UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1749
DIANA R. WILLIAMS,
Petitioner,
versus
UNITED STATES DEPARTMENT OF LABOR; BALTIMORE
CITY PUBLIC SCHOOLS SYSTEM,
Respondents.
On Petition for Review of an Order of the Administrative Review
Board. (01-021)
Argued: February 1, 2005 Decided: November 18, 2005
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote a
dissenting opinion.
ARGUED: Kelly W. McDonald, Third Year Law Student, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Petitioner. Linda Carol Arnold,
UNITED STATES DEPARTMENT OF LABOR, Office of the Solicitor,
Washington, D.C., for Respondent. ON BRIEF: Neal L. Walters,
Berton W. Ashman, Jr., Third Year Law Student, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Appellate Litigation Clinic,
Charlottesville, Virginia, for Petitioner. Howard M. Radzely,
Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Fair
Labor Standards, Ford F. Newman, Counsel for Contract Labor
Standards, UNITED STATES DEPARTMENT OF JUSTICE, Office of the
Solicitor, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Diana R. Williams appeals the United States Department of
Labor Administrative Review Board’s Final Decision and Order
accepting the Administrative Law Judge’s Recommended Decision and
Order to deny her wrongful termination complaint against the
Baltimore City Public School System. Mrs. Williams alleges that
she was unlawfully terminated due to her involvement in a course of
protected activities relating to her complaints and attempts to
expose lead and asbestos hazards at several Baltimore City schools.
We are of opinion that the review board’s decision dismissing Mrs.
Williams’ complaint was supported by substantial evidence, and
accordingly, we affirm.
I.
The factual details of this case are extensive, but the
relevant facts can be summarized as follows. Mrs. Williams taught
mathematics at schools within the Baltimore City Public School
System (System). Mrs. Williams spent most of her career at
Fairmount-Harford High School (Fairmount), although in 1997 the
school system transferred her to Southeast Middle School
(Southeast) because Mrs. Williams believed Fairmount’s building was
unsafe after renovation, apparently because of inadequate lead and
asbestos removal.
3
From 1996 to 1998, Mrs. Williams was convinced the System
schools contained unsafe levels of lead and asbestos. Mrs.
Williams took several steps to effect school safety and community
awareness. She became a lead abatement expert so her own testing
of school conditions would carry more weight. She filed several
complaints with the Maryland Occupational Safety and Health
Administration (MOSH), wrote letters to the Mayor of Baltimore,
notified television and news organizations, contacted school
principals and the Baltimore City Council, distributed fliers at
schools and in nearby neighborhoods, videotaped school conditions,
and interviewed a pregnant high school student alleging the
student’s pregnancy complications resulted from school conditions.
She also refused to work for much of the 1996-1997 school year
because of her concerns about the conditions at Fairmount. It is
not contested that Mrs. Williams’ initial actions were protected
activity and triggered MOSH investigations. The administrative law
judge and the review board held, however, that after the schools
were deemed safe, Mrs. Williams’ continued activities, especially
her distribution of two letters and a flier, which impeded the
schools’ educational function, was unreasonable and unprotected.
First, shortly before the school year began on September 3,
1997, Mrs. Williams wrote a letter to the Mayor of Baltimore. Mrs.
Williams’ letter claimed Fairmount’s staff and students had been
exposed to lead and requested analysis of every painted surface of
4
the school buildings and a soil analysis of the school’s play area.
Mrs. Williams offered to do the testing and requested the school be
shut down while the testing was conducted. Mrs. Williams attempted
to distribute copies of the letter at Fairmount but was asked to
leave by the principal. Mrs. Williams then went to Southeast,
where she placed copies on the cars in Southeast’s parking lot.
Mrs. Williams also distributed the letter to cars in a church
parking lot, and she mailed a copy to the Baltimore Times, which
published the letter. According to the administrative law judge,
however, by December 1996, it was unreasonable for Mrs. Williams to
allege Fairmount’s conditions were unsafe. By 1996, “testing and
cleanup had occurred, a lead abatement contractor and asbestos
contractor were engaged on an ongoing basis, and the staff and
students had been screened for elevated lead levels. MOSH had
investigated the Claimant’s complaints, and found that the building
was safe for occupancy.”
Second, in April 1998, Mrs. Williams prepared a flier she
distributed alleging James Mosher Elementary School (James Mosher),
Highlandtown Middle School (Highlandtown), and Fairmount had been
cited for lead-based paint hazards by an expert on lead abatement.1
Mrs. Williams’ flier told parents their children needed to be
tested for lead and asbestos exposures; additionally, Mrs. Williams
identified herself as a lead expert and provided her name and phone
1
The expert referred to was Mrs. Williams.
5
number on the flier. Mrs. Williams distributed this flier to
students and staff at James Mosher and at nearby apartment
complexes. James Mosher’s principal, Mrs. Cascelia Spears,
testified that her office heard from numerous parents about Mrs.
Williams’ flier. Mrs. Williams also complained of lead problems at
Highlandtown, but MOSH inspectors had inspected these schools and
found no grounds for citation.
Third, by a letter dated February 24, 1999, Mrs. Williams
addressed the parents of children at Southeast regarding lead in
the drinking water at the school. Mrs. Williams obtained without
the school’s permission a list of students’ parents’ names and
addresses and sent a letter to each address. Mrs. Williams’ letter
warned parents that the school’s drinking water contained
unacceptably high amounts of lead. Mrs. Williams also included one
of her personal business cards identifying herself as a lead
abatement expert. At the time Mrs. Williams sent this letter, the
school had turned off all the water fountains and established
stations to distribute bottled water pursuant to the City Heath
Department’s recommendation. School officials stated that due to
Mrs. Williams’ letter, Southeast received so many phone calls from
concerned parents and the media that the area office was unable to
reach them by phone and had to use the telefax for emergencies.
