was to be stored in a dump truck that would be driven to a transfer station at the end of the day. It was Complainant's understanding that the employees had to demolish the interior and exterior of the bathhouse so that it could be renovated by a contractor. According to Complainant, Mr. Graziano explained this to him as an effort to keep costs down on the renovation project. By 9:00 a.m., shortly after receiving this instruction, Complainant left work for the day for personal reasons.

    On March 25, 1997, Complainant reported to work and received his instructions for the day. Complainant was instructed to go to the bathhouse at Sunset Lake and then to Lakeside School for a job. By the afternoon of the 25th, Complainant and Mr. Gray had completed all that Mr. Graziano had instructed them to do on the exterior of the bathhouse and began working on the interior. Complainant and Mr. Gray attempted, to no avail, to remove the columns by unscrewing the screws. They then attempted to remove the columns with an electric drill and to kick them out, but were similarly unsuccessful. Finally, a sledgehammer was employed. Upon Complainant's swing, the column came out of the ceiling and pieces from the ceiling, other debris, and dust fell all over the two employees. During the kicking and hammering, pieces of ceiling tile and dust started coming down. (TR 46) Complainant states this occurred at approximately 2:15-2:30 p.m.

were at the Water and Sewer Department, clearly showed transite tile. (TR 69)

    On April 3, 1997, Complainant again telephoned OSHA because he wanted a definite determination on what to do with the contaminated clothing. It was during this conversation that Complainant was informed he may be protected by law and the OSHA representative recommended Complainant draft a complaint. On April 4, 1997, Complainant dropped off a complaint at the OSHA office at approximately 8:30 a.m. when he was on a coffee break, going to the Dunkin' Donuts "right next door." (TR 86) (ALJ EX 9I)

    An informal grievance meeting was held between Complainant, Mr. Gray, Mr. Hedlund, Mr. Greene and Mr. Graziano. Mr. Hedlund offered to take the contaminated clothes from Complainant and to replace them. Complainant did not want to turn the clothing over to Mr. Hedlund because he did not know whether Mr. Hedlund would know what to do with them. Complainant recalls that during this informal meeting, Mr. Hedlund explained the warning was issued because Complainant had failed to follow the chain of command. During this meeting, which did not result in resolution of Complainant's grievance, one of the gentlemen brought up that Complainant had gone to OSHA. (TR 92) After this, Complainant states "they started putting a little pressure on for what reason I really don't know...my supervisor was saying that I just didn't seem to be working up to snuff any more lately." (TR 93)

133) It is a fact that, at first, management believed it was Mr. Gray who had gone to the Building Inspector's office.

    Mr. Gray has filed a grievance for exposure to asbestos requesting the Town replace his clothing and compensate him at the hazardous duty pay rate. During the informal conference with Mr. Hedlund, the grievance was denied. Mr. Gray then proceeded to Step One before the Commission on April 24, 1997 and, again, the grievance was denied. One of the Commission members told Mr. Gray to shut up and called him a dope. (TR 135) Mr. Gray also later learned of the statement by another Commission member that he would fire the whole crew. (TR 137)

    Mr. Gray admitted on cross-examination that he has been informed by Mr. Hedlund that he was compensated at the hazardous duty pay rate for the two days he spent at the bathhouse. Mr. Hedlund also offered to have Mr. Gray's clothing replaced if they were brought in and given to Mr. Hedlund. Mr. Gray, however, chose not to deliver the clothing after having discussed it with Complainant who indicated OSHA would be instructing Complainant as to what to do with his clothing.

    Ms. Sheila D. Roach, an elected member of the Board and Parks Playground Commission for over twenty (20) years, also testified at hearing. Ms. Roach has known Complainant since he became employed by the Respondent. According to Ms. Roach, she received a telephone call from Complainant on the evening of March 26 for information as to how he could find out whether or not the substance he discovered was asbestos. Ms. Roach, after having made a few phone calls, gave Complainant the name of a man to call. Ms. Roach was present for the Step One grievance meeting on the evening of April 24. Ms. Roach believes a certain Commission member was hostile during that meeting. She also confirms the exchanges between Mr. Gray and the commission member and that another commission member made a statement about firing the whole crew. Ms. Roach also adds that either Mr. Al Graziano or Mr. Dan Graziano, whose testimony is summarized below, made a statement that he would only keep two of the crew. (TR 150-151) Ms. Roach is of the opinion that all of the disciplinary notices given to Complainant should be withdrawn. (TR 152) In fact, Ms. Roach was the one dissenting vote taken on Complainant's grievance.

