1 The ALJ failed to list one of the
environmental statutes under which Masek brought suit, CERCLA. Recommended Decision on Liability
Only at 1; see Letter from Masek to Secretary of Labor, Robert Reich, September 21, 1994. This omission
did not affect the ALJ's analysis and resulting decision, however, as the omitted statute is governed by the
same regulatory requirements as the three included statutes. 29 C.F.R. §24.2 (1999).
2 The ALJ bifurcated the case, held
two hearings -- one on liability and the other on damages -- and issued two decisions: the Recommended
Decision and Order on Liability Only and the Recommended Decision and Order on Damages.
3 Masek simultaneously filed a
complaint with the EEOC alleging age discrimination as the basis for his termination. The EEOC
investigated Masek's complaint and subsequently issued a "no action" letter (Charge No.
22A955356).
4 This Board's review of the ALJ's
decision was automatic at the time this case was heard. 29 C.F.R. §24.6(b) (1997).
5 This abbreviated history should not
obscure the fact that this was a very contentiousness proceeding which included motions to recuse the ALJ
as well as allegations of perjury, falsification of records, forgery, and attorney misconduct.
6 Gamed is the owner of the Jennings
Road property and it was under the Gamed name that Masek kept a record of the work he performed on that
property.
7 At the hearing, Masek initially
denied that he was told to get a fixed price to remove the tanks. Tr. at 72-73. He reversed his position,
however, in subsequent testimony. Id. at 302.
8 Masek admitted that he had nothing
to do with contacting or contracting with the Cardamone firm.
9 In the hearing transcript, AUSA
Sasse is incorrectly identified as U.S. Attorney Sassay.
10 Masek met Sasse at an EPA seminar
on environmental laws which the Company paid for Masek to attend.
11 The ALJ's 20-page recommended
decision contains 14 pages captioned "Summary of the Testimony and Other Evidence at Trial,"
which merely recites the testimony of each witness as it was given. The section of the recommended
decision captioned "Findings of Fact and Conclusions of Law" in turn contains a few bare
findings. Although a summary of the transcript and exhibits provides a useful index to the record, it is not
an adequate substitute for findings of fact. Fortunately, because the Board's review is de novo, the
lack of findings in the ALJ's decision does not prevent us from deciding this case.
12 The ALJ also found that Masek's
internal complaints constituted protected activity. R. D. & O. Liab. at 18. We agree. This Board, and
previously the Secretary, has consistently held that internal complaints constitute protected activity.
Jones v. Tennessee Valley Auth., 948 F.2d 258, 264 (6th Cir. 1991); Passaic Valley Sewerage
Comm'rs v. U. S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 1993); Mackowiak v. Univ. Nuclear
Sys., Inc. 735 F.2d 1159, 1163 (9th Cir. 1984).
13 Masek did not argue, and the ALJ
did not find, that complaints to the Assistant U.S. Attorney and the EPA investigator caused the Company
to fire Masek because there is no evidence that anyone at the Company knew of these contacts. Nor does
the evidence show that Masek was retaliated against because of the May telefax to Zahorodnij or because
of his repeated protestations to his colleagues and supervisors. Apparently no Company official knew of the
May telefax and the office complaints produced no reaction from his supervisors and colleagues.
14 The ALJ excluded the report
stating: "Basically, it doesn't matter what this investigator determined. I'm the one who's making the
conclusions." Id. at 291. The ALJ restated his intention not to consider the report in an Order
issued in January 1996: "I will disregard any references to Mr. Rodenhausen's investigative report and
conclusions contained in the transcript." Order Denying Respondent's Motion to Strike the Deposition
of Investigator David Rodenhausen, January 11, 1996.
15 Masek expressly stated that he had
not served the cover letter on the Company. Letter from Masek to ALJ Lesniak, August 21, 1995. Nothing
in the record indicates that the ALJ informed the Company of the letter or its contents or that he sanctioned
Masek for making this ex parte communication. See 29 C.F.R. §18.38.
I want to advise Your Honor of a serious problem regarding sworn testimony in your
Court; [sic] On June 21, 1995, Cadle Company V.P. Office Manager William E. Shaulis, in
response to direct questioning from this Court, swore on his oath as follows (Tr. 305-306).
ADMINISTRATIVE LAW JUDGE: Did Mr. Cadle ever tell you to terminate Mr. Masek?
MR. SHAULIS: No. I terminated him and, you know, I had no knowledge whatsoever. I
terminated based on his ability to collect which was not satisfactory.
ADMINISTRATIVE LAW JUDGE: Did you ever have conversations with Mr.