On May 7, 1999, Dr. Robert Booker, the Chief Executive Officer
of the System (CEO), recommended to the Baltimore City Board of
6
School Commissioners (School Board) that Mrs. Williams be dismissed
for misconduct. Mrs. Williams was placed on emergency suspension
without pay, pending further disciplinary action. According to the
evidence before the administrative law judge, a teacher needs
permission from her principal to have access to the school system’s
list of names and addresses, which is privileged information. On
August 26, 1999, Mrs. Williams received a dismissal hearing before
a hearing examiner of the Baltimore School Board.2 The hearing
examiner found merit in Mrs. Williams’ allegations and recommended
against her dismissal. The School Board rejected the
recommendation of the hearing examiner and affirmed the CEO’s
decision to dismiss Mrs. Williams for misconduct in office. The
federal administrative law judge concluded:
[T]he Board found that the Claimant committed misconduct
in office by failing to follow the chain of command when
she disseminated information about alleged potential
health hazards at three System schools. Additionally,
the Board also found that she did not have permission to
obtain the home addresses of the approximately 500
2
There were two levels of administrative review. The
Baltimore School Board caused Mrs. Williams’ complaints and the
incidents of her discharge to be heard before a hearing examiner,
who reviewed the decision of the Chief Executive Officer of the
School System to discharge her. That hearing examiner reported
favorably for Mrs. Williams, but the School Board did not accept
his decision. Mrs. Williams then filed suit under the various
statutes such as the Safe Drinking Water Act, 42 U.S.C. § 300j-
9(i)(2) to have her discharge reviewed by the Secretary of Labor.
An administrative law judge first heard the case and decided
against Mrs. Williams, which decision she appealed to the
Administrative Review Board. That board affirmed the decision of
the administrative law judge. The decision of the review board
became the decision of the Secretary of Labor.
7
students at Southeast, and that this confidential student
information was wrongfully acquired to further the
Claimant’s personal goals and objectives. The Board
concluded that the Claimant violated the Ethics Laws and
Codes of Conduct of Baltimore City in attaching her
personal business card to this communication. The Board
disagreed with the hearing examiner’s conclusions, and
found that the Claimant’s repeated failure to follow
proper procedure when addressing alleged health and
safety concerns had a direct bearing on her fitness to
teach, such that it would undermine her future classroom
performance and overall impact on students.
The administrative law judge also reviewed evidence which
tended to show that Mrs. Williams’ perceptions may have been
derived from psychological problems. The administrative law judge
noted Mrs. Williams, “acknowledged that her doctor has diagnosed
her with depression and stress, and suggested medication. She is
angry at the ‘system,’ and suspicious that MOSH has been concealing
the facts; she will not take medication, but prefers to rely on her
faith.” The administrative law judge also reviewed a report from
Dr. Stephen W. Siebert, who conducted a psychiatric evaluation of
Mrs. Williams. Siebert concluded some of Mrs. Williams’
allegations “seemed highly implausible” and “might not be reality
based.” Siebert noted Mrs. Williams had a “paranoid stance” and
believed there was a “coverup involving many people.” Siebert felt
Mrs. Williams “rationalized facts to her own beliefs.” Siebert
also noted Mrs. Williams dismissed school reports and studies as
biased or fraudulent. Siebert did not find that Mrs. Williams
suffered from acute stress, posttraumatic stress disorder, or major
depression. Siebert instead believed Mrs. Williams “had either a
8
delusional or personality disorder representing a preexisting
condition, not causally related to any accidental injury.”
In 1999, Mrs. Williams filed a complaint with the Department
of Labor. She alleged she had been wrongfully terminated in
retaliation for whistleblowing about environmental hazards in
System schools in violation of employee protections set forth in
the Safe Drinking Water Act, 42 U.S.C. § 300j-9 (2000); the Toxic
Substances Control Act, 15 U.S.C. § 2622; the Clean Air Act, 42
U.S.C. § 7622 (2000); the Solid Waste Disposal Act, 42 U.S.C. §
6971 (2000); the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. § 9610 (2000); and the Federal Water
Pollution Control Act, 33 U.S.C. § 1367 (2000).
On November 30, 2000, the administrative law judge issued a
recommended decision and order, finding that Mrs. Williams failed
to prove that the System was motivated in whole or in part by any
protected activity by Mrs. Williams when it suspended and dismissed
her from her position as a mathematics teacher. The administrative
law judge found Mrs. Williams’ initial complaints to “various
regulatory groups, as well as her public airing of her concerns
about the potential safety hazards presented by the renovation
project occurring at Fairmount, were clearly protected activity
within the meaning of the applicable statutes.” However, the
administrative law judge found Mrs. Williams’ actions lost their
protected status after her concerns were investigated and the
9
buildings were found safe. The administrative law judge also
determined that Mrs. Williams refused to accept these results, and
her continued perceptions of the environmental conditions of the
System became unreasonable. Additionally, the administrative law
judge determined that the allegations regarding school safety that
Mrs. Williams made during the last three years of her System
employment were motivated by her desire to “use the cloak of
whistleblower” to avoid disciplinary action for her attendance
problems. Finally, the administrative law judge found Mrs.
Williams’ unauthorized letters and fliers provided the System with
a legitimate, nondiscriminatory basis for her dismissal.
The report of Administrative Law Judge Chapman is 44 pages in
length. It is carefully and dispassionately done. We invite
attention to that excellent report.3
The plaintiff appealed, and on May 30, 2003, the
administrative review board affirmed and, with an inconsequential
3
If footnote 7 of the opinion of the Administrative Review
Board of the Department of Labor is meant to emphasize that a
preponderance of the evidence is not required in proving a prima
facie case in a charge of discrimination such as this, it is likely
contrary to Burdine, 450 U.S. at 253. If footnote 7 is meant to
emphasize that following a trial on the merits in such cases, the
proof of a prima facie case is usually inconsequential as dealing
with the “vagaries of the prima facie case,” it is consistent with
Jiminez v Mary Washington College, 57 F.3d 369, 377 (4th Cir.