    Mr. Daniel J. Graziano, member of the Board and Parks Playground Commission for seven years, was also present for the April 24 grievance hearing. Mr. D. Graziano confirmed the exchange between Mr. Gray and a commission member. Mr. D. Graziano adds, however, that the exchange was precipitated by some "sarcastic answers from Mr. Gray and speaking out of turn" which stopped only after a second warning. (TR 190) Mr. D. Graziano voted to deny the grievance and he did so because, in his opinion, Complainant "should have made -- and Mr. Gray for that matter, should have made more of an effort to contact their supervisors or have returned back to the office and let them know what the situation was." (TR 191, 200-201) According to Mr. D. Graziano, the Board decided to deny the grievance to remove the warning

from Complainant's file, having found out that the hazardous pay was already remitted to Complainant and that an offer to replace the contaminated clothing had been extended.

    Mr. Russell Forsberg, employed by the Town as a local building inspector since January 1996, testified at hearing that he was the individual with whom Complainant spoke on the afternoon of March 25 at approximately 3:00 p.m. Mr. Forsberg stated he could not recall if the Complainant identified himself by name, but that he does recall being informed that he was a Park Department employee. The Complainant informed Mr. Forsberg of his experience at the bathhouse, and Mr. Forsberg stated he would check into it. He then unsuccessfully attempted to contact the Parks Department. A short while later, Mr. Forsberg informed Mr. Galewski, another inspector, about the incident and Mr. Galewski made arrangement to go down to the bathhouse and perform a field inspection. The inspection was completed on March 25 sometime between 3:30 and 4:00 p.m. When Mr. Galewski returned to the office, he informed Mr. Forsberg that he was not sure of the material's identity. He then turned over a portion of the ceiling tile to Mr. Forsberg, who transported it for testing. The test results determined that the material was in fact asbestos. (ALJ EX 8D/9B)

    Mr. Hedlund states that on March 25, he was in his office from approximately 1:45 p.m. until 6:30 p.m. At no later than 3:15 p.m., he received a telephone call from the building inspector concerning the possibility of asbestos at Sunset Lake. During the course of this conversation, Mr. Hedlund offered to have Mr. Graziano meet the building inspector at the building and so Mr. Hedlund yelled to Mr. Graziano, who was out in the garage, and told the inspector that Mr. Graziano would meet him there in about ten minutes. According to Mr. Hedlund, it took Mr. Graziano a good ten minutes to leave the building. In less than an hour, between the time Complainant saw the building inspector and the time Mr. Graziano was at the bathhouse, Mr. Graziano was on the site with the building inspector.

    Mr. Graziano figured out the next morning, the morning of the 26th, that it was actually Complainant that went to the building inspector, and not Mr. Gray as was first believed. Mr. Hedlund was advised of a conversation between Mr. Graziano and Complainant, wherein Complainant stated he went to the building inspector himself because he could not get in touch with Mr. Graziano. Accordingly, Mr. Hedlund did not have a conversation with Complainant because Mr. Graziano had already "admonished" Complainant for having taken the matter into his own hands and run with the investigation. (TR 219, 279) Mr. Hedlund states "In my 26 years, I can't think of an employee going in an exploratory nature to another agency of an issue concerning safety, health, welfare of, you know, a working job site." (TR 220)

    Mr. Hedlund recalls that he offered to replace Complainant's clothing during the informal meeting. (TR 223) This offer was again extended during the April 24, 1997, Step One grievance meeting. Again, it was declined. Mr. Hedlund states that Complainant and Mr. Gray both stated during the informal meeting that they were back at the garage at shortly after 3:00 p.m. According to Mr. Hedlund's calculations and his testimony that Mr. Graziano was in the garage, this gave the Complainant and Mr. Gray a good ten minutes, if not twenty minutes, to speak with Mr. Graziano. (TR 225) Instead, they "withheld" the information of their contact with the building inspector.

    Mr. Graziano testified he met Mr. Galewski at the bathhouse at approximately 3:30 - 3:45 p.m. According to Mr. Graziano, Complainant never made contact with him on the Tuesday afternoon. (TR 337) In this regard, Mr. Graziano states he was in the shop between quarter past three to 3:30 p.m. and that he did see Complainant. In fact, Mr. Graziano states he briefly spoke with Complainant about a job that was done that day. There was no mention, however, of a possible asbestos problem.

    In addition to Mr. Graziano's conversation with Complainant on the morning of the 26th, Mr. Graziano again spoke with Complainant that afternoon. According to Mr. Graziano, it was at this time that complainant "accused" him of knowing there was asbestos in the bathhouse before he sent him in there. Complainant did not mention that he had been at the Water and Sewer Department. Mr. Graziano had no problem with Complainant reporting to OSHA on his own time. In conclusion, Mr. Graziano states he had never had much of a problem with Complainant's work and that Complainant is a steady worker. (TR 363)

