Mr. Holland said he had no other contact with Complainant on July 5. He
next spoke to Complainant on July 6 by telephone. Complainant was concerned about his
headache and possible exposure. At this point, Mr. Holland told Complainant he would make
arrangements for Complainant to see a physician. (Tr. 160). Mr. Holland telephoned
Complainant again that day. Mr. Norris told Mr. Holland that he would be taking the day off and
see the doctor on Monday, July 8. Mr. Holland denied that he ever told Complainant to take
Motrin for his headache. (Tr. 162).
Mr. Holland stated that nothing was said during these phone conversations
by Complainant about reporting the incident. The release never was reported by Ethox because it
never reached the 10 lb. threshold necessary for reporting. Mr. Holland said he never told
Complainant about any meeting with the "big man." Mr. Holland indicated he had
no idea who this "big man" is, because he works for a woman, Teresa Brookbank.
(Tr. 163-164).
Testimony of Teresa Brookbank
Ms. Brookbank testified that she oversees all the areas of environmental
regulations for Ethox. (Tr. 177).
She was involved in the investigation of Ethylene Oxide release on July 5,
1996. In that investigation, it was determined that the release that lead to the evacuation of the
facility, more likely than not occurred from volatiles in wash water moving through a drain. The
investigation did not go any further than that because the release did not reach the 10 lb.
threshold necessary for reporting. According to Ms. Brookbank, the release was approximately
one-tenth of one pound. (Tr. 177-183).
Ms. Brookbank testified that she had no knowledge that Mr. Norris
[Page 6]
planned to report the incident. (Tr. 183). She stated that the earliest knowledge Ethox had
regarding Mr. Norris' report was Sept. 19, 1996.
Ms. Brookbank testified that Ethylene Oxide is detectable by odor at 700
parts per million. (T. 203). She stated that according to the material data safety sheets, Ethylene
Oxide is described as having an ether like odor. (Tr. 206).
Testimony of Lois Ready
Lois Ready is the industrial coordinator for Dunhill Staffing. (Tr. 209).
She placed Complainant and Mr. Krause in positions at Ethox. According to Ms. Ready, Mr.
Krause had considerably more experience than Complainant. This justified the higher salary that
Mr. Krause received as a maintenance worker. (Tr. 209-211). Complainant often called Ms.
Ready's office to complain about the fact that he wasn't earning enough money. (Tr. 212-213).
On Saturday, July 6, Mr. Holland called Ms. Ready to tell her that
Complainant and Mr. Krause had been exposed to Ethylene Oxide. (Tr. 213 and 215). She then
called Complainant. Complainant told her that he had a headache and felt nauseous. She told
him he could see the doctor on Monday. Because it was a weekend, the company's doctor would
not have office hours until Monday. (Tr. 216). Ms. Ready set up doctor's appointments for both
Mr. Norris and Mr. Krause. (Id. ).
On Wednesday, July 10, Jamie Wood from Ethox called to tell Ms. Ready
that Complainant was not at work. (Tr. 217). Ms. Ready telephoned Complainant to see if he
planned to go back to work at Ethox. Complainant told her that he had a job interview and
would let her know. (Tr. 216-217). When she asked if he was planning to go to work, Mr.
Norris told Ms. Ready, "no, I don't guess I will." She said he was vague. He
concluded the conversation by stating, "no I'm not going back." (Tr. 217-218).
Ms. Ready stated that she received the letter in July from Mr. Holland
stating that Mr. Norris and Mr. Krause had smelled an unrecognized odor. (Tr. 219).
Testimony of James Wood
Mr. Wood is the human resources manager at Ethox. (Tr. 223). He and
the maintenance supervisor, Jimmy Shaw, jointly set the wages for Mr. Krause and Mr. Norris.
The discrepancy between the wages of the two was based upon a disparity in experience. (Tr.
224-225). Mr. Wood had no contact with Mr. Norris after the July 5 incident, nor did he have
knowledge of any complaint filed by Mr. Norris until September 19, 1996. (Tr. 226-228). Mr.
