Date: May 8, 1995
Case No.: 94-CAA-7
In the Matter of:
LAWRENCE J. OPTHOF,
Complainant
v.
ASHLAND CHEMICAL COMPANY,
Respondent.
Appearances:
Michael D. Kohn, Esq.
Stephen D. Kohn, Esq.
For the Complainant
Patrick J. McCarthy, Esq.
Theresa A. Kelly, Esq.
For the Respondent
Before: THEODOR P. VON BRAND
Administrative Law Judge
RECOMMENDED DECISION AND ORDERPreliminary Statement
Lawrence J. Opthof, the Complainant, on November 4, 1993 filed a complaint under the
employee protection sections of six environmental statutes[1] after his firing by Ashland
Chemical Company, the Respondent.
On December 7, 1993, the District Director of the Wage-Hour Division found
Complainant's charges sustained. Respondent filed a timely appeal and the hearing in this
proceeding was held in February and April 1993.
Identity and Background of the Parties[PAGE 2]
The Complainant
1. Lawrence J. Opthof, the Complainant, was employed as a plant engineer by the
Electronics Chemical Division of Ashland Chemical Company in 1983. (Opthof 52). In 1986,
his job title was changed to maintenance supervisor. (RX 8). He is an honorably discharged
veteran of the Vietnam war with a 50% disability rating arising out of wounds sustained in that
conflict. (Opthof 45-46).
2. Mr. Opthof has a B.S. in Management from Rutgers University and took chemical
engineering at the New Jersey Institute of Technology and electrical engineering at Lafayette
University in Easton, Pennsylvania. (Opthof 46). In his employment application filed with
Ashland in 1983, Mr. Opthof stated he has a B.S. in management and a minor in engineering
from Rutgers. (Opthof 47). He does not, in fact, have a minor in engineering as a formal degree
and the statement is untrue. (Opthof 47, 51, 275, 277).
3. Mr. Opthof, as plant engineer, was responsible for capital projects and supervision
of the maintenance department at Ashland's Easton, Pennsylvania facility. He reported to the
plant manager. (Opthof 53).
4. Complainant's salary at the time of his termination was $55,000 a year and his
benefit package was equivalent to an additional 31%. (Opthof 270).
5. Mr. Opthof, beginning in January 1992, engaged in extensive litigation with his
employer. That litigation history may be summarized as follows:
(1) In January of 1992, Complainant filed an OFCCP Complaint with the
Department of Labor against Ashland ("Opthof I") in which he alleged
discrimination on the basis of disability and veteran status. (Docket No.
C920015.). . . . On September 17, 1992, the Department of Labor found that there
was insufficient evidence to conclude that Ashland had violated its obligations of
non-discrimination and affirmative action.
(2) In March of 1992, Complainant filed a Complaint with the
Pennsylvania Human Relations Commission ("Opthof II") alleging discrimination
on the basis of his disability and age. (Docket No. E-58700-A.). . . . In July of
1992, Ashland and Complainant entered into a settlement agreement.
(3) In June of 1992, Complainant filed a second Complaint with the
Department of Labor against Ashland ("Opthof III") in which he alleged
discrimination on the basis of disability and veteran status and intimidation.
(Docket No. C920131.). . . . On December 2, 1992, the Department of Labor
found that there was insufficient evidence to conclude that Ashland had violated
its obligations of non-discrimination and affirmative action.
(4) In June of 1992, Complainant filed a lawsuit against Ashland in the
United States District Court for the Eastern District of Pennsylvania ("Opthof IV")
[PAGE 3]
in which he alleged claims of negligence and fraud with respect to a 1986 promotion.
(Civil Action No. 92-CV-3136.). . . . By Order entered October 21, 1992, the
Court dismissed Complainant's lawsuit. By Order entered July 14, 1993, the
Third Circuit affirmed the dismissal of this lawsuit.
(5) In September of 1992, Complainant filed a third OFCCP Complaint
with the Department of Labor against Ashland ("Opthof V") in which he alleged
discrimination on the basis of disability and veteran status. (Docket No.
C920201.). . . . On April 20, 1993, the Department of Labor found that there was
insufficient evidence to conclude that Ashland had violated its obligations of non-
discrimination and affirmative action.
(6) In November of 1992, Complainant filed a federal lawsuit in the
Eastern District of Pennsylvania ("Opthof VI") in which he alleged that Ashland
and its employees had engaged in a conspiracy to violate his rights under 42
U.S.C. §1985(3). (Civil Action No. 92-CV-6588.). . . . By Order entered
January 26, 1993, the Court dismissed this lawsuit.
(7) In March of 1993, Complainant filed a lawsuit in the Court of Common
Pleas, Northampton County, Pennsylvania ("Opthof VII") in which he alleged that
Ashland and its employees had breached the PHRC agreement. Defendants
removed this lawsuit to federal court. (Civil Action No. 93-CV-2420.). . . . By
Order entered October 26, 1993, the Court dismissed this lawsuit and ordered Rule
11 sanctions against Complainant's attorney, Arthur Jackson. Complainant
appealed the dismissal of this lawsuit to the Third Circuit (Docket No. 93-2209)
which is currently pending. (RX 61)
6. On September 30, 1992, Complainant notified Michael Pregent, the Easton Plant
Manager, of his concerns pertaining to hazardous wastes at the Easton plant advising further that
he intended to notify the Pennsylvania Department of Environmental Resources and the
Environmental Protection Agency of the situation. (CX 63). On October 9, 1992, Complainant
called the Company hotline 1-800-ASHLAND again raising these concerns. He reported his
allegations to the DER on the same day. (Opthof 154-155).
7. Up to September 1992, Mr. Opthof had never received a marginal performance
rating in any of the categories in which he was rated in his annual performance appraisal. (Opthof
66-67). In that appraisal dated September 16, 1992, he was given an overall performance rating
between effective and very effective. (CX 15 p. 5). In September 1993, Mr. Opthof's
performance appraisal rated him unsatisfactory and his employment was terminated on October
7, 1993. (RX 48; CX 161; Pregent 1638-1639).
The Respondent
8. Ashland Chemical, Inc., is a wholly-owned subsidiary of Ashland Oil, Inc. (CX
216). The Electronics Chemical Division of Ashland Chemical supplies high purity chemicals,
[PAGE 4]
acids, or solvents and other materials to the semi-conductor manufacturing industry. Ashland
Chemical's corporate headquarters is in Dublin, Ohio. (Nagle 1923-1925). The Electronics
Chemical Division has three manufacturing facilities in Easton, Pennsylvania, Dallas, Texas, and
Newark, California. (Pregent 1341).
9. Ashland's Easton facility is classified as a hazardous waste generator and has no
permit to store hazardous waste for longer than 90 days. (Pregent 1702; CX 20).
Complainant's Chain of Command
10. Dennis Nagle is manufacturing manager of the Electronics Chemical Division of
Ashland Chemical Company. (Nagle 1923). He reports to the vice president and general
manager
of the division. Mr. Nagle, who is based in Dublin, Ohio, is responsible for operating the
Division's three manufacturing plants including Easton, Pennsylvania. He was employed by
Ashland in March of 1991. (Nagle 1924, 1926).
11. Michael Pregent was employed as operations manager at Ashland's Easton plant
in January 1992. As operations manager he was responsible for the manufacturing operations
within the facility. Subsequently he was appointed to be the Easton plant manager in February
1992. (Pregent 1339-1340, 1595). He reports to Dennis Nagle. (CX 198).
12. Robert DePascale is operations manager at Ashland's Easton facility. In that
capacity, he oversees the manufacturing and general operations of the plant. He is the number
two person at the facility. (DePascale 1185-1186; Pregent 1370). He supervised Mr. Opthof
briefly for the period of about a month. (DePascale 1190-1191).
13. R. E. Hunter is the Vice President and General Manager of the Electronics
Chemical Division. He is Dennis Nagle's immediate supervisor. (Nagle 1983).
Complainant's Relationship With His Supervisor in 1991-1993
14. As already noted, Mr. Opthof engaged in extensive collateral litigation with his
employer from January 1992 on. (See Finding 5, supra.)
15. In February 1992, Complainant approached the manufacturing manager concerning
the Easton plant manager position. Dennis Nagle advised Mr. Opthof that he was not qualified
for the job. (Nagle 1934-1938; RX 8). In that connection, according to Nagle, Complainant
informed him that he had an understanding of his rights under affirmative action and that he was
out to collect. (Nagle 1938; RX 8).
16. At that time, Mr. Nagle was also concerned that Mr.Opthof was falling behind in
his programs and not providing solutions to such problems. Mr. Nagle, as a result, felt there
were concerns about Complainant's leadership as maintenance manager and as part of the
management team of Ashland at that site. (Nagle 1936).
17. On March 5, 1992, Michael Pregent expressed the following criticisms of
Complainant's management style:
[PAGE 5]
TO: D. NAGLE
FROM: M. PREGENT
SUBJECT: MAINTENANCE AND L. OPTHOF'S PERFORMANCE
Larry was out of town for three days this week and as a result missed a
meeting with the union. The grievance meeting was held with
Finelli/O'Hare/Nemeth and Pregent/DePascale on 3/3/92.
During his absence, Bob DePascale was responsible for the daily operation
of the maintenance department.
Larry's absence brought a few more things to light regarding his
performance.
Daily operation appears to be very disorganized, which leaves much room
for productivity improvements. People could be juggling quite a few projects at
a time. A person might come in two hours early and work on a "project" for that
time (since it is capital), then switch to something else since it's now regular time
and "should" be regular maintenance. When he comes back to the project, he
wastes time trying to remember where he was and where he's going.
During grievance meeting, there was much complaining about the way
things are handled in maintenance. For instance, LO apparently told (in Dec)
maintenance people that all OT was ending and more recently that "all" projects
are going to be farmed out to outside contractors. Neither of these is true. In
fact, I specifically told LO that some projects are going to be done by
maintenance due to their "expertise".
Union has threatened to file grievances and take them to arbitration once
we start using outside contractors. In my opinion, this negative attitude is a direct
result of the way the shop is being (mis)managed. LO is very insecure and always
thinks people are out to get him.
LO does a decent job at projects but cannot deal with people in a fashion that is
needed for us to make the kind of progress we must make now and in the future.
(RX 11)
18. The next time Mr. Nagle met with Complainant was in May of 1992. James
Sterling of Ashland's personnel office was also present. Mr. Opthof requested permission to tape
record the meeting which was denied. According to Nagle he had never had a request of this
nature before. (Nagle 1939-1940). At that meeting Nagle again stated that he did not feel Opthof
was qualified for the plant manager's position. At this meeting Sterling and Nagle offered to put
Complainant on a developmental plan so he could be considered for future openings should they
occur. (Nagle 1941). Sterling and Nagle, in conjunction with the developmental plan, offered
Mr.
