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| September 25, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter
Office of Administrative Law Judges 211 Main Street San Francisco, California 94105
(415) 974-0514
CASE NOS: 86-CAA-3, 86-CAA-4, 86-CAA-5 In the Matter of
BRUCE G. JOHNSON
v.
OLD DOMINION SECURITY
Carl Fabian, Esquire
Roy D. Axelrod, Esquire
BEFORE: HENRY B. LASKY
This consolidated proceeding arises under the commonly called [Page 2] whistle blower" provisions of the Clean Air Act, 42 U.S.C. § 7622, and the Toxic Substances Control Act, 1'5 U.S.C. § 2622 (hereinafter referred to as "the Acts"), and the regulations in 29 C.F.R. Parts 18 and 24. A formal hearing was held on August 4, 1986 in San Diego, California, at which time the parties waived the time constraints under the Act requiring an expedited decision. At the hearing, Claimants' Exhibits A-G, I and Respondent's Exhibits 1-5 and Administrative Law Judge's Exhibit 1 were admitted into evidence. The matter was submitted subject to an order allowing the parties to file proposed findings of fact and conclusions of law by September 8, 1986 and to submit post-hearing depositions of Ronald Maust (RX-6) and Judith Wright (RX-7) by August 25, 1986. On June 11, 1986, the Department of Labor, Employment Standards Administration, Wage and Hour Division notified the Respondent that their investigation revealed that the Acts were violated when Complainant Bradley was terminated from her employment on March 23, 1986 and when Complainants Johnson and Hernandez were transferred to another employment location on February 9, 1986, after all three engaged in protected activity under the Acts. After Respondent refused to comply with the June 11, 1986 request to reinstate Complainants to their former positions and reimburse them or their lost wages, Respondent appealed the Wage and Hour Division's decision June 16, 1986. The case was then transferred by the Office of Administrative Law Judges from Washington, D.C. to San Francisco, California on June 25, 1986 and a hearing was scheduled pursuant to a notice issued June 27, 1986.
Prior to November of 1985, all three Complainants were employed primarily as security guards by the Respondent and were assigned to the location known as "Air Force Plant 19" located in San Diego. Complainant Johnson was also the supervisor of security guards at that location. Air Force Plant 19 is owned by General Dynamics and is leased to the United States Navy, which contracted with Respondent for around-the-clock security guard services for a portion of the grounds. This facility contains various industrial [Page 3] equipment, including transformers which operated with the assistance of chemicals commonly referred to as "PCB's (polychlorinated biphenyls); said chemicals are listed as toxic substances under the Toxic Substance Control Act. In the summer and fall of 1985 the Complainants, along with other security guards, began to experience headaches, dizziness, nausea, rashes and other similar negative physical effects which they were unable to attribute to any specific causes. (Tr. 28, 107, 163). In response to their health problems, all three Complainants filed complaints with the California Occupational Safety and Health Administration (hereinafter referred to as "Cal-OSHA") in November of 1985. (CX-A, B, C). Pursuant to said complaints, an investigation was conducted by Cal-OSHA of the work premises at Air Force Plant 19, in addition to investigations by the U.S. Environmental Protection Agency (CX-I) and the San Diego County Hazardous Materials Management Unit (RX-4). Although those investigations revealed no apparent excessive PCB emissions, the EPA did find that General Dynamics, as owner of Air Force Plant 19, failed to comply with disclosure and record keeping requirements regulating PCB'S, in violation of the Toxic Substance Control Act, 15 U.S.C. § 2614(a). Approximately two weeks after filing the Cal-OSHA complaint, Complainant Johnson wrote the Employer's President, Mr. Ronald Maust, a November 15, 1985 letter regarding health and safety problems at Air Force Plant 19. (RX-1). Mr. Johnson specifically stated that Respondent might be in violation of OSHA safety standards, asked that the situation be rectified, and pointed out that his prior request had been ignored. (Id.). Nowhere in this letter does Mr. Johnson ever discuss a desire to be transferred to another location of Employer's. When Mr. Maust did not respond to said letter, Complainants Johnson and Hernandez contacted attorney Roy Gunner. In a letter dated January 16, 1986, Mr. Gunner wrote to Mr. Maust about Complainants' health problems relating to their employment and also requested that Respondent alleviate the problems and provide appropriate medical treatment. (RX-2). Mr. Maust responded to this letter by writing Complainant Johnson on January 24, 1986. (RX-3). Mr. Maust reduced Mr. Johnson's supervisory duties and stated that:
