Date: December 4, 1995
Case Nos.: 92-SWD-2
93-STA-15
In the Matter of
WILLIAM B. FAUST
Complainant
v.
CHEMICAL LEAMAN TANK LINES
Respondent
APPEARANCES:
Randolph H. Freking, Esquire
&
Susan Sauter, Esquire
Freking & Betz
For the Complainant
James J. Sullivan, Jr., Esquire
&
Jessamyne Simon, Esquire
Pepper, Hamilton & Scheetz
For the Respondent
BEFORE: J. MICHAEL O'NEILL
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case involves two consolidated cases arising from
complaints alleging unlawful discriminatory discharge filed under
two federal employee-protection statutes. The first complaint
[PAGE 2]
was filed under the Comprehensive Environmental Response, Compen-
sation and Liability Act (CERCLA)[1] , 42 U.S.C. §9610. The
second one is filed under the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. §2305[2] , and the Regulations
promulgated thereunder published at 29 C.F.R. Part 1978.
A formal hearing was held on March 2-4, 1994, in Cincinnati,
Ohio, at which time the parties were afforded an opportunity to
present evidence and argument as provided by the Acts and the
Regulations governing the hearing. The complainant and the re-
spondent[3] were represented by counsel. Documentary evidence,
identified as complainant's exhibits 1-6, 8, 11, 13, 16-21, 23,
27-29, 33, 36, 37-38, 40, 42-44, 53 and respondent's exhibits
2-20, 22-24, was received into evidence.[4] This decision is
based on the testimony of the witnesses and all of the
documentary evidence.
STATEMENT OF THE CASE
On May 14, 1992, William Faust filed a complaint with the
Wage and Hour Division of the United States Department of Labor,
alleging that the respondent engaged in discriminatory conduct in
response to his refusal to engage in unsafe working conditions
and his reporting the respondent to the Environmental Protection
Agency (E.P.A.) for alleged illegal dumping of hazardous waste.
The U.S. Department of Labor construed the allegations in the
complaint as implicating employee protection provisions of CERCLA
and the STAA. The Wage and Hour Division investigated the CERCLA
claim and concluded on July 10, 1992, that the respondent had not
engaged in any prohibited conduct. On July 15, 1992, the
Secretary's Findings concluded that the respondent did not vio-
late the applicable provisions of the STAA. The complainant
appealed these findings and the case was referred to the Office
of Administrative Law Judges. This office issued a notice of
hearing and pre-hearing order to both parties. After a series of
delays, the two claims (CERCLA and STAA) were consolidated and a
hearing was held in Cincinnati, Ohio, on March 2-4, 1994.
ISSUES
The contested issues in this case are as follows:
1. Whether the complainant timely filed his CERCLA claim
(docketed under the SWDA);
2. Whether the complainant engaged in protected activity;
[PAGE 3]
3. Whether the respondent took adverse employment action
against the complainant as a result of that protected activity;
4. Whether the respondent can show a legitimate, non-
discriminatory reason for the adverse employment action.
FACTUAL BACKGROUNDComplainant's History with Chemical Leaman
The complainant began working for Chemical Leaman in May of
1972 as a tanker driver (Tr. 102).[5] Materials hauled by the
complainant included: soaps, fatty acids, paints, latexes,
styrene beads, plastics, water, hazardous and flammable
materials, and various acids, including muriatic acid, nitric
acid, sulfuric acid, oleum and sulfuric trioxide (Tr. 103). The
complainant worked out of Chemical Leaman's Ross, Ohio, facility
and over 90% of his work involved picking up acid at E.I.
DuPont's Fort Hill plant in North Bend, Ohio, and delivering it
to DuPont customers. Much of Faust's work involved hauling
DuPont products, and he was responsible for obeying DuPont's
rules and regulations while at their Fort Hill facility. The
complainant last worked for Chemical Leaman in December of 1991
(Tr. 104). At that time, the complainant was fifth on the driver
seniority list (Tr. 106).
