DATE: November 13, 1992
CASE NO. 89-CAA-2
IN THE MATTER OF
LAWRENCE SCERBO,
COMPLAINANT,
v.
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
RESPONDENT
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
On December 19, 1989, the Administrative Law Judge (ALJ)
issued a Recommended Decision and Order (R.D. and O.) in this
case, which arises under the employee protection provision of the
Clean Air Act, 42 U.S.C. § 7622 (1988). The case is now
before me for review. 29 C.F.R. § 24.6 (1992). As discussed
below, I adopt the ALJ's R.D. and O., which is appended.
1. Statement
Complainant Lawrence Scerbo has been employed by Respondent
Consolidated Edison Company of New York, Inc., since November
1967. Between May and September 1988, while assigned to the
pipeyard of Respondent's Astoria, New York, facility, 1/
Scerbo complained internally about conditions and practices in the yard,
e.q., removing asbestos pipe, repalletizing crystalline
silica fire brick, and the presence of coal tar pits containing
polychlorinated biphenyls (PCBs). The environmental problems
raised by Scerbo required Respondent to suspend work in areas of
the yard in order to test for contamination and institute
safeguards. Hearing Transcript (T.) 118-119. Although Scerbo was
persistent in bringing problems to management's attention and
achieving their correction, the record does not establish that he
engaged in insubordinate behavior in this connection. James
Dorane, Respondent's Superintendent of Central Stores Yard
Operations, reacted angrily to Scerbo's complaints. T. 32-33,
[PAGE 2]
53-55.
On July 30, 1988, Scerbo telephoned the Occupational Safety
and Health Administration (OSHA) to complain, and on September 1,
he participated in an OSHA inspection of the facility as an
employee representative. 29 C.F.R. § 1903.8 (1991). On
September 12, Scerbo and another employee participant in the OSHA
inspection complained to management about being "elbowed" by
Dorane. Scerbo was transferred from the pipeyard to the warehouse
on September 13. Respondent asserts that it transferred Scerbo to
alleviate tension over the alleged elbowing incident.
Scerbo was physically isolated from other employees in the
warehouse, he worked under the surveillance of three cameras, and,
while suffering no reduction in wage rate, he forfeited pipeyard
opportunities to earn overtime.
2. Analysis
Under the burdens of proof and production in "whistleblower"
proceedings, a complainant first must make a prima facie showing
that protected activity motivated the respondent's decision to
take adverse employment action. Respondent may rebut this showing
by producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason. The complainant then must
establish that the reason proffered by the respondent is not the
true reason. Complainant may persuade directly by showing that
the unlawful reason more likely motivated the respondent or
indirectly by showing that the respondent's proffered explanation
[PAGE 3]
is unworthy of credence. Dartey v. Zack Co., Case No. 80-
ERA-2, Sec. Dec., Apr. 25, 1983.
In order to establish a prima facie case, Scerbo must show
that he engaged in protected activity, that he was subject to
adverse action, and that Respondent was aware of the protected
activity when it took the adverse action. Scerbo also must
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action.
Under the CAA, an employee is protected if he:
(1) commenced, caused to be commenced, or is
about to commence or cause to be commenced a
proceeding under this chapter or a proceeding
for the administration or enforcement of any
requirement imposed under this chapter or
under any applicable implementation plan,
(2) testified or is about to testify in any
such proceeding, or
(3) assisted or participated or is about to
assist or participate in any manner in such a
proceeding or in any other action to carry
out the purposes of this chapter.
42 U.S.C. § 7622(a). The CAA seeks to prevent and control
air pollution by regulating emissions into the
atmosphere.2/ CAA regulations establish ambient 3/
air quality standards for sulfur oxides, particulate matter,
carbon monoxide, ozone, nitrogen dioxide, and lead. 40 C.F.R.
Part 50 (1991). Hazardous air pollutants, including asbestos,
also are regulated. 40 C.F.R. Part 61 (1991).
