More on Retaliation and on the Public-Health Authority of State and Local Governments.

Introduction

In April's Journal, this column examined a case that upheld the First Amendment and civil rights of an environmental health professional (42 U.S.C. [sections]1983) against retaliation by a public-health department for statements she had made on a matter of public concern (Myers v. Hasara). Other public-employee actions may also be protected from official retaliation, The first case examined here this month involves alleged retaliation against an environmental health aide who had complained about sexual harassment.

The second and third cases concern the extent of government authority Case #2 asks whether a state agency has the authority to regulate the disposal of debris from land clearing and explains how a relevant statute should be interpreted. Case #3 is about the validity of a county ordinance that regulates swine farming more stringently than does state law.

Case #1: Retaliation for Complaining About Sexual Harassment

Sexual harassment on the job is illegal (42 U.S.C. [sections]2000e-2). Furthermore, federal law forbids an employer to discriminate because an employee has filed a sexual harassment charge (42 U.S.C. [sections] The question, though, is what constitutes retaliation.

In Von Gunten v. State of Maryland, an environmental health aide with the Maryland Department of Environment did shoreline sanitary surveys in the winter and collected water samples by boat from the Chesapeake Bay in the spring, summer, and fall. She accused her boat partner of sexual harassment.

The accusations were made to the section head and the Fair Practices Office. Unconvinced of any harassment, the section head nevertheless removed her from boat duty as she requested. Subsequently her state car was re-allocated, and she had to use her personal vehicle; her year-end evaluation process was altered; certain administrative matters were handled differently; and she claimed that a hostile work environment was created. Ultimately she resigned about 15 months after she first made her charges of sexual harassment. After considering the form, nature, extent, and reasons for the alleged "retaliation," both the U.S. District Court and the Court of Appeals determined that no unlawful retaliation had occurred.

Unlawful retaliation occurs if

1. an employee engages in a protected activity such as complaining of sexual harassment,

2. her employer takes an adverse employment action against her, and

3. a causal connection exists between the protected activity and the asserted adverse action.

An unlawful adverse employment action may be either an ultimate employment decision (e.g., hiring, firing, refusal to promote, granting leave, a compensation decision) or any retaliatory act or harassment if it causes an adverse effect on the terms, conditions, or benefits of employment.

Temporary withdrawal of a state vehicle was not an adverse employment action. First, the use of a state vehicle is probably not an employment benefit, and no one should expect to permanently have the use of a state vehicle. In addition, the environmental health aide received proper mileage reimbursement, and the vehicle was merely reassigned to others who had a longer distance to drive.

The second issue concerned the plaintiffs employment evaluation. Other cases have held that a retaliatory downgrade on a performance evaluation could affect a condition of employment and be unlawful. In this case, however, the entire department was switching from one evaluation form to another. The aide was evaluated under both forms. On the old form, there were five categories, and she was rated "needs improvement," which was the next-to-the-lowest category. On the new form, she was rated "unsatisfactory," which was the lowest of three categories. The court held there was no practical distinction between the two categories.

Next, the Court said that the aide had suffered no decrease in pay, benefits, job title, or the nature of her work with the job reassignment. Her reassignment to the only available job was at her request. True, the aide's work may have been more closely scrutinized, and certain administrative details were handled differently. Nonetheless, no employee has "general immunity from the application of basic employment policies or exemption from a state agency's disciplinary procedures." Any changes, including the job reassignment, might have been irritants to the aide but did not constitute an adverse employment action.

Finally, the aide claimed a hostile work environment. For that claim she had to show that her workplace was both subjectively and objectively hostile. There was no doubt that the aide subjectively considered the work environment abusive. The court, however, said that no reasonable person would find the environment hostile or abusive. The problems occurred sporadically over 18 months, were not severe, and involved reasonable application of departmental policies. According to the court, "[O]ffice unpleasantries that were at most the result of 'predictable tension' in the workplace following the lodging of discrimination and retaliation charges" are not actionable.

Case #2: State Regulation of Land-Clearing Debris

Environmental health professionals are constantly interpreting laws and regulations for agencies, individuals, and businesses. Though it is a necessity, legislative interpretation is often complicated and difficult. This case is an instructive example of legislative interpretation.

A farmer in Calvert County, Maryland, wanted to increase his pastureland for his livestock. So he allowed some commercial excavators, for a fee, to dispose of stumps, limbs, rubble, and other land-clearing debris on his farm. After an anonymous telephone call, the Maryland Department of Environment (MDE) started an investigation.

Interestingly, MDE conducted no unlawful searches of the property. After being denied access to the property, MDE conducted surveillance outside the gates of the farm and recorded trucks entering the property with loads and leaving empty Then MDE took aerial photographs that showed piles of land-clearing debris with vehicles approaching and leaving the piles.