Wood testified that he did not know anything about the events between July 5 and July 10,
except that Mr. Norris did not show up for work on July 10. (Tr. 226 and 229).
[Page 7]
Documentary Evidence
The Respondent submitted a record of the sensory data collected on July 5,
1996, indicating that levels of Ethylene Oxide were detected by the Ethylene Oxide sensors on
that day. (RX 1). The Respondent also submitted two documents describing Ethylene Oxide and
its dangers. (RX 2 and RX 3).
Medical records from St. Frances Hospital were submitted into evidence,
indicating that Complainant suffered from headaches, stomach complaints, and indigestion. The
report, written by Dr. Celia Thomas, indicated that the problems suffered by Complainant on the
date of examination, July 10, 1996, were doubtfully related to Ethylene Oxide exposure. (RX 4).
Dr. Nichols examined Complainant on July 8, 1996. Complainant
reported experiencing burning eyes, loss of breath, dry heaves and coughing. Complainant stated
that about one to two hours after the exposure, he had an upset stomach and diarrhea. These
symptoms continued through the weekend, according to Complainant. His symptoms on July 8,
consisted mainly of a headache, but that he still experienced an upset stomach and some
heartburn. Dr. Nichols concluded that Mr. Norris had sustained a mild degree of Ethylene Oxide
exposure and the symptoms may persist for several hours or at most a few days, and should
resolve without permanent deficit. (CX 2).
Several notes from Pat Holland to Lois Ready were submitted into
evidence. These notes confirmed an Ethylene Oxide leak at the facility, and that Complainant
and Mr. Krause could have received low level inhalation exposure. The final note stated that
"Mitchell Norris chose not to continue his probationary period with our company. Bill
Krause has continued to work and has had no other complaints resulting from the
incident." (CX 3).
Ms. Brookbank wrote a letter to Hashim Safi of the EPA, indicating that
the likely cause of the Ethylene Oxide release was from wash water. The worst case fugitive
release, according to Ms. Brookbank, was 0.108 pounds. There were no readings from the
Ethylene Oxide monitors at the railcar where Complainant and Mr. Krause were working. The
letter concluded that the two employees were exposed to volatiles from the drain line as the wash
water moved through the drain. (CX 4).
DISCUSSION
In order to establish a prima facie case of retaliatory
discharge, the complainant must show that 1) he was an employee of the party charged with
discrimination; 2) he was engaged in a protected activity; 3) respondent was aware of
complainant's participation in the protected activity; 4) he was subjected thereafter to an adverse
action regarding his employment; 5) the protected activity was the reason for the adverse action.
Passaic Valley Sewer Comm. v. U.S. Dept. Of Labor , 992 F.2d 474 (3rd Cir. 1993);
David v. State University of New York , 802 F.2d 638, 642 (2d Cir. 1986).
[Page 8]
Once the Complainant establishes a prima facie case,
the Respondent may rebut the claim with evidence of a legitimate, non-discriminatory reason for
Complainant's discharge. The ultimate burden of persuasion, however, rests with the
Complainant to prove discriminatory intent. See Passaic Valley Sewer
Comm. , 992 F.2d at 482; David , 802 F.2d at 641.
In this case, there is no dispute that Complainant was an employee of
Ethox, the party charged with discrimination. Nor is it disputed that Complainant was engaged in
a protected activity. The Respondent concedes that Complainant may have been exposed to
Ethylene Oxide and thereafter reported a release of Ethylene Oxide to the EPA. Complainant
has failed to carry his burden, however, with regard to the remaining three elements of a
prima facie case.
Complainant has not shown by the weight of evidence that Respondent
was aware of Mr. Norris' participation in the protected activity. Complainant testified that he
told Mr. Holland, the safety manager, that if the company did not report the Ethylene Oxide
release, then he would. Complainant also testified that he told his co-workers the same. There is
no evidence in the record to corroborate Complainant's contention. In fact, the evidence points to
the contrary conclusion. Mr. Holland testified that nothing was said to him about reporting the
release. Mr. Krause, who was present during the initial meeting between Complainant and Mr.
Holland, testified that nothing was said about reporting the release. The earliest date at which
Respondent may have been on notice that Mr. Norris was filing a complaint was July 24, 1996.
