This is a proceeding arises under the employee protection provisions of the:
1. Energy Reorganization Act ("ERA"), 42 U.S.C. 5851;
2. Solid Waste Disposal Act ("SWDA"), 42 U.S.C. § 6971(a) et seq., also known as the Resource Conservation and Recovery Act ("RCRA");
3. Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9610, ("CERCLA");
4. Safe Drinking Water Act, 42 U.S.C. §300j-9[i] ("SDWA");
5. Toxic Substances Control Act, 15 U.S.C. §2622, ("TSCA");
6. Water Pollution Control Act, 33 U.S.C. §1367, ("WPCA"); and,
7. The additional statutes and implementing regulations at 29 C.F.R. Parts 18 and 24.
Such provisions protect employees from discrimination for attempting to carry out the purposes of the environmental statutes of which they are a part, and specifically for preventing employees from being retaliated against with regard to the terms and conditions of their employment for filing "whistleblower" complaints or for taking other action relating to the fulfillment of environmental health and safety or other requirements of these statutes.
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Ms. Trueblood complained that the respondents had unlawfully disciplined her, discriminated against her, or, in the case of HES, failed to hire her.
Complainant, Donna L. Trueblood, timely filed whistleblower complaints against the Respondents: on April 9, 2002 (OSHA #5-1680-02-059)(OSHA #5-1680-02-060); June 5, 2002 (OSHA #5-1680-02-081); July 17, 2002 (OSHA # 5-1680-02-106); and, October 25, 2002 (OSHA #5-1680-03-018) alleging violations of WPCA, SDWA, TSCA, SWDA, CAA, and ERA of 1974.
Substance of Complaints
In her first combined complaints, Donna L. Trueblood, alleged that: (1) on or about March 11, 2002, VRA subjected her to a hostile work environment and hostile interrogations; (2) on or about March 11, 2002, VRA subjected her to a constructive temporary layoff; (3) VRA restrained her and other employees from engaging in protected activities; (4) VRA and HES prohibited her from applying for promotions and transfers, or retaliated against her for protected activity by not permitting her to interview for a customer service representative ("CSR") position with HES.
In her second complaint, Donna L. Trueblood, alleged that VRA retaliated against her because of protected activity by: (1) prohibiting her from working overtime; (2) failing to notify her of training opportunities while she was on leave; (3) subjecting her to close supervision; (4) notifying her that she would be recommended for a "minor offense" for excessive absenteeism and docking her pay on May 17, 2002; (5) failing to offer her early release during a work lull, on or about May 22, 2002; (6) issuing a "major offense" on May 31, 2002; and, (7) on June 3, 2002, suspending her for a week without pay and good cause.
Ms. Trueblood's third complaint alleges VRA retaliated against her because of her protected activity by: (1) giving notice, on June 24, 2002, of its intent to eliminate its short-term disability program; and, (2) on July 11, 2002, requiring her to provide a releases from Gateway drug rehabilitation program.
Her fourth complaint alleged that VRA retaliated against her because of her protected activity by discharging her on October 25, 2002.
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The Regional Administrator for the Occupational Safety and Health Administration, Cleveland, Ohio, (hereinafter "OSHA") made various findings on: May 23, 2002 (finding violation as alleged in April 9, 2002, complaints); June 7, 2002 (finding no violation based on June 7, 2002, complaint); August 6, 2002 (finding no violation based on June 5, 2002, complaint); September 5, 2002 (finding no discrimination); and, November 7, 2002 (referring October 25, 2002, discharge complaint to ALJ).
Relief Sought
The Complainant and Respondents objected to OSHA's findings and, on June 10, 2002; June 24, 2002; August 6, 2002; September 16, 2002, filed requests for formal hearings. The relief Ms. Trueblood seeks includes:
1. Reinstatement at VRA as a service technician with the drum crew and restoration of all benefits, terms and privileges of employment.
2. Reinstatement of leave time used between March 13 and May 6, 2002, on the deposition dates (August 5, 6, 7, 19, 28, 30, and Sept. 3, 2002) and for the first eight days of the hearing.
3. Back pay, overtime, benefits, reinstatement of seniority and tenure, and other orders necessary to make her whole.
4. Abatement of respondents' unlawful practices and policies.
5. An order expunging Trueblood's disciplinary record and any references thereto.
6. An order prohibiting respondent from disclosing any disparaging information about her to prospective employers or otherwise interfering with any applications she may make.
