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79-SDWA-2
In the Matter of
DONALD LEE RAY, on behalf of
himself and all others similarly
situated,
Complainant
v.
K. RAY HARRINGTON,
WILLIAM R. BROCK,
LESTER WILLIAMS, JR. all in
their official and individual
capacities, and the METROPOLITAN
GOVERNMENT OF NASHVILLE and
DAVIDSON COUNTY,
Defendants
Donald Lee Ray
c/o Elliot Ozment, Esquire
One Commerce Place, Suite 1221
Nashville, Tennessee 37239
For Complainant
K. Ray Harrington,
William R. Brock,
Lester Williams, Jr.
Metropolitan Government of Nashville
and Davidson County, Tennessee
c/o Peter H. Curry, Esquire
204 Courthouse
Nashville, Tennessee 37201
For Defendants
Before: GEORGE A. FAITH
Administrative Law Judge
This is a proceeding brought under the Safe Drinking Water Act, (88 Stat. 1660), et seq., 42 U.S.C. 300f, et eq. (hereinafter referred to as the Act), by Donald Lee Ray against the Metropolitan Government of Nashville and Davidson County, Tennessee (hereinafter called Metro) and the above named individuals, in which he seeks judgements against the defendants, jointly and severly, for compensatory and punitive damages, attorney's fees, and costs for violations of the Act. This cause of action, authorized by Section 300j-9 of the Act, is founded on Ray's complaint that he has been discriminated against for his actions to carry out the purposes of the Safe Drinking Water Act.
After notice, a formal hearing on the complaint was conducted at Nashville, Tennessee beginning on May 8, 1979. The parties were given full opportunity to present evidence, oral argument and briefs on the issues. The hearing was public and stenographically reported. Briefs were submitted and filed with the record. This decision follows the termination of the formal hearing and it is based on the entire record.
Metro owns and operates a public water system in Nashville and Davidson County, Tennessee, which serves approximately 450,000 people. As a supplier of water, it is subject to the provisions of the Act.
The individual defendants are Ray's supervisors in the Department of Water and Sewage Services. Harrington is the Director of the department, and he is assisted by Brock, the Assistant Director, and Williams, the Chief Operational Engineer.
Ray was hired by Metro as a chemist on December 5, 1975. He was placed in charge of the chemistry laboratory maintained by the department for testing water samples taken from the system.
The case file reflects that the complaint of Donald Lee Ray was received by Employment Standards, Wage and Hour Division, U.S. Department of Labor at Washington, D.C.
on February 28, 1979.1
In his complaint, Ray alleges that since December, 1975 he has insisted upon, assisted, and participated in the enforcement of drinking water regulations pursuant to the Act, and on that account he has been the subject of various harrassment techniques, false accusations, and other discriminatory acts which are summarized as follows:
Attached to the complaint is a supplemental complaint
(filing date unknown) in which Ray alleges that on February
23, 1979, he was transferred from his job as supervisor of
the chemistry laboratory to another job in Project Prevent/
Recover, a project concerned with a safe transportation of
hazardous material. He states that his removal from the
laboratory was in retaliation for filing this action.3
On May 7, 1979, Ray filed amendments to the complaint
in which he elaborated on the original complaint and, in
addition, he alleges, in detail, incidents of discrimination
covering the period February 19, 1977 to October 20,
1978.
At the time of the hearing Ray was still employed by
etro as a chemist. He has not suffered any loss of
income. His disagreement over his performance evaluation is
on appeal and in line with a back log of others for hearing
by Metro Civil Service Commission.
The defendants filed answers to Ray's complaints in
which they denied the allegations of violations of the
Act.
Prior to the commencement of trial, the defendants
filed a motion to dismiss the complaint on grounds that
it was not timely filed.
The complainant brings his action pursuant to Section
300j-(9)(i)(1) of the Act which raises a cause of action
against any employer who discharges any employee or
otherwise discriminates against any employee with respect to his
compensation, terms, conditions, or privileges of
employment because the employee commences a proceeding for the
administration or enforcement of drinking water regulations,
or testifies or is about to testify in such proceeding or
assists or participates in such proceeding or any either
action to carry out the purposes of the Act. The statute
provides relief by way of ordering abatement of the
violation, reinstatement of the employee to his former
position, compensatory damages, exemplary damages, costs, and
attorney fees.
Section 300j-9(i) (2) (A) provides: "Any employee who
believes that he has been discharged or otherwise
discriminated against by any person in violation occurs, file
(or have any person file on his behalf) a complaint with the
Secretary of Labor . . . alleging such discharge or other
discrimination."
The preliminary question addressed by the defendants'
motion to dismiss the complain on grounds that it was not
timely filed is dispositive as to all alleged violations
stated to have occurred prior to the filing of the original
complaint on February 28, 1979.
Ray was moved to file his complaint based on an
unfavorable performance rating given him on November 20, 1978.
It was that incident that formed the gist of the complaint
which was filed on February 28, 1979. If, indeed, that was
a violation within the meaning of the Act, the complaint was
filed 100 days after the occurrence. Clearly, the complaint
was filed outside the time limitation imposed in the statute.
Upon receipt of the performance rating, Ray had a
choice of filing a complaint under the Act, proceeding to
his administrative remedies, or pursuing both actions
simultaneously. He elected to proceed by grievance alone.
Time on his action, under the Act, began to run on November
20, 1978.