Scerbo made a prima facie showing. A complaint about an
unsafe or unhealthful condition communicated to management or to
an outside aqency such as OSHA is protected under this type of
statutory language. Kansas Gas & Elec. Co. v. Brock, 780
F.2d 1505, 1510-1513 (lOth Cir. 1985), cert. denied, 478 U.S.
1011
[PAGE 4]
(1986); Mackowiak v. University Nuclear Systems. Inc., 735
F.2d 1159, 1162 (9th Cir. 1984). Over a five-month period, Scerbo
made both internal and external complaints about the release of
asbestos and crystalline silica into the atmosphere and
participated in a regulatory inspection. His complaints thus
"touched on" public safety and health, the environment, and
compliance with the CAA.4/ Johnson v. Old Dominion
Security, Case Nos. 86-CAA-3, et seq., Sec. Dec., May
29, 1991, slip op. at 13-15 and n.8, citing Aurich v.
Consolidated Edison Co. of New York, Inc., Case No. 86-CAA-2,
Sec. Remand Dec., Apr. 23, 1987, slip op. at 4.
Transfer to a less desirable job may constitute adverse
action. DeFord v. Secretary of Labor, 700 F.2d 281, 283,
287 (6th Cir. 1983) (although rate of compensation not changed,
transferred employee "found he was not welcome, that he was no
longer a supervisor, and that his job was by no means secure").
The CAA prohibits discrimination "with respect to [an employee's]
compensation, terms, conditions, or privileges of employment"
because of the employee's protected activity. 42 U.S.C. §
7622(a). I find that Scerbo's transfer from the relatively
mobile, outdoor pipeyard job to the constrained, isolated
warehouse position together with a loss of overtime opportunity
was sufficiently unfavorable to constitute "adverse action."
SeeHolsey v. Armour & Co., 743 F.2d 199, 206-212
(4th Cir. 1984), cert. denied, 470 U.S. 1028 (1985)
(manipulation of an employee's bumping privileges, preventing a
black manager from supervising white employees in her department,
and systematic harassment are examples of adverse action). See
alsoKlein v. Indiana Univ.Trustees, 766 F.2d
275, 277-278, 280-281 (7th Cir. 1985) (altering an employee's work
schedule); Griffin v. Michigan Dept.of Corrections,
654 F. Supp. 690, 695 (E.D. Mich. 1982) (false accusations and
setups, intimidating comments, threats to terminate employment);
Sparrow v. Piedmont Health Sys. Agency, 593 F. Supp. 1107,
1118 (M.D.N.C. 1984) (denial of customary employment
recommendation).
Causation also is shown. The decision to transfer Scerbo
closely followed his protected activity. SeeCouty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v.
Baldrige, 759 F.2d 80, 86 and n.6 (D.C. Cir. 1985); Burrus
v. United Telephone Co. of[PAGE 5]
Kansas, Inc., 683 F.2d 339, 343 (lOth Cir.), cert.
denied, 459 U.S. 1071 (1982) (causal connection established by
showing that employer was aware of protected activity and that
adverse action followed closely thereafter). In June 1988,
Scerbo's second line supervisor (Dorane), his first line
supervisor (William Brady), and Respondent's personnel manager
rated Scerbo's work performance in the satisfactory and superior
categories. Exh. CX-3. When Scerbo received the evaluation on August 2, his
supervisors told him that he "was doing a great job [and] had a
very good report." T. 72. On August 16, Scerbo complained to
Rudy Roberts, Respondent's Safety Director, about Dorane's
improper handling of asbestos pipe. T. 53-55. Roberts agreed
that the procedure was improper and directed Dorane to stop work.
