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Issue date: 20Dec2001
Case No.: 2001-CAA-00016
In the Matter of
LARRY MARTIN
Complainant
v.
AKZO NOBEL CHEMICALS, INC.
Respondent
RECOMMENDED DECISION AND ORDER
This matter arises from a complaint of retaliation pursuant to the Clean Air Act (CAA), 42 U.S.C. §§ 7622 (1994) and the regulations promulgated thereunder at 29 C.F.R. Part 24. Larry Martin filed a complaint with OSHA alleging he was suspected of causing an inspection by the Texas Natural Resource Conservation Commission (TNRCC) and received a three day suspension without pay in retaliation. The OSHA investigator found that the complaint appeared to have merit. Respondent, Akzo Nobel Chemicals, Inc. (Akzo)1 timely filed an appeal of that decision. A hearing was held before the undersigned on November 7, 2001, in Houston, Texas.2
1As noted in Akzo's Post-Hearing Brief, Martin is an employee of Akzo Nobel Polymer Chemicals LLC, a wholly owned subsidiary of Akzo Nobel Chemicals, Inc.
2 At the hearing Martin indicated he would be submitting a post-hearing deposition of his psychologist. None was submitted. (Tr. 10, 321; Post-hearing brief, p. 8).
3 In Akzo's Post-Hearing Brief, it is suggested that Martin attempted to use the anti-retaliation provisions of the whistleblower statute to avoid discipline for his own wrongdoing. While the evidence might certainly lead one to that conclusion, a finding on that issue is not necessary for resolution of the case.
4 At the hearing Martin submitted evidence of a March, 2001 incident in which he reported an unsafe condition to his supervisor. This was not part of the complaint filed with OSHA and Martin has not alleged that the discipline imposed was the result of these internal complaints. (CX. 7). However, I can consider these acts as relevant background evidence to determine Akzo's later motivation. Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1991).
5 Likewise, there is no evidence (nor any allegation) that Anderson or Empfield were aware of the March, 2001 incident.