During his employ at Chemical Leaman, complainant developed
a reputation for making safety complaints, particularly concern-
ing the lack of safety showers at some of DuPont's customers'
facilities (Tr. 23). Chemical Leaman was generally responsive to
the complainant's concerns and even asked him to sit on a Company
safety committee (Tr. 106). However, Rodger Marty, the Regional
General Manager for Chemical Leaman, acknowledged that the fre-
quency of the complainant's complaints became bothersome, prompt-
ing him to refer to the complainant as a "pain in the ass." (Tr.
378).
Procter & Gamble, a DuPont customer, barred the complainant
from their St. Bernard facility on February 27, 1990 (RX 3).
Procter & Gamble cited two reasons for the barring - a 1986 inci-
dent where the complainant carried a load of acid to the plant
without any paperwork and a January 1990 incident where the com-
plainant "scaled out" at the plant with a 10,000 lb. "heel" of
acid without telling Procter & Gamble personnel. Id. In
the latter incident, complainant mistakenly believed that Procter
and Gamble's pump was to blame for the residue; the actual
problem was with his tanker's pump (Tr. 161-62). A little over a
year
[PAGE 4]
later, Procter & Gamble lifted the ban after reinstatement
efforts from Rodger Marty (Tr. 393); John Gross, Chemical
Leaman's then Division Director of Human Resources (Tr. 448);
and Pete Morgenthaler, manager of DuPont's Fort Hill plant (Tr.
226, RX 5).
Complainant's Discussions with the E.P.A.
In May of 1991, the complainant read an ad in the
Cincinnati Enquirer, placed by the E.P.A., asking anyone
who had knowledge of hazardous waste dumping at the Skinner
Landfill[6] to contact the E.P.A. While employed at Chemical
Leaman, complainant transported a load of drums filled with tank
cleaner to the site (Tr. 122). Acting with this information, the
complainant called the E.P.A. and spoke with Paul Rogers, the
E.P.A. representative handling the investigation (Tr. 123). Mr.
Rogers and another representative from the E.P.A. met with the
complainant at his home and the complainant told them what he
knew (Tr. 124). The complainant forgot about the meeting until
several months later, when he was laid off after the October 1991
incidents (Tr. 126).[7] John Gross testified that Chemical
Leaman first became aware of the complainant's contacts with the
E.P.A. when the complainant filed his claim (Tr. 474). In a
November 19, 1992, letter to the undersigned Administrative Law
Judge, Paul Rogers stated that the E.P.A. never mentioned the
complainant's name to Chemical Leaman in connection with their
investigation (CX 13).
The Wurtland Incidents
DuPont's Wurtland, Kentucky, facility is the Fort Hill
plant's sister facility. Chemical Leaman drivers assigned to
the Ross terminal load at Wurtland two weeks per year, when the
Fort Hill facility is closed down for maintenance (Tr. 229). On
the morning of October 18, 1991, the complainant arrived at the
Wurtland facility to pick up a load of acid. Several other
Chemical Leaman drivers were also at the plant when the com-
plainant arrived (Tr. 128). DuPont was short on help and asked
the Chemical Leaman drivers to load their own trucks. The
drivers reluctantly agreed, provided it was a one time deal
because their union's collective bargaining agreement with
Chemical Leaman did not require them to load at the Wurtland
facility (Tr. 134). DuPont was not a signatory to the agreement
(Tr. 336, 344). Complainant testified that he was not argu-
mentative or boisterous with the DuPont Wurtland employees (Tr.
132). Basil Armstrong and Terry Finch, two Chemical Leaman
drivers who were with the complainant that morning, testified at
the hearing that the complainant was not loud or boisterous to
[PAGE 5]
the Wurtland employees (Tr. 64, 81).
