DOL Home > OALJ > Whistleblower > Ray v. Metropolitan Government of Nashville, 80-SDW-1 (ALJ Mar. 18, 1980) |
80-SDWA-1
In the Matter of
DONALD LEE RAY
Complainant
vs.
ETROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY
AND THE URBAN OBSERVATORY OF
ETROPOLITAN NASHVILLE-
UNIVERSITY CENTERS
Respondents
Appearances:
ELLIOTT OZMENT, ESQUIRE
One Commerce Place
Suite 1221
Nashville, Tennessee
For the Complainant
PETER H. CURRY, ESQUIRE
JOHN P. LONG, ESQUIRE
Metropolitan Government of Nashville
and Davidson County, Tennessee
c/o Peter H. Curry
204 Courthouse
Nashville, Tennessee 37201
For the Respondents
Before: RHEA M. BURROW
Administrative Law Judge
Statement of the Case
This is a proceeding under the Safe Drinking Water Act (Public
Law 93-523; 88 Stat. 1660, et seq., 2 U.S.C. 300 f, et seq.), hereinafter called the Act. Section 1450 (i) of the Act (88 Stat. 1692); 42 U.S.C. 300j-9(i)) prohibits discrimination against an employee because of actions to carry out the purposes of the Act. It provides that an employee who believes he has been discriminated against in violation of that section may file a complaint within 30-days after the violation occurs.
Donald Lee Ray, hereinafter referred to as Complainant, filed the complaint now under consideration on September 25, 1979, with the Department of Labor against the Metropolitan Government of Nashville and Davidson County and the Urban Observatory of etropolitan Nashville-University Centers, hereinafter referred to as Respondents and a supplemental complaint against the Respondents was received on October 23, 1979.1
The complaints allege in substance that Donald Lee Ray was employed and served as the Principal Chemist in charge of the etropolitan Nashville and Davidson County (Metro) Water Quality Control Laboratory from December 1975 to February 23, 1979 when he was removed from the laboratory and deprived of his supervisory responsibilities and transferred to the Urban Observatory for, work on Project Prevent/Recover. This project dealt with risk management of hazardous materials and he began work on the project on or about March 1, 1979. On August 27, 1979 the Complainant began work on Project 208, Non-Point Source Pollution. He was dismissed from the Urban Observatory on October 2, 1979 and put on administrative leave from Metropolitan. On October 9, 1979 he was subjected to a disciplinary hearing on charges of (a) involvement in a sick-in solicitation; (b) involvement in a cartoon posting incident; (c) giving false testimony under oath relative to items (a) and (b); and (d) poor job performance and adjustment at the Urban Observatory as reflected in the letter to him dated October 4, 1979. Because of various incidents and charges during 1978-1979 and complaints filed by Complainant in 1979, Mr. Ray alleges that Respondents have discriminated against him and he is entitled to injunctive relief, compensatory and exemplary damages and costs for violations of the Act including attorney's fees.
Pursuant to notice issued January 8, 1980 a hearing was held before the undersigned on January 30 and 31, 1980. The parties were represented by counsel at the hearing and afforded full opportunity to adduce evidence and to examine and cross-examine
witnesses. Thereafter the parties filed briefs which have been duly considered.
Based upon the entire record including my observation of the witnesses and their demeanor at the hearing and all other evidence of record, I make the following findings and conclusions:
1. The Respondent Metropolitan Government of Nashville and Davidson County is a municipal corporation which provides water and Sewerage services to its citizens through its Department of Water and Sewerage Services. As the supplier of such services, it is subject to the provisions of the Safe Drinking Water Act.
2. The Urban Observatory of Metropolitan Nashville
University-Centers was the agency to whom Complainant Donald
Lee Ray was loaned after he filed a complaint with the
Department of Labor in February 1979. Ray v. Harrington, et al.,
79 SDWA-2. He was assigned to work on projects referred to as
Prevent/Recover and Hazmat from February 23, 1979 to October 2,
1979 when he was dismissed and returned to Metro2 . At Metro
he was put on administrative leave on the same day and subsequently
dismissed on October 7, 1979 following a bearing based
on various charges. He never returned to work after being placed
on administrative leave on October 2, 1979. I find that Donald
Lee Ray was paid as an employee of Metropolitan Government of
Nashville and Davidson County throughout the period from
February 23, 1979 to October 2, 1979 when he was on loan to the
Urban Observatory of Metropolitan Nashville University Centers.