Dorane impugned Roberts' knowledge of correct procedure and,
referring to Scerbo, asked Roberts: "You're going to listen to
him?" T. 55. Dorane confronted Scerbo angrily, stating: "Now I
know you're breaking chops." T. 55. On August 18, Scerbo was
"written up" by management for the allegedly "poor" manner in
which he had made safety and health complaints on seven occasions
in July and August 1988. T. 76. He participated in OSHA's
September 1 inspection. His September 13 transfer followed.
Moreover, Clifford Smith, Respondent's General Manager of the
Central Stores Department, admitted transferring Scerbo because of
his complaints. As reflected above, the ALJ's finding that Scerbo
was a "good worker" is supported by record evidence. General
Manager Smith testified, however, that a reason for the transfer
was "a long line of problems and difficulties with Mr. Scerbo and
his supervisors that had preceded [the September 12, 1988,
elbowing] incident throughout the summer months." Exh. RX-1 at
19. As there were no "problems" or "difficulties" other than
Scerbo's safety and health complaints, Smith apparently was
referring to this activity which included complaints protected
under the CAA. Later in his testimony, Smith expanded on the
perceived problems and difficulties:
Mr. Scerbo was identifying any number of
problems relative to the operations of the
yard. It could have been situations where
trucks would be onloading or offloading; it
was situations having to do, for example,
with the incident . . . about the asbestos in
the pipe. It appeared that Mr. Scerbo had
embarked upon, in effect, a crusade to
somehow interfere or dominate or have his
will relative to any of the operations that
were occurring each day. Mr. Dorane was
[PAGE 6]
specifically concerned with how to manage
that situation and to be able to resolve the
conflict and to minimize the impact on the
operation of this problem.
Exh. RX-1 at 53. I agree with the ALJ that Scerbo's transfer was
motivated by his protected activity.
The ALJ also found Respondent's proffered motivation -- that
it transferred an allegedly "belligerent" and "disruptive" Scerbo
to alleviate tensions -- to be pretext. I agree that Respondent
seized upon this motivation to rationalize its action, and I
expressly adopt the ALJ's findings on this issue, R.D. and O. at
3, as supported by the record evidence.5/ Having observed
Scerbo and Dorane when testifying, the ALJ was uniquely suited to
judge the degree of conflict. R.D. and O. at 3, paragraph 4.
ORDER
Respondent Consolidated Edison Company of New York, Inc., is
ordered to offer Complainant Lawrence Scerbo reinstatement to his
former position in the pipeyard. Counsel for Complainant are
granted a period of 20 days from receipt of this Decision and
Order to submit any petition for costs and expenses, including
attorneys' fees. 42 U.S.C. § 7622(b)(2)(B). Respondent
thereafter may respond to any petition within 20 days of its
receipt.
SO ORDERED
[PAGE 7]
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
1/ At the Astoria facility, Respondent receives material
from vendors, inspects and stores the material, and then issues it
to "company field forces" working primarily on openings in city
streets. Exh. RX-1 at 7-9. Material stored in the six-acre
outdoor pipeyard generally is larger than that stored inside the
warehouse. Id. In the pipeyard, Scerbo "drove a forklift,
. . was put on a special cleanup detail of reorganizing the
pipeyard and [would] pick out duct and load trucks." Hearing
Transcript (T.) 28. When asked where his yard duties took him,
Scerbo testified:
I was all over the Con Edison plant. In the
warehouse, I would bring in material. I
would go to the power house and drop off
material or unload drums. I would work in
the pipeyard. I would work on the cable
platform -- wherever they needed me, that's
where I went. All over Con Edison.
T. 29.
2/ A purpose of the CAA air quality and emission
limitations is "to protect and enhance the quality of the Nation's
air resources so as to promote the public health and welfare and
the productive capacity of its population." 42 U.S.C. §
7401(b)(1) (1988).
3/ Ambient air is "that portion of the atmosphere, external
to buildings, to which the general public has access." 40 C.F.R.
§ 50.1(e) (1991).
