ARB CASE NO. 96-051
ALJ CASE NO. 93-ERA-00006
DATE: July 14, 2000
In the Matter of:
EDWIN A. MELENDEZ,
COMPLAINANT,
v.
EXXON CHEMICALS AMERICAS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Valorie W. Davenport, Esq., Robert Fugate, Esq., Houston, Texas
For the Respondent: F. Walter Conrad, Esq., Teresa S. Valderrama, Esq., Baker & Botts, L.L.P. Houston, Texas
DECISION AND ORDER OF REMAND
This case arises under the employee protection provisions of the Clean Air Act
(CAA), 42 U.S.C. §7622 (1988), and the Toxic Substances Control Act (TSCA), 15 U.S.C.
§2622 (1988) (hereinafter "the environmental acts"). Complainant Edwin A.
Melendez charges Exxon Chemicals Americas, Respondent, with having discharged him from
employment and otherwise having discriminated against him in retaliation for his having engaged
in protected activity, in violation of the employee protection provisions of the environmental acts.1[Page 2]
1 Although the complaint in
this case also cited the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851, see
Complainant's Exhibit 1, Melendez proceeded before the Administrative Law Judge on remand under
the CAA and the TSCA only. Sept. 14, 1994 Hearing Transcript at 56-7; see Complainant's
Post-hearing Brief at 10.
2 The following
abbreviations are used herein for references to the record evidence: HT, Hearing Transcript; CX,
Complainant's Exhibit; RX, Respondent's Exhibit; Dep., Deposition. Unless otherwise indicated, HT refers
to the transcript of the hearing held on September 14-16, 19-21 and October 11-13, 1994. As noted by the
ALJ, R.D.O. at 13 n.1, the transcript of the October 13, 1994 proceedings erroneously duplicates the use of
page numbers 2021 through 2130, which are properly included in the October 12, 1994 transcript. In the
interest of clarity in referring to pages numbered 2021 through 2130, we have therefore identified the volume
in which the pages are found. For references to the briefs filed by the parties before this Board, the following
abbreviations are used: Melendez' Brief in Opposition of the Recommended Decision and Order Dismissing
Claim of Administrative Law Judge Kerr, Comp. Brief; Exxon's Brief in Response to Complainant's
Opposition to the Decision and Order of the Administrative Law Judge, Resp. Brief; Melendez' Rebuttal to
Exxon, Comp. Reply Brief. Although not referred to in this decision, Exxon's Notice of Record Errors, dated
May 10, 1996, and Melendez' Response to Exxon's Notice of Record Errors, dated May 24, 1996, have been
fully considered in the rendering of this decision.
3 Since the time that this
appeal was filed, the Secretary's authority to issue final agency decisions under the employee protection
provisions of the environmental acts, and similar statutes enumerated at 29 C.F.R. §24.1(a), was
delegated to this Board. 61 Fed. Reg. 19978 (1996).
4 Melendez also filed with
the Department of Labor a complaint under the Occupational Safety and Health Act of 1970, as amended,
29 U.S.C. §651, et seq. In the Secretary's Decision and Order of Remand issued on March
21, 1994, which is summarized infra, the Secretary held that the ALJ did not have jurisdiction to
adjudicate the OSHA complaint. Secretary's Decision and Order of Remand at 8. The Secretary's remand
order noted the confusion concerning the scope of the complaint that Melendez had filed under the
environmental acts. Id. at 1-2 n.1; 7-8. This confusion does not appear to have been resolved by
the Secretary's remand order, as it is also apparent in the ALJ's conduct of the hearing on the merits of the
complaint in September and October 1994, and the ALJ's resulting recommended decision and order.
5 Although the question
of whether Exxon actually committed violations of OSHA is not at issue in this proceeding, certain activities
undertaken by Melendez that are clearly related to occupational health issues under the OSHA may also
constitute activity protected under the TSCA and the CAA, as addressed in the protected activity discussion
infra.
6 Fischer, Melendez'
second-level supervisor while Melendez was working in the toolroom, testified that a decision-making leave
day was a disciplinary action in which the employee is sent "home for a day with pay" and asked
to "spend some time trying to decide whether they wanted to return to the job . . . ." HT at 1605.
If the employee does wish to return, the employee is asked "to sign a letter to that effect at the end of
that decision-making leave." Id. at 1606.
7 The record contains
documents indicating that physicians engaged by Melendez had corresponded with BOP company physicians
over a number of years regarding their concerns about the effects of Melendez' exposure to chemicals at the
BOP. See n.20 infra. In addition, various BOP personnel testified that they were aware of
Melendez' health problems and Melendez' belief that they were aggravated by chemical exposure at work.
HT at 1421-23 (Cognata), 2169-71 (Maier); CX 197 (Leon dep.) at 148-53; CX 198 (Starcher dep.) at 289-
90. Melendez testified that over the years his supervisors had occasionally responded to his complaints about
not feeling well while working in the process unit area by temporarily placing him in an air-conditioned
office to work. HT at 403-05.
8 We have, however,
reviewed the evidence of record and included references to that evidence as appropriate to illuminate the
issues discussed in this decision. Such references to the evidence -- many of which highlight conflicts in the
evidence that require resolution by the ALJ on remand -- do not indicate that this Board has found any
particular facts irrefutably established by the record that is currently before us.
9 This case does not
involve a question of when the termination action triggered the thirty-day filing period provided by the
pertinent statutes. Melendez was advised of the termination and that action became effective on the same
day, R.D.O. at 29. See generally Prybys v. Seminole Tribe of Florida, ARB Case No. 96-064, Nov.