3. Complainant was hired as a Chemist by Respondent Metro
in December 1975 and placed in charge of the Chemistry laboratory
maintained by the Department for testing water samples from the
system. In serving in that capacity from his date of hire in
December 1975 to the date of his transfer to the Urban observatory
in February 1979, he had supervisory responsibilities over as many
as six laboratory subordinates and general charge of laboratory
facilities.
4. A decision dated June 5, 1979 by Administrative Law
Judge George A. Fath, was dispositive of the issue in Ray's
complaint as to whether his removal from the laboratory and
transfer to the Urban observatory on February 23, 1979 was in
retaliation for filing actions listed in the original and
supplemental complaints received on February 28, 1979.3 In
the decision it was concluded that: "In the matter of 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. Management 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,
ay 10, 1979. It was also noted that Ray had been given an
unfavorable performance evaluation on November 20, 1978.
It sufficies to say that this proceeding is not a forum to
resurrect old issues previously considered and finally decided
by administrative, quasi judicial, or judicial tribunals. 4
5. The matter under consideration in this proceeding is
predicated on events and issues timely alleged and occurring
after the decision of June 5., 1979. Some incidents are indicated
and utilized to provide a historical background. The issues and
events are:
6. The charges proffered by Metro against Ray on October 4,
1979 were:
7. The sick-in solicitation was alleged to have occurred in
early June 1978. An investigation followed and no action was found
to be warranted. It appears that a Metro employee later identified
as Richard Britten had passed a message to Ray's superiors Fred
Clinard and Lester Williams that a man identifying himself as
Don Ray had talked to his wife by phone and solicited his, Britten's,
participation in a sick-in. On June 26, 1979 Richard Britten signed
a document that he had never been confronted by Donald Ray with the
idea of calling in sick. At the hearing before me he stated that
his signed statement was not true.
William K. Maxwell, a union steward, testified that sometime
during 1978 Ray had solicited him to participate in a sick-in. He
was unable to pin-point the exact date because he said there had
been two or three sick-in incidents. In any event, he told his
superior about the incident the day after it happened.
Apart from the belated testimony and its credibility as it
relates to Britten and Maxwell, the record before me does not
establish that a sick-in occurred in June 1978 and the administrative
action following the incident resolved the matter. No
employee would remain safe in employment if a government agency
were permitted to resurrect ancient events long since
administratively or judicially resolved.
8. The alleged cartoon incident occurred about August 1978
and was investigated shortly thereafter. The testimony before me
did not establish that Ray was involved as a participant in the
incident and the issue was withdrawn at the hearing.
9. The alleged sick-in solicitation and cartoon incidents
attributed to Ray in June and August 1978 are not separate new
incidents upon which to revive old issues previously considered
against Complainant and resolved by administrative confrontation, 5
and collaterally by Judge Fath in June 1979.
10. Gloria Allison, Project Director of Water Pollution
Project 208 for the Urban Observatory and Ray's immediate
supervisor while on loan to the Observatory testified that Ray was
not dismissed from the Naval Observatory but was sent back to
etro because his services were no longer needed.6 His
administrative ability and agility to get along with personnel with
whom he worked and cooperation with supervisors who administered
the program left much to be desired.
The record reveals that during 1978 Ray began experiencing
difficulty with his supervisor Fred Clinard and contacted
Director Harrington and the Mayor regarding various incidents.
His performance evaluation in November 1978 indicated a 79.25
average. It was noted on the evaluation that he was very
zealous as demonstrated by internal conflicts and no regard for
public image. Complainant's Exhibits 5 and 7 illustrate some
of the problems he experienced.
