DOL Home > OALJ > Whistleblower > Prafke v. City of Fairmont, Minnesota, 83-SDW-1 (ALJ Oct. 19, 1983) |
83-SDW-1
In the matter of
MERLYS PRAFKE,
Complainant
v.
CITY OF FAIRMONT, MINNESOTA,
Respondent
APPEARANCES:
Steven R. Sunde, Esquire
Piper, Sunde and Olson
108 South Armstrong Blvd.
St. James, Minnesota 56081
For the Plaintiff
Richard D. Berens, Esquire
201 East Third Street
Fairmont, Minnesota 56031
For the Respondent
BEFORE: RHEA M. BURROW
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 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 3n rays after the violation occurs.
Merlys Prafke, hereinafter referred to as Plaintiff and/or Claimant filed complaint on January 19, 1983 with the Minnesota Department of Health against the Public utilities Manager for the City of Fairmont concerning the reorganization of the Water Plant or Public Utilities Plan that became effective on January 14, 1983.1 Claimant's counsel filed a complaint letter dated February 11, 1983 with the Department of Labor.
The Plaintiff is 50 years old and has been employed by the City of Fairmont, Minnesota, for more than 27 years and he is presently Operations Supervisor of the Water Treatment Plant under the Reorganization Plan that became effective on January 14, 1983.2 Formerly, his title was that of Water Plant Superintendent. Prior to and since adoption of the Reorganization Plan, Fairmont had a Class A water system which means there is a surface water plant where drinking water is taken from a lake, filtered through the plant with chemicals being added and then the water is distributed.3 A person in direct charge of the system, is required to have a Class "A" license,4 and he, has had such a license, since 1972. Prior to the Reorganization in January 1983. Plaintiff reported to Douglas Cameron, Public Utilities Manager for the City of Fairmont.
Jerome Miller, prior to and during the period the Reorganization Plan was under study from about June 1981 to January 1983 was the Water Distribution and Steam Heat Superintendent and in charge of the maintenance men in the water plant. The steam heat system is an extension of the power plant not the water plant.5 As a result of the Reorganization Plan that became effective January 14, 1983 Mr. Miller was placed in charge of a new department which included both the water plant and the steam and water distribution system. He does not have a "Class A" license as is required for the type of plant Fairmont has for the person in direct responsible control of the water plant system under Minnesota law.6 His present position is Superintendent Water Department and Steam Distribution.7
Since it is claimed that after the reorganization Claimant must report Mr. Miller who does not possess Class A Water Plant operator's license and because of his, Claimant's outspoken opposition to the Reorganization Plan and his reported violations of calling such matters to the attention of the State Department of Health he has been discriminated against in violation of the Federal Clean Safe Drinking Water Act.8 The remedy sought is to have Claimant placed in Jerome Miller's position as the Superintendent of the now combined Water Plant and Steam and Water Distribution system.9
Pursuant to a notice issued April 25, 1983 a hearing was held before the undersigned in Fairmont, Minnesota on June 9, 1983. The parties were represented by counsel at the hearing and afforded full opportunity to adduce evidence and to examine and cross-examine witnesses. No briefs were filed following the hearing.
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 Claimant, Merlys Prafke is 50 years old and has been employed by the City of Fairmont, Minnesota, for more than 27 years and currently works as Operations Supervisor of the Fairmont Water Treatment Plant.
2. Before January 14, 1983 when a Reorganization Plan for the City became effective Claimant's job classification and title was Water Plant Superintendent, and he reporter to Douglas Cameron, Public Utilities Manager for the City of Fairmont, innesota.
3. The Reorganization of the Fairmont City Government Structure was under study and consideration from at least June 1981 until the plan became effective on January 14, 1983. The reorganization consolidated or combined two departments, the Water Filtration Department and the Water Distribution Steam Department under one Superintendent. The reorganization reclassified Claimant's position to that of Operator Supervisor, with all the responsibilities he formerly had as Water Plant
Superintendent. The change required that he would now report to Jerome Miller instead of Douglas Cameron.
4. The Claimant's pay was not reduced by reason of the reorganization. In fact, he received a five percent increase in salary10 and remains a full time employee of the City of Fairmont.