27, 1996, slip op. at 5-7 (discussing date on which action accrued in case in which termination decision was
communicated to complainant prior to the effective date of the termination) and cases there cited.
10 The time
computation provision found at 29 C.F.R. §18.4(a) is contained within the Rules of Practice and
Procedure for Administrative Hearings before the Office of Administrative Law Judges of the DOL. 29
C.F.R. Part 18. Although Section 18.4(a) is thus not controlling in regard to the filing of the complaint with
the DOL Employment Standards Administration, the regulations applicable to the processing of
whistleblower complaints at 29 C.F.R. Part 24 do not contain a time computation provision. The Secretary
and this Board have consistently looked to the regulations provided at 29 C.F.R. Part 18, along with the
Federal Rules of Civil Procedure, for guidance in resolving procedural questions that arise in the processing
of whistleblower complaints and which are not specifically addressed by the regulations at 29 C.F.R. Part
24. See, e.g., High v. Lockheed Martin Energy Systems, ARB Case No. 97-109, Nov. 13, 1997, slip
op. at 4 and cases there cited; see generally 29 C.F.R. §18.1(a) (requiring application of FRCP
to proceedings before the OALJ "in any situation not provided for or controlled by these rules, or by
any statute, executive order or regulation."). Application of the time computation provision of the
Federal Rules of Civil Procedure would compel the same result as Section 18.4(a). See Fed.R.Civ.P.
6(a).
11 Linebaugh testified
that he filed the complaint letter on Melendez' behalf "to preserve his action" but that
Linebaugh's law firm "did not feel comfortable" accepting Melendez' case, and
"encouraged him to seek counsel that handled these types of cases." May 17, 1994 HT at 28;
see id. at 36, 61-62; Sec'y Decision and Order of Remand at 3.
12 On remand,
Melendez did not offer evidence regarding the mailing of the Shapiro and Watson complaint letter dated May
16, 1992. See HT at 1, 11-13. Shapiro and Watson represented Melendez "until on or about
March 5, 1993" when Valorie Davenport and Laura Sapsowitz were entered as Melendez' counsel in
this complaint. Sec'y Decision and Order of Remand at 4 n.3.
13 The Secretary also
noted that the record contained a photocopy of an envelope from Glenn Vickery & Associates, addressed to
the Houston ESA office, "with a date stamp indicating mailing on May 15, 1992." Id.
at 9. The Secretary observed that "[t]his copy of the complete complaint with envelope attached is
not marked as an exhibit, but appears to be the most probative evidence for determining whether the May
15 complaint letter was timely filed with Wage and Hour." Id. The ALJ did not rule on the
admissibility of the copy of the envelope in which the complaint was apparently mailed, however, because,
at the time the hearing was held regarding the timeliness issue, the ALJ was unable to locate that piece of
evidence. May 17, 1994 HT at 9-11. The record that is currently before this Board contains a copy of the
envelope that was referred to by the Secretary. See Unmarked Exhibit accompanying transmittal
letter of Nov. 29, 1993 from the ALJ. It is unnecessary for us to resolve the admissibility issue, however,
as the ALJ's crediting of the Linebaugh testimony provided adequate evidentiary support for the ALJ's
finding regarding the mailing of the Linebaugh letter.
14 Of course, should
the ALJ, on the basis of a fully developed evidentiary record on remand, determine that Melendez was
terminated in violation of the environmental acts, then any adverse actions preceding the termination would
become relevant to the question of whether Exxon, at some earlier point in time, engaged in a continuing
violation of the environmental acts that culminated with Melendez' termination. See Holtzclaw v.
Kentucky Natural Resources and Environmental Protection Cabinet, ARB Case No. 96-090, Feb. 13,
1997, slip op. at 3-4, aff'd sub nom. Holtzclaw v. Sec'y of Labor, 172 F.3d 872 (6th Cir. 1999)
(table); Webb v. Carolina Power & Light Co., ARB Case No. 96-176, Aug. 26, 1997, slip op. at 7;
Flor v. U.S. Dep't of Energy, Case No. 93-TSC-0001, Sec'y Dec., Dec. 9, 1994, slip op. at 7-8
(discussing Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), and
English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988)); see also Hendrix v. City of Yazoo City,
911 F.2d 1102, 1103-05 (5th Cir. 1990) and cases there cited (addressing two categories of continuing
violations). If so, damages should be assessed for a period beginning with the date that such course of
conduct began. See Carter v. Elec. Dist. No. 2, Case No. 92-TSC-11, Sec'y Dec., July 26, 1995, slip
op. at 14; McCuistion v. Tennessee Valley Auth., Case No. 89-ERA-6, Sec'y Dec., Sept. 17, 1993,
slip op. at 13-14. Otherwise, the period for which damages are recoverable begins no earlier than the date
of Melendez' termination, April 16, 1992. See Jones v. EG & G Defense Materials, Inc., ARB Case
No. 97-129, Sept. 29, 1998, slip op. at 18-25.
15 In Odom,
the Board examined personnel actions preceding the complainant's termination to determine whether those
actions provided evidence of retaliatory animus "even though they were discrete incidents that occurred
outside the limitations period, since they formed a basis in part for Odom's termination and 'shed light on
the true character of matters occurring within the limitations period.'" Odom, slip op. at 6 n.6
(citing Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1140-41 (6th Cir. 1994)); McCuistion,
slip op. at 18 (citing Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989)).
16 Under the TSCA,
an employee is protected if the employee:
(1) commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding under this Act;
(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
Act.