[Page 4] During January of 1986, the Complainants sought medical evaluations at the Rees-Stealy Medical Group by Dr. Joseph Fedoruk, a certified industrial hygienist and toxicologist. (CX-E-H). After these initial medical evaluations, Dr. Fedoruk was unable to ascertain whether the Complainants had sustained health problems from occupational exposure to solvents and PCB's at Air Force Plant 19. (Id.; RX-4). In a letter dated February 6, 1986 to Mr. Maust, Dr. Fedoruk explained that medical evaluations had been performed and mentioned the Cal-OSHA investigation. (RX-4). Dr. Fedoruk also stated that his office had repeatedly telephoned Respondent's corporate headquarters and been denied preliminary authorization for medical treatment of the Complainants and once again requested authorization. (Id.). Apparently, Respondent has yet to give said authorization. Sometime in January and/or February of 1986, Complainants Johnson and Hernandez had several telephone conversations with Ms. Judith Wright, Respondent's government contract administrator. (Tr. 82; RX-7, pp. 54-57). What transpired during these discussions is highly disputed. Complainants Johnson and Hernandez allege that Ms. Wright stated they would be earning the same wages as the other employees at the transfer location (Naval Ocean Systems Center, hereinafter referred to as "NOSC"). (Tr. 43). Conversely, Ms. Wright contends that she never discussed wages with either Complainant. (RX-7, pp. 54-58). Complainants Johnson and Hernandez also had at least one telephone conversation each with Mr. Maust and the substance of the conversations is also in dispute. The Complainants allege that Mr. Maust said they would be make the same wages as everyone else at NOSC. (Tr. 41, 112). Mr. Maust had a very divergent version of those discussions. In his post-hearing deposition, Mr. Maust initially said that he vaguely remembered telling Mr. Johnson that he would be making "the same that you're making on that contract." (RX-6, p. 29). Mr. Maust then said that: he couldn't swear to that statement and that "if I had to, I'd swear that I never talked to him about money." (Id.). Later on, Mr. Maust stated that "in my context talking to him [Johnson) would be he would be making the same as what he is making on that contract, which means Air Force Plant 19, because that's where the phone call took place." (RX-6, p 52). Still later, Mr. Maust finally exclaimed "I haven't had any conversations with Mr. Johnson about that [wages], nor have I [Page 5] had any conversations with Mr. Hernandez period about this issue." (RX-6, p. 64). Mr. Maust's continuously changing versions of these conversations were also supplemented by a August 29, 1986 letter by Mr. Maust, in which he provides over thirty "corrections and clarifications" of his deposition testimony. Such "clarifications" went beyond the scope of deposition corrections and merely lend to Mr. Maust's lack of credibility. While being deposed, both Mr. Maust: and Ms. Wright were asked whether Mr. Johnson had ever brought up the subject of how much he would be earning at NOSC - both denied it and stated that they had thought it "strange" that there was an absence of any wage discussion since employees usually are concerned about how much they will be earning. (RX-6, P. 28; RX-7, p. 88). In light of the fact that wages are substantially less at NOSC than at Air Force Plant 19, I find it incredible that Complainants would never have discussed wages with either Ms. Wright or Mr. Maust during at least one of their many telephone conversations. Mr. Maust's credibility is further impeached by his contradictory testimony during his deposition. Although Ms. Wright and Mr. Maust both claim that they had a silent and undisclosed intent to guarantee senority and wage benefits to Complainants, their story is unbelievable. They claim that once the Complainants reported to NOSC they were to be instructed by Ms. Judith Klein, the NOSC project manager, to call the home office to find out what their wages would be. Ms. Wright and Mr. Maust explained that since Complainants' wages would be higher than even the NOSC project manager, they were unable to tell Ms. Klein what Complainants' wages would be - and instead, Complainants were going to telephone the home office in front of Ms. Klein to discuss wages, This story lacks credibility considering the fact that this conversation would take place in Ms. Klein's office and additionally since Ms. Klein, as NOSC project manager, would have eventually found out about Complainants' allegedly higher wages anyway - even if Complainants had somehow neglected to tell their new co-employees what their wages were. Moreover, I note that Ms. Wright suspiciously admitted that she refused to put anything concerning the transfers in writing when she was reasonably requested to do so by Mr. Johnson. (RX-7, p. 59).
