor in the decision. Rather it is argued that the action taken reaped the benefit of removing many of the problems encountered by Bauch when dealing with people - all of which is deemed a by-product of the transfer itself.
Despite Respondent's contention to the contrary, I am persuaded that the proximate course of the transfer herein was the complaint levelled against Bauch by Sloan, the Director of MDWSA. This conclusion is supported by the testimony of
Duke who supervised Bauch, as well as other evidence in the record. Thus, when Duke spoke to Bauch re the transfer on August 11, the supervisor stated that because of the employee's conflict with Sloan, a likelihood existed that Bauch could lose his job. Further, in urging Bauch to agree to the transfer, Straham remarked that the former would be free of the problem with Sloan, and he also adverted to the fact that Landers might dismiss Bauch as a result of the hostitlity between the Employee and the MDWSA Director. Finally, Respondent's official, Fox, advised Landers on August 31, 1978 that Sloan had spoken to Straham re the June 14 meeting and the latter had taken action to minimize the conduct between the two individuals.
Moreover, I am convinced that, due to the many criticisms directed toward Bauch as to his attitude and behavior when dealing with other firms or agencies, Straham - who made the decision to transfer Bauch - felt that the transfer might relieve the situation. While Straham designated such relief as a by- product of the move, his testimony in this regard demonstrates that the past difficulties involving Bauch were a factor in his decision. This is buttressed by the testimony of Duke who conceded that the resistence to Bauch by others outside DER, and the adverse reactions to this employee, were a reason behind the transfer.
Accordingly, the central issue to be determined is whether a decision by Respondent to assign an employee to another position under these circumstances constitutes a violation of the Act. Although not free from doubt, I am constrained to conclude that the action taken by management herein did not run afoul of the prohibitive language of Section 1450(1). While the statute is apparently designed to protect employees who attempt to enforce the safe drinking water regulations, I do not believe it restricts an employer in its operational decisions. It does not, and should not, preclude management from taking steps to assure and maintain effectiveness by its staff in enforcing the water system requirements. To this extent, Respondent and others similarly invested with enforcement duties, must be able to transfer employees or adjust employment situations so as to accomplish such effective enforcement.
In the case at bar the record is replete with instances where, despite the competence and expertise of Bauch as a
technical Engineer, his attitude and behavior have provoked continual criticisms from other individuals. Not only did this exist while he was employed with Carol City Utilities and Roy Hart & Associates prior to his current employment, but complaints re his aggressiveness and lack of tact persisted during his tenure with Respondent. Straham discussed these difficulties with Bauch several months after he was employed by Respondent. Moreover, each performance review of Bauch's supervisors referred to his difficulties in relating to consultants and others, his emotional involvement, and his overbearing attitude during the performance of his duties.
In addition to the foregoing, complaints within the agency had been made in respect to Bauch's utilizing weak data to support his recommendations or advocating strong action in dealing with an applicant which was not warranted. Bauch had been cautioned in this regard as well as in his drawing conclusions without sufficient data to support them. The tendencies, together with the foregoing behavioral difficulties, hampered communications between Bauch and many applicants.
After careful consideration of the entire record, I thus am of the opinion that Respondent's action in respect to Bauch was not imposed because this individual sought to "carry out the purposes" of the Act. Nothing in the record supports the conclusions that DER opposed enforcement of the regulations in safe drinking water systems. Nor does it appear that Respondent attempted to restrict such enforcement by its employees. Rather does it appear to the undersigned that the Employer was desirous of eliminating, from its vantage point, a source of friction between Complainant and MDWSA as well as other applicants. It attempted to accomplish this end by transferring Bauch to the position of Air Engineer where he would interact with certain different individuals. Such action on the part of Respondent does not, in my opinion, constitute discrimination, but represents an effort to pursue enforcement of the regulations and rules concerning the safe drinking water system in the most effective manner. An employer should not be faulted if it requires an interchange or reassignment of employees to achieve this action. Moreover, I conclude the Act herein was not intended to reach a situation as prevailed in the instant case, but rather was it expected to embrace instances when an employer resists adherence to the regulatory provisions and takes action to frustrate it.
Accordingly, and in view of the foregoing, I conclude that Respondent did not discriminate against Herbert J. Bauch when it transferred him on August 14, 1978 from the position of Water Engineer to Air Engineer; and that by such action Respondent did not violate Section 1450(i)(1) of the Safe Drinking Water Act (Public Law 93-523).
Accordingly, and in light of the conclusions set forth
herein above, the undersigned recommends that the Secretary
of Labor dismiss the complaint in its entirety.7
WILLIAM NAIMARK
Dated: April 13, 1979
1 A motion to dismiss predicated on
these contentions
is denied. The state is characterized as a "person" under
the Act who, under Section 1450(i)(2)(A) thereof, may not
discriminate against an employee. While the term "Employer"
is not defined, I am satisfied that Respondent would be
embraced within that term, and I find no reason, nor support
for, excluding the state as an employer under the Act.
In respect to Respondent's insistence that a state is
not properly sued as a party, I reject this argument. When
a state becomes a grantee of funds, and elects to accept
funding under a statute, which regulates its performance in
a particular area, the state cannot be heard to deny it is
bound by such statutory regulation. Cf. San Diego Regional
Employment and Training Consortium, 78 CETA 102.
I find no merit, moreover, in the procedural defenses.
It does not appear the case was not investigated within 60
days as required. Further, in a letter dated November 27,
1978 addressed to the Chief Administrative Law Judge,
Respondent waived compliance with the 90 day requirement under
the Act and requested the hearing be delayed to establish
orderly procedure. Finally, I conclude Respondent was not
substantially prejudiced by the absence of regulations as
the case was fully litigated.
2 Correspondence originating
from the permitting
section to applicants usually bore signatures of the
supervisor or head of a division. Where Bauch was involved with
a project his initials or name appeared on the correspondence.
While the supervisor was familiar with a project, responsibility
for the technical aspects rested with the engineer
involved.
3 Supervisor Duke testified he
also received similar
complaints concerning Bauch.
4 Although Bauch had leveled
criticisms against MDWSA
for a year, Sloan testified he did not disagree with all such
criticisms; that there were, however, usually one or two
extraneous provisos which had little to do with plans for a
permit; and that he never spoke to Landers previously.
5 In view of the circumstances
herein above set forth,
I reject the contention by Respondent that the transfer was
voluntary on the part of Bauch. I am satisfied, particularly
since Straham testified Bauch had no option and would have
been transferred in any event, that there was no consent by
the Employee to the transfer.
6 A tenable argument could be
advanced that the Act
only purports to protect employees who have instituted formal
proceedings against their employer. Such a conclusion receives
sonic support from he language of Section 145(i). however, I
construe the language in 1450(a)(c) to be broad enough to cover
the instant case.
7 No recommendation is made
that damages or costs be
assessed herein. As I read Section 1450(i) (2) (B) (ii), such
assessments may accompany any order where the Secretary
determines a violation exists, and would be imposed against
a Respondent. Accordingly, to requests by both parties for
the levying of costs or other amounts is denied.
Administrative Law Judge
Washington, DC