1995). In any event, the treatment of the proof of a prima facie
case is inconsequential here because neither the ALJ nor the
Administrative Review Board based Mrs. Williams’ loss on any
failure to prove a prima facie case. The fact finding of the ALJ
is supported by substantial evidence.
10
exception, affirmed both the fact finding and application of
precedent of the administrative law judge in its final decision.
The review board noted Mrs. Williams’ briefs “barely” addressed the
administrative law judge’s conclusions of law and instead quarreled
with the administrative law judge’s factual findings by asserting
all of her whistleblowing activities were supported by evidence and
were valid since, she alleged, the lead and asbestos problems had
not been adequately resolved. The review board concluded, “[The
System]’s proferred reasons for suspending and dismissing Williams-
-her unauthorized use of the names and addresses of persons to whom
she sent the letters and the disruption in the school system caused
by circulating the unfounded allegations--were legitimate and
nondiscriminatory. According to the ALJ, Williams did not
establish that these reasons were a pretext for discrimination.”
Mrs. Williams appeals the review board’s final decision and order.
II.
This court reviews the review board’s decision and order to
determine whether it is supported by “substantial evidence” and
whether it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A)-
(E); Blackburn v. Martin, 982 F.2d 125, 128 (4th Cir. 1992).
“Substantial evidence consists of such relevant evidence as a
11
reasonable mind might accept as adequate to support a conclusion.”
Blackburn, 982 F.2d at 128 (internal quotes and citation omitted).
A.
The employee provisions of each of the Acts under which Mrs.
Williams brought claims prohibit an employer from discharging or
otherwise discriminating against an employee because the employee
engages in activities that are subject to protection under the Act.
The Supreme Court set forth the shifting burdens for proving a case
of discrimination in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), and reaffirmed these principles in Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The plaintiff has the initial burden of establishing a prima
facie case by a preponderance of the evidence. Burdine, 450 U.S. at
253-54. To establish a prima facie case of retaliatory discharge,
the employee must prove that (1) the employee engaged in a
protected activity; (2) the employer took an adverse action against
the employee; and (3) a causal connection existed between the
protected activity and the adverse action. Causey v. Balog, 162
F.3d 795, 803 (4th Cir. 1998).
If the employee establishes a prima facie case, the burden
shifts to the employer to provide sufficient evidence that the
adverse action was taken for a legitimate, nondiscriminatory
reason. Burdine, 450 U.S. at 253. “The defendant need not persuade
12
the court that it was actually motivated by the proffered reasons.
It is sufficient if the defendant’s evidence raises a genuine issue
of fact as to whether it discriminated against the plaintiff.”
Burdine, 450 U.S. at 254 (citation omitted). If the employer meets
this burden, the employee must show by a preponderance of the
evidence that the legitimate reasons offered by the employer were
actually a pretext for discrimination. Burdine, 450 U.S. at 253.
Although the burden of production shifts, “[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff.” Burdine, 450 U.S. at 253.
B.
Mrs. Williams claims that the public expression of her
concerns was protected activity and the System fired her, at least
in part, for engaging in such activity. The Department of Labor
(DOL) does not dispute that Mrs. Williams’ initial whistleblowing
was protected activity, and that the System knew of her protected
activity. The DOL agrees that Mrs. Williams’ initial
whistleblowing was reasonable and protected. However, the DOL
further asserts that, as found by the administrative law judge and
the review board, once the school facilities were deemed safe, it
was unreasonable for Mrs. Williams to allege they were unsafe.
Moreover, the DOL claims that it was unreasonable and unprotected
13
activity for Mrs. Williams to distribute letters and fliers
alleging unsafe school conditions, and to do so by making an
unauthorized use of school address lists. Finally, DOL contends
that in any event, the System had legitimate, nonretaliatory and
nondiscriminatory grounds to dismiss Mrs. Williams.
The administrative law judge found, and the review board
affirmed, that Mrs. Williams had engaged in many activities that
the various Acts protect. However, the administrative law judge
found that the System suspended Mrs. Williams because of the
February 1999 letter she mailed to parents of students erroneously
stating that drinking water in one of the schools contained lead.
She had previously circulated similar letters in 1996 and 1997
containing unfounded and sensationalized allegations about lead and
asbestos hazards at three other schools. The administrative law
judge held that mailing these letters was not protected activity.
The administrative law judge also held that even if Mrs. Williams’
activities “were found to be protected activity . . . the record
clearly establishes that” the System “had a legitimate and
nondiscriminatory reason for its actions in suspending . . . and
then dismissing her.”
We are of opinion that the findings of the administrative law
judge and the review board are supported by substantial evidence.
Mrs. Williams’ complaints centered around four schools. She first
publicly expressed concerns about the potential safety hazards
14
presented by the renovation project at Fairmount. There is no
disagreement that these complaints were “clearly protected activity
within the meaning of the applicable statutes.” In response, the
System “undertook significant activity to ensure that the
environment was safe, that any potential problems were corrected,
and that a plan was in place to monitor the safety of the occupants
during the renovation.” The school was inspected numerous times by
MOSH and the City Health Department and no violations were found.
Mrs. Williams presented no credible evidence that hazards remained
after the project was completed.
In response to Mrs. Williams’ complaints about two other
schools, James Mosher and Highlandtown, MOSH inspected each. No
environmental hazards or violations were identified. At Southeast,
her complaint about the safety of the drinking water was addressed
by testing. The testing showed problems at only one fountain,
which was supposed to be turned off. Again, steps were taken to
ensure that any potential hazards were avoided by turning off all
drinking fountains and providing bottled water. Important steps
were taken at each school in response to Mrs. Williams’ concerns to
ensure the safety of students and staff in each building. Once her
concerns were addressed, however, it was no longer reasonable for
her to continue claiming that these schools were unsafe and her
activities lost their character as protected activity.