This statute gives an employee a cause of action
independent of his other remedies which must be acted upon
within the time prescribed. The Act does not require
exhaustion of administrative remedies and the 30 day time
limitation for filing a complaint is not tolled by the
pursuit of other remedies. International Union of
Electrical, Radio and Machine Workers v. Robbins and Myers,
429 U.S. 229, 97 S.Ct. 441 (1976).
The complainant seeks to re-establish his cause of
action based on the refusal of his supervisor on January 18,
1979 to accept the recommendations of the grievance panel
regarding his performance evaluation. He incorrectly
ascribes to this refusal a new act of discrimination when,
in fact, the supervisor was merely acting out a step in the
grievance procedure involving the original complaint in
1978. The effect of the view that another act of
discrimination occurred on January 18, 1979, would be to toll
limitations of the Act at each step of the grivance proceeding.
oreover, each step of the grievance proceeding
adverse to Ray would thereby establish a new foundation for
a complaint under the Act. Under this theory, a complaint
could be made to wait until the conclusion of the
administrative remedies therby tolling the statute. This
contention does not accord with the International, supra.
To avoid the foregoing results, Ray contends that since
the discrimination is a continuing course of conduct
extending into the 30 day limitation period, it is a single
violation. This contention is without support in the
wording of the Act. The statute speaks of filing a
complaint within 30 days after a violation occurs. Each
violation provides a cause of action, and time begins to run
on the filing of the complaint as soon as the violation
occurs. No reasonable interpretation of the Act would
permit an employee to accumulate defunct violations, as Ray
suggests, and then given them vitality by reliance on a
violation within the statutory period. A violation of the
Act cannot be grounded on events predating the limitation
period. See Local Lodge 1424 v. NLRB, 362 U.S. 411, 80 S.C.
822 (1960).
Neither of the parties established the filing date of
the supplemental complaint, and the file does not show the
filing date. Whether by accident or design, the
supplemental complaint is attached to the complaint and
apparently these documents have been treated as one by the
office of the Secretary of Labor. If, indeed, these
complaints are one document, filed together, they were received
by the office of the Secretary on February 28, 1978 and the
complaint relative to Ray's transfer on February 23, 1979 is
timely. In view of the foregoing inferences, and in the
absence of evidence to the contrary, it is found that the
supplemental complaint was timely filed and proper for
consideration on the merits.
The facts relative to Ray's transfer are not in
dispute. On February 23, 1979, he was transferred from his job
in the laboratory to Project Prevent/Recover. His new
position deprived him of supervision over the laboratory and
its employees. His salary remained the same. This transfer
followed closely upon the receipt by Metro of a copy of his
complaint of violations under the Act. On these facts Ray
rests his case for discrimination.
Metro states that Ray was transferred to avoid the
conflict and embarrassment between him and his immediate
supervisors who are defendants in this suit. It states
that he was needed in Project Prevent/Recover for his
expertise in chemistry and hazardous material handling.
The job is temporary and at the conclusion of the project,
Ray will be returned to his job at the laboratory.
Metro's evidence furnishes explanation and good reason
to justify Ray's transfer. It has a responsibility to
provide water and sewer services to 450,000 people
irrespective of its engagement in litigation. The smooth
operation of the department is dependent upon the
compatibility of the employees who carry out the duties of the
department. Both sides are vexed by this litigation. Ray's
immediate supervisors are defendants in this case, and as
such they are both sensitive and vunerable to charges real
or imagined, which might interfere with their defenses or
the functions of the department.
This mix of personalities had great potential for
adverse effects on the department. Under the circumstances,
etro acted prudently in transferring Ray to avoid
compounding existing problems pending the disposition of this
litigation.
In the matter Ray's reassignment, Metro acted within
the parameters of its authority as his employer. The Act
does not restrict an employer in its operational decisions.
anagement must be able to adjust employment situations so
as to carry out its duties. Bauch v. Joseph W. Landers,
Jr., et al., Decision of the Secretary of Labor, May 10,
1979.
The burden of proof rested on Ray to prove his case
against Metro by preponderance of evidence. He has not
carried this burden. His charge that he was transferred in
retaliation for filing the complaint rests principally on
the timing of the transfer which closely followed the filing
of the complaint. This strained interpretation of these
events is more than offset by Metro's credible explanation
of the reasons for Ray's transfer.
For the reasons stated, it is recommended that the
Complaint, Supplemental Complaint, and Amendments to the
Complaint, filed by Donald Lee Ray under the Act, be
dismissed, and that an order be entered in favor of the
defendants in the matter of Ray's transfer on February 23,
1979.
GEORGE A. FATH
Dated: June 5, 1979
1 The attorney for complainant
states that the
complaint was mailed to the Secretary of Labor on February
14, 1979 simultaneously with its mailing to Metro. The
complaint shows a date stamp, March 7, 1979, as the time it
was received in the Wage and Flour area office
2 This matter is now on appeal
to the Civil Service
Commission.
3 The evidence shows that
etro transferred Ray for
two reasons: (1) to avoid the day to day conflict between
Ray and his immediate supervisors, who are defendants
during this litigation; and, (2) to provide Project
Prevent/Recover with Ray's expertise in chemistry and the
handling of radioactive material. Metro represents that
this is a temporary assignment and that Ray's job at
the laboratory is still open and available to him.
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Administrative Law Judge
Washington, D.C.