U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-183 (ALJ CASE NO. 96-CAA-1)
DATE: April 10, 1997
In the Matter of:
DWAYNE OLSOVSKY,
COMPLAINANT,
v.
SHELL WESTERN E&P, INC.,
RESPONDENT.
BEFORE:THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
The Administrative Law Judge (ALJ) submitted a
Recommended Decision and Order (R. D. & O.) in this case arising
under the employee protection provisions of the Clean Air Act, 42
U.S.C. § 7622 (1988) and several other environmental
whistleblower laws. R. D. & O. at 1. The ALJ found that
Complainant Dwayne Olsovsky did not carry his burden of proving
that Respondent Shell Western E & P. Inc. (Shell) discriminated
against him for engaging in protected activities when it
discharged him on August 9, 1995. The record in this case has
been reviewed and we find that it fully supports the ALJ's
factual findings and conclusions and we adopt them.
The facts in this case are fully set forth
in the R. D. & O. at 4-10. Briefly, Olsovsky was hired by Shell in
December 1989 to work at its Houston Central gas processing
facility and was promoted twice, reaching the level of Maintenance
Assistant A. R. D. & O. at 4. Olsovsky began to exhibit
"performance problems" in 1991 which continued and
increased in 1992, 1993 and 1995, including the need to put more
thought and planning into his work to anticipate problems and
recognize safety hazards. Id. at 4-5. Olsovsky also
displayed "disruptive behavior" several times and Shell
suspended him for two days after one such incident in 1995. Id.
at 5. Shell then warned Olsovsky that continued unacceptable
behavior or performance would lead to further disciplinary action
"up to and including termination." Id.
[Page 2]
In July 1995, Complainant was
responsible for replacing a valve inside a compressor with the
assistance of two contract employees. Because he failed to
follow proper procedures for this task, the cap of the
compressor blew off and injured one of the contract employees.
Shell thoroughly investigated this incident and concluded that,
in light of Olsovky's past performance problems, he should be
discharged. R. D. & O. at 6-7.
1The ALJ
rejected Shell's assertion that internal complaints to
supervisors and management, which was the nature of all of
Olsovsky's environmental complaints, are not protected in the
Fifth Circuit under Brown & Root, Inc. v. Donovan, 747
F.2d 1029, 1036 (1984). We note that other courts of appeals
have held that internal complaints are protected under the
environmental whistleblower provisions, Passaic Valley
Sewerage Comm'rs v. United States Dep't of Labor, 992
F.2d 494, 480 (3d Cir. 1993); Pogue v. United States Dep't
of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991), and that
the Secretary has held several times that internal complaints
are protected under those statutes. See, e.g. Rivers v.
Midas Muffler Center, Case No. 94-CAA-5, Sec'y. Dec. Aug.
4, 1995, slip op. at 3-4; Flor v. United States Dep't
ofEnergy, 93-TSC-9, Sec'y. Dec. Dec. 9, 1994, slip op. at
10-11; Poulos v. Ambassador Fuel Oil Co., Case No. 86-CAA-I, Sec'y. Dec. Apr. 27, 1987, slip op. at 6.
2The ALJ
analyzed the facts in this case step by step, first
determining whether Olsovsky made out a prima facie
case, then considering whether Shell articulated
legitimate, non-discriminatory reasons for its action, and
lastly evaluating whether Olsovsky proved those reasons
pretextual. But,
once the employer meets [its] burden of
production, 'the presumption raised by the prima facie
case is rebutted, and the factual inquiry proceeds to a
new level of specificity.' Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 255 (1981) (applying
McDonnell Douglas test) (footnote omitted); see also
St. Mary's Honor Center v. Hicks, 509 U.S. 502,
(1993) (applying McDonnell Douglas test). The
Couty/McDonnell Douglas framework and its attendant
burdens and presumptions cease to be relevant at that
point, Hicks, 113 S. Ct. at 2749, and the onus is
once again on the complainant to prove that the proffered
legitimate reason is a mere pretext rather than the two
reason for the challenged employment action.
Burdine, 450 U.S. at 256.
Carroll v. Bechtel Power Corp., 78 F.3d 352, 356
(8th Cir. 1996).