MDE was concerned about water contamination and fire potential, and filed a court action for a preliminary injunction. In addition, it requested a court order for access to the property With the court order, MDE staff conducted two inspections of the property.

The case revolved around the interpretation of Maryland statute E.A. [sections]9-204 and the definitions of relevant terminology that appear in E.A. [sections]9-201. E.A. [sections]9-201(e) says:

This section applies to any water supply system, sewerage system, refuse disposal system that is for public use, or any refuse disposal system that is a solid waste acceptance facility...

In E.A. [sections]9-201(n), a "solid waste acceptance facility" is defined as

any sanitary landfill, incinerator, transfer station, or plant whose primary purpose is to dispose of, treat, or process solid waste.

First, the farmer argued that the phrase "whose primary purpose is to dispose of, treat, or process solid waste" modifies both "plant" and "sanitary landfill." According to the farmer, his waste disposal was not illegal since his primary purpose was to create additional pastureland.

The court, in Naji v. State of Maryland, said the primary goal in interpreting a statute is to determine the legislative intent, purpose, and goal of the statute. First, a court looks to the natural and ordinary meaning of the statutes language. Sometimes a dictionary is used. All words and punctuation are important and must be considered. Finally, the statute should be interpreted as a whole in a way that is logical, reasonable, and consistent with common sense.

The definition of a "solid waste acceptance facility" has several commas, but none after the "or." The grammatical and logical reading is the phrase, "whose primary purpose is to ...,"modifies only the noun "plant." This is reasonable because the other terms (sanitary landfill, incinerator, and transfer station) have commonly understood and accepted technical definitions while the term "plant" is vague and has no technical meaning. The clause provides some needed clarification of the term "plant." Moreover, the farmer's interpretation would make the entire regulatory scheme dependent upon the subjective desires, goals, or purposes of the landowner and would subvert the legislative goal of a comprehensive solid waste regulatory and permit program.

Next, the farmer claimed the farm was not available for "public use" since it was on private land. In 1988, an amendment to the Maryland statute had removed the "public use" limitation for a "solid waste acceptance facility," but MDE had failed to update the regulations. Nonetheless, the court found that "the statutory amendment 'overrides' the earlier regulatory distinction between private and public use of refuse disposal systems." Furthermore, the farmer admitted that he charged excavators a fee to dump their waste on his property.

The Court of Appeals upheld the preliminary injunction of the trial court. This court said that in this case, unlike a case involving only private parties, all MDE had to show was that the farmer's conduct violated or was about to violate a law or regulation designed to protect the public health or welfare. Since registered sanitarian Heather Nelson and other MDE staff testified about "hot pockets" in the debris creating a fire hazard, as well as about the potential for surface and groundwater contamination, the court affirmed the trial court's decision and action.

Case #3: State Law Preempts County Swine Ordinance

An idea commonly held among environmental health personnel is that local governments may have ordinances and regulations as long as those rules are as stringent or more stringent than state law. The following case shows the fallacy of that idea for some situations.

The Board of Commissioners in Chatham County North Carolina, enacted an ordinance to regulate swine farming and a zoning ordinance to regulate the location of swine farms. Thereafter, the county board of health established swine farm operation rules identical to the ordinance. Ultimately, all the ordinances were found invalid as conflicting with state law (Craig v. County of Chatham).

The county established a local program to regulate the operation, construction, and expansion of swine farms. A swine farmer had to obtain a permit and comply with all federal, North Carolina, and local laws and regulations. Local regulations established setback distances and buffer zones more stringent than those set by state requirements. The county also set financial-assurance requirements and required semiannual well tests.

Just as Federal law can supersede state law, so state law may supersede local law A city or county ordinance must be consistent with state and federal law. A state can directly supersede all local law by expressly stating that desire in some legislation. Otherwise, said the court,

An ordinance is not consistent with State or federal law when ... the ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.

No North Carolina statute expressly displaced local law on swine farming. Therefore, the question was whether North Carolina fully addressed and pre-empted the field of swine farm regulation.

North Carolina already had a Swine Farm Sitting Act and Animal Waste Management Systems Act--and regulations promulgated thereunder. After reviewing the entire set of statutes and their stated purposes, The court determined that they provided a "complete and integrated regulatory scheme" of swine farm regulations. Indeed, the more stringent county ordinances and rules could undermine the state's attempt to balance economic and environmental issues, and frustrate farmers' attempts to develop and use alternative and innovative technologies. Therefore, the county's laws and regulations were invalid.

Cases Cited

Craig v. County of Chatham, #COAOO-15, __ N.C. App. __, __ S.E.2d __ (2001).

Myers v. Hasara, 226 F.3d 821 (7th Cir. 2000).

Naji v. State of Maryland, 136 Md. App. 682, 767 A.2d 372 (2001).

Von Gunten v. State of Maryland, No. 00-1058, __ F.3d __ (4th Cir. 2001).