15 U.S.C. §2622(a) (1988).
Under the CAA, an employee is protected if the employee:
(1) commenced, caused to be commenced, or is about to commence or
cause to be commenced 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) (1988).
We have cited the CAA and TSCA statutory provisions as codified during the 1991-92
timeframe when Melendez was engaged in the activities that are most pertinent to this case. Although both
statutes were amended over the span of time during which Melendez' pertinent activities took place, those
amendments do not include any material changes to the stated purposes of the respective statutes. See
15 U.S.C. §2601 (1994) (Findings, policy and intent); 42 U.S.C. §7401 (1994)
(Congressional findings and declaration of purpose); cf. Minard v. Nerco Delamar Co., Case No.
92-SWD-1, Sec'y Dec., Jan. 25, 1994, slip op. at 4-24 (tracking developments in statutory, regulatory and
case law under Solid Waste Disposal Act in concluding that employee's belief regarding statutory
requirements was reasonable).
17 We reiterate that
we are not rendering findings of fact in this decision, which would be premature in view of the incomplete
evidentiary record that was developed below. On remand and in light of a supplemented evidentiary record
and argument by the parties, the ALJ should apply the legal standards delineated infra for
determining which activities Melendez has established actually qualify for protection under the
environmental acts. Just as we summarized the undisputed facts for the purpose of providing factual
background to focus our analysis of the issues in this remand opinion, supra, we summarize the
range of activities reflected in the record before us in order to more clearly illustrate the unique role of
Section 8(c) of the TSCA in the chemical industry and the whistleblower protection derived from it.
18 During the
timeframe pertinent to this complaint, the Texas Air Control Board was an administering agency under the
Texas State Implementation Plan submitted to the EPA under the CAA. 40 C.F.R. Part 52, Subpart SS
(1991).
19 The terms
"managerial staff" and "managerial personnel" are used in this decision to refer not
only to supervisory personnel at the BOP but also to the safety coordinator, the industrial hygienist, human
resources personnel and similar management support staff.
20 We note the
following evidence that is relevant to the history of Melendez' liver condition. In an April 23, 1987 letter,
Dr. Yarborough, the BOP physician at that time, advised Dr. Jablonski, an endocrinologist engaged by
Melendez to evaluate his liver condition, that Dr. Yarborough and the BOP Industrial Hygiene Office would
be working together to further evaluate Melendez' concern about exposure by taking periodic blood samples,
reviewing the potential chemical exposures for his particular job assignment and monitoring his personal
exposure at the workplace. CX 134. In a January 27, 1988 letter, to which laboratory test results were
appended, Dr. Jablonski wrote Dr. Yarborough, expressing his concern about Melendez' elevated liver
function and blood counts and noting that Melendez had undergone a liver biopsy which did not show
evidence of structural liver disease. CX 33. In that letter, Dr. Jablonski also indicates his "concerns
about potential toxic exposure in this patient." CX 33. Also in evidence is a February 26, 1988 review
of Melendez' liver enzymes levels, both pre-employment at the BOP and over the years through February 10,
1988. CX 133. Finally, the record contains a July 11, 1988 letter from BOP physician, Dr. Stewart, to Dr.
Scott, a physician to whom Dr. Stewart had referred Melendez for further evaluation. CX 76. Dr. Stewart's
letter summarizes the history of Melendez' liver condition, and comments that Melendez had evidence of
elevated liver enzymes at his pre-employment physical, which "suggest[s] a pre[-]existing
condition," but also acknowledges that the symptoms that Melendez was experiencing in 1988 may
represent an aggravation of such condition. CX 76 at 2. The letter also notes Dr. Jablonski's diagnosis of
chemical hepatitis, which Dr. Stewart states "was made on the basis of one 10 day period away from
the workplace during which the pts enzymes reportedly reverted to normal." CX 76 at 2. Various BOP
personnel testified that they were aware of Melendez' health problems and Melendez' belief that they were
aggravated by chemical exposure at work. HT at 1421-23 (Cognata), 2169-71 (Maier); CX 197 (Leon dep.)
at 148-53. Starcher, the BOP safety officer, testified in deposition that Melendez had told him that he thought
he had a health problem related to chemical exposure at the BOP; based on Starcher's observation of
Melendez' skin discoloration, Starcher believed that Melendez was suffering from a liver ailment. CX 198
(Starcher dep.) at 289-90. Melendez also testified that he experienced allergic symptoms to some common
airborne irritants. HT at 699-700. Melendez testified that, while working as a flare loss technician, he had
advised his supervisors when he felt ill and they had accommodated his request to be temporarily placed in
an air-conditioned office job, away from the process unit area. HT at 403-05.
21 See
discussion infra regarding the ALJ's erroneous exclusion of various exhibits pertinent to
Melendez' raising of health concerns at the BOP, including CX 138, a March 19, 1987 letter from the BOP
industrial hygienist responding to Melendez' request for information regarding a possible link between
chemicals being processed at the BOP and liver malfunctions.
22 At the time
pertinent to this complaint, Lori Malaer was a personnel analyst in the BOP Human Resources Office. RX
66 (Malaer Ellis dep.) at 38-9; see CX 32. At the time of her deposition, the former Ms. Malaer had
married and changed her name to Ellis. RX 66 at 3. As Ms. Malaer Ellis is referred to in the record
alternately as "Malaer" or "Ellis" we have used "Malaer Ellis" in the
interest of clarity. See R.D.O. at 17.
