Civil Rights Division - Bureau of Labor and Industries
NOTICE OF SUBSTANTIAL EVIDENCE DETERMINATION
Complainant: John Nguyen
Respondent: Columbia River People's Utility District
Case Number: STEMWB131220-11642
Investigator: Nicole Babnick
Filing Date: December 20, 2013
Reviewed By:
I. Jurisdiction
Oregon Revised Statutes chapters 659A, ORS 25.337, 25.424, 171.120, 345.240, 441.178, 476.576, 651.060, 651.120, 652.355, 653.060 and 654.062, and Oregon Administrative Rules chapter 839 divisions 2, 3, 5, 6, 9 and 10 authorize the Civil Rights Division to accept, investigate, amend, resolve and determine complaints alleging unlawful practices in employment, housing, places of public accommodation, state government and career, professional and trade schools.
Specific facts supporting a conclusion that the Division has jurisdiction over respondent(s) are found below.
II. Allegations
On December 20, 2013, Complainant filed a complaint with the Civil Rights Division. Complainant alleges the following violation(s):
- ORS 652.355, in that when Complainant told Respondent that his salary review was incorrect he was making a wage claim and he was retaliated against in the form of different terms and conditions of employment.
- ORS 659A.030(1)(f), in that Respondent discriminated against Complainant because he opposed an unlawful practice, filed a complaint, testified or assisted in any proceeding under ORS 659A.
- ORS 659A.199, in that when Complainant made a report to Respondent about the errors in the regional salary surveys he was making a good faith report of a violation of state or federal law, rule, or regulation and that he was retaliated against in the form of different terms and conditions of employment.
- ORS 659A.203(1)(d), in that Respondent, as a public employer, discouraged, restrained, dissuaded, coerced, prevented, and/or otherwise interfered with the disclosure of information described in ORS 659A.203 when Owens told Complainant not to continue questioning the salary surveys.
- ORS 659A.203(1)(b), in that Respondent, as a public employer, prohibited Complainant from disclosing, or took, or threatened to take disciplinary action against Complainant for the disclosure of any information that Complainant reasonably believed was evidence of: a violation of any federal or state law, rule or regulation by the state, agency or political subdivision and/or mismanagement, gross waste of funds or abuse of authority when Complainant made complaints regarding the salary surveys.
- ORS 659A.199, in that when Complainant made a report to Respondent’s Board about the quarantined emails he was making a good faith report of a violation of state or federal law, rule, or regulation and that he was retaliated against in the form of different terms and conditions of employment .
- ORS 659A.203(1)(b), in that Respondent, as a public employer, took disciplinary action against Complainant for the disclosure of the quarantined emails to Respondent’s Board when Complainant reasonably believed the quarantined emails were evidence of: a violation of any federal or state law, rule or regulation by the state, agency or political subdivision.
- ORS 659A.030(1)(g), in that Aider and Abettor Kevin Owens aided, abetted, incited, compelled or coerced the doing of any of the acts forbidden under ORS 659A when Owens discouraged Complainant from whistleblowing and retaliated against Complainant for whistleblowing about the salary surveys and the quarantined emails.
9. ORS 659A.030(1)(g), in that Aider and Abettor Valarie Koss aided, abetted, incited, compelled or coerced the doing of any of the acts forbidden under ORS 659A when Koss discouraged Complainant from whistleblowing and retaliated against Complainant for whistleblowing about the salary surveys and the quarantined emails.
III. Identity of Respondent
- Respondent Columbia River People's Utility District is a public body and is a person pursuant to ORS 659A.001(9).
- Identity of Aiders and Abettors
- Respondent Kevin Owens is the General Manager.
2. Respondent Valarie Koss is responsible for Government Relations, Risk & Administration.
V. Findings of Fact
1. Respondent Columbia River People's Utility District employs one or more persons in the state of Oregon and is an employer pursuant to ORS 659A.001(4)(a).
2. Respondent Columbia River People’s Utility District is a people’s utility district organized under ORS Chapter 261.
3. Under ORS 261.050, Respondent Columbia River People’s Utility District has the power to tax district property.
4. Respondent Columbia River People’s Utility District participates in the State of Oregon Public Employees Retirement System, which is a statewide benefit retirement plan for units of state government, political subdivisions, community colleges, and school districts.
5. Respondent’s 2012 annual report states that “The PUD is a people’s utility district organized under Oregon Revised Statutes Chapter 261. As a political subdivision of the State of Oregon, the PUD is exempt from taxation under the provisions of Section 115 of the Internal Revenue Code.” Emphasis added.
6. Complainant worked for Respondent since 1987. Complainant’s job title changed over time through reorganizations. In 2007, Complainant was promoted to Information Technology Supervisor which was his job until termination.