15
Thus, when she mailed the February 1999 letter to parents of
students, it would seem that her allegations were not grounded in
a reasonable perception of an environmental hazard. The
administrative law judge found that “the mailing of this letter was
not protected activity, nor was the distribution of the fliers on
the two previous occasions.”
The System took adverse action against Mrs. Williams when it
suspended her on March 1, 1999. Mrs. Williams, however, must at
least raise an inference that protected activity was the likely
reason for the adverse action, which she does not. Causey, 162
F.3d at 803. It is clear that the precipitating cause of action
was the February 1999 letter to parents about lead in the water at
Southeast, but as the administrative law judge found, this letter
was not protected activity. Furthermore, even if this particular
letter were protected,4 the System has established that her
suspension was motivated by legitimate and nondiscriminatory
reasons. As the administrative law judge noted:
With respect to the Claimant’s dismissal, the Statement
of Charges identifies three activities as the basis for
the charge of misconduct: the circulation of the
February 24, 1999 letter, the circulation of the December
3, 1996 letter to the Mayor about lead exposure at
Fairmount, and the circulation of the letter (in the
spring of 1997) about Fairmount, James Mosher, and
4
Clearly the December 3, 1996 letter and the circulation of
the flier in the spring of 1997 did not constitute protected
activities since the System had adequately responded to Mrs.
Williams’ complaints, and investigations of the buildings had
deemed them safe prior to each of those two activities.
16
Highlandtown. . . . it is limited to that conduct on the
part of the Claimant that caused disruption in the school
system, by unnecessarily alarming parents and diverting
school resources to respond to inquiries, when in fact
the System had adequately responded to the concerns
raised by the Claimant.”
Indeed, Miss Jane Fields, the principal at Southeast, testified
that, even if Mrs. Williams’ allegations had some merit, she still
would have recommended her suspension for obtaining unauthorized
access to the list of names and addresses of parents. Thus, the
System has set forth legitimate, nonretaliatory and
nondiscriminatory reasons for Mrs. Williams’ suspension and
dismissal and Mrs. Williams has not established that these reasons
were a pretext.
III.
We are of opinion from our review of the record that the
conclusion of the Secretary of Labor is based upon substantial
evidence and is without reversible error. The administrative law
judge and the review board did not err in finding that Mrs.
Williams’ whistleblowing actions were initially protected, but that
once MOSH determined the schools were safe, Mrs. Williams’
distribution of the letters and fliers was unprotected activity,
giving the System legitimate grounds to dismiss her. Furthermore,
even if the February 1999 letter does constitute protected
activity, the administrative law judge did not err in holding that
17
the System set forth legitimate and nondiscriminatory reasons for
Mrs. Williams’ dismissal.
Accordingly, the decision of the Secretary of Labor is
AFFIRMED.
18
GREGORY, Circuit Judge, dissenting:
Exposure to lead contamination in older, unrenovated school
buildings poses a serious threat to thousands of unsuspecting
children. Diana Williams, a math teacher of eighteen years,
recognized the danger of such exposure and was determined, in spite
of her employer’s unwillingness, to disclose this information to
parents and teachers at her school. In so doing, she ultimately
paid the price of her job. Ironically, the lesson taught by her
dismissal, which this decision affirms, is that a teacher can care
about her students, but not too much.
I strongly disagree with the majority’s wholesale adoption of
the findings made by the administrative law judge (“ALJ”) in
concluding that Williams’s circulation of the letter dated February
24, 1999 (“February 24, 1999 Letter”) was unprotected activity and
that further, the Baltimore City Public School System (“School
System”) legitimately fired her for that action. Based on the
evidence in the record, Williams reasonably relied on the
independently-obtained, EPA-certified laboratory report, which
identified dangerously high levels of lead contained in one of the
water fountains at Southeast Middle School (“Southeast”). The
chronology of the events indicates that the School System did not
adequately respond to Williams’s complaints prior to the
circulation of the February 24, 1999 Letter. In addition, I find
that the public interest in protecting children from imminent,
19
hazardous risks in an educational environment outweighs a school’s
interest in maintaining an atmosphere of order and trust. For the
foregoing reasons, I respectfully dissent.
I.
The majority’s opinion relies on the ALJ’s findings of fact,
which are, in my view, incomplete and inadequate when compared to
the entire record. Accordingly, I shall recite the following
relevant facts in full.
A.
In 1992-93, a study performed on all of the schools in the
School System indicated that Southeast had lead contamination
problems in certain water fountains. J.A. 116. According to the
study, water fountains that showed unacceptable levels of lead in
an initial diagnosis were tested a second time. Id. If the water
fountains passed on the second test after being flushed, they were
nevertheless required to be flushed each morning to clear up any
lead buildup in the pipes. Id. If they failed, they were to be
turned off. Id. Southeast responded to the study by shutting off
certain defective water fountains and providing bottled water
stations to faculty and students. J.A. 136.
Williams was assigned to work as a teacher at Southeast during
the 1997-98 school year. J.A. 116. Williams noticed that the
20
staff had access to bottled water in the teachers’ lounges, but
that the students were still drinking from water fountains.
Williams heard repeated rumors of lead contamination in the
drinking water but initially did not want to become involved. J.A.
136. Eventually, Williams filed a complaint on January 1, 1999,
with the Maryland Occupational Safety and Health Administration
(“MOSH”). Id. MOSH transferred this complaint to the city’s
Health Department after determining that it lacked jurisdiction
over the matter. Id. Williams made a follow-up telephone call to
the Health Department shortly thereafter. Id.