[PAGE 6]
Opthof use of the profiler.[2] Complainant was not receptive to use of the profiler which was
to precede a development plan for Complainant offered to him on May 5, 1992. (Nagle 1942-
1943, 1945). Nagle felt the meeting was unsuccessful since Opthof had an inflated view of his
capabilities and was not open to suggestions of remediation. (Nagle 1945).
19. The next meeting of Complainant with Nagle was at the offices of the
Pennsylvania Human Rights Commission (PHRC) to address additional grievances of the
Complainant. (Nagle 1946-1948). At the end of the meeting an agreement was signed. Pursuant
to that agreement Complainant was offered the job as plant engineer to accommodate his
disability with a job involving less walking, viz., plant engineer. (Nagle 1949). In order to
develop Complainant's supervisory skills, he was to have the opportunity of supervising an
employee. (Nagle 1949-1951; CX 160). In addition, Complainant was offered the use of the
profiler. Thereafter an action plan to resolve Complainant's weaknesses was to be formulated.
(CX 160; Nagle 1951). Complainant's resume was also to be distributed to 10 divisions in the
company. (Nagle 1951). Finally, it was agreed that Opthof and his supervisor, Michael Pregent,
were to collaborate on a new job description for the position of plant engineer. (Nagle 1952).
20. In addition, there was agreement to research Opthof's job change in 1986 to
determine whether he was entitled to a promotion which he did not get. (Nagle 1952-1953).
21. Nagle left the July meeting feeling that they would be able to resolve matters on
the basis of the agreement. However, on his return to his office, he learned that Complainant,
in June of 1992, had filed a lawsuit in federal court alleging negligence and fraud surrounding
his 1986 job change. Complainant, at the July PHRC meeting, had failed to advise of the
pending lawsuit. Nagle felt this displayed a lack of candor on Complainant's part. (Nagle 1954-
1955, 1959).
22. The implementation of the PHRC agreement was left to Michael Pregent, the plant
manager, and James Sterling, the Human Resources Specialist. (Nagle 1963).
23. In September 1992, Michael Pregent gave Complainant a rough handwritten draft
of a job description. (RX 17; Pregent 1431-1432). There was disagreement about the proposed
job description between Pregent and Opthof. (Pregent 1434). The main source of disagreement
on the job description was the reporting relationship of the maintenance department. (Pregent
1586). Opthof wanted the maintenance department to report to him and Pregent did not. (Pregent
1587).
24. Among the job objectives listed in the proposed job description for Opthof was
the coordination of hazardous waste. (Nagle 2045). On September 16, 1992, Pregent thought
Opthof capable of coordinating hazardous waste because as plant engineer in the early eighties
one of his duties was to coordinate compliance problems with various levels of government, he
was already doing the quarterly hazardous waste reports and "technically [he was] a reasonably
detailed person. (Pregent 1753-1755).[3]
The Hazardous Waste Situation at Ashland-Easton
25. In April 1989, Margaret Opthof, wife of the Complainant, had written a
[PAGE 7]
memorandum to Gil Drab, then the manufacturing manager, while she was employed by Ashland
as a temporary employee writing memoranda on in-house procedures. In that memorandum, she
expressed a concern about the legality of keeping non-reworkable non-marketable wastes
unlabeled in order to skirt the 90-day limit on the accumulation of hazardous waste. (CX 16;
Opthof 133-134; M. Opthof 677).
26. In 1990, the plant manager at that time, Darrell String, had an estimate of $20,000
for disposal of hazardous waste drums. R. E. Hunter, the Vice President of the Electronics
Chemical Division found this figure too expensive and directed String to find some other way
to dispose of the material. (Tichich 581). Respondent's internal audit confirms that no money
was budgeted for 1990 to dispose of waste. (CX 20 p. 23).
27. An internal audit of Respondent dated July 29, 1991, the so-called Hogan report,
addressed to R. E. Hunter, found in relevant part as follows:
CONTROLS OVER THE ACCUMULATION AND DISPOSAL OF WASTE
MATERIAL
Procedures have not been established to control the accumulation of
chemical waste, such as line flush, "heels" (partial drums of material), off-
specification material, etc., to ensure that chemical wastes are properly managed
and disposed of within the time limits specified by Federal Regulations; certain
material which had been classified as hazardous waste had not been properly
labeled and identified at the time of the audit.
The Easton Plant is registered as a hazardous waste "generator" but does
not have a permit for the storage of hazardous wastes. A generator is only
allowed to store hazardous waste for 90 days before disposition.
At the time of our review, we identified over 1,400 drums of various
chemical materials and wastes which had been accumulating in the plant. . . .
* * * *
We believe that the Easton Plant needs to adopt improved procedures for
the control and management of plant-generated waste. We do not dispute plant
personnel's contention that significant quantities of the acid heels may be reworked
and sold, but the quantities on hand at the time of the audit indicate that recycling
efforts have not kept pace with the accumulation of this material. Material which
was known to be hazardous waste (generated as result of the spill) had not been
properly identified and labeled in its entirety.
There are regulatory limitations on the accumulation of chemical wastes.
Containers which are used to store or ship hazardous wastes must be labeled
individually as hazardous waste and the beginning accumulation date is supposed
to be noted on each container when waste is initially placed in the container.
Hazardous waste can be stored on site for no longer than 90 days by a generator,
[PAGE 8]
unless the facility has a Treatment, Storage, Disposal (TSD) permit (which the
Easton Plant does not have).
We recommend that the Easton Plant take action to ensure that all wastes
are properly identified, labeled and disposed of in accordance with various
regulatory requirements. A high priority should be assigned to disposing of the
material which is currently on site (either by reworking and selling the material,
or commercial disposal) and procedures should be implemented to better manage
these accumulations in the future.
(CX 8 pp 6, 8)
28. The disposition of hazardous waste is expensive. (Pregent 1727-1728).
29. Dennis Nagle had been given the objective of eliminating the drum pile in the pole
barn at the Easton facility in September 1991. In fact he did not get the job done in a year and
his performance review in September 1992 reiterated the objective. This was to be accomplished
by November 30, 1992. Nagle communicated this requirement to Michael Pregent and gave him
a time limit to accomplish the objective. (Nagle 2008-2010).
30. RX 72 is Nagle's performance appraisal dated September 13, 1993. In that
document Nagle was given the objective of completely resolving the Easton surplus materials
issue. (Nagle 2012-2013).
31. Pregent began working on the inventory of the pole barn when he was operations
manager in January of 1992. After he became plant manager in February 1992, Nagle
specifically asked him to manage the pole barn inventory. (Pregent 1595). In 1992, the decision
as to which of these materials could be sold or were to be declared waste was Pregent's decision.
(Pregent 1611).
32. A handwritten document dated March 21, 1992 by Michael Pregent noted in
relevant part "Hunter requested (told) me to remove surplus off books and non-reworkable from
the Pole Barn Inv. list." (CX 179; DePascale 1267).
33. In March of 1992, the division allocated a financial reserve of $100,000 for the
purpose of hazardous and non-hazardous waste disposal. (Nagle 2013).
34. Complainant received the performance objective of "coordinate hazardous waste
management and reduce number of people involved" on September 16, 1992.[4] The majority
of the plant's waste materials were stored in the "pole barn". (Opthof 86-87). Complainant
thereupon inspected the pole barn estimating there were roughly 1,000 drums there and that of
these 90% were not correctly labeled. According to Mr. Opthof the drums contained hazardous
materials, of these, some were old and showed signs of leaking. (Opthof 105, 112-114).[5]
Complainant, on the basis of his inquiries, was convinced that the surplus chemicals in question
had to have a viable market for resale or Ashland had to classify the material as hazardous waste
and get rid of it in 90 days. (Opthof 110-111). As a result of his inspection, Mr. Opthof was
concerned about the poor condition of the drums, possible leakage and the fact that the pole barn
was not a secured area. (Opthof 114). The findings in the Hogan report were consistent with the
findings of Complainant based on his inspection. (Opthof 114, 120-121).
[PAGE 9]
35. On September 30, 1992, Opthof wrote as follows to Michael Pregent, the plant
manager:
On September 16th, 1992 you gave me responsibility of coordinating
management of hazardous waste. In my preliminary investigation of this matter
it has come to my attention that a large quantity of the drums stored in the drum
barn are hazardous waste under RCRA regulations. Under RCRA regulations,
these hazardous waste drums should have been disposed of long ago because the
Easton facility is classified as a hazardous waste generator and has no permit to
store them longer than 90 days. As verification of this, I reference the Hogan
audit of July 29, 1991. I also request to see the July 1992 audit to review their
determination of the matter.
As a remedy for this situation I intend to notify the DER and EPA of the
situation and ask them to recommend a course of action so that the Easton facility
can again be in compliance with the law.
If you are in disagreement with this plan of action please notify me, in
writing, by Friday, October 9th, 1992 of an alternate course of action that will
immediately bring the Easton facility into compliance with the law.
(CX 63)
36. Pregent subsequently called the DER explaining Ashland had a "disgruntled
employee" who might be calling them about the storage of hazardous waste at the Easton facility.
(Pregent 1616).
37. On October 9, 1992 Complainant called the 1-800 Ashland hotline raising his
concerns about the accumulation of hazardous waste at the Easton facility. (CX 69). Opthof also
reported his allegations concerning hazardous waste to the DER on the same date. (Opthof 155).
38. Complainant, in his October 9, 1992, letter advised Pregent that he had contacted
the DER. (Pregent 1622). Subsequently the DER conducted an on site inspection at the Easton
facility. (Pregent 1622). Thereafter, Ashland received a notice of violation from the DER.
(Pregent 1623). Pregent replied to that notice. (Pregent 1623; RX 27).
39. On Saturday, October 10, 1992, Opthof observed a team of 5-6 Ashland employees
moving drums out of the pole barn and labeling them with hazardous waste stickers. (Opthof
148-149). Opthof noted that the date codes on some of the drums were all going back as far as
1985. (Opthof 151). The work continued and Opthof noted that in addition to putting on the
hazardous waste labels the employees painted over some of the date codes. (Opthof 151).
40. On October 13, 1992, Ashland's General Counsel and Vice-President of
Administration responded to Complainant's Hotline call in relevant part as follows:
. . . You are apparently concerned that the plant is in violation of Resource
Conservation and Recovery Act regulations relating to "speculative accumulation"
and the ninety day storage limit for generators of hazardous waste.
[PAGE 10]
Please be advised that the Law and Environmental Health & Safety
Departments are aware of this matter. We have reviewed the facts and issues you
have raised with division and plant management.
