Wright v. Railroad Commission of Texas (agency decision, May 22, 2019)

Plain-English summary

Railroad Commission of Texas employee Frederick Wright alleged retaliation after raising concerns about oil and gas operators' compliance with rules protecting underground drinking-water sources. On an earlier appeal, the Board had required the ALJ to reconsider whether Wright reasonably believed his activities furthered the environmental statutes. On remand, the ALJ found that any protected activity did not motivate the termination. Substantial evidence showed a documented history of interpersonal and performance problems, including refusal to follow instructions and uncooperative conduct toward operators and colleagues. The Board affirmed on causation grounds, making any shortcomings in the protected-activity analysis harmless, and denied the complaint.

Decision snapshot

• Cited authorities: 42 U.S.C. § 300j-9(i); 33 U.S.C. § 1367; 29 C.F.R. §§ 24.109(b)(2) and 24.110(b)
• Outcome: Dismissal affirmed because protected activity was not proved to have caused or motivated the termination.
• Key point: Even assuming protected environmental reports, the claim failed where substantial evidence supported independent conduct and performance reasons for discharge.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:

  FREDERICK B. WRIGHT,                             ARB CASE NO.   2019-0011

                  COMPLAINANT,                     ALJ CASE NO.   2015-SDW-00001

         v.                                        DATE: May 22, 2019

  RAILROAD COMMISSION
  OF TEXAS,

                  RESPONDENT.

  Appearances:

  For the Complainant:

         Frederick B. Wright; pro se; Houston, Texas

  For the Respondent:

         Michael J. DePonte, Esq., and Julie C. Tower, Esq.; Jackson Lewis,
         P.C.; Austin, Texas

  Before: William T. Barto, Chief Administrative Appeals Judge, James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges


                         FINAL DECISION AND ORDER

       PER CURIAM. The Complainant, Frederick Wright, filed a retaliation
  complaint under the employee protection provisions of the Safe Drinking Water Act
  (SDWA), the Federal Water Pollution Control Act (FWPCA), and their





  implementing regulations. 1 He alleged that the Railroad Commission of Texas, his
  employer and the Respondent, violated the SDWA and FWPCA whistleblower
  protection provisions when it retaliated and discriminated against him because he
  raised concerns about requiring oil and gas operators to comply with rules
  regulating drilling wells to protect sources of underground drinking water.

         Following a hearing, a Department of Labor (DOL) Administrative Law
  Judge (ALJ) dismissed Wright’s complaint because he found that Wright did not
  meet his burden of showing that any protected activity motivated the termination of
  his employment. After Complainant appealed the ALJ’s decision to the
  Administrative Review Board (ARB or Board), the Board vacated the ALJ’s
  conclusion that Complainant had not engaged in protected activity and remanded
  for further consideration for the ALJ to assess whether Complainant had a
  reasonable belief that he was furthering the purpose of the Acts when he engaged in
  activities he alleges were protected. 2

         On remand, the ALJ reconsidered whether Complainant engaged in protected
  activity and found that “Complainant did not have a reasonable belief that he was
  raising environmental or public health and safety concerns governed by or in
  furtherance of either SDWA or FWPCA” when he engaged in his alleged protected
  activities. Decision and Order on Remand (D. & O.) at 26-27. 3 Further, the ALJ

  1        42 U.S.C. § 300j-9(i) (1994); 33 U.S.C. § 1367 (1972); 29 C.F.R. Part 24 (2018).

  2        Wright v. R.R. Comm’n of Tex., ARB No. 16-068, ALJ No. 2015-SDW-001 (Jan. 12,
  2018).

  3       While it is evident that the ALJ undertook the analysis the Board directed on
  remand, the ALJ did not specifically indicate in his D. & O. on remand whether
  Complainant lacked a subjective belief that he was raising environmental concerns in his
  complaints, his complaints were not objectively reasonable, or both. See Newell v. Airgas,
  Inc., ARB No. 16-007, ALJ No. 2015-STA-006, slip op. at 10 (ARB Jan. 10, 2018) (noting a
  complainant must demonstrate that s/he had a reasonable belief that the conduct
  complained of violated the pertinent act or regulations, which requires both a subjective
  belief and an objective belief); Tomlinson v. EG&G Defense Materials, ARB Nos. 11-024, 11-
  027, ALJ No. 2009-CAA-008, slip op. at 13 (ARB Jan. 31, 2013). And notwithstanding the
  ALJ’s assertion that the Board originally remanded this case for reconsideration under an
  “expansive definition of protected activity,” see D. & O. at 3, the Board had merely set forth
  the definition of protected activity as it exists in law and regulation and directed the ALJ to
  reconsider that element on remand pursuant to that definition. Nevertheless, in light of our
  affirmance of the ALJ’s finding that Complainant failed to establish causation, any
  shortcomings in the findings and conclusions made by the ALJ in this regard are harmless.



  found that even if Complainant did engage in protected activity, he “failed to
  establish by a preponderance of the evidence that such activity was a motiving
  factor in his termination.” Id. at 27. Finally, the ALJ found that Respondent proved
  by a preponderance of the evidence that it would have taken the same action
  against Complainant absent his alleged protected activity. Id. We affirm the ALJ’s
  dismissal of Complainant’s complaint because substantial evidence supports the
  ALJ’s finding that Complainant failed to prove by a preponderance of the evidence
  that any protected activity was a motivating factor in Respondent’s decision to take
  adverse action against him.



