DOL Home > OALJ > Whistleblower > Martin v. The Department of the Army, 93-SDW-1 (Sec'y July 13, 1995) |
DATE: July 13, 1995 CASE NO. 93-SDW-1 IN THE MATTER OF JOHN W. MARTIN, COMPLAINANT, v. THE DEPARTMENT OF THE ARMY, RESPONDENT. BEFORE: THE SECRETARY OF LABOR DECISION AND ORDER OF REMAND Complainant John W. Martin brings this complaint of unlawful discrimination against his employer, the Department of the Army, under the employee protection provision of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i) (1988), and the applicable regulations which appear at 29 C.F.R. Part 24 (1994). In a Recommended Decision and Order (R. D. and O.) issued on December 22, 1993, the Administrative Law Judge (ALJ) recommended that the complaint should be dismissed. In particular, the ALJ found that, in taking adverse employment action against Complainant, Respondent was motivated by both illegal and legitimate reasons; but that Respondent avoided liability because it would have taken the same action in the absence of Complainant's protected activity. R. D. and O. at 25-26. While I agree with many of the ALJ's findings, I disagree that Respondent met its burden of proving that it would have disciplined Complainant even if he had not engaged in protected activity. I thus reject the ALJ's ultimate recommendation that the complaint be dismissed. DISCUSSION
[PAGE 2] Complainant John W. Martin has been employed by Respondent Department of the Army since 1987 as a plumber assigned to repair water and gas main systems and to perform interior plumbing repair at Fort Jackson, South Carolina. In February 1991, Martin was assigned to test backflow preventers and became certified as a limited tester by the South Carolina Department of Health and Environmental Control (DHEC). A backflow preventer is a device that prevents contaminants from backing into a potable water supply line. Hearing Transcript (T.) 21. Kelly Hunsucker, a DHEC Control Coordinator, testified that backflow can have serious consequences.[1] Martin subsequently tested successfully for an inspector license which enabled him to coordinate a backflow program at Fort Jackson. T. 106-111. Throughout 1991 and during early 1992, Martin's first line supervisor, Charlie Pittman, resisted his efforts to check for, test and repair backflow preventers and refused to address what Martin perceived to be widespread violations of the SDWA at Fort Jackson. Martin eventually complained about these safety and health concerns to Michael Munn and Franklin Cooper, respectively his second and third line supervisors; Respondent's Office of Inspector General; DHEC; the American Federation of Government Employees; and the Environmental Protection Agency. Pittman thereafter removed artin from his backflow preventer tester/inspector position and returned him to plumbing repair work. The ALJ found (1) that Martin engaged in protected activity under the SDWA by contacting Respondent's Inspector General, the DHEC, and his supervisors and (2) that Respondent retaliated against him in part because of this protected activity when it removed him from the backflow prevention position. R. D. and O. at 22-25. The record fully supports these findings, and I adopt them.[2] The ALJ also found that Respondent acted in part for a legitimate reason, i.e., Martin's failure to return a DHEC "letter of inquiry" to Pittman as instructed. R. D. and O. at 25. In so doing, the ALJ implicitly rejected Martin's contrary testimony that the document involved was his own "suggestion" for certain improvements submitted to Respondent's Director of Resource Management, which Pittman improperly directed Martin to evaluate and which Martin returned to the Director of Resource anagement pursuant to that office's instructions. T. 68-73, 102. Although this disposition is questionable in light of Pittman's ambivalent testimony, T. 523-524, 565, 581-582, 612, I need not decide its propriety for the reasons set forth below. As the ALJ correctly noted, in order to avoid liability in "dual motive" discrimination cases, a respondent must prove by a preponderance of the evidence that it would have taken the same
[PAGE 3] action even if the complainant had not engaged in protected activity. R. D. and O. at 21. See Carroll v. Bechtel Power Corporation, Case No. 91-ERA-46, Sec. Dec., Feb. 15, 1995, slip op. at 10. Notwithstanding the reservation noted above, the record in this case evinces a legitimate reason for reassigning artin -- failure to return a document to a supervisor. At the same time, the record contains no evidence whatever that Respondent would have reassigned Martin for that reason alone. Respondent neglected to show, for example, that its disciplinary rules mandated reassignment for the offense or that any other similarly offensive employees had been reassigned. Indeed, no witness even testified that Martin's offense merited reassignment, only that he was reassigned in part because of it. T. 523-524. Accordingly, Respondent has failed to satisfy its "burden of persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." R. D. and O. at 21. The ALJ also found that Respondent had legitimate reason for downgrading Martin on a performance appraisal, even though he engaged in protected activity, because of "verbal confrontations on the subject of backflow prevention with a salesman and a construction representative of the Army Corps of Engineers at [Fort] Jackson." R. D. and O. at 26. While the content of artin's comments was protected, the ALJ focused on the disruptive delivery. The Secretary previously has considered labor relations precedent in addressing intemperate language and impulsive behavior associated with the exercise of whistleblower rights. Dodd v. Polysar Latex, Case No. 88-SWD-4, Sec. Dec., Sept. 22, 1994, slip op. at 17; Kenneway v. Matlack, Inc., Case No. 88-STA-20, Sec. Dec., June 15, 1989, slip op. at 6-7; Ertel v. Giroux Brothers Transportation Co., Case No. 88- STA-24, Sec. Dec., Feb. 16, 1989, slip op. at 20-21, 30-31. See Dunham v. Brock, 794 F.2d 1037, 1040-1041 (5th Cir. 1986), aff'g Dunham v. Brown & Root, Inc., Case No. 84-ERA-1, Sec. Dec., June 21, 1985. The standard employed under the National Labor Relations Act requires balancing the right of the employer to maintain shop discipline and the "heavily protected" statutory rights of employees: to fall outside statutory protection, an employee's conduct actually must be indefensible under the circumstances. Here, Martin's spontaneous, intemperate reactions would appear neither to remove SDWA protections nor to provide Respondent with a legitimate, nondiscriminatory motivation. The first incident involved a salesman demonstrating the use of pressurized sewer cleaning equipment which accessed the potable water system and which lacked an adequate backflow preventer. T. 262-264. Martin became alarmed that the salesman was about to