23 Contrary to Exxon's
argument, Resp. Brief at 25-26, internal complaints and steps that are preliminary to the filing of complaints
with Federal or state environmental protection agencies are subject to protection under the employee
provisions of the environmental protection acts. The conclusion that internal complaints qualify as protected
activities has been upheld by several United States Courts of Appeals. See Clean Harbors
Environmental Services v. Herman, 146 F.3d 12, 20 (1st Cir. 1998); Bechtel Construction Co. v.
Sec'y of Labor, 50 F.3d926, 932-33 (11th Cir. 1995); Passaic Valley Sewerage Comm'rs
v. Department of Labor, 992 F.2d 474 (3d Cir. 1993), cert. denied, 510 U.S. 964; Jones v.
Tennessee Valley Authority, 948 F.2d 258, 264 (6th Cir. 1991); Couty v. Dole, 886 F.2d 147 (8th
Cir. 1989); Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985), cert.
denied, 478 U.S. 1011 (1986); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159,
1163 (9th Cir. 1984); and Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982). In
Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984), the United States Court of
Appeals for the Fifth Circuit did hold that internal complaints were not protected by the employee protection
provision of the Energy Reorganization Act, 42 U.S.C. §5851 (1982), then in effect. The Secretary
has not extended that holding beyond cases that arise within the Fifth Circuit and which are subject to the
ERA provisions in effect prior to October 24, 1992, when ERA amendments providing express coverage of
internal complaints took effect, see 42 U.S.C. §5851(a)(1)(A), (B) (1994). Carson v.
Tyler Pipe Co., Case No. 93-WPC-11, Sec'y Dec., Mar. 24, 1995, slip op. at 6-7; Bivens v. Louisiana
Power & Light, Case No. 89-ERA-30, Sec'y Dec., June 4, 1991, slip op. at 4-5; seeLopez
v. West Texas Utilities, Case No. 86-ERA-25, Sec'y Dec., July 26, 1988, slip op. at 5-6; see generally
Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997) (holding that the
legislative history of the ERA amendments "makes clear that Congress intended the amendments to
codify what it thought the law to be already" but which Congress recognized, in view of the Brown
& Root decision, "required explication"). In this case arising under the CAA and the TSCA
in the Fifth Circuit, we will follow the Secretary's approach and construe both external and internal
complaints as protected under those acts. On remand, the ALJ must apply the body of case law developed
by the Secretary and this Board concerning internal protected activities.
24 For further
guidance on remand, we provide the following citations: See Williams v. TIW Fabrication & Machining,
Inc., Case No. 88-SWD-3, Sec'y Dec., June 24, 1992, slip op. at 1-4 (SWDA); Wagoner v. Technical
Products, Inc., Case No. 87-TSC-4, Sec'y Dec., Nov. 20, 1990, slip op. at 8-11 (TSCA); see also
Fabricius v. Town of Braintree, ARB Case No. 97-144, Feb. 9, 1999 (employee who filed OSHA
complaint regarding asbestos in workplace also engaged in activity protected by the Clean Air Act when he
left worksite to inquire at building inspector's office regarding asbestos); cf. Foley v. J.C. Maxxwell, Inc.,
Case No. 95-STA-11, Sec'y Dec., July 3, 1995, slip op. at 3 (OSHA complaint not related to the STAA);
Johnson v. Old Dominion Security, Case Nos. 86-CAA-3/4/5, Sec'y Dec., May 29, 1991,
slip op. at 13 n.8 (complaints confined to PCB contamination of the workplace not covered by CAA).
25 A concise
description of BOP operations are provided in a letter to Melendez' physician from BOP physician Dr.
Stewart, who states that the BOP's "primary process involves heating liquid and gaseous hydrocarbons
in furnaces, thus producing olefins such as ethylene and propylene." CX 76.
26 We have cited the
edition of the Code of Federal Regulations that was in effect during the 1991-92 timeframe, when most of
the activities that may qualify for protection occurred, to illustrate the purposes of the TSCA. In analyzing
the issue of whether Melendez held a reasonable belief that Exxon was acting in violation of the TSCA
and/or the CAA when he engaged in the activities that may qualify for protection, see discussion
infra, the ALJ may also consider the regulations implementing those statutes. See Minardv. Nerco Delamar Co., Case No. 92-SWD-1, Sec'y Dec., Jan. 25, 1994, slip op. at 4-24 (analyzing
"reasonable belief" regarding violations of the Solid Waste Disposal Act within the context of
an evolving statutory and regulatory scheme).
27 Section 717.20 of
the implementing regulations does not require the alleger to specify the chemical substance or mixture
believed to have caused the adverse effect. Rather, the regulation provides that an allegation may
alternatively cite an article that contains the specific substance, "a company process or operation in
which substances are involved," or "an effluent, emission or other discharge from a site of
manufacturing, processing or distribution of a substance." 40 C.F.R. §717.10(b)(2)(iii-v) (1991);
see 48 Fed. Reg. 38178, 38181 (1983) (Notice, 40 C.F.R. Part 717, final rule; explaining that EPA
retained the articles, processes or emissions categories because employees, consumers and plant neighbors
"may not know the name of a specific chemical or mixture . . . .").
28 As indicated in the
summary regarding Melendez' liver condition, supra at n.20, any link between Melendez' liver
condition and hydrocarbon exposure had been neither medically confirmed nor denied, CX 33, 76, 77, 106;
RX 68 (Ulczynski dep.) at 100; see HT at 274-87, 399-401 (ALJ, counsel discussion); see also
CX 197 (Leon dep.) at 155-57 (testimony regarding developing knowledge concerning the effects of
exposures to some chemicals).