Meanwhile, Williams independently took water samples from an
unidentified water fountain and sent them to an EPA-certified
laboratory in early January of 1999. J.A. 138. She subsequently
received a report from the laboratory dated January 29, 1999, which
identified hazardous levels of lead in the water samples. J.A.
138, 247. Williams called Jane Fields, the principal of Southeast,
informing her that she had conclusive proof of dangerously high
levels of lead in the drinking water, but Fields ignored her. J.A.
138.
On February 11, 1999, the Health Department inspected the
water fountains in response to Williams’s complaint and follow-up
telephone call. J.A. 137. The Health Department issued a report
dated February 11, 1999 (“February 11, 1999 Report”), which found
that certain water fountains had low water pressure and
21
deterioration. J.A. 292. The Health Department also indicated
that it would perform follow-up testing in two weeks. J.A. 293.
However, the ALJ’s conclusion that the Health Department had also
taken water samples and determined that there was no lead
contamination in the water at this time is unsupported by the
record. See J.A. 137, 291-93, 305; Complainant’s Ex. CX-139.
Although the Health Department recommended that the water fountain
stationed outside the main office be turned off, it based this
determination on the faucet deterioration present in the water
fountain. J.A. 249.
In response to the February 11, 1999, Report, Fields and Elam
decided to shut off all of the water fountains because they
frequently broke down. J.A. 261-62. Elam also increased the
number of bottled water stations. Id. Ms. Fields requested
repairs such as turning off water fountains and sinks located in
the science laboratory. J.A. 138. There is no evidence showing
that Williams or any students or parents at Southeast were aware of
the February 11, 1999 Report or these changes at the time they were
instated.
On February 24, 1999, Williams, feeling brushed aside by
Fields, sent a letter to the parents of children enrolled at
Southeast, which stated:
PLEASE BE ADVISED THAT your child’s school has lead in
the drinking water. The process for testing lead in the
drinking water was directed by an expert in lead
abatement, who is certified and accredited by the
22
Maryland Department of Environment, and who is also
trained, certified, and accredited to sample water for
lead contamination.
The lead level in the water is higher than what is
acceptable by the Environmental Protection Agency. Also,
the fountains were turned off during the week of February
15, 1999 through February 19, 1999. Were you as parents
made aware of such changes and informed as to why such
changes were being made? Do you as parents feel that you
are entitled to know why such changes were made? I
strongly believe that the School System is obligated to
inform you of such dramatic changes, along with providing
you with a valid explanation, even if they have brought
bottled water for the children to drink. . . .
Your child needs to be tested to see if he/sshe [sic] has
been potentially exposed to lead. Please, don’t wait too
long to have your child tested because the lead only
stays in your child’s blood stream for about 6 to 8
weeks.
J.A. 240. Williams did not have permission to send the letter; nor
did she have authorized access to the school’s list of parents’
addresses. J.A. 138-39, 143. In view of the overwhelming influx
of telephone calls from understandably concerned parents in
response to Williams’s letter, Robert Booker, the superintendent of
the School System, immediately suspended Williams without pay.
J.A. 140-41.
The Health Department later issued a report dated March 15,
1999 (“March 15, 1999 Report”), which stated that water samples
were taken on March 10, 1999. J.A. 305.1 The March 15, 1999
1
This recitation of the facts is more consistent with the
findings of James L. Wiggins, the Hearing Examiner, who found that
the Health Department did not sample the water until March 9, 1999
and did not issue a report until March 15, 1999 – two weeks after
Williams had been suspended. See Complainant’s Ex. CX-139. In his
23
Report identified dangerously high levels of lead contained in the
water samples taken from the water fountain located outside the
main office. J.A. 305, 324. Jack Elam, the building safety and
education officer for the School System, testified that this water
fountain was unaccountably operating when the Health Department
checked in February of 1999. J.A. 150. The water fountain was
subsequently shut off with all the other water fountains and then
turned back on in March of 1999 for testing. J.A. 140, 150. In
any event, the testing for this water fountain was “almost
identical” to the results obtained by Williams. J.A. 150. Yet
neither Williams nor any parents or students at Southeast were
apprised of these results or the ensuing changes effected by
Southeast.
B.
The ALJ recommended dismissal of Williams’s federal
whistleblower claims pursuant to the Clean Water Act, 42 U.S.C. §
7622; Comprehensive Environmental Response, Compensation, and
findings of fact and conclusions of law issued pursuant to a full
adversarial hearing, the Hearing Examiner determined that
Williams’s circulation of the February 24, 1999 Letter did not rise
to the level of misconduct; that she had the right to file
complaints regarding safety and health issues that generally
affected the public; and that none of the students, parents or
other staff members had complained regarding the February 24, 1999
Letter. Id. Accordingly, the Hearing Examiner ruled in Williams’s
favor and recommended that the School System not dismiss her. Id.
24
Liability Act, 42 U.S.C. § 9610; Federal Water Pollution Control
Act, 33 U.S.C. § 1367; Safe Drinking Water Act, 42 U.S.C. § 300j-9;
Solid Waste Disposal Act, 42 U.S.C. § 6971; and Toxic Substances
Control Act, 15 U.S.C. § 2622 (collectively, “the Acts”).
Specifically, the ALJ held that once the concerns raised by
Williams had been addressed by the proper school authorities and
state regulatory agencies, she could no longer reasonably claim
that the schools were unsafe. The ALJ stated:
At Southeast, again in response to rumors, the Claimant
made a complaint to the Health Department about lead in
the water. The Health Department responded promptly,
making recommendations to turn off a fountain and add
additional bottled water stations, but not citing the
school for any lead problems. In response, the school
system shut all of the fountains. The Claimant did not
accept the results of this inspection, however, but
relied on her own “expert” testing of the water from the
fountain outside the main office. In fact, the results
of her testing showed that although the lead level was
high on the first sample, after flushing, it was at
acceptable levels. But even if there were problems with
the lead level in this fountain, they were addressed by
turning it off, along with all of the other fountains.