4/ Protection is not dependent on actually proving a
violation. Yellow Freight System. Inc. v. Martin, 954 F.2d
353, 356-357 (6th Cir. 1992). Similarly, the violation need not
comprise the only or even the predominant subject of the
complaint. Id.
5/ Respondent complains that the ALJ inappropriately ruled
on the credibility of General Manager Smith, whose testimony was
offered by deposition, and that it "was denied the right to have
Mr. Smith testify in person." Resp. Br. at 2. The ALJ's
procedure does not appear irregular. Smith was not available to
testify at the hearing. Respondent's counsel offered to present
Smith either "at some other time or via deposition" and
subsequently arranged with Scerbo's counsel for a deposition.
T. 125; Exh. RX-1. The ALJ was not obligated to continue the
hearing because of Smith's absence and sought to accommodate
Respondent by holding the record open for receipt of the
deposition. See 29 C.F.R. §§ 18.22, 18.23,
18.28, 18.54 (1992). Moreover, the particular credibility
determinations turn on evidentiary inconsistencies which did not
require the ALJ to witness Smith's demeanor. See R.D.
and O. at 3, paragraphs 2 and 3.
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: Dec. 19, 1989
CASE No. 89-CAA-00002
IN THE MATTER OF
LAWRENCE SCERBO
Complainant
v.
CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.
Respondent
BEFORE: AINSWORTH H. BROWN
Administrative Law Judge
RECOMMENDED DECISION AND ORDERProcedural History[PAGE 8]
This matter is presented upon a request for hearing that was
made by telegram on December 16, 1988 by the Respondent in contest
of a Department of Labor notice dated December 12, 1988. The
notice found that the Respondent had violated the Clean Air Act
whistleblower protection provision and required it to transfer the
Complainant back to his original position in the pipe yard to
"Abate the violation".
This matter was received on my docket on December 22, 1988.
In view of the season of the year the prospects for accomplishing
a hearing according to the pertinent time constraints did not
appear possible. Therefore, the parties were ordered to perform
certain acts in preparation for hearing by notice dated January 4,
1989. There was a request to postpone compliance with the Order
by letter dated January 20, 1989 in view of arbitration
proceedings. This was granted and the parties were given to
March 27, 1989. Further time was requested to April 12, but on
that date a joint notice was made to proceed with this action.
Consequently, a hearing was scheduled for June 22, 1989.
On May 4 the parties requested a change of the hearing
location and a continuance. That was granted and the matter was
reset for August 7, 1989. Another continuance was sought, but
that was denied and so the hearing took place in New York, New
York on August 7, 1989.
The record was held open to receive the deposition transcript
for a witness for the Respondent who was unavailable to testify
on August 7. The transcript of a deposition for Clifford Smith
was received into the record as RX 1.1/ Following the
closing of the record the parties were afforded an opportunity to
provide written argument to be furnished by November 10, 1989
whereupon the matter became ready to decide.
EVALUATION OF EVIDENCE ANDFINDINGS OF FACT AND CONCLUSIONS OF LAW
The crux of the matter is whether the Complainant has established a
basis for the relief he has sought based on discriminatory action taken
by his employer because of his protected action involving whistleblowing.
The Respondent has raised an issue respecting the fact that Mr. Scerbo
engaged in protected activity in calling attention to certain
situations, apparently investigated by the employer and the federal
occupational health agency. In reading the argument the most charitable
characterization I can make is that it is hyper-technical. To state
that the complaints of noxious matter getting into the air at the Con Ed
[PAGE 9]
warehouse as not affecting "public" air is like saying that there is an
invisible wall separating the warehouse from the adjacent locality. If
the elements got in the air that got into the public air. I find that
the Company's argument is wholly meritless.