29 Section 8(c)(2) of
OSHA requires, in pertinent part, "employers to maintain accurate records of, and to make periodic
reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid
treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion,
or transfer to another job." 29 U.S.C. §657(c)(2) (1988).
30 OSHA requires
employers to maintain records concerning "employee exposures to potentially toxic materials or
harmful physical agents," as defined by rules promulgated by the Secretary under 29 U.S.C.
§655. 29 U.S.C. §657(c)(3) (1988); see also, e.g., 62 Fed. Reg. 1494 (1997) (final rule,
OSHA regulations for exposure control and monitoring of methylene chloride, 29 C.F.R. Parts 1910, 1915
and 1926); 29 C.F.R. Part 1910, Occupational Safety and Health Standards, Subpart Z, Toxic and Hazardous
Substances (1991).
31See Stefan
Rutzel, Snitching for the Common Good: In Search of a Response to the Legal Problems Posed by
Environmental Whistleblowing, 14 Temp. Envtl. L. & Tech. J. 1, 2 (1995).
32 The testimony of
BOP managerial staff suggests that BOP procedures for addressing and/or documenting health and safety
issues at the time pertinent to this complaint were informal, unwritten and typically contingent on ad
hoc direction by management. The plant industrial hygienist Silkowski testified that the determination
of whether injuries would be investigated was made on an ad hoc basis by first-line supervision, and
Silkowski repeatedly emphasized the dominant role of first-line and second-level supervisors in addressing
employee health and safety issues at the BOP, RX 70 (Silkowski dep.) at 75-78, 80-83, 145, as did Starcher,
the BOP Safety Officer, CX 198 at 127, 132-33, 137-39, 187, 202-07, 243-53. Fischer nonetheless testified
that the documentation of chemical exposures at the BOP was not his "area of expertise." HT
at 1703. In the course of his deposition, Silkowski reviewed several incident reports that were signed by
supervisory personnel but questioned the reliability of those reports. RX 70 at 133-44, 157-62. At hearing,
Melendez proffered a document prepared by BOP management, identified as CX 154, that provides
guidelines for reporting and follow-up on incidents involving injury or illness. HT at 2108-12. Vacek
testified that he was unsure whether those guidelines had been adopted by BOP management. HT at 2109-10
(10/12/94 vol.). Personnel specialist Malaer Ellis testified that the Human Resources Office would not be
advised "in all cases" if a request for a transfer had been made based on health related reasons
and also would not be advised in all cases if an employee's transfer had been initiated by line management
for health-related reasons. RX 66 at 112-13.
In addition, the record that is currently before us provides no indication -- other than
the notice to plant employees that had been issued by the BOP manager, Doug Walker, CX 13, in August
1991, which advised the employees of their right to make allegations under Section 8(c) of the TSCA -- that
the managerial staff acknowledged its role under Section 8(c) or explained to Melendez why a record of his
belief that his liver condition arose from exposure to chemicals processed or manufactured at the plant had
not been preserved. See generally 40 C.F.R. §§717.15(a) (providing alternative sites
at which firms may elect to maintain Section 8(c) records), 717.10(d) ("EPA intends that firms should,
to the maximum practical extent, provide allegers with information regarding the ultimate disposition of their
allegations. For example, firms could provide a brief notice to the alleger stating that a record was created
. . . , or that a record was not created and briefly explain the reasons why not."); 48 Fed. Reg. 38178,
38189 (1983) (40 C.F.R. Part 717, final rule, stating that the EPA "expects companies to educate their
line supervisory personnel regarding oral allegations so that a worker who wishes to make such allegation
does not have to seek out some unknown or far removed company official in order to have his allegation
heard."). Silkowski testified that Melendez' written request for chemical exposure information was
unusual. RX 70 at 174; see id. at 173-186. In determining whether inquiries that Melendez made
to management regarding exposure-related records constitute activity related to the TSCA, the ALJ must
consider the evidence of record, including the foregoing testimony, concerning the BOP lines of authority
through which Melendez could direct his inquiries regarding Section 8(c) records.
33 For further
guidance regarding the reasonable belief issue on remand, we note the following decisions: Crosby v.
Hughes Aircraft Co., Case No. 85-TSC-2, Sec'y Dec., Aug. 17, 1993, slip op. at 25-30 (pre-Minard
case; whistleblower's belief held not to be reasonable); Smith v. Catalytic, Inc., Case No. 86-
ERA-12, Sec'y Dec., May 28, 1986, slip op. at 3 (pre-Minard case remanded for determination
regarding whether complainant's belief was reasonable).
34 In Melchi,
the court explained the basis for the interpretation of the Michigan whistleblower statute as imposing a
requirement that the whistleblower have a subjective good faith belief that an employer had committed
violations of applicable law. The court noted that the pertinent provision of the Michigan Whistleblowers'
Protection Act, Mich. Comp. Laws §15.362, excluded from coverage allegations made by a
whistleblower who "knows that the report is false." Melchi, 597 F.Supp. at 583. The
court reasoned that, "By precluding protection to those acting in bad faith, the legislature clearly
implied that only those acting in good faith are entitled to protection." Id.
35 Subsequent to
issuance of the Secretary's decision in Oliver, the Merit Systems Protection Board decision in
Gores was reversed, on other grounds. Gores v. Dep't of Veterans Affairs, 132 F.3d 50 (Fed.
Cir. Nov. 4, 1997)(table), 1997 WL 687386. The court reversed the MSPB decision in Gores based
on the court's conclusion that substantial evidence did not support the Board's finding that the whistleblower
had reasonably believed that he was disclosing violations of law, pursuant to 5 U.S.C. §2302(b)(8).