You may not be aware that much of the material in this area has been sold
"as is" and thus is material which by definition is not a waste and accordingly not
regulated. Another substantial component of the material has in fact been
reworked or sold for reworking, which again exempts it from regulation. Some
of the material does not meet the definition of a "hazardous waste," and is
therefore also not regulated. The plant is in the process of making arrangements
to dispose of this material properly.
Finally, I am advised that the plant has recently made the determination
that some of this material, although it has been regularly recycled or reworked in
the past, can no longer be feasibly recycled or reworked. Such material is in the
process of being labeled and characterized for disposal.
The local Bethlehem office of the Pennsylvania DER is aware of our
activities regarding these drums, and the plant has voluntarily committed to
provide the agency with weekly progress reports. The Easton plant manager has
also extended an invitation to DER personnel to come to the plant to review these
matters and our waste management practices. These communications were made
prior to your Hotline call.
Based on the advice I have received, I am satisfied that the plant's activities
and plans with respect to these materials are consistent with good waste
minimization practices and the requirements of RCRA. . . .
(CX 69) (Emphasissupplied)
41. On October 8, 1992 Michael Pregent had written a letter to Complainant taking
essentially the same position. (CX 65; Opthof 140-141).
42. As already noted, DER conducted a field inspection of Respondent's Easton
facility. The person interviewed on-site was Complainant. (Ducceschi 802, 815-816). DER's
subsequent notice of violation to the Ashland-Easton facility was dated October 27, 1992. That
notice of violation was still in effect at the time of the hearing herein. (Ducceschi 797-798). The
DER notice in pertinent part listed the following violations:
1. Shipping containers were not marked and labeled according to U.S.
DOT, in violation of 25 Pa. Code §262.30. The drums
stored in the pole barn were not properly labeled and identified.
2. Waste was accumulated on site in excess of ninety (90) days, in
violation of 25 Pa. Code §262.34.
3. Containers were not properly managed, in violation of 25 Pa. Code
[PAGE 11]
§265.171. Two drums were in deteriorated condition and
should be overpacked prior to shipping. Also, the drums in the pole
barn were not separated into groups and a 5 foot isle space
was not present around each group of drums.
4. Containers were not clearly marked with accumulation dates and
visible for inspection, in violation of 25 Pa. Code §262.34
The notice stated further:
The Department is concerned that such a large quantity of drums (900 est.)
was allowed to accumulate at the facility. More so, it is apparent that Ashland
Chemical Corp. did not have in place a system for disposal/reuse of the material
and, consequently, these drums have been stored at the facility for many years.
It is the Department's understanding that the hazardous waste contained in the
drums have been generated from, at least, three sources:
A. Acid or raw materials purchased from vendors;
B. Off-spec acid manufactured by Ashland Chemical Corp; and
C. Spent acid and solvents utilized for line flushing.
Within thirty (30) days of receipt of this letter, the contents of the drums
located in the pole barn should be transported to a facility permitted to dispose of
such waste or to a facility that will reuse/reclaim the material. Within five (5)
days of transporting the waste to the referenced facilities, Ashland should submit
to the Department written documentation that the facilities have accepted the
material for disposal/reuse or reclaim.
(CX 76)
43. The notice concluded with a request for information from Ashland. It further
stated that the notice of violation was not to be construed as final action by the DER. (Pregent
1623).
44. On November 2, 1992, Complainant met with DER officials in their Bethlehem
office furnishing additional information with respect to his hazardous waste concerns. (Opthof
171-173; Strickland 781).
45. On November 16, 1992, and December 3, 1992, Ashland responded to the DER
Notice's request for information. (RX 27, RX 28). On January 29, 1993, DER advised that the
response to the Notice of Violation was satisfactory and asked for further information. Ashland
responded on February 8, 1993. (RX 29). Thereafter, there was apparently no further
communication between DER and Ashland on this topic. (RX 30; Pregent 1636).
46. As far as DER is concerned, the matter is not closed. This case had been referred
to the Pennsylvania Attorney General for a possible criminal proceeding. (Ducceschi 818). The
referral to the Attorney General's Office has not yet been resolved and this matter is presently
[PAGE 12]
on hold at DER until the Attorney General's Office completes its investigation. (Ducceschi 818;
Strickland 786-789).
47. Complainant's concerns raised with management and the DER made the issue of
disposing of waste chemicals an urgent question for Respondent. More pounds of waste were
shipped out in the fourth quarter of 1992 than had been shipped out in all previous quarters going
back to 1988. (Opthof 220).
48. According to Pregent, the effect of Opthof going to DER was that they ended up
declaring some things as waste which Pregent had been attempting to sell to customers. It was
more expeditious to declare such material waste and get rid of it than to sell it. (Pregent 1609-
1610).
49. According to Nagle, the fact that Opthof had called DER had no impact on how
Complainant was treated. Nagle stated that since this was a protected activity, he did not view
it negatively and that it was the employee's right to do that. (Nagle 2017-2018). Nagle also
denies that Opthof's call to DER affected his consideration of Complainant. (Nagle 2018). Nagle
stated there was no difference in the way Opthof was treated before September 30, 1992 and
afterward. (Nagle 2018-2019).
50. Nagle states the hazardous waste objective was removed from Opthof's job
description in March of 1993 because he no longer trusted Opthof. (Nagle 2045-2047, 2052).
Nagle denies distrusting Complainant because he went to DER saying he had every right to do
that. (Nagle 2047-2048).
51. Nagle gave the following explanation for removing the proposed performance
objective of waste management from Complainant's draft job description in a pretrial deposition:
Q Do you know what process was used to determine that Mr. Opthof
should not have that responsibility [the coordination of waste
management]?
MR. MCCARTHY: Recognizing he never had it is what he has testified
to.
A. By the time March of 1993 rolled around, we no longer trusted Mr.
Opthof's motives regarding what he would do in important areas.
The management of waste or potential waste is an important
enough area that we didn't want to give it to somebody that we did
not trust to act in the best interest of the company. He had been
involved in litigation up to -- at that time, we simply didn't trust
him with the job.
(CX 215)
52. Michael Pregent, at his performance appraisal meeting on September 22, 1993,
noted in connection with his goal of reducing the waste and release inventory by December 15,
1992 and formalizing the waste minimization program that the removal of some of the pole barn
inventory as hazardous waste negatively impacted that objective. (Pregent 1845; RX 66 p. 2).
[PAGE 13]
53. Pregent, in the time period September 1992 to September 1993, told Dennis Nagle
that Opthof's memoranda in the September-October 1992 time frame concerning Complainant's
contact with DER led him to question his sincerity. (CX 208 p. 6). Pregent felt that
Complainant,
on the basis of his experience on the site, had been well acquainted with the conditions he
complained of for sometime. Nagle agreed with that assessment. (CX 208 pp. 6-7).
54. Some employees at Easton felt threatened by Complainant's bringing up of the
hazardous waste issue. (DePascale 1256, 1327-1329; Seealso Bowyer 634-
635). Robert DePascale, the second in command at the plant, at one point told Opthof there had
been enough conversation about the drums in the pole barn. DePascale felt that Opthof's concern
was obsessive and there was no need to continually analyze the subject. (DePascale 1331).
55. There was a work place rumor that Opthof was being crucified for raising
environmental concerns. (Stout 1175).
Work Place Assessment of Complainant
56. A former manufacturing manager of the Division and a predecessor of Dennis
Nagle assessed Opthof as follows:
His reputation was that he was a good engineer, made things work, made
[sic] a little bit short of miracle worker. But he would take projects and put them
together and make them work, make the plant work. And he was very
knowledgeable about the plant. It was our largest plant and a fairly complex
operation.
(Tichich 593)
57. Robert DePascale, the plant's second in command, considered Opthof to be a
competent engineer at technical tasks and he did not observe a decline in Opthof's ability to
complete the nuts and bolts of a task in the relevant period. (DePascale 1247-1248).
58. Michael Pregent, the current plant manager, conceded that Complainant technically
had good capabilities. (Pregent 1756). He evidently considered Complainant's technical work on
projects generally effective. Even on the appraisal he prepared on September 2, 1993, for
purposes of terminating Opthof he rated 11 out of 12 of Complainant's projects as performed
effectively. The exception was the tank wagon sample station project rated between marginal
and
effective. He also, in the same document, rated Opthof as very effective with respect to job
knowledge. (CX 161).[6]
59. Pregent rated Complainant generally unsatisfactory on the aspects of the work
requiring interaction with others such as communicating skills and work relationships. (CX 161).
In this connection, Pregent asserted that Complainant's contacts with employees created a
negative
impact. (Pregent 1361, 1742).
60. One of Opthof's subordinates, on the other hand, felt that Opthof was a supervisor
who got work out of his men, that he knew how to not push them, but stayed on top of them and
[PAGE 14]
made sure they were all working and kept on top of their jobs. According to this employee, if
there was a problem on the job Opthof was always there to direct or assist in any way he could.
This individual noted no difference in the performance of Complainant in the period 1986-1993).
(Bowyer 629-632). On occasion, according to this witness, Opthof and senior employees had
confrontations when there were differences of opinion as to how the work should be done.
(Bowyer 638).[7]
61. James Charles Stout, an "A operator" at the Easton plant and an assistant shop
steward, had a different view. (Stout 1072, 1074). In Mr. Stout's view Complainant did not
appreciate suggestions from workers at the plant. Sometimes such matters ended up as
grievances. (Stout 1084-1085, 1088-1089).[8] This witness felt that Opthof was defensive and
arrogant, and that he was belligerent. (Stout 1115-1116, 1122). In the opinion of this witness,
however, Opthof was more belligerent when Darrell String was in charge of the plant than
subsequently. (Stout 1152-1153). According to Stout, Opthof did not get into name calling
contests or scream or yell. (Stout 1167). Stout recalled one incident where Complainant made
a derogatory comment about a union settlement in front of the employees in the period 1987-
1990. (Stout 1110, 1154).
62. The record shows that Opthof was in fact not devoid of human relation skills. On
May 17, 1991 he wrote a memorandum to R. Roskilly thanking him for his help in designing and
installing a piping systems on the new drumming line which "reflects the quality of your
workmanship" concluding with the hope that in the future they would again have the opportunity
to work on another large project. (CX 200). On a copy of that memorandum is a note from R.
E. Hunter, Vice President of the Division: "Larry: Your series of recognition letters to Easton
personnel is greatly appreciated as it follows our guiding principles. Thanks for a great job
done." (CX 200).
The Controversy Over Complainant's Written Communications to His Superiors
63. Mr. Opthof's practice of communicating with his superiors in writing followed by
certified copies with demands for replies in writing led to considerable friction. His supervisors
complained this indicated a relationship lacking in trust and candor. Complainant's
communications pertaining to his job description and the ongoing negotiations led to that view.