    This case proceeded to a full hearing on June 3 and 4, 1997. Accordingly, examining whether Complainant has established a prima facie case is no longer particularly useful and this Administrative Law Judge shall consider whether, viewing all of the evidence as a whole, the Complainant has shown, by a preponderance of the evidence, that he was discriminated against for engaging in protected activity. See Hoffman v. Bossert, 94-CAA-4, at pp. 3-4 (Sec'y 9/19/95); Carson v. Tyler Pipe Co., 93-WPC-11, at p. 6 (Sec'y 3/24/95). To carry that burden, Complainant must prove that Respondent's stated reasons for reprimanding Complainant are pretextual, i.e., that they are not the true reasons for the adverse action and that the protected activity was. Hoffman, supra, at p. 4; Leveille v. New York Air Nat'l Guard, 94-TSC-3/4, at p. 4 (Sec'y 12/1/95). It is not sufficient that Complainant establish the proffered reason was unbelievable; he must establish intentional discrimination in order to prevail. Leveille, supra.

posted on occasion by Mr. Hedlund. Mr. Hedlund states there are references in these documents to not leaving a job site without the permission of your employer.

    According to Mr. Hedlund, the essence of the warning is that Complainant took Town time to investigate and make his complaint about the asbestos and that he did not at least notify a management person. (TR 270) Consistent with this, Mr. Hedlund states he has commented on Complainant's activity with OSHA only because it was done on Town time, unknown to the management team. (TR 283)

    Under the ERA it is not permissible to find fault with an employee for failing to observe established channels when making safety complaints. Carson, supra, at p. 5 (Citing Pillow v. Bechtel Constr., Inc., 87-ERA-35, at p. 22 (Sec'y 7/19/93); Pogue v. U.S. Dept. of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991)). An employer may not, with impunity, discipline an employee for failing to follow the chain-of-command, failing to conform to established channels, or circumventing a superior, when the employee raises an environmental health or safety issue. Leveille, supra, at p. 9 (Citations Omitted). See Also West v. Systems Applications Int'l, 94-CAA-15, at p. 4 (Sec'y 4/19/95) ("...it is not permissible to find fault with an employee for failing to observe established channels when making safety complaints.") In Leveille, the Secretary reasoned that an employer's practice of mandating that all environmental complaints be handled internally with no recourse to any external regulatory agencies, depending upon what the person in charge determined to be the correct route, is "clearly...prohibited." Leveille, supra, at p. 8. Such restrictions on communication, the Secretary held, would seriously undermine the purpose of the environmental whistleblower laws to protect public health and safety.

    Accordingly, this Judge rejects Respondent's argument that its claimed chain of command procedure provides a legitimate, non-discriminatory explanation for the warning notice. The aforementioned precedents clearly establish this stated reason as unpersuasive. Furthermore, neither Mr. Forsberg nor Mr. Galewski is aware of any regulation or other procedure that forbade Complainant from going directly to the Building Inspector's office with his concern. Similarly, Mr. D. Graziano testified the Commissioners did not have any procedures for chain of command to report hazardous materials, although, Mr. D. Graziano states, he thinks it would have been standard operating procedure. (TR 196-197)

    Respondent's argument that Complainant was reprimanded for leaving his work area without permission from his employer must stand or fall alone. I find this reason pretextual. In this regard, see Priest v. Baldwin Assoc., 84-ERA-30 (Sec'y 6/11/86) (wherein the Secretary found respondent's stated reason for termination, that complainant was out of his work area without permission, was pretextual because respondent could not verify its witness' testimony that other employees had been similarly reprimanded and the work rules failed to address discipline for being out of one's work area).

    Complainant's is the first instance of an employee leaving a work site without permission. (TR 220, 318) The work schedules supplied by Respondent do not clearly support Mr. Hedlund's claim that this policy was standard operating procedure. (RX 3) The work schedules, which were as recent as June 1997 and stretched as far back as October 1995, generally addressed the procedure for leaving work when taken ill and/or for union business. (RX 3 dated October 1992, para. 18; October 1995, para 9; June 1994, para. 2(p); November 1993, para. 15; and October 1992, paras. 8 and 10) Not one of these schedules reflected a policy regarding leaving a work site to report an environmental safety hazard.

    This Judge finds and concludes the stated reason for the warning notice, that Complainant left his work site without permission, is disingenuous for two reasons. First, there is the evidence that the standard procedure was applied disparately. I cannot logically reconcile Complainant's having received a warning with the fact that Mr. Gray did not receive one. Both Town employees were in the truck, Mr. Gray admitted to having been informed of Complainant's attempt to stop at the Town Office, and his thought that this was a good idea.

    Mr. Hedlund, in an attempt to explain this disparate treatment, states that Mr. Gray was not given a warning for leaving the work site without permission because he was not warned on the morning of the 26th, as Complainant was, and because it was Complainant's idea to go to the Town Office and it was Complainant who actually spoke with the building inspector. As Mr. Gray did not proceed with "follow-up initiatives," he did not get a similar warning. (TR 321) It is Mr. Hedlund's judgment that Mr. Gray was not as culpable as Complainant.