7. Complainant offered the following documentation in support of Complainant’s allegations:
a) Witness and Document summary;
b) Response to statements from Respondent’s position statement;
c) Complainant’s 10/30/13 work plan;
d) A letter from Complainant to Owens dated 12/01/13 regarding Complainant’s work plan; and
e) Email from Joel Christiansen regarding Complainant’s allegations under ORS 659A.199 and ORS 659A.203.
8. Respondent submitted a written position statement in answer to this complaint.
9. Respondent contends that Complainant’s allegations of a violation of ORS 652.355 are inapplicable because Complainant never asserted a wage claim and had no basis for one in any event. Respondent contends that Complainant never inquired about or requested payment for unpaid wages. Respondent contends that Complainant’s concern was that the part of the compensation review pertaining to the Milliman salary survey would not have altered the amount of Complainant’s past or future wages. Respondent contends that at most, the incorrect evaluation of salary survey data could result in an adjustment in the salary range applicable to Complainant’s position.
10. Respondent contends that Complainant’s allegations of a violation of ORS 659A.199 do not constitute a valid claim under this statute because Complainant admitted that he did not believe or had no reasonable basis for believing his complaints about the salary survey or Owens’s conduct toward Complainant was evidence of a violation of state or federal law, rule, or regulation.
11. Respondent contends that Complainant’s allegations of a violation of ORS 659A.199, even if Complainant reasonably believed the conduct he reported was unlawful, the evidence shows that Owens did not retaliate against Complainant for complaining to Owens or the Board.
12. Respondent contends that Complainant’s allegations of a violation of ORS 659A.203 are inapplicable because Respondent is a special district and the statute only applies to public employers.
13. Respondent contends that Complainant’s allegations of a violation of ORS 659A.203(1)(d), even if applicable, fail. Respondent contends that Complainant 1) confirmed he did not believe Koss’s conduct violated any law, 2) explained to the Board that he did “not intend to accuse anyone of misconduct,” 3) Complainant knew that the amount of funds at issue were miniscule at only less than 1/1,000th percent so Complainant could not have reasonably believed he was reporting evidence of abuse, mismanagement, or a gross waste of funds.
14. Respondent contends that Complainant’s allegations of a violation of ORS 659A.203(1)(b) is not supported by the evidence. Respondent contends that there is no evidence that Owens did anything to “discourage, restrain, dissuade, coerce, prevent or otherwise interfere with” Complainant’s disclosures to the Board. Respondent contends that Owens was 1) completely unaware that Complainant intended to contact the Board until after the fact, 2) Owens was out of town when Complainant sent the Board the April 20th memo, and 3) Owens was unaware of Complainant’s May 10 memo until September 9.
15. Respondent contends that Complainant’s allegations of a violation of ORS 659A.030(1)(f) are inapplicable because Complainant did not oppose an unlawful practice, file a complaint, testify or assist in any proceeding under ORS Chapter 659A.
16. Respondent contends that Complainant’s allegations of a violation of ORS 659A.030(1)(f), if applicable, fail. Respondent contends that 1) Owens did not retaliate against Complainant for complaining to Owens or the Board, 2) Owens did address valid concerns regarding Complainant’s behavior and performance, and 3) Owens ultimately terminated Complainant based on Complainant’s unwillingness and/or inability to move forward and correct the negative behaviors Owens identified in addition to Complainant’s security violations, performance deficiencies, and intentional destruction of Respondent Columbia River People’s Utility District data.
17. Respondent contends that Complainant’s allegations of a violation of ORS 659A.030(1)(g) are in applicable because there is no evidence that Owens or Koss 1) acted in concert or pursuant to a common design, 2) actively encouraged or assisted each other in engaging in a known breach of duty, or 3) engaged in independently tortious conduct while assisting other in accomplishing a tortious result.