11. With reference to the charges in the October 10, 1979
letter to Complainant Ray, Kenneth Ray Harrington, Director of
the Metropolitan Department of Water and Sewerage Services, in
answer to a question as to what the effect would be of the morale
of the Department of Water and Sewerage Services had you refused
to bring charges against Mr. Ray after development of this
evidence, stated:7
12. There has been a source of friction between Complainant
and defendants relating to his transfer from Metro in February
1979 and his work assignments while on loan to the Urban Observatory
pending final action on his claim before the Sixth Circuit
Court of Appeals which culminated in the complaint filed by Ray
on September 25, 1979. The Director of the Observatory noted
that Ray had not been able to adjust and work out satisfactorily
on his assignments and returned him to Metro on October 2, 1979.
At Metro he was subsequently discharged on October 9, 1979
resulting in the supplemental complaint. Dr. Bilyeat, in a letter
addressed to Ray on October 2, 1979 stated in part:
1. 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 the following:
The record in this case shows that the alleged sick-in
participation by Ray in June 1978 was investigated at the time
and there was no basis found for any administrative charges or
action against Ray and he was continued on full duty with no
reprisal of any sort. Further, the matter was referred to in
the proceeding before Judge Fath as indicated in testimony
before me.
I consider the matter as not properly before me for
consideration in this proceeding because of prior administrative
and/or quasi-judicial consideration and also because of its
remoteness to the instant complaint.
The doctrine of res judicata is a judicially created
doctrine which may be said to exist as an obvious rule of
reason, justice, fairness, expediency, practical necessity and
public tranquility. Public policy, judicial orderliness, economy
of judicial time and the interest of litigants, as well as the
place and order of society, all require that stability should be
accorded judgements, that controversies once decided on their
merits shall remain in repose, that inconsistent judicial
decisions shall not be made on the same set of facts, and that there
be an end to litigation which, without the doctrine of res
judicata would be endless, 46 Am. Jurisprudence 2d § 395,
pp. 559, 560 and 561.
The doctrine of res judicata is but a manifestation of the
recognition that endless litigation leads to confusion or chaos.
The doctrine reflects the refusal of the law to tolerate a
multiplicity of, or needless, litigation and is based on the
worthy premise that the proper administration of justice is
best served by limiting parties to one fair trial of an issue
or cause. It rests upon the ground that the party to be
affected, or some other with whom he is in privity, has litigated,
or has an opportunity to litigate the same matter in a former
action in a court of competent jurisdiction, and should not be
permitted to litigate it again to the harassment and vexation
of his opponent. (Underscoring supplied.) 46 Am. Jurisprudence
2d § 395, pp. 561, 562.
I conclude that the Respondents' charge to terminate
Complainant Ray from employment on October 9, 1979 because of
the alleged remote sick-in incident some 16 months earlier
is without merit.
2. I conclude that there was no reliable substantive
evidence presented before me to substantiate that Ray
participated in the alleged cartoon posting incident in August 1978.
This charge by the Respondent Metro against the Complainant
is likewise found to have been without merit and it was
withdrawn at the close of the hearing.
3. A third charge alleged by the Respondent Metro as
a basis for terminating Complainant's employment was that
he gave false testimony under oath relative to the alleged
sick-in solicitation and the cartoon posting incident. Since
the latter charge was withdrawn for lack of any reliable
evidence it is concluded to have been without merit.
As to the June 1978 sick-in solicitation charge, the
inconsistent statements and testimony by Richard Britten
leave much to be desired and certainly do not provide an
adequate basis to predicate a charge of giving false
testimony under oath. On a credibility basis based upon my
observation of the witness and the testimony presented at the
hearing I reject his testimony as not being forthright or
reliable.
As to the testimony of William K. Maxwell, he referred to
at least three sick-ins and was unable to identify which, if
any, Complainant Ray was alleged to have participated; sick-ins
were not unusual subjects of discussion in Maxwell's capacity
as a union steward. Certainly, the evidence as to a sick-in
incident in which Ray is alleged to have participated without
his ability to delineate the time, is too indefinite to
predicate a charge of having given false testimony under oath and
I conclude the charge to be without merit.
4. The only important and relevant timely charge in
this proceeding was Ray's alleged poor job performance at the
Urban Observatory and his subsequent termination of services
by Metro.