Opthof's supervisors assert they did not so much object to the fact that the communications were
in writing, but to the tone which appeared to be disrespectful and mistrustful and an inappropriate
way for a subordinate to act toward their boss. (Nagle 1964-1965, 1969).
64. On April 15, 1993, Mr. Nagle directed Complainant to communicate verbally with
his superiors as follows:
TO: L. J. Opthof
FROM: D. J. Nagle
RE: JOB DESCRIPTION[PAGE 15]
This is in reply to your letter to Mike Pregent dated April 5, 1993. In your
memo, you acknowledge the job description and performance objectives given to
you on March 17, 1993. You state, for the record, that you do not agree with the
job description.
Let me make clear that the job description and performance objectives
given to you on March 17, 1993 are the documents against which your
performance will be evaluated. The job description and performance objectives
are not subject for further debate or negotiation. Any future attempt to modify or
complain about the job description or performance objectives will be interpreted
by me as insubordination which will subject you to disciplinary action up to and
including termination.
In your memo of April 5th, you mention other job related issues that you
presented to Mike Pregent and me in your previous memos. I have not responded
to you in writing--and I will not. You have been told by Mike Pregent that it is
not customary for issues of this nature to be handled by mail with return receipt.
It is my expectation that you will discuss these issues in person with your
supervisor like all other employees.
Therefore, in addition to the performance objectives given to you by Mike
Pregent on March 17th, you are further directed to have face-to-face verbal
discussions with your supervisor on job related matters in the future. This is in
the interest of developing your verbal communication skills. These skills are
needed by anyone who aspires to be a supervisor.
(RX 44)
The Performance Appraisal Process and Complainant's Ratings Thereunder
65. From his starting date at Ashland through his 1992 performance appraisal, Opthof
had received no rating of unacceptable or marginally acceptable in any category. (Opthof 65-66).
66. Complainant's overall performance ratings for the years 1986-1991 were as
follows: 1986, "very effective" (CX 9); 1987, "very effective" (CX 10); 1988, "very effective"
(CX 11); 1989, between "effective" and "very effective" (CX 12); 1990, between "effective" and
"very effective" (CX 13); 1991, "very effective" (CX 14; Opthof 73-74).
67. In September 1992, Complainant received his annual performance review from
Michael Pregent. (CX 15; Opthof 75, 87). Under Part A, "Review of Last Year's
Accomplishments," of his 1992 appraisal by Mr. Pregent, he received grades consistent with
those
of previous years--all within the range of "effective" and "very effective," no ratings of
"marginal" or "unacceptable." (Opthof 76; CX 15). Under Part B, "Review of Factors
Contributing to Performance," of his 1992 appraisal by Mr. Pregent, Mr. Opthof received grades
consistent with those of previous years, with no "margin" or "unacceptable" ratings. (Opthof 76-
77); CX 15). Complainant's 1992 overall performance rating, consistent with previous years,
was
between "effective" and "very effective." (Opthof 79-80).
[PAGE 16]
68. Complainant did not sign his 1992 performance appraisal because he felt some of
the ratings should have been higher and he disagreed with some of the comments in the
appraisal.
(Opthof 80).
69. Mr. Opthof was rated unacceptable in September 1993 and thereafter terminated.
(See Findings 74-81, infra.).
The Karen Carter Incident
70. Karen Carter is a process safety coordinator employed by Respondent. On August
19, 1993, she was conducting a plant engineer seminar in Ashland's Ohio headquarters.
Complainant was one of those in attendance. (Carter 715, 719, 722). Ms. Carter complained that
Opthof's questions directed to her were hostile and created tension "you could have cut with a
knife." (Carter 725. She described the exchange with Complainant as heated. (Carter 746-747).
This was unnerving to Carter who felt that her presentation could be derailed. (Carter 726).
71. Carter was apparently disturbed because Complainant was asking for more specific
guidance on process safety than she was willing or able to give. (Seegenerally
CX 213).[9]
72. After the presentation, while seated at lunch with other plant engineers, Ms. Carter
was approached by Opthof who stated "you know, I belong to Green Peace, and we all know this
CMA Responsible Care stuff is [expletive deleted].[10] You all are willing to spend all this
money on Responsible Care and it's nothing more than an advertising campaign but you are not
willing to fix the real problems." (Carter 729; CX 213). Carter was concerned that this statement
undercut her, in the presence of the other plant engineers. She noted she had done nothing to
draw Opthof to her table or to indicate to Opthof that she wanted to continue the discussion.
(Carter 730).
73. Ms. Carter, who was upset by the incident, reported it to her supervisor who
instructed her to contact Andy Allen of the law department. (Carter 732-733). She left a voice
mail for Dennis Nagle recounting the incident and what Complainant thought about Responsible
Care. (Carter 733). The following week on August 26, 1993 she took the matter up with Michael
Pregent. (Carter 734, 739).
Complainant's Termination
74. The manufacturing manager's reaction to the Karen Carter episode was that
Opthof's behavior was an embarrassment for the entire division and reflected badly on the Easton
plant. (Nagle 1973).[11] On the basis of that incident, according to Nagle, it was time to
determine whether he wanted to keep Complainant. The Karen Carter incident, Nagle states was
the straw that broke the camel's back or the triggering event with respect to Opthof's termination.
On September 2, 1993, on Nagle's visit to Easton, he and Pregent jointly decided to terminate
Complainant. (Nagle 1976, 1986, 2068, 2084; Seealso Pregent 1347-
1349;[12] 1806).
75. Pregent and Nagle decided that since this was the time of the annual performance
appraisal, they would use it as the vehicle to terminate Opthof. (Nagle 1977). At the September
[PAGE 17]
2 meeting, it was decided that Pregent would prepare the performance appraisal. In fact, Pregent
drafted the appraisal and Nagle reviewed it at their next meeting on September 15, 1993. (Nagle
1977-1978; Pregent 1349). The performance appraisal drafted by Pregent and reviewed by
Nagle rated Complainant as unsatisfactory. (CX 161; Nagle 1981-1982). Nagle took this
document to corporate headquarters and delivered it to the law department, in view of
Complainant's other litigation pending at that point. Thereafter the final draft of the performance
appraisal was delivered to Nagle by a member of the law department. (RX 48; Nagle 1982-1983).
76. The standard performance appraisal procedures were not employed in September
1993 because Nagle and Pregent at that point were not interested in Opthof's self assessment.
They used the performance appraisal simply to record their appraisal of Complainant and the
recommended termination. It was not a real performance review. (Nagle 2085-2086).
77. There are significant discrepancies between the initial performance appraisal of
September 2, 1993 drafted by Mr. Pregent and the September 22, 1993 performance appraisal
revised after discussion with Respondent's legal staff. All such revisions were to the
disadvantage of the Complainant. As already noted in the original appraisal, Complainant's
performance in 12 specific projects was rated as effective in 11 of the 12 projects and on one
project he was rated between effective and marginal. (CX 161 pp. 1, 2). After that appraisal was
reviewed by Ashland's legal department, Complainant was downgraded in five of the project
categories by being given a marginal rating on three projects and ratings between marginal and
effective on two others. (CX 161; RX 48).
78. The second performance review also downgraded Complainant in other categories.
In implementing Responsible Care he was downgraded from between marginal and unacceptable
to unacceptable, his rating in administration was lowered from effective to marginal, the category
of forecasting and planning was changed from effective to marginal, and, finally, the selection
and development category was revised from "omit" to "marginal". (CX 161; RX 48). Certain of
the comments in the original draft of September 2, 1993 were also changed or omitted. For
example, the allegation that Complainant "repeatedly files groundless charges resulting in wasted
management efforts" was deleted. (CX 161 p. 2; Pregent 1428-1429; RX 48). In addition, the
references to Complainant's filing charges against Ashland and having his lawyer mail a letter
to Ashland, and that Complainant requested that certain responses be in writing were deleted.
Two allegations were added to the second draft to raise the level of criticism of Complainant's
performance on projects under Part A of the review. Complainant was in the second draft
charged with having an "inability to effectively plan installation with operators". Complainant's
rating in the category of "Forecasting and Planning" was changed from effective to marginal.
(CX 161; RX 48).
79. Complainant had no input on his final performance review, RX 48, before it was
finalized. (Pregent 1849).
80. Dennis Nagle, in a memorandum dated September 28, 1993, recommended
Complainant's discharge. The recommendation was approved by R. E. Hunter, Vice President,
Electronics Chemical Division, and D. J. D'Antoni, President of Ashland Chemical. (RX 70).
Opthof was notified of his termination on October 7, 1993. (RX 49).
81. Nagle summarized his reasons for terminating Complainant as follows:
[PAGE 18]
Well, I considered my cumulative assessment of him, going all the way
back from early contacts, his lack of leadership, his lack of taking a role in solving
plant problems, his denial of my assessment of his managerial weaknesses, his
denial of my attempts to remediate it. I took into account his intolerable conduct
at the meeting in Dublin with Karen Carter. I took all of the input from Mike
Pregent on his project work. I considered whether or not, you know, my decision
to terminate would be consistent with other decisions I had made.
(Nagle 1990)
Medical Evidence Edwin N. Carter, Ph.D.
82. Edwin N. Carter, Ph.D., is a clinical psychologist with a specialty in
neuropsychology practicing in the northern Virginia area. (CX 182; Carter 1467). Dr. Carter
examined Complainant on March 15, 1994.
83. According to Dr. Carter, the personality testing revealed that Complainant suffered
from substantial levels of free floating anxiety related to concerns about his career and financial
security or lack thereof. In the opinion of Dr. Carter, Complainant's anxiety levels are sufficient
to cause some constant psychological pain and to interfere with his ability to think and reason.
In his view, the quality of Mr. Opthof's life has been compromised to some degree permanently
because of the debilitating effect of the anxiety. Dr. Carter concluded that the stress from which
Complainant suffers is having an extremely detrimental effect upon his family and has robbed
him of his interests in many activities which he used to find enjoyable and is producing sleep
difficulties for him. According to Dr. Carter, the trauma associated with the harassment he
received on the job at Ashland has strained relations very seriously with Complainant's wife and
upset his children. (CX 182). In the opinion of Dr. Carter, Complainant's firing and the
harassment, he experienced prior to the firing, resulted in a significant shock to him and he
suffers from a post-traumatic stress disorder (PTSD) as a result of this traumatizing experience.
Dr. Carter found that like most PTSD victims, Complainant has begun to lose faith in the system,
is showing distrust in those around him, and feels unprotected and vulnerable.