There could not be a potential for lead exposure if the
water was not available to the students. Nevertheless,
the Claimant circulated a letter to 500 parents, telling
them that there was lead in their child’s drinking water
at school, and referring to the results of her testing,
giving the impression that all of the water fountains had
been tested as part of an official process, which found
dangerous levels of lead in the water, when in fact it
was the Claimant who was the “expert,” and who had
sampled one fountain. Furthermore, her statement that
there was lead in the drinking water was simply
erroneous, as all of the fountains had been turned off,
and the students and staff were using bottled water.
There was no reasonable basis for the Claimant’s
allegations.
25
J.A. 150-51. The ALJ thus concluded that Williams’s “repeated,
unfounded, and sensationalized missives to parents overstepped
these bounds, and especially in light of the fact that her concerns
had been addressed and responded to by every health and safety
organization responsible for overseeing those concerns, her actions
were manifestly indefensible.” J.A. 157.
The administrative review board (“Board”) agreed with the
ALJ’s determinations that (1) Williams had not engaged in protected
activity by mailing the February 24, 1999 Letter which contained
erroneous information; and (2) the School System’s proffered
reasons for her suspension – her unauthorized use of names and
addresses of parents and the attendant disruption caused by the
circulation of the letter – were legitimate and nondiscriminatory.
II.
A.
We may set aside the Board’s determination if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law,” or unsupported by “substantial evidence.”
5 U.S.C. § 706(2)(A), (E). Substantial evidence consists of “such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Blackburn v. Martin, 982 F.2d 125, 128 (4th
Cir. 1992) (internal quotations and citations omitted). In
applying this standard, we examine the entirety of the record,
26
including the ALJ’s decision and any contrary evidence. Id.
(internal citations omitted). While de novo review is
inappropriate, the substantial evidence standard nevertheless
requires us to “weigh whatever in the record fairly detracts from
the Board’s factfinding as well as evidence that supports it.”
Dorsey Trailers, Inc. v. NLRB, 233 F.3d 831, 839-40 (4th Cir.
2000).
B.
Federal whistleblower provisions are “intended to promote a
working environment in which employees are relatively free from the
debilitating threat of employment reprisals for publicly asserting
company violations of statutes protecting the environment . . . .”
Passaic Valley Sewerage Commissioners v. United States Dep’t of
Labor, 992 F.2d 474, 478 (3d Cir. 1993). As this Circuit has
already noted, federal safety legislation, including whistleblower
statutes, should be “broadly construed” to effectuate their
congressional purpose. Rayner v. Smirl, 873 F.2d 60, 63 (4th Cir.
1989) (interpreting Federal Railroad Safety Authorization Act to
protect whistleblowers in making intra-corporate complaints even
though the act itself did not explicitly provide such protection).
In the present appeal, the Acts which form the predicate for
Williams’s federal whistleblower claims contain virtually identical
language. For instance, the Water Pollution Control Act states:
27
No person shall fire, or in any way discriminate against,
or cause to be fired or discriminated against, any
employee or any authorized representative of employees by
reason of fact that such employee . . . has filed,
instituted, or caused to be filed or instituted any
proceeding under this chapter . . . or has testified or
is about to testify in any proceeding resulting from the
administration or enforcement of the provisions of this
chapter . . . .
33 U.S.C. § 1367; see also 42 U.S.C. § 7622; 42 U.S.C. § 9610; 42
U.S.C. § 300j-9; 42 U.S.C. § 6971; 15 U.S.C. § 2622. Section 24.1
of Title 29 of the Code of Federal Regulations implements the
employee protection provisions enacted in these statutes. See 29
C.F.R. § 24.1 et seq.
A plaintiff claiming retaliatory discharge under these
whistleblower statutes must demonstrate that (1) she engaged in
protected activity; (2) the employer was aware of that activity;
(3) she suffered an adverse employment action; and (4) a causal
connection existed between the protected activity and the adverse
action. Hooven-Lewis v. Caldera, 249 F.3d 259, 272 (4th Cir. 2001)
(retaliatory discharge under Title VII); Simon v. Simmons Foods,
Inc., 49 F.3d 386, 389 (8th Cir. 1995) (retaliatory discharge under
Toxic Substances Control Act, Water Pollution Control Act, Solid
Waste Disposal Act, and the Clean Air Act). In showing that the
whistleblowing activity was protected, the plaintiff must establish
that her allegations were based on a good faith, reasonable belief
that the employer engaged in safety violations. See Passaic
Valley, 992 F.2d at 478 (“employees must be free from threats to
28
their job security in retaliation for their good faith assertions
of corporate violations of the statute.”); Love v. RE/MAX of Am.,
Inc., 738 F.2d 383, 385 (10th Cir. 1984) (activity protected even
if it is “based on a mistaken good faith belief that Title VII has
been violated”); Johnson v. Old Dominion Sec., No. 86-CAA-3, 1991
WL 733576, at *6 (Sec’y May 29, 1991) (activity protected so long
as it is “grounded in conditions constituting reasonably perceived
violations . . .”). Moreover, whistleblower protection does not
turn on whether the plaintiff is “actually successful in proving a
violation of a federal safety regulation.” Yellow Freight Sys.,
Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992) (emphasis in
original).
C.
The majority largely adopts the reasoning of the ALJ in
finding that the February 24, 1999 Letter was not protected
activity under the first step of the analysis. Op. at 16. The ALJ
concluded that otherwise protected activity becomes unprotected
where “the perceived hazard has been investigated by responsible
management officials, and if found safe, adequately explained to
the employee.” J.A. 34; see Sutherland v. Spray Sys. Envtl., No.