1997 WL 687386, **2. The Gores court did not address the MSPB ruling concerning whistleblower
motivation. See also Horton v. Dep't of the Navy, 66 F.3d 279, 282-83 (Fed. Cir. 1995)( affirming
MSPB holding that whistleblower's motivation could not deprive whistleblower of protection under Section
2302(b)(8), 60 M.S.P.R. 397, 402-03 (1994)).
36 Many of the
whistleblower statutes enacted by the states require that protected activity be scrutinized under a good faith
or reasonable belief standard and/or contain a prohibition against allegations that are known to be false.
See, e.g., Alaska Stat. §39.90.110 (1999); Hawaii Rev. Stat. §378-62 ( Bender 1999);
Mass. Gen. Ann. Laws Ch. 149, §185 (West 1999); N.H. Stat. Ann. §275-E:2 (1999); N.C. Gen.
Stat. §126-85 (Bender 1999); Ohio Rev. Code Ann. §4113.52 (West 1999); R.I. Gen. Laws
§27-54-7 (1999); Tex. Gov't Code §554.001 (1999). Various court decisions construing state
whistleblower laws confuse the issue of the basis for the belief that wrongdoing has occurred with the issue
of the whistleblower's motivation for acting on that belief. See, e.g., LaFond v. General Physics Services
Corp., 50 F.3d 165, 176 (2d Cir. 1995) (construing Connecticut whistleblower protection statute, Conn.
Gen. Stat. §31-51m, as denying coverage when employee knows report is false, and remanding for
reconsideration of finding that complainant's "'sole and admitted purpose in notifying public bodies
of suspected violations of law was to obtain the Act's protection when it became clear that his extortionate
scheme had failed and his job would be in jeopardy if he were found out'"). As stated by the Texas
Supreme Court, in Wichita County v. Hart, 917 S.W.2d 779 (Tex. S.Ct. 1996), "no clear
consensus has emerged from other courts on the issue of whether motivation is relevant to 'good faith.'"
917 S.W. 2d at 784-86. The Wichita County court ultimately construed the statutory provision at
issue, which extended protection to "a public employee who in good faith reports a violation of law
. . . ," Tex. Gov't Code § 554.002(a), as requiring examination of only the whistleblower's belief,
not his or her motivation, under a subjective/objective standard virtually identical to that adopted by the
Secretary in Pensyl and Minard. Id.
37 At the time of the
Senate debate referred to above, the bill before the Senate, S.3149, contained one section that included all
employee protection provisions. S. Rep. 1302, 94th Cong., 2d Sess., 29-30, reprinted in 1976
U.S.C.C.A.N. 4519-20. Following action by the House Conference Committee, these employee protection
provisions were separated into two sections, Sections 23 and 24. H.R. Rep. 1679, 94th Cong., 2d Sess. 99-
100, reprinted in 1976 U.S.C.C.A.N. 4584-85. Sen. Helms' challenge in the March 26, 1976 session
did not address the whistleblower provisions of Section 23, but only Section 23(f), the provision authorizing
investigations by the EPA and hearings before the EPA in cases in which an employee believed that the
employee had suffered, or been threatened with, a loss or interruption of employment "because of the
results of any rule or order issued under" the TSCA. That provision was designated as Section 24
under the bill that was passed on September 28, 1976 and enacted into law on October 11, 1976, Pub. L. 94-
469. In responding to the challenge to Section 23(f), Sen. Tunney stated that the source of the employee
protection provision was the analogous section in the Water Pollution Control Act (WPCA). Cong. Rec. at
8287. Sen. Tunney's remarks suggest that other employee protection provisions contained in Section 23 of
the version of the bill before the Senate on March 26, 1976, including the provision now codified at 15
U.S.C. §2622, were modeled on the analogous WPCA provision, codified at 33 U.S.C. §1367(a)-
(d). The employee protection provision enacted into law as Section 23 of Pub. L. 94-469, 90 Stat. 2044,
represents an essentially unrevised version of the whistleblower provision that was before the Senate on
March 26, 1976. See H.R. Rep. 1679, 94th Cong., 2d Sess. 99-100, reprinted in 1976
U.S.C.C.A.N. 4584-85.
38 The Rules of
Practice and Procedure for the Office of Administrative Law Judges provide for the filing of a motion for
disqualification with the presiding ALJ and a responsive ruling by the judge. 29 C.F.R. §18.31(b).
This procedure ensures the development of a complete record regarding any allegation of bias below.
39 The parties'
stipulation that the ALJ did not have jurisdiction "to hear or receive evidence on any violations by this
Respondent of Section 11C of OSHA," HT at 114-15, is consistent with the Secretary's ruling regarding
the ALJ's lack of jurisdiction to decide an OSHA complaint, Sec'y Decision and Order of Remand at 8. As
previously noted in this decision, the ALJ did not recognize the distinction between the Secretary's
conclusion that the ALJ did not have jurisdiction to adjudicate the merits of an OSHA complaint and the well
established principle, discussed supra, that the filing of OSHA complaints may constitute activity
protected under the environmental acts. See, e.g., HT at 376-77.