As noted on his performance evaluation in November 1978,
his supervisors, Lester Williams and William F. Brock recorded
that he was very zealous with manifestations of internal
conflicts and no regard for the public image. His prior
evaluations had ranged from above standard to outstanding. It is
evident that his competence and capability as a chemist during
his employment with Metro prior to February 1979 was unquestioned
and even afterward when he was on loan to the Urban Observatory.
However, the evidence of record clearly shows that he experienced
considerable frustration, internal conflicts, and difficulty on
confrontation by his associates and supervisors as to his work
involving administrative or developmental situations. As to his
transfer from the chemistry laboratory to another job in February
1979, the Secretary of Labor, in a decision issued July 13, 1979,
In the Matter of Donald Lee Ray vs. K. Ray Harrington, William R.
Brock, Lester Williams, Jr., and Metropolitan Government of
Nashville and Davidson county, Tennessee, Defendants, stated:8
Ray's complaint of September 25, 1979 refers to having
performed an occasional task in preparing Project Prevent/Recover
for presentation to the United States Department of transportation
but alleged that the greater part of his past eight months had been
spent in idle and unproductive waste. His transfer to "Project
208 - Non-Point Source Pollution" on August 27, 1979 was also
stated to involve waste treatment. He completed his first
assignment on August 31, 1977. He considered the assignment
objectionable and discriminatory.
Apart from the allegations, Project 208 was a component to
Project Prevent/Recover; there was no transfer from Project
Prevent/Recover to Project 208; it is a different component of
the same program.9 As a part of the same
program Ray remained
under the direction and immediate supervision of Gloria Allison
during his entire tenure at the Urban Observatory.
During his tenure from about March 1 to October 2, 1979,
he was assigned some five projects by Miss Allison. Her
testimony at the hearing detailed his efforts on these projects. He
did not satisfactorily complete some of the assignments and she
wound up rewriting them herself for presentation. Nothing of
significance occurred regarding the projects after September 15,
1979.10 She related that Ray's opinion
of Dr. Balyeat was
not respectful and he referred to him as "the shrimp down the
hall";11 she also referred to
having heard him talking on the
phone about a confidential budget matter and the only way the
budget could have gotten in Ray's hands was to have been taken
from her desk. There were personality conflicts reported when
she was asked to describe his ability to get along with others.12
Ray was also seen examining Gloria Allison's purse while she was
away from her office and when he was later questioned by her
after it had been reported to her, stated it would not happen
again.
Dr. Bilyeat testified that sometime during the latter part
of his employment at the Observatory there was a change in his
attitude and was not taking his work seriously. In September
1979 Bilyeat advised Metro that Ray's performance was
unsatisfactory and that Metro personnel should discuss the matter with
him. He later advised Ray that based on his present attitude
he was a detriment to the Hazmat effort.13 He was returned to
etro and subsequently discharged from employment on October 9,
1979.
The purpose of the Act as pertains to Section 1450(i)(1)
is apparently designed according to the Secretary of
Labor,14
Complainant Ray's reassignment from Metro to the Urban Observatory
about March 1, 1979 has previously been concluded to have been
within the parameters of Metro's authority as his employer. He
had been reassigned to avoid compounding existing problems pending
disposition of litigation in connection with a complaint filed by
him in February 1979. His duties while on reassignment or loan
to the Urban Observatory did not involve work related to providing
safe drinking water for Metropolitan Nashville and Davidsion
County, Tennessee. The record does not reflect that Metro
interfered with his assignments or work at the Urban Observatory while
attempting to adjust his employment situation so as to carry out
its own duties. Nevertheless, Ray, particularly during the latter
part of his tenure at the Observatory, was experiencing difficulty
in his association with supervisors and others and in developing
and completing acceptable work projects. Although his previous
actions and conduct indicated animosity and friction against his
etro supervisors and others, he sought to return to Metro as
principal chemist even though appellate litigation previously
initiated by him had not been finally resolved. His attitude,
behavior, animosity and friction with supervisors and employees
Continued at the Observatory. At the Observatory he had an
opportunity to demonstrate that he could adjust to an employment
situation created to utilize his expertise in chemistry and
hazardous material handling free from his past environment at
etro. This he did not do. He persisted in seeking return to
etro before the litigation he had initiated could be resolved
involving the Urban Observatory in his dispute with Metro. When
his services and usefulness at the Observatory were no longer
desired, he was returned to Metro and his employment was terminated.