[Page 6] Subsequent to these telephone conversations, Complainants Johnson and Hernandez considered themselves constructively terminated and refused to report to the NOSC transfer location on February 10, 1986. The third Complainant, Ms. Bradley, continued to work at Air Force Plant 19 until March 23, 1986. Ms. Bradley filed her Cal-OSHA complaint on November 9, 1985 and had also seen Dr. Fedoruk in January of 1986 for a medical evaluation. (CX-B; RX-4). Respondent replaced Complainant Johnson with Mr. Steven Andrews as the new Air Force Plant 19 security guard supervisor in February of 1986. (Tr. 178). In March of 1986, Mr. Andrews fired Ms. Bradley after giving her ten days to learn how to dilve, obtain a driver's license and buy a car. (Tr. 186). Although Respondent claims that it is company policy to require all employees to have their own personal transportation, Ms. Bradley credibly testified that when she was hired she told Mr. Johnson she did not own a car and that no one mentioned that it was a requirement as long as she got to work on time. (Tr. 149-150). It appears that Respondent took a much stricter stance with Me. Bradley than with other past employees. Termination notices for other employees showed that they we're usually fired only after repeated incidences, such as being constantly late and repeatedly breaking company rules. (RX-7). In contrast, Ms. Bradley appears to have been late for work only once, before being given only ten days to get a car. Moreover, although Mr. Maust contends that employees are given 30-45 days to comply with company policies such as owning a car (RX-6, p. 38), Ms. Bradley was given an unrealistic ten day time limit in which she was to learn how to drive, schedule an appointment and take a driver's license test, and raise the funds to buy an automobile and finally locate a suitable automobile to buy. (Tr. 154). Under these circumstances, it is hard not to conclude that Ms. Bradley's lack of an automobile was merely a pretext for firing her, in retaliation for her involvement with the Cal-OSHA investigation.
For the Complainants to meet their burden of proof in a case of this type they must show that: (1) the party charged with discrimination is an employer subject to the Acts; (2) the Complainants were discharged or otherwise discriminated against with respect to their compensation, terms, conditions or privileges of employment; and (3) the alleged discrimination arose because the employees were engaged in protected activity under the Acts. DeFord v. Secretary of Labor, 700 F.2d 281 (1983). Respondent initially asserts that since it is a security guard company which [Page 7] has no control over toxic substances and which does not discharge pollutants into the air, it is not an employer subject to either Act. However, Respondent does not cite any case law supporting the assertion that security guard companies are exempt from the discrimination provisions of the Acts. Furthermore, I note that security guard companies have previously been the subject of whistle blower cases. See In the Matter of Charles Kent, 84-WPC-2, slip op. of ALJ at 2 (Feb. 14, 1985). Additionally, the definition of "employer" under the Acts is extremely broad, encompassing city, state and federal governments along with every private-sector corporation in the United States. See In the Matter of Patrick Wilson, 77-WPCA-2, slip op. of SOL at 2 May 6, 1977; Conley v. McClellan Air Force Base, 84-WPL-1, slip op. of ALJ at 2 (Sept. 12, 1984); Flanagan v. Bechtel Power Corp., 81-ERA-7, slip op. of ALJ at 7 (Nov. 19, 1981). In order to effectuate the purpose of the whistle blower statutes, the terms "employer" and "employee" have been construed broadly; the Acts