84. According to Dr. Carter, Opthof needs intensive psychotherapy to deal with his
problems. In the opinion of Dr. Carter, the evidence is that prior to fall of 1992, Complainant
was quite happy, well adjusted, financially secure and happy with his private life, but that since
that time, his life has literally fallen apart. Accordingly, Complainant needs extensive
psychotherapy and has taken steps to get help. Even with a good response from treatment, in the
view of Dr. Carter, Complainant's quality of life cannot return to normal. (CX 182).
85. Dr. Carter does not believe that Complainant suffers from a depressive disorder
at this point. (Carter 1485). In Dr. Carter's view, Mr. Opthof is only mildly depressed. (Carter
1485).
86. According to Dr. Carter, Complainant, for nine years, got decent evaluations from
[PAGE 19]
Ashland and then within the period of basically a year or so began to get all of this negative
information about himself. In Dr. Carter's view, this destroys an individual's self concept.
(Carter 1498).
87. Dr. Carter disagrees that Complainant has a passive-aggressive disorder although
he does believe that at times Complainant has demonstrated certain passive-aggressive behaviors.
(Carter 1502). According to Dr. Carter, errors of omission are examples of passive-aggressive
traits. (Carter 1503). He also disagrees with Dr. Gregorius' conclusion that Complainant has a
narcissistic personality. (Carter 1505).
88. In the opinion of Dr. Carter, Complainant's collateral litigation is not a factor in
the difficulties that he has had since his termination. (Carter 1511).
89. In making his assessments, Dr. Carter relied solely upon the information provided
by Complainant, for example, he did not interview his family. (Carter 1521). Nor did he discuss
the effect of the litigation on Opthof in his interview with the Complainant. (Carter 1542-1543).
In fact, none of these lawsuits were discussed specifically in Dr. Carter's discussion with
Complainant. (Carter 1549). Nevertheless, Dr. Carter felt that the loss of this litigation would
not significantly effect the Complainant. (Carter 1550).
90. Dr. Carter conceded that to some degree the loss of the cases in Complainant's
collateral litigation may have resulted in Mr. Opthof's disappointment in the system. (Carter
1542).
91. According to Dr. Carter, Complainant attributed the onset of his unhappiness to
events taking place roughly in the fall of 1992. (Carter 1558).
Hans H. Gregorius, M.D.
92. Hans H. Gregorius, M.D., is a psychiatrist with a practice in New Jersey. He
examined Complainant on March 31, 1994. (RX 68-69).
93. Dr. Gregorius concluded on the basis of his examination of the Complainant and
his review of the medical records that Mr. Opthof's suffers from a passive-aggressive personality
disorder. In this connection, Dr. Gregorius concluded that:
[Complainant] is an individual who displays a pervasive pattern of passive
resistance to demands for adequate occupational performance and is an individual
with traits that reflect procrastination, irritability or argumentativeness when asked
to do something he does not want to do, works deliberately slowly or performs
poorly on a job or task that he really did not want to do, protests without
justification that others make unreasonable demands, avoids obligations perhaps
by claiming to have forgotten, believes that he is doing a much better job than
others think he is doing, and probably resents useful suggestions concerning how
he could be more productive. Also, his maladaptive behavior invariably results
in a worklike setting in obstructing the efforts of others by failing to do his share
of the work and is a person who is likely to feel unreasonably criticized and
[PAGE 20]
scorns people in positions of authority.
(RX 69 pp. 3-4)
94. Furthermore, he concluded that Mr. Opthof exhibited personality traits of a
narcissistic personality with a pervasive pattern of grandiosity, lack of empathy and
hypersensitivity to the evaluation of others. (RX 69). In the opinion of Dr. Gregorius,
Complainant also displayed paranoid personality traits. (RX 69).
95. It is Dr. Gregorius' opinion that Mr. Opthof has had this personality pattern since
early adulthood and that it was neither aggravated or proximally caused by his termination at
Ashland Chemical, nor exacerbated or worsened by it. (RX 69).
96. According to Dr. Gregorius, there is no evidence of a post-traumatic stress
disorder, anxiety disorder, etc. Based on the historical, data Dr. Gregorius concluded that
Complainant probably experienced an adjustment disorder when terminated. Dr. Gregorius feels
that Mr. Opthof appears to be doing well and his complaints are purely subjective and that his
behavior reflects primarily concern for himself. (RX 69).
97. Dr. Gregorius concluded that it is impossible that Complainant's employment
termination caused his personality disorder and the other traits that afflict him. (Gregorius 1891).
Nor in Dr. Gregorius' opinion did the firing have an aggravating effect on his mental status.
(Gregorius 1892).
DISCUSSION
Lawrence J. Opthof, the Complainant, was employed variously as a plant engineer or
maintenance supervisor by the Electronics Chemical Division of Ashland Chemical Company in
the period 1983-1993 at its Easton, Pennsylvania, plant. He is an honorably discharged veteran
of the Vietnam war with a 50% disability rating arising out of wounds sustained in that conflict.
(Finding 1). He has a B.S. in management from Rutgers University. (Finding 2). Although
Complainant took chemical and electrical engineering courses, he misstated on his employment
application that he has a minor in engineering from Rutgers. (Finding 3). Mr. Opthof's salary at
the time of his termination was $55,000 a year and his benefit package equivalent to an
additional 31%. (Finding 4).
Beginning in January 1992, Complainant, over some fourteen months, initiated seven
collateral law suits and administrative proceedings against his employer alleging various
discriminations including proceedings based on his veteran status and his disability. (Finding 5).
On September 30, 1992, Complainant notified his supervisor, Michael Pregent, the Easton
Plant Manager, of his concerns relating to storage and speculative accumulation of hazardous
waste at the Easton Plant. He also advised his supervisor of his intent to contact state and federal
environmental agencies concerning this matter. On October 9, 1992, he reported these
allegations on the Ashland Hot Line and on the same day repeated them to the Pennsylvania
Department of Environmental Resources. (Finding 6).
[PAGE 21]
Complainant had never received less than effective overall performance ratings prior to
September 1992. On September 19, 1992, Michael Pregent gave him an overall performance
appraisal rating between effective and very effective. However, in September 1993, Mr. Opthof's
performance appraisal rated him unsatisfactory and he was terminated shortly thereafter.
(Finding 7).
Complainant alleges that his discharge was in retaliation for his protected activity in
raising environmental concerns. Respondent, Ashland, concedes that Opthof's articulation of
such concerns within the Company and with the State environmental agency is protected.
Respondent denies, however, that Complainant has demonstrated illegal discrimination, i.e., a
causative link between the protected activity and his discharge.
Ashland asserts that it has demonstrated that Mr. Opthof was discharged for unsatisfactory
performance, a valid nondiscriminatory reason, and that accordingly he has failed to establish a
primafacie case. During the course of this proceeding, Respondent obtained
evidence concerning the misstatement of Complainant's educational qualifications on his job
application as well as the prohibited retention of allegedly confidential documents. Ashland,
invoking the so-called after-acquired evidence rule, contends Mr. Opthof would have been
discharged on that basis even absent the exercise of protected activity. Respondent urges
accordingly that any recovery by Complainant should be sharply limited or barred altogether, if
he prevails on the merits.
As already noted, Respondent does not deny that Complainant had engaged in protected
activity or that its officials were aware of that fact. That leaves the following issues remaining
for resolution:
1. Has Complainant shown a causative link between his termination and his exercise of
protected activity?
2. Did Respondent discharge Complainant for a valid nondiscriminatory reason, i.e.,
unsatisfactory performance or was this a pretext?
3. If Complainant established a primafacie case of illegal
discrimination has it been rebutted?
4. Does the evidence, as a whole, establish that he was terminated for both discriminatory
and valid business reasons?
5. If issue 4 is answered in the affirmative, has Respondent met its burden of showing
that Complainant would have been terminated for unsatisfactory performance even absent the
exercise of protected activity?
6. If Complainant prevails on the merits, should his relief be limited or barred entirely
on the basis of the after acquired evidence rule?
Generally, in order to establish a primafacie case under the applicable
employee protection statutes, a complainant must show that he engaged in protected activity of
which the respondent employer was aware and that the employer took some adverse action
against him.
[PAGE 22]
Complainant must, moreover, present evidence sufficient to at least raise an inference that the
protected activity was a likely motive for the adverse action. Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2 Secretary's Decision and Final Order (April 25, 1983) slip.
op. at 5-9.
If the employee establishes a primafacie case, employer has the
burden of producing evidence to rebut the presumption of disparate treatment by presenting
evidence that the alleged disparate treatment was motivated by legitimate nondiscriminatory
reasons. Id. If the employer successfully rebuts the primafacie
case, the employee still has an opportunity to demonstrate that the reasons proffered by the
employer were not the true reasons for the employment decision. In that event, the trier of fact
must decide whether or not a discriminatory reason was a more likely motivation or whether the
employer's proffered explanation was worthy of credence or not. Id.
Finally, if the trier of fact decides that the employer was motivated both by illegal and
legitimate reasons, then the dual motive test comes into play. The dual motive test only applies
if the Complainant establishes a primafacie case and there is evidence of both
legitimate and improper motive for the adverse action against Complainant. Lopez v. West
Texas Utilities, 86-ERA-25, Secretary's Final Decision and Order, July 26, 1988; 2 DOL
Decisions No. 4 at 240. In short, where illegal retaliation is at least a motivating factor and
where Employer had legitimate business reasons to terminate Complainant, the test for dual
motive discharge applies. Mackowiak v. University of Nuclear Systems, 735 F.2d 1159
(9th Cir. 1984). In those cases, the Employer has the burden of showing that it would have
discharged Complainant even if the protected activity had not occurred. Id. at 1163-
1164.
The presence or absence of retaliatory motive is a legal conclusion and provable by
circumstantial evidence, even if there is evidence to the contrary by witnesses perceiving lack of
improper motive. Id.
The record shows that Respondent was aware of the problem of surplus chemicals and
related hazardous waste problems at the Easton plant since at least July 29, 1991, the date of an
internal audit, the so-called Hogan Report.[13] That report specifically criticized the Easton
facility among other things for the failure to establish procedures to control the accumulation of
hazardous wastes. The report also noted the need for ensuring that all wastes are properly
identified, labeled and disposed of, noting further that a generator of hazardous waste is only
allowed to store hazardous waste for 90 days. (Finding 27).
On September 16, 1992, Complainant received from Michael Pregent a proposed job
description with an objective of coordinating hazardous waste. Thereafter, Complainant
inspected the surplus chemicals stored in Easton's pole barn and found improper storage and
improper accumulation of hazardous waste. (Finding 34).
As already noted, Complainant advised his plant manager on September 30, 1992, of his
intention to notify the State and Federal environmental agencies of his concerns. (Finding 35).
Mr. Pregent, in a preemptive strike, called the Department of Environmental Resources, (DER)
the State agency, advising that it would be contacted by a "disgruntled" employee.