The following Monday, October 21, the complainant returned
to the Wurtland facility and was again asked to load his own
truck. After additional training, the complainant loaded his
truck. The complainant testified that he was not argumentative
or boisterous with any of the Wurtland employees but that he did
have a "few choice words with his dispatcher." (Tr. 135). In his
investigation of the Wurtland incidents on behalf of Chemical
Leaman, Rodger Marty interviewed William Jones, the assistant
plant manager at Wurtland who was present during the days in
question (Tr. 422-23). Mr. Marty testified that the complain-
ant's October 18, visit to Wurtland was incident free but that
the complainant's October 21 visit included a verbal confron-
tation between the complainant and Wurtland employees over who
was responsible for loading the truck (Tr. 423). Mr. Jones
reported this incident to a supervisor at DuPont's Fort Hill
facility who in turn notified Pete Morgenthaler (Tr. 230).
The Ashland Oil Incident
On October 31, 1991, the complainant delivered a load of
DuPont's acid to a customer, Ashland Chemical Company, in
Glendale, Ohio. The complainant had delivered to the Ashland
plant once previously (Tr. 136). After pulling into the facility
and weighing his truck on the scales, the complainant made a U-
turn to position himself at the unloading platform. The com-
plainant testified that he did not see a "no U-turn sign" and was
told by Ashland employee Glenn "Pops" Lawson, to "swing around .
. . and get into position [at the unloading platform]." (Tr.
139). Todd Slawson, Ashland's Plant Supervisor, approached the
complainant and told him that Ashland prohibited U-turns in the
lot (Tr. 141).[8] Complainant responded that he was following
Mr. Lawson's instructions and, given the circumstances, would
have been unable to position himself properly without making the
U-turn (Tr. 141). Mr. Slawson then instructed the complainant on
the proper way to position his truck. Id. Recounting the
incident, Mr. Slawson testified that the complainant became
argumentative after being told that he was not supposed to make a
U-turn, raising his voice and making aggressive hand motions.
Id. Complainant testified that he needed to raise his
voice because the plant was loud that day due to sandblasting
operations (Tr. 141); James Hughes, the Plant Manager, testified
that there was no sandblasting going on that day (Tr. 541-42).
The complainant then began to unload the acid from his truck
(Tr. 142). After attaching the hose and applying air pressure to
[PAGE 6]
the tank, the complainant made sure the acid was being discharged
properly and then returned to the cab of his truck (Tr. 143-44).
Upon entering the cab the complainant took off some of his safety
gear, including his rubber pants (Tr. 144). Complainant testi-
fied that he was able to observe the unloading and work on his
paperwork while in the cab. Id. At that point, Mr.
Slawson returned and told the complainant that he needed to get
out of the truck to observe the unloading and to wear his full
protective suit at all times, even when sitting in the truck (Tr.
145). Mr. Slawson testified that before confronting the
complainant he checked with Mr. Lawson[9] to ensure that he had
told the complainant to wear his safety suit. After Mr. Lawson
assured him that he had, Slawson approached the complainant and
told him that Ashland procedures required him to wear his safety
gear at all times during the unloading process (Slawson depo. at
18). Slawson testified that the complainant replied that it was
not necessary for him to wear his full safety gear while sitting
in his truck (Slawson depo. at 18-19).
Complainant testified that he exited the truck and began
observing the unloading from the side of the truck, commenting
that he was equally capable of observing the unloading from the
cab of his truck through his rear view mirrors (Tr. 146). Com-
plainant testified that Slawson instructed him to stand at the
rear of the trailer by the hose. Id. Complainant
objected, stating that it was too dangerous to stand that close
to the hose during the unloading process (Tr. 147).[10] Rodger
Marty and Jim Hughes testified that standing over the unloading
lines would have been unsafe (Tr. 407, 548). Mr. Slawson
testified that he told the complainant to stand 20-25 feet behind
the truck, in sight of the hose connections (Slawson depo. at
22). After the complainant refused to stand where he was told
and don his full safety gear, Mr. Slawson summoned Jim Hughes
(Tr. 147, Slawson depo. at 20).
When Mr. Hughes arrived, the complainant reiterated his
objection to having to stand so close to the hose (Tr. 148). Mr.
Hughes told the complainant that he was not required to stand
directly over the unloading line, but was instead expected to
stand in view of the line, approximately 20-25 feet away. Mr.