40 We note the
following exclusionary errors as examples: HT at 874-78 (excluding CX 105, 9/91 personal physician's
recommendation that Melendez be excused from fire training), 985-87 (excluding evidence of OSHA
complaints filed by Melendez), 1364-65 (excluding CX 138, which is a March 19, 1987 letter from the BOP
industrial hygienist to Melendez, in which the hygienist responds to Melendez' request for information
regarding a possible link between chemicals being processed at the BOP and liver malfunctions),1945-54
(excluding Silkowski's 4/7/92 report to Fischer regarding Melendez' raising of beryllium copper health hazard
posed by toolroom hammers), 2040-41 (interrupting cross-examination of Vacek regarding BOP procedures
for reporting exposure/illness/injury), 2048-53 (interrupting cross-examination of Vacek relevant to work
refusal on 1/13/92), 2076-78 (interrupting cross-examination of Vacek relevant to re-scheduling of 4/6/92
medical appointment and to beryllium copper splinter issue), 2247 (interrupting cross-examination of McLain
regarding familiarity of BOP managers with Abraham of Texans United), 2281-82 (interrupting cross-
examination of McLain regarding BOP procedures for recording exposures under the TSCA). The foregoing
list is illustrative rather than inclusive. On remand, the parties should specify any further exclusions of
evidence to be re-examined by the ALJ.
41 The provision
currently found at Section 24.6(e)(1) was previously codified at 29 C.F.R. 24.5(e)(1). See 63 Fed.
Reg. 6613 (1998) (Dep't of Labor, 29 CFR Part 24, Final Rule).
42 As stated by the
Board in the Seater decision, "The mandate of Section 24.5(e)(1) is consistent with the nature
of the evidence presented in a circumstantial evidence case of retaliatory intent, some of which may appear
to be of little probative value until the evidence is considered as a whole . . . ." Seater, slip
op. at 6 n.8.
43 The ALJ excluded
the September 6, 1991 memorandum from Melendez to Maier that is identified as CX 35, apparently because
he believed it to be cumulative and because he did not recognize the significance of the document under the
TSCA. HT at 407-12, 884-86. The memorandum provides more detail than does the pertinent testimony
regarding Melendez' activity in filing his first written request with Maier for information regarding the basis
for his transfer to the toolroom, an action that may qualify for protection under the TSCA. See HT
at 407-08. In determining whether documentary evidence is "unduly repetitious," the ALJ should
be mindful of the potential significance of such evidence in the corroboration or contradiction of witness
testimony.
44 The ALJ's general
reference to the BOP managers' knowledge that Melendez "may have been the employee who filed an
OSHA complaint," R.D.O. at 27, does not cure Melendez' lack of opportunity to adduce evidence
relevant to the issue of retaliatory animus related to that and similar activities. It is impossible to anticipate
what the testimony of the various supervisory personnel who were called as witnesses by Exxon would have
been had the ALJ allowed Melendez to cross-examine those witnesses regarding their reaction to all of
Melendez' activities that may be found on remand to qualify for protection under the environmental acts.
Moreover, as the record in this case currently stands, it does not support the conclusion that this is a case
involving a nominal level of protected activity and overwhelming evidence of a legitimate basis for the
challenged actions so as to compel a decision in favor of the employer under a mixed, or dual, motive
analysis. Cf. Lockert v. United States Dep't of Labor, 867 F.2d 513, 517 (9th Cir. 1989) (upholding
dismissal of complaint filed by whistleblower whose safety complaints were not remarkable, who had
previously been absent without contacting the employer for three days and who was terminated following
violation of company rule against leaving one's work area without permission); Straub v. Arizona Public
Service Co., Case No. 94-ERA-37, Sec'y Dec., Apr. 15, 1996 (dismissing complaint of employee who
engaged in minimal, unremarkable protected activity and who was terminated based on egregious misconduct
in violation of written company policy).
45 Relevant evidence
in the record that is before us includes Maier's testimony regarding his March 1992 response to Melendez'
September 30, 1991 written harassment complaint, which cited Section 8(c) of the TSCA, HT at 2136-37,
2164-67. Other evidence of supervisory reaction to Melendez' activities that may qualify for protection under
the environmental acts includes the testimony of Fischer concerning the basis for his conclusion that
Melendez' information requests had become burdensome as of March 1992, HT at 1883-94. The ALJ should
also consider the evidence regarding the BOP "open door" policy for raising concerns to a higher
level at the plant, CX 198 (Starcher dep.) at 133-34, 269-73; CX 197 (Leon dep.) at 191-92, in conjunction
with Maier's testimony that, before an employee went to the second-level supervisor, the employee should
seek the first-line supervisor's "permission," HT at 2197-98. The ALJ should also evaluate
Melendez' testimony regarding the issue of whether Silkowski acted in a manner consistent with BOP stated
policy for recording allegations pursuant to Section 8(c) of the TSCA. HT at 949; see CX 13, 14.
The ALJ should also consider the testimony of managerial staff indicating that requests for health related
data such as those made by Melendez were quite rare at the BOP. CX 198 (Starcher dep.) at 181; RX 70
(Silkowski dep.) at 174-76; see RX 70 at 175-86 (Silkowski, testifying that he discussed Melendez'
10/29/91 written request for personnel exposure monitoring results and material safety data sheets regarding
composition of substances with his supervisor and BOP legal counsel before responding).
46 Exxon does not
dispute that the DML discipline, as well as Melendez' termination, constitutes an adverse personnel action.
Resp. Brief at 16. For further guidance on remand concerning the toolroom reassignment issue, we note the
following holdings: DeFord v. Sec'y of Labor, 700 F.2d 281, 287 (6th Cir. 1983) (transfer to
"far less attractive and prestigious" position constituted adverse action); Jenkins v. U.S.
Environmental Protection Agency, Case No. 92-CAA-6, Sec'y Dec., May 18, 1994, slip op. at 14-
16 (transfer from "challenging, technical work that . . . required interaction with the regulated
community and the public" to an isolated, non-technical position constituted adverse action). We also
note the following relevant evidence: HT at 775-77, 2309 (Melendez), 1414, 1418-19 (Cognata), 2131-32,
2134-35 (Maier).