7. Compensatory damages for emotional distress and loss of reputation.
1 Complainant's exhibits are marked ("CX,"); Administrative Law Judge Exhibits ("ALJ"); Respondent VRA's exhibits "VRAX" Respondent Heritage ("HESX"); Joint exhibits "JX"; depositions ("Dep."); and, the transcript testimony "TR." Each reference to a TR page number or deposition will refer to the witness whose testimony is being discussed, unless otherwise indicated.
2 I ruled punitive damages were available only under the Toxic Substances Act, 15 U.S.C. § 2622(b) and the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)(B)(ii). See, 20 C.F.R. § 24.7(C)(1).
3 The Complainant moved for the admission of CX 102 for identification post-hearing. VRA objected. I exclude the proposed exhibit and do not consider it.
5 Interestingly, HES LLC has a nearly identical policy, according to Mr. Avdellas. But, the HES policy lets the supervisor decide whether the employee may take an issue to an outside agency. (TR 1464).
7 Lancaster was discharged by VRA on July 27, 2002. (TR 1323-4).
8 According to Lancaster, Ms. Trueblood had provided him with information. (TR1300).
9 Mr. Lancaster testified that Biscella's honesty "goes with the wind." (TR 1315).
10 She filed her first complaint on April 9, 2002.
11 Ed Davis, a VRA supervisor who knew Ms. Trueblood, testified that Trueblood was irritated and/or angry about meeting with Sigg.
12 Ms. Moore testified that HES has 40-45 CSRs and has never had a requirement for a degree. (TR 2234).
13 Both Ms. Knowles and Steve Lorah, whose testimony about one side of a telephone conversation I give little credence, who reported to the Merit Committee, reported the term "vacation" was not raised in the conversation. (TR 2425).
14 The Disciplinary Committee members include: the affected person's department manager; HR manager; Safety Manager; and, the Area/Group Manager if applicable or in the Department Manager's discretion. (VRAX 1). The Committee investigates and proposes disciplinary action to the Plant Manager and VP Marketing for approval. (VRAX 1).
15 The MERIT Committee is made up of employees from each department which informally reviews discipline in comparison with a VRA "values" wheel (CX 55) and makes recommendations to management. (TR 1489-90).
16 Indeed, not only had Ms. Trueblood been disciplined for the May 17, 2002, absence as excessive, she was also not paid for it.
17 Ms. Moore, HES HR and Safety Manager, testified VRA is an affiliate of HES LLC. (TR 2269).
18 In Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984), the Ninth Circuit held the Mt. Healthy "dual motive" analysis was permissible under the ERA.
19 In Bechtel, the court protected a carpenter's acts disagreeing with his foreman about the procedure for protecting radioactive tools. In American Nuclear Resources, the court declined to find a complaint regarding an isolated event alleging no safety breach constituted a protected activity. The Stone court found the complainant's speech in a meeting with his co-workers constituted protected activities because he was acting in furtherance of safety compliance and it served as another notice to the employer. A complaint to a mine safety committee would have been sufficient in Phillips, infra at 778.
20 I note, however, that the U.S. Court of Appeals for the Fifth Circuit has repeatedly held that internal complaints are not protected activity within the context of the Energy Reorganization Act. See Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984); Macktal v. U.S. Department of Labor, 171 F.3d 323 (5th Cir. 1999).
21 The Court's statement, in Stone at 1574, that "[W]histleblowing must occur through prescribed channels" refers to the channels set forth in the statute, not to channels established by an employer.
22 In Hasan v. Commonwealth Edison Co., ARB No. 00-028, ALJ No. 2000-ERA-1 (ARB Dec. 29, 2000).
23 An employee's motive in making the underlying charge is immaterial. Even if an employee made a charge to protect her job, the charge itself must be judged on whether it was made in good faith. Johnson v. University of Cincinnati, 215 F.3d 561 (6th Cir. 2000).
24 As complainant's counsel points out, this testimony seriously undermines VRA's burden of showing they would have discharged her absent the protected activity. (Brief at 46, n. 27).
25 Avdellas had seen Trueblood's OSHA complaint before Zaengerle informed him of the hiring freeze. He had forwarded the complaint to Tonya Moore, HES' HR and Safety Manager.