Earlier that day, Skelley phoned his supervisor Luther
Grim, CF's Operations Manager at its Aston, Pennsylvania terminal, from Wilmington,
Delaware, to inform Grim of an odor emanating from freight to be delivered to International
Petroleum Corporation in Wilmington. Skelley informed Grim that there were no hazardous
labels nor was there leakage involving this freight.
After determining that the bill of lading and delivery receipt reflected the absence of
hazardous materials notations, Grim obtained further verification of that fact from CF's Houston
terminal dispatcher, who contacted the originating shipper. Grim thereupon specifically
instructed Skelley to proceed directly to International Petroleum to deliver the odiferous
shipment. After initially expressing his desire to return the freight to CF's terminal, a distance of
twenty-five miles, Skelley agreed to Grim's directions to proceed to International Petroleum, a
few miles away. Instead, he stopped at Brandywine Compounding to make another delivery.
From there he phoned Grim and told him of his desire to return to the terminal, but Grim
instructed him again to deliver the freight immediately to International Petroleum.
Skelley then phoned the Delaware Department of Natural Resources and Environmental
Control to report the odor. Various agency personnel, a fire engine and an ambulance appeared,
and Skelley was interviewed by a radio reporter. Also at the scene were CF's Terminal Manager
Dan McTyre and Account Manager Pat McKee, who, after getting off a car phone, stated,
according to Skelley, "I'm not saying you didn't have a problem here, but you didn't have to call
the environmental people." T. 31. McTyre testified that he did not hear McKee make that
statement. T. 148. Skelley eventually delivered the freight to International Petroleum, where
other environmental officials sampled the leaking fluid.
Upon returning to CF's terminal, Grim requested Skelley to provide a written statement of
the day's events, but Skelley refused to do so. After Grim asked Skelley why he did not follow
Grim's directions to proceed directly to International Petroleum, rather than stopping at
Brandywine Compounding, Skelley became irate, shouted numerous outbursts of gross profanity
at Grim and attempted to force him to smell a container of the purported liquid. Grim then
informed Skelley that he would receive a warning letter for insubordination. R. D. and O. at 2-4.
[Page 2]
This warning letter and six others challenged by Skelley as discriminatory are
summarized by the ALJ as follows:
- The following day, August 24, 1994, Grim issued four letters to Complainant for
violating Respondent's Uniform Rules and Regulations (RX 15). The first letter was
issued to Complainant for the profanity used with Grim (CX 6). The second letter was
for Complainant's disobeying of orders when he refused to proceed directly to
International Petroleum (CX 6). A third letter was issued to Complainant by Grim for a
separate violation of work rules for failure to sign, date, or indicate the number of pieces
delivered on a delivery receipt (CX 6). A final letter was issued to Complainant on
August 24, 1994 for his failure to complete his Equipment Daily Inspection & Condition
Report in violation of work rules (CX 6). Complainant received another letter on
September 14, 1994 for backing his truck into a parked car (CX 6), and two letters were
both issued to Complainant on September 20, 1994 for failure to get a good count of
freight and failure to obtain a bill of lading (Tr. at 52; RX 1; CX 6).
R.D. and O. at 4-5. Skelley urges that the "obvious intent of these letters was to build a file
against [him] in order to provide Respondent with an excuse to fire him." Claimant's
Memorandum of Law at 4. Contrary to Skelley's assertions, we agree with the ALJ that CF
established that it would have issued the disciplinary letters absent any protected activity.
R.D. and O. at 6.
We agree with the ALJ that Skelley's poor work history with CF prior to his protected
activity involved numerous warning letters similar to and consistent with those issued subsequent
to his protected activity. R. D. and O. at 6. These prior disciplinary letters include: RX 4, Feb. 3,
1988, failure to properly protect a shipment from damage, resulting in units being refused due to
damage; RX 3, Oct. 12, 1988, "loud verbal disturbance . . . cantankerous verbal action . . .
[failure] to follow the instructions to go to work"; RX 1,[4] Ex. 13, Dec. 7, 1990, failure to notify CF of his inability to work in a timely,
prescribed manner; RX 5, Jan. 8, 1991, attendance record "totally unacceptable"; RX 1, Ex. 12,
Jan. 12, 1991, backed his vehicle into a customer's dock door; RX 2, May 20, 1991, "flagrant
disobeying of orders" for failure to use an assigned tractor, rather than another which he had
previously reported as having a mechanical defect; RX 6, Aug. 14, 1991, arrived late for assigned
starting time; RX 1, Ex. 10, Oct. 17, 1991, failure to sign his timecard, violating rule on failure to
complete reports and trip sheets properly; RX 1, Ex. 11, Oct. 17, 1991, failure to complete a run
at the scheduled time without a satisfactory explanation; RX 7, Nov. 20, 1991, attendance record
"totally unacceptable"; RX 8, May 25, 1993, failure to timely notify CF of his inability to report
for work, "caus[ing] an entire load . . . to remain undelivered"; RX 9, Sept. 14, 1993, failure to
timely notify CF of his inability to work, "caus[ing] us to hold the . . . run because we could not
contact another driver"; RX 10, Sept. 21, 1993, arrived late for work, admitted that he "had been
drinking," asked manager whether he wanted him to resign, was informed that this was his
decision and that if he did not correct his problems, the manager "would do everything in [his]
power to remove [him] from [the] seniority list," and since he never did quit, was warned for his
failure to timely notify CF of his inability to report for work; RX 1, Ex. 9, Feb. 25, 1994,
shortage in collections for failure to collect money from consignee upon delivery of freight; RX
12, Aug. 22, 1994, "caused unnecessary delay in our customers['] outbound freight [and] cost CF
. . . undue expense," in violating work rule on inaccurate counting or careless loading or
unloading; RX 13, Aug. 22, 1994, reporting late for work. See Jopson v. Omega
Nuclear Diagnostics, Case No. 93-ERA-0054, Sec. Fin. Dec. and Ord., Aug. 21, 1995,
slip op. at 8-10; Rivers v. Midas Muffler Center, Case No. 94-CAA-5, Sec. Fin. Dec.
