Bauch v. Landers, 79-SDW-1 (Sec'y May 10,
1979)
UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
CASE NO. 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
DECISION OF THE SECRETARY
This is a proceeding under the Safe Drinking Water Act
(88 Stat. 1660, et seq., 42 U.S.C. 300f, et seq.). Herbert
J. Bauch filed a complaint alleging that he was removed from
a position and reassigned to another in violation of Section
1450(i) of that Act (88 Stat. 1692; 42 U.S.C. 300j-9(i).
That section prohibits discrimination against an employee
because of activities to carry out the purposes of the Act.
A hearing was held before an Administrative Law Judge.
Thereafter the Judge issued a recommended decision, dated April
13, 1979, in which he found that the respondents did not
violate the Act and he recommended that the complaint be dismissed,
The Administrative Law Judge stated his findings and
conclusions with respect to the basic question as follows (on pages
12 and 13 of his decision):
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* * * [T]he central issue to be determined
is whether a decision by Respondent to assign
an employee to another position funder the
circumstances of this case] 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(i)(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
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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.
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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.
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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. These tendencies, together
with the foregoing behavioral difficulties, hampered
communications between Bauch and many applicants.
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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 conclusion that DER opposed
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enforcement of the regulations on 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.
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Accordingly, and in view of 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).
A study of the record persuades me that the findings
of fact and conclusions of law contained in the
Administrative Law Judge's recommended decision dated April 13,
1979 are supported by the evidence in the record,are in
accordance with applicable law, and are proper, and I adopt
such decision as my own. Accordingly, I conclude that the
respondents did not violate the Safe Drinking Water Act
as alleged, and the complaint of Herbert J. Bauch is dismissed.
Dated at Washington, D.C.
this 10th day of May, 1979.
RAY MARSHALL
Secretary of Labor