UNPUBLISHED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Affirmed by unpublished per curiam opinion.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
2

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Unpublished opinions are not binding precedent in this circuit.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).
3

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.
4

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
1

The expert referred to was Mrs. Williams.

5

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
6

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
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. § 300j9(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

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
8

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
9

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
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

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
11

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
12

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
13

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
14

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
15

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.
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

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
17

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
18

the System set forth legitimate and nondiscriminatory reasons for

Mrs. Williams’ dismissal.

Accordingly, the decision of the Secretary of Labor is

AFFIRMED.
19

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,
20

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
21

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
22

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
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

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
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

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
25

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.
26

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,
27

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:
28

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
29

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
30

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
2The 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

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
32

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
33

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-CAA1, 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.
34

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. 
35

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. 
36

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
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

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
38

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,
39

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.