The smooth operation of the department (water and sewer
services) by Metro is dependent upon the compatibility of the
employees who carry out the duties of the department. The Act
does not restrict an employer in its operational decisions.
etro's attempt to reassign Ray to the Urban Observatory to
avoid compounding existing chaotic problems pending disposition
of litigation was unsuccessful and resulted in creating similar
problems within the Observatory as had been experienced by Metro.
The record before me does not support a conclusion that
etro opposed enforcement of the provisions of the Safe Drinking
Water Act nor does it appear that Respondent attempted to
restrict such enforcement by its employees. Ray was not performing
any functions associated with Metro either when he filed his
complaint in September 1979 or in October 1979 when his services
were terminated.
Rather, Ray was impetuous to force himself back on Metro as
its principal chemist and impervious to the outcome of litigation
he had initiated. Although the Urban Observatory where he was
on loan had taken no action against him, he involved it in the
complaint filed in September 1979 necessitating his return to
etro. Ray's work at the Urban Observatory was not in furtherance
of or in connection with the Safe Drinking Water Act nor in view
of the circumstances was his assignment found to be in the best
interests of the Urban Observatory. Ray created the circumstances
resulting in his return from the Urban Observatory to Metro.
I conclude that his return to Metro did not run afoul of the
prohibitive language of Section 1450(1) of the Act.
Since Metro had previously indicated that Ray was on a
temporary assignment with the Urban Observatory and would be
returned to Metro upon completion of the assignment, did its
termination of his services constitute a violation of the Act?
In the first place, Ray's transfer from his job in the
laboratory at Metro to Project Prevent/Recover in late
February 1979, has previously been held not to have been a
violation of the Act.15 Secondly, his
work at the Urban
Observatory did not involve any duties under the Safe
Drinking Water Act. Thirdly, by reason of metro's
responsibility to provide water and sewer services to some
450,000 people irrespective of its engagement in litigation,
it was dependent in the smoothe operation of the department
upon the compatibility of its employees who carry out the
duties of the department. Ray's supervisors having been
named as defendant's in complaints filed in February and
arch 1979, they were found to be vexed by the situation
and sensitive and vulnerable to charges both 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 and under the circumstances his
transfer to the Urban Observatory was held to have been
prudent to avoid compounding existing problems pending the
disposition of this litigation.
The assignment from Metro to the Urban Observatory having
been determined to be prudent, it becomes necessary to determine
what, if any, action taken by the Respondents was inconsistent
with the Act. The record before me does not establish that
etro took any action against Ray or interfered with his
assignment or work at the Urban Observatory prior to the filing of
his complaint. Neither had the Urban Observatory taken any
adverse action against Ray and it reacted by returning him to
etro when he filed his complaint to avoid being involved in
his problems with Metro. The litigation which Ray initiated
and resulted in his transfer to the Urban Observatory was
unresolved; the explosive personnel conflicts between Ray and
his supervisors and co-workers continued to threaten and
compound management's existing problems. Ray did not purport to
await disposition of litigation that he had previously initiated
to resolve his differences with Metro, but attempted premature
reinstatement by the means available to him that would force
such action. I find no probable cause was generated by either
etro or the Urban observatory to have warranted the coercive
pressure urged by Ray for reinstatement prior to disposition
of the pending litigation he had initiated and completion of
the projects for which he had been temporarily assigned.
As has been previously mentioned, the purpose of Section
1450(i)(1) is to protect employees who enforce the safe drinking
water regulations. Ray's assignment while on loan to the Urban
Observatory did not involve enforcement of the Safe Drinking
Water Act or regulations promulgated thereunder.
The record is rather clear that Ray, while with Metro and
at the Urban Observatory, had emotional conflicts that generated
personnel differences between him and his staff supervisors and
co-workers making satisfactory adjustment difficult. Metro's
prior action in transferring him to the Urban Observatory pending
resolution of litigation initiated by him has previously been held
to be within the parameters of Metro's operational decision.