Hughes also told the complainant to button the top button of his
safety jacket and put on his safety pants (Tr. 148). The com-
plainant asked why and was told that he was required to shut down
the apparatus in case of a leak. Id. Complainant took
issue with this statement, pointing out that his safety equipment
was not designed to protect from major spills and in any event he
was not trained in emergency response. Id.[11] Mr.
Hughes replied that he
[PAGE 7]
was not going to argue with the complainant and told him to put
on his safety gear or he was going to shut down the system and
order the complainant to leave the facility (Tr. 149). The
complainant testified that he continued to refuse to put on his
full safety gear (Tr. 300).[12]
Mr. Hughes testified that he did not expect the complainant
to jeopardize his safety by jumping into an acid leak and would
only expect the complainant to shut down the valves if it could
be done safely, denying the complainant's testimony to the con-
trary (Tr. 476). Mr. Hughes testified that the requests he made
of the complainant were in line with Ashland's safety regulations
(Tr. 521-22). He described the complainant's demeanor as argu-
mentative (Tr. 555). Upon learning of the Ashland incident, Pete
Morgenthaler barred the complainant from performing DuPont
work.[13] Complainant learned of his barring in an October 31,
1991 letter from Chemical Leaman wherein he was told that he was
suspended pending investigation of the Ashland incident (Tr. 155,
CX 18). On November 4, 1991, John Gross ordered the suspension
changed to a reprimand after concluding that suspending the
complainant would be a violation of the collective bargaining
agreement (Tr. 440, 451-52).
DuPont's Decision to Bar the Complainant
Pete Morgenthaler testified that he based his decision to
bar the complainant from DuPont on the combined effects of the
Procter & Gamble incident, the Wurtland incidents and the Ashland
incident (Tr. 222). He stated that he made the decision with no
input from Chemical Leaman and had no knowledge of the complain-
ant's contacts with the E.P.A. (Tr. 232). Mr. Morgenthaler
testified:
[The complainant] had a history of exercising poor judgment
that manifested itself in poor performance and I had gone to
bat for him . . . with Procter & Gamble, which is a very
valued customer in town. . . . I had written this letter
saying that I thought his performance would be better. His
performance didn't improve. I . . . had to take that action
(Tr. 233).
. . . .
I made a decision to bar [the complainant] because of poor
judgment. The poor judgment is he argued with my customer
and, previous to that, he had performance problems at
[Procter & Gamble] and he argued with people at [the
Wurtland plant] (Tr. 276).
On cross-examination, Mr. Morgenthaler acknowledged that the
[PAGE 8]
complainant is the only person he has ever barred from DuPont[14]
and did not know that barring him would lead to the complainant's
lay off (Tr. 241). Upon a request from Chemical Leaman's manage-
ment, Mr. Morgenthaler documented the reasons for his barring of
the complainant in a November 6, 1991 letter (Tr. 257, CX 20).
John Ritzie, the business agent for the employees' union, testi-
fied that Chemical Leaman has no authority to force DuPont to
lift the bar and that if Chemical Leaman pushed the issue, DuPont
was free to find another company to do the work (Tr. 342-43).
Respondent's Investigation into the Incidents Leading to the
Complainant's Barring
Rodger Marty, Chemical Leaman's Regional General Manager,
conducted the investigation on behalf of the respondent. Mr.
Marty's investigation into the Ashland incident consisted of
interviewing Pete Morgenthaler, Todd Slawson, James Hughes and
the complainant, as well as touring the facility. DuPont pro-
hibited a union representative from accompanying Mr. Marty on the
visit (Tr. 157). His investigation into the Wurtland incidents
consisted of interviewing William Jones, Pete Morgenthaler, Terry
Finch and the complainant. Based on his investigation, Mr. Marty
found that the complainant acted improperly in both instances.
He testified that he believed the complainant fabricated his
account of the Ashland incident (Tr. 415). Mr. Marty summarized
his investigation in a January 16, 1992 inter-office memorandum.