That is the date when Complainant alleges the complaint was originally filed. The earliest
documentary evidence in the record of actual notice to the Respondent is a letter dated September
19, 1996 from the U.S. Department of Labor. All of these dates are well after the relevant time
frame of July 5, 1996 (the date of Complainant's exposure to Ethylene Oxide) and July 10, 1996
(the date of Complainant's termination from Ethox).
Complainant has failed to show by the weight of evidence that he was
subjected to adverse action by the employer. The weight of the probative, credible evidence
compels a conclusion that Complainant was not fired, but voluntarily resigned. Mr. Norris' story
is that he overslept the morning of July 10, 1996. He received a phone call from Ms. Ready at
Dunhill, telling him that the personnel manager at Ethox, Jamie Wood, wanted to know why Mr.
Norris wasn't at work. Mr. Norris told Ms. Ready that he overslept, but that he would try to go to
work. Ms. Ready told Mr. Norris that she had to call Mr. Wood. When Ms. Ready called Mr.
Norris for the second time, she told him that Mr. Wood told her that he did not want Mr. Norris
working at Ethox anymore.
Again, Complainant's story is not corroborated by the credible testimony
of either Ms. Ready or Mr. Wood. Ms. Ready testified that she was under the impression
[Page 9]
Complainant quit. According to Ms. Ready, Complainant told her he did not plan to go back to
work at Ethox. There is evidence based on the testimony of Ms. Ready and Mr. Norris that prior
to July 5, Mr. Norris was unhappy with the wages he was receiving at Ethox; that he was
looking for a new job; and that he may even have had a job interview scheduled. Ms. Ready
testified that Complainant was vague in response to her inquiries on the morning of July 10.
There was no direct contact between Mr. Norris and anyone at Ethox on July 10, 1996. Mr.
Wood testified that he did not know anything about the events between July 5 and July 10 except
that Complainant did not show at work. The burden is on the Complainant to establish that an
adverse action was taken against him. He contends that he was fired, but the evidence of record
indicates that he resigned his position voluntarily, without any prompting or pressure on the part
of Respondent.
Complainant has not shown by the weight of evidence that adverse action
was taken against him because he reported the release of EO. Even if Complainant had proved
that he was fired, the record does not support a finding of adverse action because of
Complainant's protected activity. Respondent did not have notice that Complainant was going to
report the Ethylene Oxide release until after July 10, 1996, the date Complainant was either fired
or resigned.3 Even if Mr. Norris was fired,
the fact that he did not show up at work on July 10, 1996 (giving no other excuse than that he
overslept), leads one to conclude that Complainant was fired for a legitimate, non-discriminatory
reason failure to report to work when scheduled.
RECOMMENDED ORDER
It is respectfully recommended to the Administrative Review Board that
the complaint be DISMISSED
DANIEL A. SARNO, JR.
Administrative Law Judge
DAS/STK
Newport News, VA
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 Director, Administrative
Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200
Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board 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 following abbreviations will be
used as citation to the record:
CX- Complainant's exhibit;
RX - Respondent's exhibit; and
Tr. - Transcript.
2 He noted that on July 5, 1996 that
the monitors recorded only 225 parts per million. (Tr. 222). He explained that an odor of
Ethylene Oxide is not discernible until a threshold of 700 parts per million is reached.
(Id. ). Although a later letter written by Mr. Holland indicated that the two workers
smelled something on July 5, Mr. Holland explained that the letter was a poor attempt to explain
to non-expert workers' compensation personnel the exposure on July 5. Mr. Holland was
concerned that the workers' compensation people might simply not understand how anyone could
be sick from something not seen or smelled. (Tr. 221-222).
3 There was some dispute over the
actual date of notice. Respondent contends that the earliest date of notice was September 19,
1996, when it received a letter from Jerry Stuckey. (RX 5). Complainant argued that the
complaint was filed on July 24, 1996. Even if the complaint was filed on July 24, and even if
Respondent was aware that the complaint had been filed, July 24 is still outside of the relevant
time frame for purposes of Complainant's prima facie case.