Neither his performance on the job nor his adjustment as a
professional employee to cooperate and work with staff supervisiors was
satisfactory while on loan assignment. Despite Ray's competence
and expertise as a chemist his attitude, behavior, and conduct
have provoked criticism from staff supervisors and individuals and
created turmoil within the Agency to which he was assigned as well
as that to which he was loaned while his appeal was being resolved.
He forced additional litigation by reason of new complaints in
September 1979, at a time when he was on loan and not involved
in any way with enforcement of the Safe Drinking Water Act. Under
the circumstances, Ray's action before me is pretextual in nature
to manacle the operational decision of the Water and Sewerage
Department from which he was on loan and at a time when he was not
engaged in enforcing the Safe Drinking Water Act and regulations
promulgated thereunder.
I conclude that the Act was not intended to reach a
situation as here prevailed, but rather, it was expected to
embrace instances when an employer employed tactics to resist
adherence to the regulatory provisions and take action to
frustrate it. After Ray's temporary reassignment to the Urban
Observatory to provide use of his services in an environment
apart from staff and personnel with whom he had been associated,
etro found itself barraged with new complaints before
litigation on his former appeal was resolved. Metro is not shown to
have taken any action to thwart appellate resolution of the
litigation or to interfere with the handling of Ray's work with
Urban Observatory. While Ray's performance at the Observatory
was not satisfactory, it had taken no action against him until
Ray involved it in his September 1979 complaints; whereupon it
returned him to Metro for disposition and his employment with
the Department of Water and Sewerage was terminated.
In view of the foregoing, I conclude that the Respondents
did not discriminate against Donald Lee Ray when his employment
as a chemist was terminated in October 1979 because of poor
performance, including inability to adjust to the usual and normal
employment situations as a supervisor of other employees; Ray
was not engaged in enforcing the provisions of the Act when he
filed the complaints in issue in September 1979, and all matters
being considered the Respondents did not violate Section 1450(i)
(1) of the Safe Drinking Water Act (Public Law 93-523).
In light of the conclusions set forth above, the undersigned
recommends that the Secretary of Labor dismiss the Complaint.
RHEA M. BURROW
Dated: March 18, 1980
RMB/mml
1 The case was assigned to the
undersigned administrative
law judge on January 7, 1980 and a notice scheduling a hearing to
begin on January 30, 1980 was issued on January 8, 1980.
2 At the hearing there was
clarifying information that
these were not separate projects, but components of the same
project under the same supervisor and in the same agency.
Tr. pp. 197, 198.
3 Other actions alleged in the
complaint were held not
to have been timely filed. The Administrative Law Judge s
decision was affirmed on appeal to the Secretary of Labor. It is
presently pending before the Us. Sixth Circuit Court of Appeals.
4 In the previous consideration
of the case before Judge
Fath, Ray had alleged that his removal from the laboratory was in
retaliation for filing this action. The evidence relied upon
showed that Metro transferred Ray for two reasons: (1) to avoid
the day-to-day conflict between Ray and his immediate supervisors,
who were defendants during this litigation; and (2) to provide
Project Prevent/Recover with Ray's expertise in chemistry and the
handling of radioactive materials. Metro represents that this is
a temporary assignment and that Ray's job at the laboratory is
still open and available to him. See footnote 3, page 4 of the
June 5, 1979 decision. The Secretary referred to the above
representation in finding that no discrimination had occurred.
5 Certainly there was nothing
new about the situation at
the time of the hearing in January 1980 than had previously been
indicated - only rehash by Maxwell as to the same sick-in incident.
6 See Tr. p. 199.
7 Tr. pp. 270, 271, 272.
8 As previously noted in
footnote 3 an appeal is pending
before the U.S. Sixth Circuit Court of Appeals.
9 Tr. p. 226
10 Tr. pp. 213, 214
11 Tr. p. 191
12 Tr. pp. 201, 202
13 Tr. p. 236
14 In the Matter of
Herbert J. Bauch vs. Joseph W. Landers, Jr.,
Secretary and Agents, State of Florida Department of Environmental
Regulation, Decision of the Secretary, 79 SDWA-1 dated May 10, 1979.
15 Secretary's Decision of
July 13, 1979, supra
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Administrative Law Judge
Washington, D.C.