47 In examining
whether the work permits training and/or the fire training requirement imposed in 1991 constituted
unfavorable personnel action, the ALJ should apply the following case law: Studer v. Flowers Baking
Co., Case No. 93-CAA-00011, Sec'y Dec., June 19, 1995, slip op. at 4 (training frequently provides a
professional opportunity that is beneficial to the employee); Thomas v. Arizona Public Service,
Case No. 89-ERA-19, Sec'y Dec., Sept. 17, 1993, slip op. at 8-14 ("demeaning" training
challenged as discriminatory).
48 The testimony of
Vacek, Fischer and Melendez regarding the events of January 13, 1992, is essentially in agreement. The
evidence concerning the issue of whether Melendez asserted to his supervisors that day that he was ill, as
well as angry and frustrated by what he viewed as a lack of responsiveness to his health concerns, is in
conflict. See R.D.O. at 5-6, 8, 12-13. The ALJ failed to provide a basis for his resolution of this
conflict against Melendez, R.D.O. at 26, and must do so on remand. See NLRB v. Cutting, Inc., 701
F.2d 659, 667 (7th Cir. 1983).
49 Documentary
evidence and managerial testimony indicate that the complaint was addressed to the Human Resources Office
and was also submitted to Fischer. CX 32; HT at 1576-77 (Fischer). As of January 17, 1992, when the DML
day discipline was imposed, Melendez' September 30, 1991 complaint had not been responded to by either
the Human Resources Office or Fischer. HT at 2136-37, 2164-67 (Maier). It was ultimately responded to
in a meeting held on March 11, 1992 by BOP managerial staff with Melendez, HT at 2164-67, after
Melendez filed a written inquiry regarding the status of management's investigation of the complaint, CX
36.
50 The record that is
now before us contains the deposition testimony of Leon, CX 197, Ulczynski, RX 68, and Hopkins, CX 196,
that pertains to the gravity of Dr. Pruett's recommendation that Melendez be removed from the BOP process
unit area. During cross-examination of Maier by Melendez' counsel, the following exchange occurred:
Q. With regard to Exxon's policy as it related to safety, if an employee is
placed in an unsafe, unhealthy situation, is it his responsibility to remove
himself from that situation?
JUDGE KERR: Yes, ma'am?
MS. VALDERRAMA: Asked and answered, I think.
JUDGE KERR: Yes, and we're talking about Mr. Melendez' perception and
not an individual who has objectively been placed in an unsafe situation.
HT at 2198-99. As with any finding of fact, any findings rendered by the ALJ regarding the
reasonableness of Melendez' concerns about exposure to chemicals at the BOP must be supported by
evidence of record. See 5 U.S.C. §557(c)(3)(A); 29 C.F.R. §18.57(b).
51 On direct
examination, Fischer testified that the instructions for the work permits training module, RX 8, indicated that
the field demonstration segment was not required for employees, like Melendez, whose jobs did not require
the writing of work permits, HT at 1587-93, thus suggesting that Melendez should have known, from a
review of the training materials that he did not have to engage in the field demonstration. Fischer's
testimony on this issue must be evaluated in light of the pertinent language included in the training module
identified as RX 8 and Vacek's testimony that, after Melendez' return from the DML day discipline, Vacek
had to direct an inquiry to the training officer to determine whether Melendez was required to participate in
the field demonstration, HT at 1976, 2009, 2094-97 (10/12/94 vol.); see HT at 2195-97 (Maier).
52 For further
guidance on remand, we cite the following decisions: Lockert v. United States Dep't of Labor, 867
F.2d 513, 516, 517 (9th Cir. 1989); Fabricius v. Town of Braintree, ARB Case No. 97-144, Feb. 9,
1999, slip op. at 4; Dysert v. Westinghouse Electric Corp., Case No. 86-ERA-39, Sec'y Dec., Oct.
30, 1991, slip op. at 5-6 and cases there cited.
53 For further
guidance on remand, we note the following decisions: Dunham v. Brock, 794 F.2d 1037, 1041 (5th
Cir. 1986); NLRB v. M & B Headwear Co., 349 F.2d 170 (4th Cir. 1965), cited in Moravec v.
HC & M Transportation, Case No. 90-STA-44, Sec'y Dec., Jan. 6, 1992, slip op. at 14-15 (arising under
analogous provision of the Surface Transportation Assistance Act, currently codified at 49 U.S.C.
§31105); NLRB v. R.C. Can Co., 340 F.2d 433, 435-36 (5th Cir. 1965). In a recent decision
upholding the application of the provocation doctrine by the National Labor Relations Board under Section
7 of the NLRA, 29 U.S.C. §157, the United States Court of Appeals for the Fifth Circuit summarized
the body of case law thus, "Flagrant conduct of an employee even though occurring in the course of
Section 7 activity may justify disciplinary action by the employer. Not every impropriety does, however,
because the employee's right to engage in concerted activity permits some leeway for impulsive behavior,
which must be balanced against the employer's right to maintain order and respect." Mobil
Exploration and Producing U.S. v. NLRB, 200 F.3d 230, 242-43 (5th Cir. 1999).
54 Board Member
Cynthia L. Attwood took no part in the consideration of or the decision in this case.
55 Of course, it
generally would not be necessary to explore the "protected activity" question in cases where no
adverse action has occurred. However, it is undisputed in this case that Melendez suffered an adverse action,
i.e., he was discharged.