Subsequently, on October 9, 1993, Mr. Opthof reiterated his concerns on the Ashland Hot Line
and to the DER. (Findings 36, 37).
[PAGE 23]
The DER thereafter conducted an onsite inspection of the Easton facility which resulted
in a notice of violation by the Agency dated October 27, 1992. That Notice was still pending
at the time of hearing. The findings therein were consistent with Mr. Opthof's concerns.
(Findings 38, 42, 46).
In March 1993, after Pregent and Complainant had failed to reach agreement on his job
description, Mr. Opthof was given a final job description with the hazardous waste coordination
objective deleted. Although on September 16, 1992, Complainant was viewed by management
as well suited to that function, by March 1993, this duty was removed from his final job
description because management no longer trusted his motives "regarding what he would do in
important areas" and that "we did not trust him to act in the best interest of the Company." (CX
215; Finding 50). In this connection, Dennis Nagle, Respondent's manufacturing manager, cited
as the reason for such lack of trust that Complainant had been engaged in litigation with the
Company. (Finding 51). However, it should be noted that by September 1992, when the
hazardous waste coordination function was written into his prospective job description,
Complainant had already filed some 4-5 lawsuits or administrative complaints against Ashland.
Accordingly, Nagle's denial that the hazardous waste function removal was unrelated to
Complainant's protected activity is not persuasive. Under the circumstances, the record compels
the opposing inference.
Pregent also told his superior Dennis Nagle that Complainant's memoranda in the
September-October 1992 time frame concerning Complainant's contacts with the DER led him
to question Opthof's sincerity, since Mr. Opthof must have been aware of the hazardous waste
situation for some time in light of the hazardous waste reports filed by Complainant. (Finding
53).
Complainant's concerns raised with management and the DER made the issue of disposing
of waste chemicals an urgent question for Respondent. More pounds of waste were shipped out
in the fourth quarter of 1992 than had been shipped out in all previous quarters going back to
1988. (Opthof 220). According to Pregent, the effect of Opthof going to the DER was that
Ashland ended up declaring some materials as waste which Pregent had been attempting to sell
to customers. It was more expeditious to declare such material waste and get rid of it than to sell
it. (Pregent 1609-1610). In short, Complainant's DER contact forced the pace of hazardous
waste disposition by Respondent.[14] (Findings 47, 48).
Disposition of hazardous waste is expensive. (Pregent 1727). On his performance
appraisal dated September 22, 1993, Michael Pregent noted the negative impact on one of his
performance objectives, namely, the reduction of pole barn material as hazardous waste.
(Findings 28, 29). He explained:
Q And I am just looking at the one where you have a three rating on
that page. And there is something written there, "Negative impact
of removal of pole barn inventory."
A For that number, there was a goal by 12/15/92 to have a 10-percent
reduction in the waste and release inventory. And the negative
impact meant that we didn't have a reduction in waste removal,
[PAGE 24]
because we have ended up disposing of some of the materials
from the pole barn as hazardous waste. So we didn't get a 10-percent
reduction.
(Pregent 1845; RX 66)
The record compels the inference that Mr. Pregent resented the accelerated pace of
hazardous waste disposition as a result of the DER inquiry as negatively impacting on his job
performance objectives of reducing waste removal. In addition, some employees at the Easton
plant felt threatened by Complainant's raising of the hazardous waste issue.
On September 2, 1993, Messrs. Pregent and Nagle agreed to terminate Complainant on
the basis of his annual performance appraisal. On the same date, Mr. Pregent drafted a
performance appraisal with an overall rating of unsatisfactory. On September 15, Nagle and
Pregent met again and went over Pregent's September 2 draft, which Mr. Nagle then took to
corporate headquarters for review by the in-house legal staff. The performance appraisal as
redrafted by Mr. Pregent after that review again gave him an overall rating of unsatisfactory,
downgrading him substantially, however, in various individual categories from the initial
appraisal
on September 2. (Findings 74-78).
During the pretrial phase of this proceeding, Respondent failed to disclose the critical
September 2 meeting between Nagle and Pregent. In response to a direct question on the
interrogatories requesting disclosure of every meeting pertaining to Complainant's termination,
only the September 15 meeting was disclosed. In that context the failure to disclose the
September 2 meeting in Nagle's and Pregent's affidavits and depositions was equally misleading.
Only Messrs. Nagle and Pregent could have provided the information for the interrogatory
response. It is improbable that the failure to disclose the September 2 meeting by these two
individuals in the interrogatory, two affidavits and two depositions was accidental or fortuitous.
It detracts from their credibility when testifying concerning their motives for discharging
Complainant. The record permits the inference that production of the initial draft of the
performance appraisal with its September 2 date compelled these witnesses to change their
chronology of these events at trial.
In short, the record shows that Complainant raised environmental concerns which are
protected and not frivolous. Nagle's and Pregent's admissions compel the inference that there
was hostility on their part arising out of Complainant's protected activity. Pregent's call to the
DER described him as a "disgruntled employee". On September 16, 1992, he was considered
qualified to handle coordination of hazardous waste. In March of 1993 he was not considered
trustworthy enough to handle these matters. Clearly, his collateral litigation cannot be the sole
source of that distrust as Nagle testified. He had already filed four to five such proceedings by
September 1992 and this activity was not considered a bar to hazardous waste responsibility on
his part at that time prior to his raising these concerns. The hazardous waste function, it must be
inferred for the foregoing reasons was deleted from his job description on account of
Complainant's environmental concerns. Animus to Complainant because of his protected
activity must be ascribed to Nagle and Pregent. Mr. Pregent further felt that Complainant was
insincere because he had not expressed his environmental concerns earlier. However, it was
logical for Complainant to express these concerns when he felt that his prospective job
description gave him that responsibility. The accusation of insincerity for raising the concerns
also documents Respondent's animus arising out of the protected activity.
[PAGE 25]
Finally, Respondent's officials were reluctant to characterize the surplus materials as
hazardous waste and dispose of it as such because hazardous waste disposition is more expensive
than reworking or selling such materials. Complainant's concerns raised with the DER forced
Respondent to accelerate the characterization and disposition of its surplus chemicals as
hazardous waste. This interfered with Michael Pregent's objective of reducing the waste
inventory, a fact he noted in September 1993, the same month that steps were taken to terminate
Mr. Opthof. Pregent recorded his resentment of that fact essentially contemporaneously with
Complainant's termination.
In summary, the fact that Complainant's exercise of protected activity was a motivating
factor in his discharge may be inferred from the following factors already noted. The individuals
responsible for his termination resented Complainant's protected activity. Their denials that his
protected activity was a motivating factor in the discharge are unpersuasive for the reasons
already stated. Complainant's contacts with the DER sharply accelerated the pace at which
surplus chemicals were characterized and disposed of as hazardous waste when Respondent
would have preferred a more leisurely approach to permit reworking or sale of the materials in
question.
The Rebuttal
Establishing the primafacie case "in effect creates a presumption that
the employer unlawfully discriminated against the employee". Respondent then has the burden
of producing evidence to rebut the primafacie case, namely, that the adverse
action was taken for a legitimate nondiscriminatory reason. At that point, the presumption drops
from the case. Complainant must then demonstrate that the proffered reason was not the true
reason for the employment decision and that retaliation for protected activity was the motivating
factor. Complainant retains the ultimate burden of demonstrating that he was a victim of
improper discrimination. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993).
Respondent asserts that Mr. Opthof was terminated for nondiscriminatory business reasons,
namely, unsatisfactory work performance. Specifically, Ashland asserts he failed to take a
leadership role and responsibility for his assignments, that his influence at staff meetings and in
the workplace was negative, and that he had poor relations with hourly employees and union
members at the plant contrary to company policy. In that connection his supervisors rated
Complainant as having poor communication skills. In addition, his supervisors criticized
Complainant for failing to adequately supervise an engineer assigned to him. The triggering
event leading to Complainant's termination, according to Ashland, was an incident where
Complainant's negative behavior allegedly threatened to disrupt the environmental presentation
of Karen Carter at Respondent's headquarters in August of 1993. Respondent asserts in addition
that Complainant's denigration on this occasion of the Responsible Care Program espoused by
the company also influenced the decision to terminate him. This behavior, his supervisors
contend, embarrassed the Electronic Chemical Division and its Easton facility.
The record shows that the relationship between Complainant and the manufacturing
manager of the division and the Easton plant manager had been deteriorating at least since the
[PAGE 26]
early part of 1992. Prior to his September 1992 performance rating, Complainant had already
filed four to five lawsuits or administrative proceedings against his employer alleging various
forms of discrimination. (Findings 70-73).
On March 5, 1992, Michael Pregent, in a memorandum to Dennis Nagle, criticized
Complainant at considerable length for disorganization, and for misinforming maintenance
employees that overtime was ending for them and that all projects would be contracted out to
outsiders. According to the memorandum, this resulted in union threats to file grievances. Mr.
Pregent, in the same memorandum, complained that "this negative attitude is a direct result of the
way the shop is being (mis)managed. LO is very insecure and always thinks people are out to
get him." The memo concluded that "LO does a decent job of projects but cannot deal with
people in a fashion that is needed for us to make the kind of progress we must make now and
in the future." (RX 11). Similarly, Dennis Nagle, in February of 1992, had already decided that
Complainant was not successfully performing as maintenance manager, that he was falling
behind and not providing solutions to work-related programs. (Finding 17).
In the intervening period up to the performance appraisal of September 1992, the
relationship between Complainant and his superiors continued to deteriorate as a result of
Opthof's collateral litigation and the fallout from the Pennsylvania Human Relations settlement
in July of 1992 which in fact was not successfully implemented. (Finding 19). It is arguable that
Complainant did not cooperate in its implementation. (RX 61; Sterling 883-884).
The record is also clear that management was well aware of Complainant's propensity on
occasion to utter injudicious or intemperate remarks prior to the September 1992 performance
evaluation.[15] Nevertheless, Michael Pregent, in September of 1992, gave Complainant an
overall rating of between effective and very effective. (Finding 67). Complainant received that
rating prior to his exercise of protected activity although management's negative perception of
him was by that time already firmly in place. Michael Pregent explained this rating stating he
was relatively new to the plant manager position and distracted by other problems. The
explanation is not credible in light of his March 5, 1992 memorandum. That document basically
outlines and foreshadows the negative assessment resulting in Complainant's termination in
September of 1993 after the exercise of protected activity. (Compare Pregent 1436-1437
and RX 11). It is similarly clear that Dennis Nagle, the Division's manufacturing manager, by
virtue of personal contacts with Complainant and Pregent's memorandum to him in March of
1992, was similarly aware of Opthof's negatives well prior to the September 1993 assessment.