[PAGE 4] start up the equipment, insisting loudly that an actual demonstration was not permissible. Martin then departed to find the Military Police, who declined to return with him. Martin later apologized to the salesman for his behavior. T. 197-206. The second incident involved a construction representative for the Army Corps of Engineers conducting an inspection of a building complex at Fort Jackson. Martin loudly insisted that the backflow prevention was inadequate and that a particular building could not be used until brought up to standard. Martin then departed, and the representative continued with the inspection. T. 733-740. The representative considered Martin's behavior "very unprofessional." T. 739. When questioned about these incidents, Martin's third line supervisor testified: [Martin] may have had some run-ins with some people, some complaints about maybe his demeanor or his manner. But I dismissed them, because . . . you can't please all of the people all of the time. And there's going to be personality conflicts, no matter what. . . . If there were numerous complaints . . . then . . . it would have attracted my attention. But once in awhile -- a once-in-awhile type complaint, I know you can't please everybody all the time. T. 651 (Cooper). While the manner in which Martin stated his legitimate safety and health concerns may have disrupted the demonstration and inspection briefly, Martin did not persist, and the events continued. I find that Martin's behavior was not indefensible under the circumstances. Even assuming that a dual motive analysis is appropriate here, Respondent has failed to prove that it would have downgraded Martin solely on the basis of this behavior. The only evidence on this point is Pittman's unexplained assertion that if "[y]ou have two complaints against you during a rating period, you cannot get 'exceptional.' You can get a 'fully [satisfactory],' but not an 'exceptional.'" T. 537. This evidence is not sufficient to sustain Respondent's burden of proof. Accordingly, I decline to adopt the ALJ's finding. R. D. and O. at 25-26. Martin also alleged that Respondent retaliated against him on two additional fronts. I agree with the ALJ (1) that Martin failed to show that his suggestions were rejected because of his regulatory concerns, and (2) that Respondent's failure to promote him was not discriminatory. R. D. and O. at 26. CONCLUSION Respondent unlawfully discriminated against Complainant by removing him from the backflow preventer tester/inspector
[PAGE 5] position and by downgrading him on the performance appraisal. The rejection of Complainant's suggestions and failure to promote did not constitute unlawful discrimination. In its Reply Brief, Respondent alleges that Complainant resigned his employment in May 1994. In a letter dated September 20, 1994, Complainant acknowledges that he no longer works for Respondent. Accordingly, an order reinstating Complainant to his former tester/inspector position may not be appropriate. Cf. Nathaniel v. Westinghouse Hanford Company, Case No. 91-SWD-2, Sec. Dec., Feb. 1, 1995, slip op. at 20-21 (employee who quit employment voluntarily not eligible for post-resignation damages and back pay or for reinstatement). The issue thus becomes whether Martin was constructively discharged, i.e., "whether working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign." Johnson v. Old Dominion Security, Case Nos. 86-CAA-3 et seq., Sec. Dec., May 29, 1991, slip op. at 19-22. Respondent is ordered to upgrade Complainant's September 1992 performance appraisal. Although Complainant requests compensation for stress, the evidence is insufficient to sustain such an award. See T. 486-490. Respondent is ordered to compensate Complainant for costs and expenses, including attorneys' fees, reasonably incurred in bringing the complaint. This case IS REMANDED to the ALJ to determine whether a constructive discharge occurred and to assess any costs, expenses, and back pay due Complainant. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D.C. [ENDNOTES] [1] For example, funeral homes tap into the water supply with aspirators used "to suck the contents out of the dead bodies [joining] right into the water supply and go[ing] on to waste, hopefully. But if the back siphonage were to occur, then the blood . . . would go back into the drinking water supply, and could show up at the water fountain . . . . T. 212. Hospitals and nursing homes similarly are considered "high risk" because of laboratory activities and procedures for treatment of persons who are ill or infirm, e.g., whirlpool baths for patients "with open body sores and people who can't control their bowel[s]." T. 280, 323. Martin testified that he discovered numerous SDWA violations at the Fort Jackson hospital. T. 50. Additionally, chemicals in the heating and cooling systems at Fort Jackson's barracks, which contained no backflow preventers, posed a hazard. T. 39-40, 86-88, 236-237. [2] Whistleblower provisions prohibit discrimination with respect to an employee's compensation, terms, conditions, or privileges of employment, including transfer to a less desirable position even though no loss of salary may be involved. DeFord v. Secretary of Labor, 700 F.2d 281, 283, 287 (6th Cir. 1983); Jenkins v. U.S. Environmental Protection Agency, Case No. 92-CAA-6, Sec. Dec., May 18, 1994, slip op. at 14-16.