                         JURISDICTION AND STANDARD OF REVIEW

        The Secretary of Labor has delegated to the Administrative Review Board
  authority to review ALJ decisions in cases arising under the SDWA and FWPCA
  and issue final agency decisions in these matters. 4 The Board will affirm the ALJ’s
  factual findings if supported by substantial evidence. 5 The Board reviews an ALJ’s
  conclusions of law de novo. 6



                                         DISCUSSION

         To prevail on a whistleblower complaint under the Acts, a complainant must
  establish by a preponderance of the evidence “that the protected activity caused or
  was a motivating factor in the adverse action alleged in the complaint.” 7 If a


  4     Secretary’s Order No. 1-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019).

  5      29 C.F.R. § 24.110(b). And, as the United States Supreme Court has recently
  observed, “the threshold for such evidentiary sufficiency is not high,” amounting to “more
  than a mere scintilla,” and requiring only “such relevant evidence as a reasonable mind
  might accept as adequate to support a conclusion.” Biestek v. Berryhill, U.S. , 139 S. Ct.
  1148, 1155 (2019).

  6       Wolslagel v. City of Kingman, Ariz., ARB No. 11-079, ALJ No. 2009-SDW-007, slip
  op. at 2 (ARB Apr. 10, 2013) (citations omitted).

  7      29 C.F.R. § 24.109(b)(2).




  complainant makes this showing, “relief may not be ordered if the respondent
  demonstrates by a preponderance of the evidence that it would have taken the same
  adverse action in the absence of the protected activity.” 8

         The findings of fact are set forth in the ALJ’s D. & O. at pages 4 to 10. The
  ALJ’s further findings and conclusions regarding motivating factor causation are
  set forth at D. & O. at 23-25.

         The ALJ reviewed the evidence of record and noted that Complainant had a
  documented history of interpersonal conflicts with both staff and operators. D. & O.
  at 24. Specifically, he found that Complainant had demonstrated an “unwillingness
  to work with operators . . .”, “behavioral problems,” “inappropriate conduct,” an
  “inability to work with [a] Respondent employee,” “unprofessional conduct,”
  “uncooperative conduct in dealing with operators and colleagues,” and that he was
  “arrogant, insulting, and insolent” in working with other people. Id. Similarly, the
  ALJ found that Respondent fired Complainant because “he refused to follow
  instructions and created a state of confusion which was indicative of his refusal to
  work with operators and to make the application process more difficult than
  necessary.” Id. at 25. Substantial evidence in the record supports these findings of
  fact and the ultimate finding as to Respondent’s motivation; therefore, we affirm
  the ALJ’s findings.

         Wright objects to the ALJ’s finding that Complainant was disciplined because
  he failed to make reasonable efforts “to call” a consultant to inform her about the
  correct number of centralizers needed for a project, asserting that he was never
  specifically told to telephone the consultant. We reject this assertion because
  substantial evidence supports the ALJ’s finding that Respondent expected
  Complainant to let the operator/consultant know in some manner what was needed
  for approval and Respondent believed that he had failed to do so. 9 Specifically,
  Charles Teague emailed other members of Respondent’s management team that
  Complainant “placed on the operator the unnecessary task of filling out another


  8      Id.

  9      We note that it is the role of neither the ALJ nor the Board to act as a super-personnel
  “department that reexamines an entity’s business decisions.” Jones v. U.S. Enrichment Corp.,
  ARB Nos. 02-093, 03-010, ALJ No. 2001-ERA-021, slip op. at 17 (ARB Apr. 30, 2004) (citations
  omitted).




  form and failed to detail what specific information is needed for approval.” RX 25 at
  1. Respondent expected Complainant to let the operator know what was required by
  sending either a fax or email, making a call, etc., in some manner so that she could
  get approval for her project. 10



                                         CONCLUSION

        Accordingly, we AFFIRM the ALJ’s finding that Complainant failed to prove
  that protected activity caused or was a motivating factor in the adverse action
  alleged in the complaint, an essential element of his case. Therefore, this complaint
  is DENIED.

         SO ORDERED.




  10     Complainant also asserts the ALJ erred in rejecting certain exhibits Complainant
  proffered and in admitting certain others that Respondent proffered. In regard to the
  various exhibits at issue, we reject Complainant’s allegations of error and conclude that the
  ALJ did not abuse his discretion with respect to any of his evidentiary determinations. See
  Wright, ARB No. 16-068, slip op. at 10 n.49 (stating that an “ALJ’s evidentiary rulings are
  reviewed under an abuse of discretion standard”) (citing Shactman v. Helicopters, Inc., ARB
  No. 11-049, ALJ No. 2010-AIR-004, slip op. at 3 (ARB Jan. 25, 2013)).