In that memorandum, he made the following conclusion:
In summary, my investigation found that [the complainant]
did not follow the plant regulations at Ashland. He was
discourteous and unprofessional when dealing with the cus-
tomer. He was also discourteous to DuPont during another
incident. . . . I strongly feel that Pete Morgenthaler was
just in his action to bar [the complainant] from hauling any
acid from DuPont. Chemical Leaman should defend our em-
ployees when necessary. However, in this case, [the com-
plainant] brought this on himself. He has gotten irate and
belligerent with me each and every time I have seen him and
I have no problem believing that he can get like this with
customers. This is not the type of employee we should have
working for us.
After DuPont's barring of the complainant and Chemical
Leaman's investigation, the respondent decided not to immediately
move for the complainant's reinstatement. John Gross testified
that Chemical Leaman's relationship with DuPont had begun to
deteriorate and did not feel it would be prudent to approach
[PAGE 9]
DuPont so soon (Tr. 453). Mr. Gross did recommend to the com-
plainant that he himself set up a meeting with Mr. Morgenthaler
and perhaps apologize for the incident (Tr. 457-58). The com-
plainant declined to set up the interview, testifying that he had
nothing to apologize for (Tr. 285). Gross testified that he
eventually approached Mr. Morgenthaler about reinstating the
complainant, on July 21, 1992 and May 3, 1993; in both cases Mr.
Morgenthaler refused to discuss the issue (Tr. 472-73). Mr.
Morgenthaler had no intention of lifting the bar at that time and
at the hearing testified that his decision was still firm (Tr.
233-34).
Transfer of the CSX Work
After his bar from DuPont, the only remaining work available
to the complainant consisted of CSX work, which is dry bulk work
(Tr. 163). The complainant performed the CSX work for approxi-
mately two weeks before Chemical Leaman transferred it to their
Louisville, Kentucky, terminal in November of 1991 (Tr. 164).[15]
After that transfer, the complainant was effectively laid off
(Tr. 388).[16] Mr. Marty testified that he transferred the CSX
work due to its underutilization, which he became aware of in
November of 1991, when he learned that the complainant was
performing all of the work. Id. Mr. Marty conducted an
economic study of the situation and concluded that the CSX work
would be better served in Louisville (Tr. 388-89). He testified:
I made the decision that it wasn't economically feasible to
keep that piece of equipment at Ross due to the sporadic
work that it was doing and I felt that we could get better
utilization out of it at . . . Louisville because they do
more dry bulk work there. That was at a time where we were
really looking at the utilization corporately on all equip-
ment. We were moving equipment from one location to another
if it didn't get enough revenue (Tr. 389-90).
After the transfer of the CSX work, Mr. Marty checked on its
progress one time, at the request of the union (Tr. 390). John
Gross testified that the decision to move the CSX work to
Louisville was motivated by the underutilization of the trailer
at Chemical Leaman's Ross, Ohio, plant and a desire to devote
more time and resources to servicing Chemical Leaman's DuPont
account (Tr. 459-460). Chemical Leaman ultimately lost the CSX
work altogether in April of 1992 (Tr. 422).
FINDINGS OF FACT[PAGE 10]
Based on my review of the testimony and exhibits, summarized
above, I make the following factual and credibility findings:
1. Respondent, Chemical Leaman Tank Lines, is engaged in
interstate trucking operations and maintains a place of business
in Ross, Ohio. In the regular course of this business, respon-
dent's employees operate commercial motor vehicles in interstate
commerce principally to transport liquid cargo. Consequently,
respondent is a commercial motor carrier.
2. Respondent is now, and at all times material herein
has been, a person as defined in §401(4) of the Surface
Transportation Assistance Act of 1982 (49 U.S.C.
§§2305, 2301(4)).
3. Complainant was employed by respondent as an over-the-
road truckdriver from May of 1972 until November of 1991, when
complainant was effectively laid off due to the transfer of the
CSX work to another facility.