    'Follow-up initiatives' and culpability, however, should have no impact on the efficacy of issuing Mr. Gray a warning. By virtue of his presence, Mr. Gray was as much off work site without permission as was Complainant. It follows, therefore, that Mr. Gray is equally guilty of violating the rule against leaving one's work site without the permission of one's supervisor.

stretched to apply to Complainant's visiting the Town Offices and the Water and Sewer Department, it is dubious that Complainant actually left his work site as is contemplated by the policy. In this case, the testimony of Complainant, Mr. Hedlund, Mr. Graziano and Mr. D. Graziano consistently establishes that the Town Offices were on Complainant's way as he returned to the Park Department office at the end of his work day.

stray remark and respondent's explanation was lame and illogical).

to radio their supervisor is of little to no matter. As previously mentioned, Complainant was under no obligation to contact his immediate and/or second line supervisor. In the absence of such an obligation, this Judge would be no more and no less persuaded if Complainant had, indeed, never made such an attempt at communication.

Complainant also requests certain documents be expunged from his personnel file, that Respondent cease and desist from hits discriminatory treatment and harassment of Complainant and be enjoined from causing his termination, and that Respondent be required to dispose of his contaminated clothing.

of compensatory damages where it was clear from the circumstances that complainant suffered damages but there was scant testimony or documentation to quantify the scope of that damage). The bareboned assessment of Complainant's condition is little more than a recitation of text book symptoms of Major Depression. The record lacks descriptive evidence which would make this Complainant's distress lucid in this Judge's eye. Instead, I am left with a black and white portrait. Accordingly, this Judge finds and concludes a compensatory damage award in the amount of ,500.00 is appropriate in this case.

Attorney's Fee

    In calculating attorney fees under the CAA, 42 U.S.C. §7622(b)(2)(B)(ii), it is usual to use the lodestar method which requires multiplying the number of hours reasonably expended in bringing the litigation by a reasonable hourly rate. In this regard, see generally Clay v. Castle Coal and Oil Co., Inc., 90-STA-37 (6/3/94), at p. 4. The fee petition must be based on records providing details of specific activity taken by counsel and indicating the date, time and duration necessary to accomplish the specific activity. Sutherland v. Spray Sys. Envtl., 95-CAA-1 (ARB 7/9/96); West v. Sys. Applications Int'l, 94-CAA-15 (Sec'y 4/19/95). In addition to an attorney's fee for services, a successful complainant is entitled to reimbursement of the costs in bringing and prosecuting the complaint. Hoffman, supra, at p. 5.

    Attorney Salisbury has personally expended 53.50 hours on this matter at a rate of $225.00 per hour and an associate in his firm has expended 38.75 hours at $175.00 per hour. He sufficiently identifies these services as being performed on various tasks, such as consultation with and correspondence to the Complainant, preparation for and attendance at hearing research of the law and review of the evidence, and preparation of a post-hearing brief. Attorney Salisbury also seeks expenses in the amount of ,269.45 and submits, in conjunction with his fee petition, substantiating invoices for these expenses.

    Respondent has failed to submit any objection to the fees and expenses requested. Accordingly, the fee petition as submitted is hereby approved.

    Based upon the foregoing findings of fact, conclusions of law and upon the entire record, I RECOMMEND Complainant, Theodorus J. Fabricius, be awarded the following remedy:

1) Compensation for the one day Complainant was suspended without pay relative to the tardiness warning;

2) remuneration for the cost of obtaining medical treatment and medications for his emotional upset caused by Respondent's wrongful conduct and medical treatment for Complainant's exposure to asbestos;

3) replacement of Complainant's clothing contaminated with asbestos;

4) compensatory damages in the amount of ,500.00;

5) attorneys fees in the amount of $20,088.20.

It is FURTHER RECOMMENDED that

1) Respondent shall expunge Complainant's personnel file of the warning notice and disciplinary notice issued on March 31, 1997;

2) Respondent shall immediately expunge from Complainant's personnel record any negative reference relative to his protected activity;

3) Respondent shall immediately cease and desist its discriminatory treatment and harassment of Complainant;

4) Respondent shall properly dispose of Complainant's contaminated clothing; and

5) Respondent shall post a written notice in a centrally located area frequented by most, if not all, of Respondent's employees for a period of thirty (30) days, advising its employees that the disciplinary action taken against Complainant has been expunged from his personnel record and that Complainant's complaint has been decided in his favor.

      DAVID W. DI NARDI
      Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review to the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. The Administrative Review Board is the authority vested with the responsibility of rendering a final decision in this matter in accordance with 29 C.F.R. Part 24.6, pursuant to Secretary's Order 2-96, 61 Federal Register 19978 (May 3, 1996).

Boston, Massachusetts
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