95-CAA-1, electronic slip. op. at 2-3 (Sec’y Feb. 26, 1996);
Stockdill v. Catalytic Indus. Maint. Co., Inc., No. 90-ERA-43, 1996
WL 171409, at *1 (Sec’y Jan. 24, 1996). Because school authorities
29
at Southeast and the Health Department had eventually addressed
Williams’s complaint, the ALJ determined that her circulation of
the February 24, 1999 Letter to parents at Southeast claiming that
the water fountains contained dangerous levels of lead was
unprotected activity. Even under this theory, however, the ALJ’s
conclusion erroneously misconstrues and glosses over critical facts
contained in the record.
First, the chronology of events indicates that the School
System had not fully investigated lead contamination issues in the
water fountains until after Williams had circulated the February
24, 1999 Letter. Williams conducted an independent study of the
defective water fountain in early January of 1999, sending the
samples to an EPA-certified laboratory. There is no dispute that
the samples originated from the water fountain located outside the
main office at Southeast and that further, the water fountain, for
whatever reason, was operating and accessible to students.
The laboratory subsequently released a report dated January
29, 1999, identifying hazardous levels of lead in the samples
obtained from the water fountain. While it is true that the Health
Department undertook some efforts to test water fountains, the
February 11, 1999 Report demonstrates that the Health Department
merely checked the faucets and water pressure. That report itself
states explicitly that the Health Department would return for
retesting. Indeed, the Health Department did not take water
30
samples until March 10, 1999. Nor did it release its findings
until March 15, 1999 – nearly two weeks after Williams had been
suspended.2 Thus, at the time that Williams circulated the
February 24, 1999 Letter, she had no reason to question the results
of the laboratory report, which formed a good faith, reasonable
basis for her belief that the water fountains at Southeast
contained lead contamination.
Second, the March 15, 1999 Report confirmed the results of
Williams’s laboratory report insofar as the drinking water in at
least one of the water fountains at Southeast contained dangerously
high levels of lead on the first flush. While both reports
revealed that the drinking water yielded acceptable results after
the first flush, the ALJ ignored the system-wide requirement that
water fountains which failed the first test but passed after
flushing were required to be flushed each morning to clear any lead
buildup in the pipes. As such, even water fountains which yielded
acceptable results on the second try were not necessarily safe by
the School System’s own standards. Significantly, contrary to what
the ALJ suggests, the Health Department did not conclude that the
water fountain was safe or that the precautionary measure of
flushing the water fountain would be sufficient to address the
problem. Instead, the Health Department explicitly recommended
2
The individualized report on the water fountain in question
indicates that the earliest possible date on which the problems
could have been reported was March 12, 1999. J.A. 324.
31
that the water fountain be turned off even before the water
sampling had been conducted – a course of conduct which both Fields
and Elam accepted.
To be sure, Fields and Elam shut off all water fountains prior
to Williams’s circulation of the February 24, 1999 Letter, thereby
foreclosing the possibility of future exposure to lead
contamination. Yet, this action did not address any past exposure
to lead contamination, which posed a continuous threat to students’
health and welfare. As such, the harms presented by past exposure
to lead contamination, which Williams sought to address through
student testing, were still extant.
Third, the School System never attempted to engage Williams in
any discussion regarding the lead levels contained in the water
fountains. Williams approached Fields to discuss the results
contained in the laboratory report, but Fields rebuffed those
efforts and evinced an utter lack of concern. Furthermore, the
record is bereft of any evidence showing that Williams was ever
apprised of the February 11, 1999 Report; the March 15, 1999
Report; or the reasons behind Fields’s decision to turn off all the
water fountains at Southeast. Despite the objective findings of
the March 15, 1999 Report, which virtually concurred with the
results of Williams’s laboratory report, the School System never
explained to Williams why exposure to lead contamination no longer
endangered the students at Southeast. Neither did the School
32
System explain to Williams what steps had been taken to abate the
lead contamination problem. It therefore cannot be said that the
School System discharged its duty in informing Williams why her
continued complaints – at least with respect to past exposure to
lead contamination – were unjustified. See Sutherland, No. 95-CAA-
1, electronic slip. op. at 3 (finding that once employees
complained of unsafe working conditions, employer had a duty to
meet with employees and adequately explain why the conditions were
safe; “Had Smith adequately explained to the Complainants that the
partial containment procedure was safe, the refusal to work would
have lost its protection.”).
To the extent that the ALJ purports to discredit Williams
based on her perceived fragile mental state, such considerations
are irrelevant to the reasonableness standard which applies to
determine whether an employee’s conduct is protected. See e.g.,
Munsey v. Fed. Mine Safety & Health Sewerage Commissioners, 595
F.2d 735, 742 (D.C. Cir. 1978) (rejecting requirement that miners
demonstrate their state of mind or the merit of their complaints).
Taking the facts as they were known to Williams at the time she
circulated the February 24, 1999 Letter, I find that Williams’s
reliance on the laboratory report formed a reasonable basis for her
belief that the drinking water accessible to students contained
lead contamination.
33
D.
The majority nevertheless concludes that the School System set
forth legitimate, non-retaliatory reasons for dismissing Williams
based on the ALJ’s determination that she obtained unauthorized
access to the list of names and addresses of parents and created
disruptions in Southeast's administrative affairs. Op. at 16.
Relying on NLRB v. Truck Drivers, Oil Drivers, Filing Station and
Platform Workers Union, Local 705, 630 F.2d 505 (7th Cir. 1980),
the ALJ found that Williams’s unauthorized contact with Southeast
parents was “indefensible” in light of the School System’s interest
in maintaining an orderly environment for the education of children
and an atmosphere of trust with their parents. J.A. 157.