Landers v. Commonwealth-Lord Joint Venture, 83-ERA-5, slip op. of ALJ at 5, adopted by SOL (Sept. 9, 1983); See also In the Matter of William Wood, et al., 79-ERA-3, slip op. of ALJ at 8, adopted by SOL (Nov. 8, 1979). Security guards are in an extremely beneficial situation in spotting potential violations of environmental Acts, since it is their job to inspect areas where violations might occur. It would be absurd for Congress to exempt security guard companies from discriminatory actions against their employees. Hence, I find that this Employer is subject to the Acts. The Complainants must also show that the Employer engaged in unlawful discrimination. Obviously, Ms. Bradley's termination would qualify as such an discriminatory action. The transfers of Mr. Johnson and Mr. Hernandez might not have qualified as discrimination, if they had been assured of comparable wage and other employee benefits at their transfer location. However, from the above discussion of what transpired between these two [Page 8] Complainants and Mr. Maust and Ms. Wright, it appears that no such assurances were made to these employees. Transfers, coupled with a loss of wages, qualify as discriminatory action. See 29 C.F.R. 24(2)(b); DeFord v. Secretary of Labor, 700 F.2d 281, 283 (6th Cir. 1983); Wells v. Kansas Gas & Electric Co., 83-ERA-12, slip op. of ALJ at 18, adopted by SOL (June 14, 1984). Lastly, the Complainants must demonstrate that they engaged in "protected activity" under the Acts, which motivated the Employer into discriminatory actions. Respondent: asserts that because the Complainants never assisted in, participated in, or commenced any actions under these federal Acts, they did not engage in any "protected activity." Respondent's assertion is misplaced, since case law has consistently held that Contacting state or local agencies (such as Cal-OSHA in this case) to report violations of the environmental laws or regulations is protected activity. Hanna v. School District of Allentown, 79-TSCA-1, slip op. of SOL at 11 (July 28, 1980), rev'd on other grounds, School Dist. of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Haney v. North American Car Corp., 81-SWDA-1, slip op. of ALJ at 12 Dec. 15, 1981, adopted by SOL (June 30, 1982). Moreover, the legislative history of the Clean Air Act makes specific reference to "employee's exercise of rights under federal, state or local Clean Air Act legislation or regulations." House Interstate & Foreign Commerce Committee, H.R. Rep. No. 294, 95th Cong., 2nd Sess., reprinted in 1977 U.S. Code Cong. & Ad. News 1077, 1404. The Respondent further alleges that the protected activity standard announced in the case of MacKowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) is inapplicable since it dealt with the Energy Reorganization Act. However, the legislative history of the ERA makes it: abundantly clear that the employee protection Section 5851 of the ERA was modeled after similar provisions of the Clean Air Act and the Federal Water Pollution Control Act. S.Rep. No. 848, 95th Cong., 2nd Sess. 29 (1978). Furthermore, I must reject Respondent's argument that the 5th Circuit case of Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984) provides a more thorough analysis of "protected activity" than the 9th Circuit MacKowiak case does - especially in light of the fact that this case takes place in the 9th Circuit.
