Lake v. Martin Gas Sales, Inc., 2001-WPC-3 (ALJ Oct. 4, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 04Oct2001
Case No.: 2001-WPC-00003

In the Matter of

ROBERT LAKE
    Complainant

    v.

MARTIN GAS SALES, INC.
    Respondent

   These proceedings arise under the Federal Water Pollution Control Act 33 U.S.C. 1367 (Act) and implementing regulations. Complainant, Robert Lake, filed a complaint with the U. S. Department of Labor on or about September 19, 2000, alleging he was a protected employee engaged in protected activity within the scope of the Act and was a victim of discrimination as a result of that activity. Specifically, he alleged he was disciplined on September 14, 2000, because of an event (spill) that occurred on August 7, 2000.

   An investigation was conducted by the Occupational Safety and Health Administration (OSHA). In a letter dated June 13, 2001, the Regional Supervisor of OSHA notified all parties that Complainant's complaint had merit. Specifically, it was determined that during investigative interviews by Respondent's attorney, and while appearing before a Grand Jury convened to investigate the clean up procedures used by Respondent following the sulphur spill of August 7, 2000, Respondent suspected that Claimant and other crew members did or would identify violations of the Act involved in the clean up procedures and did or would maintain these procedures were the direct instructions of Respondent's on site manager. As a result of these suspicions, OSHA determined the Complainant, and others, were subsequently disciplined in retaliation and in violation of the Act. The Respondent was ordered to purge Complainant's personnel record and pay to Complainant loss bonus and wages which were withheld through April 1, 2001.

   As a result of this determination, Respondent appealed, and the matter was docketed in the Office of Administrative Law Judges on June 15, 2001, assigned to the undersigned and set for hearing on July 17, 2001. At request of Respondent, and with Complainant's consent, the trial was subsequently reset for September 18, 2001; however, by request of Complainant the matter once again was continued until October 10, 2001, in order for Complainant to continue his effort to obtain counsel. In the interim, Respondent has filed a Motion for Summary Judgement which is the subject of this Order. Complainant, who apparently remains without counsel, has filed no response.

   The thrust of Respondent's Motion for Summary Judgment is simply that Complainant was disciplined on September 14, 2000, for failure to comply with lawful requirements concerning a molten sulphur spill which occurred on August 7, 2000, and it was not until later that Complainant spoke with Government authorities and filed his complaint with the U. S. Department of Labor. Consequently, Respondent maintains that Complainant has failed to establish a prima facie case sufficient to raise an inference that protected activity was the likely reason for the adverse action. Respondent also maintains they have demonstrated a legitimate non-discriminatory reason for Complainant's discipline.

   I do not agree with Respondent's argument, and despite the fact Complainant has filed no response to Respondent's Motion for Summary Judgment, I find that a genuine issue of fact does exist which qualifies this matter for trial.

   Consistently in both his complaint and discovery deposition of August 30, 2001,¹ Complainant maintains that the sulphur spill of August 7, 2000, was swept off the barge and into the Neches River at the direction of management, specifically Joel Herrington, the terminal manager.² Complainant's version of the events was also most immediately known to Respondent, for as stated on page 3 of Respondent's brief, as well as testified to by Complainant in his deposition, and admitted to in the affidavit of Matt Yost,³ Respondent conducted its own investigation following the spill, and Respondent's attorney interviewed Complainant on August 23, 2000. In fact, according to Respondent's brief it was this investigation that caused Respondent to take disciplinary action against the Complainant. In other words, after Respondent's own investigation, which occurred well before the Complainant was disciplined, Respondent knew Complainant placed the blame on management, and for purposes of passing on the Motion for Summary Judgment, I infer that Respondent had every reason to know that was going to be Complainant's story when he did meet with government authorities.

   According to the Act and implementing regulations, an employee is protected if he "has or is about to testified in any proceeding resulting from the administration or enforcement . . . ." of the Act. Therefore, even though Complainant may not have had direct contact with government authorities prior to his discipline, he certainly had internal contacts with the Respondent and its investigators which constituted protected activity under the Act sufficient to escape a Motion for Summary Judgment.

¹ Portions of the deposition are attached to Respondent's Motion as Exhibit A.

² In his deposition Complainant testified that during the clean up, and in front of Mr. Herrington, Complainant suggested the Coast Guard be called, but his remarks were ignored.

³ Mr. Yost is the General Plant Manager of Respondent and his affidavit is Exhibit B of Respondent's Motion.