I must consider whether the transfer out of the pipe yard to inside
positions within the warehouse involved a discriminatory action. To
decide this I must look to the reason for the transfer as expressed by
the company was merely pretextual or valid and unrelated to the
protested activity engaged in by Mr. Scerbo. His counsel requested other
relief in the general nature of compensatory damages, but despite being
cautioned he provided no evidence to support compensatory damages. The
request for counsel fees; however, can be granted with favorable
recommendation and adoption thereof by the Secretary of Labor.
1/ Claimant's exhibits are CX, and Respondent's exhibits are RX.
The reason offered by Con Ed for transferring Mr. Scerbo out of the
yard and into the warehouse was to separate him from supervision by Mr.
Dorane who Mr. Scerbo claimed had bumped or jostled him on occasion.
The transfer was to reduce tension between the two of them. The
suggestion was made by Mr. Dorane to his supervisor, Mr. Smith, who
concurred. The Complainant argued that the action had the effect of
cutting him off from contact with his fellow union members who reported
safety and health violations to him, but who were reluctant to make
complaints themselves. Mr. Scerbo functioned as a shop steward. The
thrust of Mr. Dorane's testimony was that Mr. Scerbo was a good worker
and the totality of the record is that the company agreed with at least
some of the matters the Complainant brought to its attention by altering
its storage practices.
Mr. Smith's testimony provides an interesting contrast to Mr.
Dorane's representations. Mr. Smith's description of events would lead
one to believe that the transfer was done to remove a disruptive and
belligerent employee from one place to another whereas Mr. Dorane's
portrayal was that the alleged bumping complaint was the sole basis for
the transfer in the context of changing from one supervisor to another.
Mr. Dorane did not describe any disruptive behavior.
The relevance of Mr. Scerbo's evaluation is patent in this context
in that both Mr. Brady and Mr. Dorane signed the evaluation on June 16,
1988, shortly before the occurrence of the operative events generating
this proceeding. One has to question how an employee with several
superior ratings and satisfactory ones in the areas relating to
interpersonal dealings gets to be disruptive and belligerent so shortly
[PAGE 10]
thereafter. One can reasonably infer that it is Mr. Smith's frustration
with Mr. Scerbo's whistleblowing that was thusly characterized (RX - 1,
TR - 52-53).
Despite Con Ed's protestation to the contrary I find that the stated
reason for the transfer was pretextual. Just because an employee makes
a complaint and files a grievance concerning a supervisor does not mean
that the supervisor and the employee must be physically separated and
that the one can not supervise the other. The history here while
disclosing two areas of modest conflict between the two fails to indicate
more than that. There is no evidence of ongoing conflict, argument, or
resistence to supervision. The evidence is to the effect that Mr.
Dorane regarded Mr. Scerbo as a good worker who functioned in the highest
estimation within several parameters of performance. The real effect of
the transfer was to remove Mr. Scerbo from the locale where he was
observing and reporting on a situation of potential contaminating
influence. What happened is that the whistleblower was removed from the
area where the whistle would most likely be blown. The chillling effect
on fellow workers' propensity to report problems would be the
unmistakable message sent by the company in moving Mr. Scerbo.
The contention that he suffered no damage because he suffered no
loss of pay or fringe benefit is too narrow a focus upon which to
consider the question of whether discrimination was visited upon the
Complainant. To abate the discrimination all that is required is to
restore him to his previous outdoor job, and to compensate him and his
counsel for the costs of maintaining this litigation. If proof of lost
time and medical expenses would have been provided I would have been
inclined to recommend compensation therefor, but without such proof I am
not so inclined.
Con Ed contends that Mr. Scerbo is in the wrong forum; however, no
authority is cited for the proposition.
RECOMMENDED ORDER
l. Consolidated Edison is ORDERED to transfer Lawrence
Scerbo back to his former position, outside in the pipe yard.
2. It is further ORDERED to compensate him for the
reasonable costs or legal fees incident to his pursuit of his
whistleblower complaint before the U.S. Department of Labor.
[PAGE 11]
Ainsworth H. Brown
Administrative Law Judge