It should further be noted that Opthof's termination in September of 1993 was essentially
contemporaneous with Pregent's performance appraisal in that month where he complained that
he did not meet his goal of a reduction in the waste inventory because Respondent ended up
disposing of some of the materials from the Easton facility pole barn as hazardous waste instead
of selling or reworking the material. This failure to reduce hazardous waste material was of
necessity linked to Complainant's contact with the DER and the resultant pressure for more
expeditious action. As a result, it is evident that Respondent's management at the time of his
discharge still had animus to Complainant because of his exercise of protected activity. As
already noted, Nagle's and Pregent's denial that Complainant's environmental concerns played a
part in this termination are not persuasive in light of their failure to disclose the crucial
September 2, 1993 meeting at which it was decided to terminate Mr. Opthof. That failure
diminishes the overall credibility of their testimony as far as motivation is concerned.
[PAGE 27]
The Karen Carter incident cannot be considered the sole triggering event for Complainant's
discharge as Ashland asserts. Opthof's behavior during the course of that meeting was not
qualitatively different as far as can be determined on the basis of this record from other occasions
where he had uttered injudicious and/or inappropriate remarks and where such conduct had
resulted in no penalty.[16] (E.g. See footnote 14).
Finally, Respondent's criticisms of Complainant's performance on projects assigned to him
does not ring true in light of the discrepancies between the September 2, 1993 draft of the
performance appraisal and the final version dated September 22, 1993. In the initial draft, he was
graded effective in 11 out of 12 projects. In the final draft, written with an eye towards
litigation, he was downgraded in five of the projects by a marginal rating on three projects and
ratings between marginal and effective in two others. (Findings 75, 77).
The record, after weighing the evidence, in short, compels the inference that Complainant's
discharge was motivated in part by his expression of environmental concerns within the company
and to the DER. Managerial dissatisfaction with Opthof and pervasive friction between him and
his supervisors also contributed to his firing. Much of that friction, to which Complainant
contributed, was unrelated to his exercise of protected activity within the scope of this
proceeding. Since retaliation and valid business considerations both played a part in the adverse
action, the dual motive test applies.
As already noted, once the plaintiff has shown that protected activity played a role in the
employer's decision, the burden shifts to the employer to persuade the trier of fact that it would
have discharged the plaintiff even if the protected activity had not occurred. SeeMackowiak, supra.
In this instance, the record does not permit a finding that Employer would have discharged
Complainant for unsatisfactory performance alone even absent the protected activity. The record
shows expressions of hostility to Complainant because of the protected activity, and the
toleration of Complainant's negatives, as management perceived them, for a substantial period of
time prior to the September 1992 performance evaluation rating him between effective and very
effective. The combination of these factors preclude a finding that Mr. Opthof would have been
discharged for unsatisfactory performance even absent the expression of his environmental
concerns. Here the influence of the legal and illegal motives are so intertwined that it is
impossible to sort out their relative contribution to Mr. Opthof's discharge. It is fair that the
employer bear the risk, "[where] the influence of legal and illegal motives cannot be separated,
because the risk was created by his own wrongdoing. Mackowiak, 735 F.2d at 1164;
National Labor Relations Board v. Transportation Management, 462 U.S. 393 (1983).
ReliefAfter Acquired Evidence of the Misstatement on Complainant's Job Application Form
Complainant misstated on his job application that he had a minor in engineering from
Rutgers when in fact he had not. Mr. Opthof had in fact taken some chemical and electrical
[PAGE 28]
engineering courses at other institutions. This qualification was a prerequisite for the job.[17]
The misstatement came to light during the course of discovery in this proceeding at Mr. Opthof's
deposition. Ironically, the record shows that Mr. Opthof's technical competence as an engineer
was generally acknowledged.
Nevertheless, his employment application had the following certification:
I certify that all statements I have made in this application are true and agree that
any misrepresentation or omissions of fact requested may be sufficient to cause
for cancellation of my application or immediate dismissal from the company if I
have been employed. . . .
(CX 5) (Emphasissupplied)
Accordingly, once Respondent discovered this misstatement, it could, on the basis of this
certification, summarily dismiss Complainant for the misrepresentation under consideration. The
issue to be resolve in light of the after acquired evidence rule, accordingly, is whether relief
should be banned entirely or limited on the ground that because of the misstatement Complainant
would have been discharged for that reason.[18] The issue, accordingly, is how the after
acquired evidence of the employee's wrong doing bears on the specific remedy to be ordered in
the particular case. In this case neither reinstatement or front pay would be appropriate.
SeeMcKennon v. Nashville Banner Publishing Co., 115 S.Ct. 879, 130
L.Ed.2d 852 (1995).
The employee protection provisions of the environmental statutes in question have a
common and a public purpose of eliminating retaliation for the exercise of protected activity in
the workplace. Accordingly, after acquired evidence of wrongdoing should not in every instance
operate to bar all relief for an earlier violation of the statute. SeeMcKennon,
supra. In addition, all relief should not be barred in the instant case since private suits
under the environmental statutes in question serve important public purposes. The employee's
misconduct, nevertheless, is relevant to the question of remedy. Accordingly, it is necessary to
balance the legitimate interests of the parties in light of the Complainant's wrongdoing, keeping
in mind that suits such as this further the objectives of the employee protection provisions of the
relevant environmental statutes. A proper balance is struck where remedial relief in the form of
back pay is limited to the period from the adverse personnel action to the time when the
employee's misconduct was discovered. Reinstatement in this case would be pointless since the
employer could have and would in the future, upon the basis of the misstatement, have
terminated Complainant upon lawful grounds. Seegenerally,
McKennon.
Compensatory Damages
Complainant seeks compensatory damages on the order of $50,000 for emotional distress
and loss of professional reputation. According to Dr. Carter, a clinical psychologist,
Complainant's discharge and harassment on the job resulted in a significant shock to him and "he
suffers from a Post Traumatic Stress Disorder as a result of this traumatizing experience." (CX
182 p. 4). Dr. Carter believes that as a result Complainant will need psychotherapy and some
family counseling to deal with those effects. (Carter 1480). In Dr. Carter's view, Complainant's
collateral litigation had no or little effect on his psychological state. (Carter 1511-1513).[19]
The Complainant himself testified that his termination had caused him emotional distress and
caused
[PAGE 29]
him marital and family difficulties.
Dr. Carter's diagnosis of Post-Traumatic Stress Syndrome is questionable. (See
Gregorius 1875-1876). However, that does not end the inquiry. In weighing conflicts in medical
evidence such as between Drs. Carter and Gregorius, the trier of fact may rely on the common
sense of the situation and the medical evidence should be viewed in the context of the relevant
sequence of events. SeeAtlantic Marine, Inc. v. Bruce, 14 B.R.B.S. 63, 65
(5th Cir. 1981). In cases such as this, the causation issue is not solely medical "but compounded
of inextricably intertwined elements of fact, medical opinion and inference." SeeTodd Shipyard Corp. v. Dovan, 300 F.2d 741, 742 (5th Cir. 1962). Dr. Carter's
opinion, as corroborated by Complainant, that the workplace situation and the firing caused Mr.
Opthof significant anxiety and emotional stress is corroborated by the relevant sequence of
events. (Finding 83). Mr. Opthof's testimony of pervasive anxiety due to economic insecurity
after the firing is credible. In short, Complainant's emotional distress may be related in
significant part to his termination. To ascribe such distress solely to a personality disorder
divorced from Complainant's exercise of protected activity and his discharge flies in the face of
the workplace realities as documented by this record.[20] Emotional stress and anxiety leading
to significant marital and family problems are compensable when arising out of workplace
retaliation prohibited by the relevant statutes.
Ordinarily, such evidence warrants the granting of substantial compensatory damages.
This, however, is a mixed motive case. There is no way to allocate with any degree of precision
the portion of Complainant's emotional distress resulting from Respondent's illegal motives as
opposed to valid business considerations which also influenced the decision to discharge
Complainant. Under the circumstances, since the factors, legal and illegal, are so intertwined
that they cannot be sorted out, some award should be made. Having violated the law,
Respondent bears the risk that the causative factor cannot be separated with confidence. Some
compensatory damages should be awarded. The award, however, will be modest. The chronic
friction between Complainant and his supervisors for which Mr. Opthof is in part responsible,
pre-existing the protected activity, clearly contributed to the adverse action against him and the
level of stress at work. Foremost among these are Complainant's collateral litigation, some seven
court and administrative proceedings filed in the period January 1992 to March 1993.[21] By
and large this flurry of litigation was unsuccessful, with one appeal pending at the time of the
hearing herein. (RX 61). The record shows that Complainant on occasion was a difficult
employee. Some of the remarks he made to Ashland's officials well before his protected activity
were inappropriate and tactless. There is, moreover, a question as to whether he attempted to
implement the Pennsylvania Human Relations settlement agreement in good faith.[22] Under
the circumstances, the award should be limited to $500.00.[23]
There is insufficient evidence in this record to assess with any degree of confidence the
effect on Complainant's professional reputation from the discriminatory firing and the resultant
economic impact.
RECOMMENDED ORDER
Ashland Chemical Company is ordered to reimburse Lawrence J. Opthof with back pay
from October 7, 1993, to the date when Respondent discovered in the course of discovery that
[PAGE 30]
Complainant had misstated his educational qualifications in his employment application.
IT IS FURTHER ORDERED that Ashland Chemical Company pay Lawrence J. Opthof
$500.00 as compensatory damages.
THEODOR P. VON BRAND
Administrative Law Judge
TpvB/jbm
NOTICE: This Recommended Decision and Order and the administrative file in this matter will
be forwarded for review by the Secretary of Labor to the Office of Administrative Appeals, U.S.
Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW,
Washington, DC 20210. The Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final decisions in employee protection
cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] The Clean Air Act, 42 U.S.C. § 7622, the Safe Drinking Water Act, 42 U.S.C.
§ 300j-9, the Solid Waste Disposal Act, 42 U.S.C. § 6971, the Water Pollution
Control Act, 33 U.S.C. § 1367, the Superfund law, 42 U.S.C. § 9610, and the
Toxic Substances Control Act, 15 U.S.C. § 2622.
[2] The profiler is a document to be filled out by an employee's peers and subordinates so the
subjects of the profiler can get feedback on how others see their management skills. (Nagle
1941-1942).
[3] On October 8, 1992, responding to Complainant's September 30 letter, Mr. Pregent
advised Complainant as follows:
I would also like to take this opportunity to correct an apparent
misconception you have. Contrary to the opening assertion in your
memorandum, I did not give you the "responsibility of coordinating
management of hazardous waste" on September 16, 1992. Instead, as we had
agreed, I gave you a series of suggested activities that might be included in
your new "Plant Engineer" job description. You were to review my
suggestions and get back to me with any additions, modifications, or deletions.