In Truck Drivers, two employees were dismissed as business
representatives on behalf of their union because they had discussed
their wage complaints over their employer’s radio. Truck Drivers,
630 F.2d at 506. The Seventh Circuit declared that merely
characterizing the employees’ conduct as “wage demands” without
considering the time, manner and place of such demands was
improper. Id. at 508. Specifically, the court stated:
If the “thrust” of the employees’ actions were [sic] here
toward obtaining salary increases for themselves and
other members of the union staff, their right to petition
for wage increases must nonetheless be balanced against
the employer’s right to expect a basic loyalty on the
part of employees in the performance of their assigned
duties.
34
Id. at 508. Because the employees had blatantly disregarded
established procedures for processing wage complaints and engaged
in poor work performance, the court found that the dismissals were
appropriate and non-retaliatory. Id. at 508-09. Truck Drivers
thus stands for the proposition that an employee does not have the
absolute right to engage in insubordination even if some of those
acts implicate protected activities on his own behalf. Id. at 508;
see NLRB v. International Broth. of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers, and Helpers, 581 F.2d 473, 478
(5th Cir. 1978) (“To hold that a union has no right to discharge an
employee for insubordination . . . would, we believe, seriously
detract from effective, cohesive union leadership.”)
Truck Drivers is distinguishable from the present appeal for
several reasons. Williams attempted to avail herself of the proper
channels for reporting environmental violations – first, through
MOSH and the Health Department, and second, through Fields. MOSH
denied jurisdiction over her complaint and transferred it to the
Health Department; the Health Department did not take water samples
until more than two months had passed; and Fields directly ignored
and rebuffed Williams’s efforts to inform her of the problem.
Clearly, the channels for reporting such complaints were not
effective, particularly in light of the imminent and continuing
danger posed to the students at Southeast.
35
Moreover, this is not a case in which Williams sought to
harass the School System into awarding benefits to herself, as in
Truck Drivers. Rather, Williams was determined to make the
specific children and parents affected by the cognizable health
risks present in the school aware of those immediate dangers. While
the ALJ viewed Williams as being an overly zealous crusader who
repeatedly annoyed the School System, her efforts time and again
forced positive changes and were far from frivolous.
Finally, the employer’s right to be free from disruptions and
interferences in the daily administration of its affairs is not
absolute; the entire purpose of federal whistleblower statutes is
to protect employees who seek to uncover violations that strike at
the heart of public safety. Particularly where public safety risks
to children are involved, whistleblower activities designed to
expose such risks should be unsettling, disruptive, and
frightening, so as to inspire positive change.
The mere fact that Southeast became inundated with telephone
calls from concerned parents does not mean that the School System’s
interest in maintaining an educational environment of order and
trust should override the public interest in ensuring the safety of
unsuspecting children. Despite receiving objective findings of
lead contamination in the drinking water which had been accessible
to students at some point, the School System never told students or
parents about the risk of exposure to lead contamination or the
36
steps undertaken to abate the exposure to such contamination. Upon
receiving Williams’s letter, parents understandably began calling
administrative officials at Southeast, distressed mostly because
the School System itself had never disclosed the existence of
recurring lead contamination issues. Significantly, no parent,
student or staff member ever complained about receiving this
information. Nor did any of the parents take drastic measures such
as keeping their children out of school, calling for the
resignation of staff members, or even protesting – a testament,
perhaps, to the trust they placed in Southeast’s administration and
specifically, Fields.3
In my view, the School System’s professed interest in
maintaining order and trust appears disingenuous in light of its
failure to disclose risks inherent in past exposure to lead
contamination and the need for student testing, even if future
exposure to lead contamination had been addressed. Moreover, the
School System could have avoided the disruption in the
administration of its affairs by informing students and parents in
the first instance. Instead, the School System retaliated against
Williams because she informed parents about the serious risks posed
to students from past exposure to lead contamination, thereby
3
At least two parents insisted on speaking directly to Fields,
and not to an assistant principal or secretary, because they
“trusted” her. J.A. 265-66. One of the parents expressed her
distress at the fact that the letter had not originated from
Southeast itself. J.A. 265.
37
embarrassing administrative officials. As such, the School System
did not dismiss Williams merely because she used an unauthorized
list to contact parents or created disruptions in Southeast’s
administrative affairs.
Despite the majority’s best efforts to view the protected
nature of Williams’s activities and the legitimacy of the School
System’s proferred reasons for her dismissal as distinct issues,
the underlying facts indicate that the issues cannot be so easily
uncoupled. It is true that Field testified that “even if she
believed the Respondent was correct in her allegations regarding
lead in the water, she would have still recommended the
Respondent’s suspension without pay because of the disruption
cause[d] at the school.” Complainant’s CX-139. However, it is
also undisputed that her supervisor, Dr. Patricia Abernathy, the
Area Executive Officer for the Southeast area, testified that “if
she had determined that there was some validity to the Respondent’s
allegations, she may have recommended a different disciplinary
action.” Id. (emphasis added). Similarly, Sandra Wighton, the
Assistant Superintendent for the Southeast area, “confirmed that,
even if there were merit to [Williams’s] claims, she still would
have recommended some form of discipline, although the form of that
discipline may have been different.” J.A. 155 (emphasis added).
As such, two high-ranking officials in the School System
admitted that the decision to dismiss Williams was based, in part,
38
on the validity of her allegations, which were ultimately
substantiated by the School System’s own report. Moreover,
Booker’s recommendation that Williams be dismissed explicitly
relied on Dr. Abernathy’s formal recommendation on April 26, 1999,
which was more than a month after the release of the March 15, 1999
Report. J.A. 246. Accordingly, I conclude that the School System
failed to proffer a legitimate, non-retaliatory reason for
dismissing Williams.
I fear that today’s decision unwittingly discourages employees
from disclosing information reasonably intended to protect the
vulnerable when their employers are unwilling to do so. Because I
conclude that Williams engaged in protected activity and that the
School System failed to proffer a legitimate, non-retaliatory
reason for her dismissal, I respectfully dissent.
39