[Page 9] Since the Complainants have been deemed engaged in protected activity under the Acts, the evidence must then be evaluated as a case involving a "dual motive" discharge. Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S.. 274, 287 (1977). In such cases, the employee first has the burden of showing that his protected activity was a motivating factor in the employer's decision to terminate him. The presence or absence of a retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. MacKowiak, supra. It appears that although Respondent denies knowledge of the Complainants' protected activity of filing the Cal-OSHA complaints, the Complainants have met their burden with circumstantial evidence. Complainant Johnson sent Mr. Maust a letter dated November 15, 1985 concerning possible OSHA violations - which Mr. Maust unbelievably denies receiving. (RX-1; RX-6, pp. 42, 82-83). Attorney Gunner sent Mr. Maust a letter dated January 16, 1986 regarding PCB work-related exposure. (RX-2). Dr. Fedoruk's office repeatedly requested authorization for medical treatment of the Complainants in January and February of 1986, before Dr. Fedoruk finally wrote Mr. Maust on February 6, 1986 and specifically mentioned the Cal-OSHA investigation. (RX-4). Hence, the circumstantial evidence clearly demonstrates Mr. Maust's knowledge of the Complainants' Cal-OSHA complaints and what motivated Mr. Maust when he wrote his January 24, 1986 letter transferring Mr. Johnson. (RX-3). With the above in mind, the burden shifts to the Employer to show by a preponderance of the evidence that it would have reached the same decision as to the employee's dismissal (or transfer) even in the absence of the protected conduct. Consolidated Edison Co. v. Donovan, 673 F.2d 61 (1982). The question is not merely whether there exists independent and proper grounds for termination (or transfer) or whether Respondent had a legitimate reason for terminating (or transferring) the Complainants, but whether Respondent would have terminated (or transferred) them if only the valid ground for discharge had existed. In other words, would the employee have not been dismissed "but for" his engaging in protected activity? Applying the evidence to the aforesaid law, I find that Respondent has not met its burden of showing that it would have transferred Johnson and Hernandez and dismissed Bradley even if the Cal-OSHA complaints had not been filed. The transfer orders took place only after the letters by Mr. Johnson and Attorney Gunner, in [Page 10] which said letters specifically discussed the OSHA violations; no other reasons for the transfers were submitted by Respondent. The dismissal of Ms. Bradley also took place after said letters and the alleged motivational reason of Ms. Bradley lacking an automobile appears to be a pretext for Respondent's retaliatory actions. Accordingly, I find that Respondent has not met its burden of showing proper motivational factors. In terms of damages, the Complainants seek back pay, special damages, compensatory damages and punitive damages. Although Respondent asserts that Complainants Johnson and Hernandez should have mitigated their damages by accepting their transfers, their refusal to do so does not appear unreasonable since Respondent refused to tell them what their new wages would be. All of the Complainants credibly testified that they had attempted to seek suitable alternate employment, with Johnson and Hernandez eventually being successful. From the evidence submitted, back pay is due in the following amounts: (1) Johnson is due back pay from February 10, 1986 to April 22, 1986 in the amount of ,600.00 per month, and is due $600.00 per month from April 22, 1986 and continuing, to reflect the difference in wages in his current occupation; (2) Hernandez is due back pay from February 10, 1986 to April 22, 1986 in the amount of ,400.00 per month, and is due $540.00 per month from April 22, 1986 and continuing, to reflect the difference in wages he is currently earning; (3) Bradley is due back pay from March 23, 1986 and continuing, in the amount of $600.00 per month. Damages for lost employment benefits and special damages for moving expenses and loss of education are unsubstantiated and the testimony with reference thereto was unconvincing; hence said requested damages are denied. Each Complainant additionally requested compensatory damages of $10,000.00 for severe emotional and mental suffering. Complainant Bradley, who is the sole supporter of four children, credibly testified as to her emotional distress and anxiety attributable to the trauma of being fired outright on a pretext by the Employer and the inability to secure replacement employment; she is hereby awarded $10,000.00 in compensatory damages for said emotional distress. Complainants Hernandez and Johnson appear to have suffered much less emotional distress due to their transfers notwithstanding their testimony to the contrary, and unlike Ms. Bradley, they were not fired outright. They are accordingly awarded the amount of $2,500.00 each for compensatory damages for emotional distress. [Page 11] Complainants' requests of $10,000.00 each for punitive damages are hereby denied as inappropriate based on the facts of this case.
1. It is hereby ordered that Respondent reinstate Complainants to their former positions with Respondent together with compensation (including back pay), terms, conditions, and privileges of their former employment, which include :
2. Respondent shall pay to Complainant Bradley $10,000.00, and to Complainants Hernandez and Johnson $2,500.00 each for compensatory damages for emotional distress. 3. Complainants' Counsel has submitted an application for attorneys fees and costs in the amount of $9,648.90 for services performed while this case was pending before the Office of Administrative Law Judges. Respondent may have twenty days from the receipt of this Decision in which to respond with objections, if any. Failure to respond within the time required will be deemed a waiver of any and all objections.
HENRY B. LASKY
Dated: October 1, 1986 San Francisco, California
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