As of today, I have not heard from you. Therefore, your new job description,
including any portion referencing any coordination of hazardous waste
management, is not yet in effect.
(CX 65)
[4] According to James Sterling, the Human Resources Manger for Ashland Chemical, the job
objectives would be in effect during the negotiations on a final job description. (Sterling
1042).
[5] Pregent stated that in a September 22, 1992 meeting he told Complainant he did not have
the hazardous waste responsibility at that time and that the document in question was not an
official job description. (Pregent 1619).
[6] His rating on projects in CX 161 prior to consultation with counsel is more persuasive
than the rating on projects in CX 48 on September 22, 1993 revised for purposes of litigation.
[7] According to Mr. Bowyer the majority of Complainant's problems were with a Mr.
Roskilly who in his estimate is a hard person to be diplomatic with; Roskilly, in this witness's
view, did not conform well with supervision. (Bowyer 647).
[8] Mr. Stout's testimony to a considerable degree related to events in the period 1989-1992.
(See Stout 1089, 1099).
[9] Ms. Carter's contemporaneous account of the incident stated in relevant part as follows:
This memo is being prepared at your request to document the exchanges
that occurred between myself and L. Opthof at the plant engineers seminar on
September 19, 1993. During my presentations and ensuing discussions on
process safety information, pre-startup safety review and other process safety
elements Mr. Opthof (who I did not know or recognize till after our
encounter) repeatedly asked questions of what his facility was required to
do under the OSHA Process Safety Regulations and the CMA Process Safety
Code.
I explained to Mr. Opthof that his site (Easton) had transferred the only
process that could have resulted in OSHA applicability to the Dallas facility
(Ammonia). I explained that the Easton facility was therefore only
implementing CMA's Process Safety Code. He inquired as to which processes
were covered under CMA. I replied that CMA does not have a chemical list or
set of criteria that dictate which chemicals and processes must be included in
the program. He was very frustrated by my response - noticeably so. He
asked "How am I ever going to get my division to approve AFEs to get process
safety related work accomplished if EH&S cannot state clearly where we have
to do process safety." I explained that CMA's intent is that we implement the
Process Safety Code for chemicals and processes which post risk or have some
degree of hazard. I further stated that Senior Management had clearly
instructed the Process Safety Committee not to issue mandates but only provide
guidelines for CMA implementation. He grew more frustrated as we discussed.
I went on to explain that division management approves of the flexibility.
There were other engineers that expressed frustration after Larry raised the
issue of differentiating CMA processes from other OSHA processes.
I related that CMA recognizes that the public is not entirely satisfied
and wants ways to verify that companies are fully implementing what to date
has been voluntary. I told them that CMA was moving to a five year
mandatory implementation and possible third party audits.
After this discussion concluded, I turned to J. Schnaith and asked who
was this individual that was being so demanding. It literally held up the
seminar for this exchange. When Jay told me it was L. Opthof I immediately
remembered his law suit with the company and how he was probably pushing
me for commitment which could lead to violations that he could use against
Easton. When I repeatedly failed to provide him with mandates that he could
use, he became loud and frustrated. (Larry in the past tried to get me to put in
writing that Easton needed to perform a hazard analysis even though the
division was moving the process to Dallas. I refused since the regulation
clearly allowed these reviews to be conducted as late as 5/26/94 and the
division had concrete plans to discontinue the process.)
(CX 213)
[10] Robert DePascale used the same expletive in a handwritten memorandum dated May 18,
1993 to Messrs. Hall and Cimino copied among others to Opthof and Pregent. (CX 111).
There were no apparent repercussions, except for a verbal reprimand.
[11] RX 47 is Nagle's summary of his voice mail from Karen Carter. (Nagle 1975).
[12] The testimony of Nagle and Pregent during the course of the hearing concerning their
meetings and the timing of their decision is at odds with the information they provided and
the testimony they gave in the pretrial and discovery phase of this case. Interrogatory 3
requested that Respondent identify each conversation of Respondent's representatives, agents,
etc. relating in any way to Complainant's termination. The interrogatory response dated
January 27, 1994, identifies only the September 15 meeting in Pregent's office prior to the
termination and omits entirely the crucial September 2, 1993 meeting also in Pregent's office.
(CX 199). That interrogatory response of necessity must have been based on information
given by Pregent and Nagle. The February 10, 1994 affidavits of Nagle and Pregent similarly
omit the September 2 meeting from this chronology referring only to a telephone discussion
presumably prior to September 15. (CX 197-198). Michael Pregent's deposition testimony on
January 24, 1994 similarly gives no indication that the September 2, 1993 meeting took place.
(CX 208, 210 p. 2; Appendix A). Dennis Nagle's deposition testimony on January 25, 1994
also failed to disclose the September 2 meeting in response to questions put to him. (CX 212
pp. 3-4; Seealso Appendix B).
Nagle at the hearing testified:
Q And was there a point where a decision was reached regarding
what you were going to do about Mr. Opthof?
A Yes. On September 2nd I made another routine visit
into the Easton plant, and I talked with Mr. Pregent about this
incident and about Larry's whole performance, and we
agreed at that time to terminate Mr. Opthof.
(Emphasissupplied)
(Nagle 1976)
The failure to disclose the September 2 meeting in the interrogatory response was
deceptive. In the light of the above testimony at Tr. 1976, identifying in the affidavits and
depositions September 15 as the date of the termination decision without also disclosing the
September 2 meeting was of necessity misleading.
[13] Mrs. Opthof's memorandum to Gil Drab, the then plant manager, had covered essentially
the same issues on April 10, 1989. (CX 16; M. Opthof 679).
[14] See Ashland's General Counsel's letter of October 13, 1992 stating in relevant
part:
Finally, I am advised that the plant has recently made the determination
that some of this material, although it has been regularly recycled or reworked
in the past, can no longer be feasibly recycled or reworked. Such material is in
the process of being labeled and characterized for disposal.
(CX 69)
[15] According to Nagle, Complainant in February of 1992 told him that he understood his
rights under affirmative action and was out to collect. (Finding 15). Complainant in his first
contact with James Sterling, Ashland Chemical's Human Resources manager, stated to him
"Oh, so you're going to be another one of those people who sit in Dublin on their . . . and do
nothing." (Sterling 837). Sometime in the period 1987-1990, Complainant embarrassed a
union official by stating in front of employees with respect to the union contract, "I can't
believe you took that contract." (Stout 1110, 1154).
[16] It may be noted that the expletive which Complainant utilized in the Karen Carter
incident was the same expletive used by Robert DePascale, the second in command of the
Easton plant, in a memorandum for which he received no more than verbal censure.
[17] Complainant asserts that the individual hiring him in 1983, Ashland's then manufacturing
manager, was aware of this circumstance and agreed to hire him anyway. The testimony is
not persuasive support for the proposition that the misstatement was unimportant since the
misstatement on the application was made after the manufacturing manager offered
the job to him. (Opthof 51-52). If this misstatement were in fact of no importance, there
would have been no need to make it once the job offer was made.
[18] Employer bears the burden on this point. The burden has been met. The educational
qualification in question is a central job requirement. That factor, considered in combination
with the certification on the job application, supports the inference that Respondent would
have terminated Complainant upon discovery of the false statement.
[19] This finding is not persuasive in light of the other evidence. Clearly, this litigation
contributed to managerial distrust and consequent workplace friction. See note 22,
infra.
[20] Dr. Gregorius' opinion reflects a workplace assessment of Complainant partly, at least, in
conflict with the record. Complainant was not a procrastinator who shirked work.
Accordingly, for that reason Dr. Gregorius' opinion should be discounted as resting in part on
erroneous premise. (See e.g., testimony of Kevin Bowyer Tr. 627 etseq.).
[21] The five proceedings Complainant filed in the period January 1992-September 1992,
were wholly unrelated to the protected activity which is the subject of this proceeding.
[22] He negotiated that settlement while unbeknownst to Ashland's officials he had filed
another lawsuit. (Nagle 1954, 1959). This incident of necessity increased workplace tensions.
[23] In view of this disposition, there is no need to reach Respondent's argument that the
taking of confidential documents by Complainant's wife and his subsequent acquisition of
such documents bars relief. In any event, her testimony that the then-plant manager John
Catlec told her he did not care what she did with certain documents left in the former plant
manager's office is unrebutted. In the case of the memorandum written by her, she felt it
appropriate to keep a copy because she was the author. In short, no clear cut case has been
made that under these facts a firing offense occurred, or that the after acquired evidence rule
applies to this situation. (M. Opthof 689, 696-697, 709).
[APPENDIX PAGE 1]
Appendix A
Q So you were reviewing -- you called Mr. Opthof in a meeting to
review his performance appraisal with him?
A That's correct.
Q And had you made the decision to terminate him prior to calling
him into that meeting?
A Yes, we had.
Q You said we. Who is the we?
A Dennis Nagle and myself.
Q And when was that decision made?
A September 15th.
* * * *
Q Let me backtrack. You indicated that you made the decision on
September 15th. That's when you and Mr. Nagle sat down?
A We sat down and did Larry's performance appraisal. At the
culmination of doing it, the decision was to terminate Larry.
Q And you indicated September 15th. Why that date?
A It's the date that Dennis was at the
[APPENDIX PAGE 2]
facility. We met, talked about it, wrote it, it was reviewed
with counsel, I rewrote it and submitted it.
(Pregent Deposition CX 210 pp. 2-4) Appendix B
Q Was there more -- on September 15, had you planned to meet
with Mr. Pregent and discuss Mr. Opthof or was it did you
happen to be at the plant?
A No. I planned that discussion with Mr. Pregent.
Q And when did you plan the discussion?
A Sometime before September 15th. I don't know the date.
Q An approximation?
A Probably within a week or two before I actually made the trip.
Q And did you have a phone conversation with Mr. Pregent
concerning what would take place on September 15?
A Most likely we talked about needing to meet to discuss Mr.
Opthof's performance.
Q And was there -- what else was said before September 15 --
before the meeting? Was there anything more specific said
other than we need to get together and discuss Mr. Opthof's
performance?
MR. MCCARTHY: Objection. You're referring to the content
of the phone call or --
MR. KOHN The phone call, any communication you had
with Mr. Pregent prior to September 15.
MR. MCCARTHY: On the subject of the September 15th
meeting?
MR. KOHN: Correct.
[APPENDIX PAGE 3]
A If I understand what the question is, you're asking did I
discuss with Mr. Pregent other than the phone call that I referred
to our getting together on September 15th to talk about Mr.
Opthof. The answer is no.
(Emphasissupplied) (CX 212 pp. 3-4)