18. Respondent offered the following documentation in support of Respondent’s defense(s):
a) Exhibit 7: the Wage and Compensation portion from Respondent’s employee handbook;
b) Exhibit 13: emails exchanged between Complainant and Koss from 02/01/13-02/03/13 regarding the salary survey criteria Complainant wanted Koss to use;
c) Exhibit 17: emails exchanged between Complainant and Owens from 02/18/13-02/20/13 regarding his concerns with the Milliman salary survey;
d) Exhibit 18: Owens’s 02/22/13 memo regarding the 2012 salary review;
e) Exhibit 19: Complainant’s 04/20/13 memo to the Board regarding 2006 to 2012 CRPUD Employee Salary Surveys;
f) Exhibit 20: Complainant’s 03/02/13 email with Respondent Board Member Jake Carter regarding Salary Survey Concerns;
g) Exhibit 21: emails exchanged between Complainant and Owens on 06/27/13-07/02/13 regarding Follow Up to Staffing Discussion Yesterday;
h) Exhibit 22: McDowell, Rackner & Gibson PC Salary Survey Examination Report dated 07/02/13;
i) Exhibit 23: Findings and Conclusions from Goldsmith Report dated 07/10/13;
j) Exhibit 24 and 25: Complainant’s 09/27/13 email to the Board following up on his May 10th memo regarding an email violation and possible breach of confidentiality; (investigative note: these two exhibits appear to be duplicates of the same email);
k) Exhibit 26: emails exchanged between Complainant and Owens from 09/30/13-10/1/13 regarding Complainant’s behavior during a 09/30/13 meeting;
l) Exhibit 27: emails exchanged between Complainant and Owens from 10/07/13-10/08/13regarding Complainant’s behavior during a 09/30/13 meeting;
m) Exhibit 28: Kirk Gibson email dated 10/09/13 regarding Correspondence with the CRPUD Board;
n) Exhibit 29: Owens’s 10/10/13 memo to Complainant regarding Expectations Moving Forward;
o) Exhibit 30: Complainant’s work plan to Owens dated 10/18/13;
p) Exhibit 31: email from Owens to Complainant dated 10/21/13 regarding Complainant’s work plan;
q) Exhibit 32: email from Complainant dated 10/23/13 regarding his work plan;
r) Exhibit 33: Complainant’s 10/30/13 work plan;
s) Exhibit 34: Memo from Owens to Complainant dated 11/18/14 regarding Complainant’s work plan;
t) Exhibit 35: letter from Complainant to Owens dated 12/01/13 regarding Complainant’s work plan; and
u) Exhibit 36: Owens letter to Complainant dated 03/14/14 terminating Complainant’s employment.
19. On 06/17/14, BOLI requested that Respondent provide evidence regarding 1) removing Complainant from Box.net accounts, 2) emails requesting that Complainant provide passwords, 3) emails from Koss to Tallman regarding his access to Box.net, 4) Complainant’s memo to the Board regarding the quarantined email, 5) email communication from Owens that was the subject of Complainant’s report, 6) emails from Koss questioning the function of the security team, 7) 02/15/08 email from Complainant to Koss regarding email filtering keywords, 8) email from Owens questioning the security team makeup, 9) pages 1-11 of the Goldsmith report, 10) notes for board meetings, 11) reasons why items were redacted, 12) any and all documents related to Complainant’s suspension and termination, 13) comparator information regarding personal leave to develop a work plan, and 14) any other relevant information to Complainant’s allegations. Respondent provided the requested information except for request number 12 and cited the attorney client and work product privilege and that it would be unduly burdensome and costly to produce all non-privileged materials at this stage in the proceedings.
20. On 09/11/14, BOLI requested Complainant provide the following: 1) to identify the specific acts Complainant alleges Koss did in violation of ORS 659A.030(1)(g), 2) provide any evidence to rebut Respondent’s contention that Complainant’s work schedule was changed because of the budget, and 3) any evidence that Respondent terminated Complainant because he filed a BOLI complaint. Complainant provided the requested information.
21. On 09/11/14, BOLI requested Respondent provide the following: 1) information about when Respondent learned about Complainant’s BOLI complaint, 2) information regarding the investigative report into the quarantined email issue, 3) information regarding the information technology consultant, 4) information regarding Complainant’s schedule change, and 5) information regarding Respondent’s mission statement. Respondent provided the requested information aside from the investigative report pertaining to the quarantined email based on the attorney client and work product privileges and that the report was not relevant to Complainant’s charge of retaliation.
22. BOLI obtained Respondent’s 2012 annual report which contained information regarding Respondent’s organizational structure.
23. On 04/03/14, BOLI interviewed Complainant.
24. On 07/01/14, BOLI interviewed Respondent’s former Finance Manager Rick Lugar.
25. On 07/17/14, BOLI interviewed Accounting and Finance Manager Sheila Duehring.
26. On 07/18/14, BOLI interviewed Engineering and Operations Manager Steve Hursch.
27. On 11/12/14, BOLI interviewed General Manager Kevin Owens.
28. On 11/18/14, BOLI interviewed Community and Government Relations and Risk and Administration Manager Valarie Koss.
VI. Summary
Complainant’s allegations can generally be broken down into two main events 1) complaints regarding the salary surveys, and 2) complaints regarding quarantined emails. A brief summary to put Complainant’s allegations in context follows below.
The first event involves salary surveys. Respondent utilized an actuarial product produced by Milliman to run salary surveys. The salary surveys compared Respondent’s employees’ compensation for comparable positions with other utility providers in the Northwest. The salary surveys were then used as a baseline to see if Respondent’s employee compensation was comparable to other employers. The salary survey report data was used as a factor in determining whether Respondent’s employees were eligible for raises in addition to other factors like work performance. Koss was responsible for running these salary surveys.