Masek excuse me, with Mr. Cadle where he directed you to terminate Mr. Masek.
MR. SHAULIS: No, never.
ADMINISTRATIVE LAW JUDGE: You did it solely on your own initiative?
MR. SHAULIS: That's my job.
ADMINISTRATIVE LAW JUDGE: Is that a yes?
MR. SHAULIS: Yes, sir, that's. . . .
See also Shaulis sworn testimony Tr. 251 "I do the hiring, the firing", [sic]
As Your Honor is aware, Complainant received a copy of U.S. Labor Wage & Hour
Investigator, David Rodenhausen's Whistleblower Narrative by agreement with
U.S. Labor Trial Attorney Sandra B. Kramer.
On page 2 of his Narrative, Investigator Rodenhausen states "Shaulis (see
exhibit B-6), although acknowledging that Cadle gave the order to terminate Masek, is
unclear about when the call actually came to him." Also, on page 3 "Masek was
terminated on August 26, 1994 by William Shaulis/VP-Office Manager, after receiving
instructions from Dan Cadle to terminate Masek."
It is clear that VP-Office Manager William Shaulis lied either to the Court or to a
federal investigator on a critical part of Complainant's case. I respectfully ask for a review
of this matter.
Letter from Masek to ALJ Lesniak, August 21, 1995.
17 Rodenhausen was instructed to base
his answers only on his memory of what Shaulis told him during an interview a year earlier; however, the
investigation report was used to refresh Rodenhausen's memory during the deposition and was made an
exhibit to the deposition transcript even though the ALJ had ruled it was inadmissible. Rodenhausen Dep.
at 8-11.
18 Even if we were to accept the
Rodenhausen testimony as part of the record, we would not conclude that it demonstrates that Shaulis lied
regarding Cadle's role in Masek's firing. For example, Rodenhausen in answer to Masek's questioning
testified as follows:
Q: Were there conversations held prior to the termination of Masek between
Mr. Shaulis and Mr. Cadle relating to that termination?
A: I don't know.
Q: Based on your investigation, did Mr. Cadle ever tell Mr. Shaulis to
terminate Masek?
A: I don't know that.
Rodenhausen Dep. at 11. In addition, Rodenhausen stated that Shaulis never said that he had been told
to fire Masek. Id. at 17-18. The totality of Rodenhausen's testimony does not support the ALJ's
finding that Shaulis lied or his conclusion that the Company's explanation for the termination was
"pretext and untrue."
19 Indeed, Harkless' testimony is
completely lacking in artifice. For example, when questioned by Masek regarding a memo he faxed to the
Fire Department, Harkless berated Masek, not for sending the document, but for failing to abide by the
appropriate office protocol. Harkless: "I don't know it was sent, no. You didn't ever tell me you sent
it. In fact, if you were going to send this memo to some person, then you should have directed it on our
letterhead to that individual and signed it in a formal letter. That's the way work is done at our
company." Tr. at 229.
20 In a short colloquy, Masek alleged
that a subpoena for Daniel Cadle's appearance was served on the Company's attorney. The attorney,
however, denied ever receiving it. Tr. 117-118.
21 After the ALJ's finding of liability,
Daniel Cadle's deposition was taken by Masek in preparation for the hearing on damages. At the deposition,
Cadle testified that he did not cause Masek's firing. Cadle Dep. at 10. Before completion of the direct
testimony, Masek abruptly ended the deposition, stating that Cadle was guilty of perjury. Cadle Dep. at 31.
22 One report was in the name of
Ramsy, Lynn K. The other was in the name of Masek, NKA Ramsey, Lynn K. It is undisputed that this
person is Masek's ex-wife.
23 Although Masek testified that he
had nothing to do with the credit machine incident, his testimony was undercut by a statement he made in
his role as his own attorney. The following colloquy occurred during Harkless' testimony regarding Masek's
misuse of the credit check computer on August 25:
MS. HARKLESS:
He [Masek] had been on the computer, and he was back there
entering information to pull different reports like atlases, credit
bureaus, and so forth in order to get some of the work done on the
collection accounts,
and . . .
MR. MASEK:
I object, Your Honor. Did you physically see Masek at the
computer? I . . .
* * * * * *
ADMINISTRATIVE LAW JUDGE:
What are you objecting to?
MR. MASEK:
Well, objection, Your Honor, in terms of she was
nowhere in site [sic]. Lay a foundation or something.
She's saying I was working on the computer which . . . .
Tr. 195-196 (emphasis supplied). We read this statement as an indirect admission that Masek
was, in fact, at the credit report computer on the day in question.