and Ord., Aug. 4, 1995, slip op. at 4-6; St. Laurent v. Britz, Inc., Hydro Nuclear Services,
Inc., and Omaha Public Power District, Case No. 89-ERA-000 1 5, Sec. Fin. Dec.
and Ord., Oct. 26, 1992, slip op. at 3-4 (prior employment infractions as evidence of employers'
subsequent nondiscrimination).
Skelley admitted the various acts of misconduct in the warning letters at issue. T. 2122,
38, 48-52, 71; R. D. and O. at 6. The record does not support his assertion that they involved
incidents "for which no letters are usually given by the employer." Claimant's Memorandum of
Law at 4.[5] Skelley's own prior reprimands belie this
assertion. Luther Grim's testimony was clear and cogent regarding the nondiscriminatory,
business-related reasons for his issuance of each of the challenged letters. RX 1 at 10-38, 53-77.
None of the letters suggest that they were issued, in whole or in part, because of Skelley's
protected activity.[6]
In sum, Skelley did not prove by a preponderance of the evidence that CF issued the
warning letters for discriminatory reasons under the SWDA. Rather, the record shows that these
letters were issued for legitimate, business-related and nondiscriminatory reasons.
Accordingly, we adopt the ALJ's recommendation that this case be DISMISSED.
SO ORDERED.
- DAVID A. O'BRIEN
Chair
- KARL J. .SANDSTROM
Member
- JOYCE D. MILLER
Member
[ENDNOTES]
[1] On April 17, 1996 Secretary's Order
2-96 was signed, delegating jurisdiction to issue final agency decisions under the environmental
whistleblower statutes and the regulations at 29 C.F.R. Part 24 to the newly created
Administrative Review Board. 61 Fed. Reg. 19978 (May 3, 1996) (copy attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order and
regulations under which this Board now issues final agency decisions. A copy of the final
procedural revisions to the regulations (61 Fed. Reg. 19982) implementing this reorganization is
also attached.
[2]The ALJ's analysis discussed a complainant's
initial establishment of a prima facie case. R. D. and O. at 5-6. Since this case was fully
tried on the merits, the ALJ's task was to weigh all the evidence and testimony and decide
whether the Complainant had proved by a preponderance of the evidence that the Respondent
intentionally discriminated against him because of his protected activity. Once the Respondent
presented its rebuttal, the answer to the question whether the Complainant had presented a
prima facie case was no longer particularly useful. James v. Ketchikan Pulp Co.,
Case No. 94-WPC-4, Sec. Fin. Dec. and Ord., Mar. 15, 1996, slip op. at 3; Cook v.
Kidimula International, Inc., Case No. 95-STA-44, Sec. Fin. Dec. and Ord. of
Dism., Mar. 12, 1996, slip op. at 2, n.3; Creekmore v. ABB Power Systems Energy Services,
Inc., Case. No. 93-ERA-24, Dep. Sec. Dec. and Rem. Ord., Feb. 14, 1996, slip op. at 7-8.
Further, the ALJ inadvertently stated that the Complainant established a prima facie case
of unlawful retaliation by a preponderance of the evidence. R. D. and O. at 5. It is apparent from
the ALJ's R. D. and O. in favor of the Respondent that he did not find that the Complainant
proved his case by a preponderance of the evidence, which is the standard of proof necessary for
the Complainant to prevail. Jackson and Roskam v. Ketchikan Pulp Co., Case Nos.
93-WPC-007, 93WPC-008, Sec. Fin. Dec. and Ord., Mar. 4, 1996, slip op. at 4-5; Zinn and
Morris v. Univ. of Missouri, Case Nos. 93-ERA-34, 93-ERA-36, Sec. Fin. Dec. and
Ord., Jan 18, 1996, slip op. at 6-8, 18-19; Daugherty v. General Physics Corp., Case No.
92-SDW-2, Sec. Fin. Dec. and Ord., Apr. 19, 1995, slip op. at 2.