5. The Claimant urges that because he must now report to Jerome Miller as Superintendent, he, Miller has direct control of the water plant operation.11
6. The designation or appointment of Jerome miller as Superintendent was based on an action by the Public Utilities Commission. The action resulted or followed recommendation from the city administrative staff.12
7. Based on testimony of Brian Rick, City Administrator
for the City of Fairmont, as to the matters that entered into
the decision making process resulting in the determination that
Jerome Miller would receive the appointment of Superintendent
under the reorganization plan the following was stated:13
The purpose of the Safe Drinking Water Act as it Pertains
to Section 1450(i)(1) is designed according to the Secretary of
Labor 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:
In the case now before me, the Complainant has demonstrated,
and it is shown, by the evidence and conceded by the Respondent
that he is a skilled competent specialist in chemical analysis
in laboratory work and laboratory water activities. Apart from
his competence and expertise on the job his attitude, behavior
and emotional reaction appears to be appropriate. Respondent
felt however, that Claimant had not been trained or had the
expertise necessary to run the entire water distribution and
steam distribution as well as the water filtration activities.
Based on a judgment decision, Jerome Miller was selected as
Superintendent of the combined water plant and steam and water
distribution system.
Under the Minnesota Water and Wastewater Operator Board of
Certification Regulation (WWOB) 1(a)(4)15 it is stated under
the term Definitions that: "Terms and abbreviations in this
regulation shall have the meanings specified in this section.
Terms and abbreviations used herein which are not specifically
defined shall be construed in conformance with Minnesota
Statutes 1971, Chapters 115 and 116, the context, and
professional usage." In WWOB 1(b) and (b)(4) the following is stated:
I do not find the meaning of the term direct responsibility
or direct responsible charge to be incompatible with Federal law
and regulations as expressed by the Secretary of Labor in Herbert
J. Bauch v. Joseph W. Landers, Jr., 79-SDWA-1, dated May 10, 1979
or the State of Minnesota regulations. supra.
Based on the foregoing and the letter from Douglas Cameron16
to Douglas J. Mandy, P.E., Public Health Engineer, Section of Water
Supply and General Engineering, Minnesota Department of Health,
dated March 7, 1983 and Mr. Mandy's March 16, 1983 reply thereto
the Reorganization Plan which became effective on January 14, 1983
constituted an operational decision to combine two city departments,
each operated by a superintendent into one to be operated by Jerome
iller. The Respondent and those invested with enforcement duties
must be able to transfer employees or adjust employment situations
so as to accomplish such effective enforcement. The Plaintiff
continues to be responsible for the day to day operation of the
Water Filtration Department with performance of essentially the
same duties as he previously performed before the reorganization
except he now reports to Jerome Miller. Since he (Miller) is in
a managerial position or classification he is not required to have
a Class A license as contended.
All matters and circumstances being considered, I conclude
that the Respondent did not discriminate against Merlys Prafke
by reason of its adoption and enforcement of the Reorganization
Plan effective January 14, 1983 and Respondent did not violate
Section 1450(i)(1) of the Safe Drinking Water Act (Public Law
93-5231). Further, the Respondent is not shown to have violated
the Minnesota statute and regulations applicable thereto.
In light of the conclusion set forth above, the undersigned
recommends that the Secretary of Labor dismiss the Complaint.
RHEA M. BURROW
RMR:kat
1 See, Respondent's Exhibit No. 1
(hereafter referred to
as R-1) and Transcript pp. 33, 34 and 35; Transcript will
hereafter be referred to as Tr. Also, see letter of Claimant's
counsel to Secretary, U.S. Department of Labor dated February 11,
1983 reiterating the Complaint.
2 Tr. p. 9.
3 Tr. p. 10.
4 Tr. P. 10.
5 Tr. P. 12.
6 See copy of Water and
Wastewater Operator Board of
Certification Regulation, (hereafter WWOB) Claimant Exh. No.
6 which provides in part: 7 See Exh. R 5 and R 6.
8 Counsel for Claimant in a
letter dated February 11, 1983
stated in part:
9 Tr. P. 5.
10 Tr. p. 26
11 Tr. p. 27.
12 Tr. p. 61.
13 Tr. pp. 62, 63 and 64.
14 Tr. p. 60.
15 Claimant Exh. No. 6.
16 Manager, Public Utilities
Commission Fairmont,
innesota.
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Administrative Law Judge
Dated: Oct. 19, 1983
Washington, D.C.