4. Over 90% of the complainant's work prior to November
1991 involved delivering acid from DuPont's Fort Hill plant to
DuPont's customers.
5. Complainant's history of making safety complaints did
not detrimentally affect his standing with Chemical Leaman. Up
until the incidents in question, complainant worked for Chemical
Leaman for almost twenty years, often making safety complaints,
without suffering any retaliatory employment actions.
6. Procter & Gamble was justified in barring complainant
from their St. Bernard facility in January of 1990. The efforts
of DuPont and Chemical Leaman facilitated the complainant's re-
instatement.
7. Chemical Leaman was not aware of Faust's contacts with
the E.P.A. until he filed the first Complaint in this matter and
complainant's November 1991 lay-off was unrelated to his discus-
sions with the E.P.A.
8. Complainant did not engage in any unprofessional
conduct at the Wurtland facility on October 18, 1991. Com-
plainant argued with the Wurtland employees on October 21, 1991,
over who was responsible for loading his truck. The majority of
the evidence produced by the complainant concerning the Wurtland
incidents dealt with the October 18, 1991 visit; however, the
complainant failed to produce sufficient evidence to rebut the
statements made by William Jones, Wurtland's Assistant Plant
[PAGE 11]
Manager, concerning the altercation at the facility on October
21, 1991.
9. Upon entering the Ashland facility on October 31, 1991,
complainant violated plant procedure by making a U-turn in the
lot (probably inadvertently). Complainant was unreceptive to Mr.
Slawson's (Ashland supervisor) reprimand and subsequent instruc-
tions. Complainant violated plant procedures when he did not
wear his full safety gear during the unloading process and did
not monitor the unloading from behind the truck. Jim Hughes
(Ashland manager) did not expect the complainant to jump into an
acid spill; rather, his request that the complainant put on his
safety suit pertained to Ashland's safety procedures during
normal unloading of hazardous chemicals. The complainant's
continuing refusal to put on his full safety gear violated
Ashland's policies and was unjustified. Complainant's tone
during the Ashland incident was argumentative.
10. DuPont was not a signatory to the collective bargaining
agreement between Chemical Leaman and the union representing
Chemical Leaman's employees.
11. DuPont's Pete Morgenthaler based his decision to bar
the complainant on the combined effects of the Procter & Gamble
barring, the Wurtland incidents and the Ashland incident.
Chemical Leaman played no role in Morgenthaler's decision and
their decision not to seek immediate reinstatement of the com-
plainant was justified by the strained relationship with DuPont.
At no time was DuPont willing to reinstate the complainant and
Chemical Leaman was powerless to change that position.
12. Chemical Leaman made a thorough investigation into the
complainant's barring by DuPont and the weight of the evidence
supports their conclusion. Rodger Marty interviewed all inter-
ested parties, visited the Ashland plant and presented a well-
reasoned and detailed report explaining his decision.
13. Respondent's transfer of the CSX work to their
Louisville plant was economically justifiable. However, the
respondent accelerated its transfer of the work upon learning of
the complainant's arrangement with his union brothers, which
allowed him to take all of the available CSX work. This con-
clusion is supported by the timing of the move (November of
1991), which I find too coincidental, and the respondent's lack
of interest in following up on the effectiveness of the move.
Any damages that may result from this action will be mitigated by
the eventual loss of the work altogether, in April of 1992.[17]
[PAGE 12]
CONCLUSIONS OF LAWTimeliness of the CERCLA Complaint
Before reaching the substantive issues of the case, I must
address the timeliness of the CERCLA complaint Section 9610 of
CERCLA reads:
(a) No person shall fire or in any other way discriminate
against, or cause to be fired or discriminated against, any
employee . . . by reason of the fact that such employee . .
. has provided information to a State or to the Federal
Government, filed, instituted, or caused to be filed or
instituted any proceeding under this chapter, or has testi-
fied or is about to testify in any proceeding resulting from
the administration or enforcement of the provisions of this
chapter.
(b) Any employee . . . who believes that he has been fired
or otherwise discriminated against by any person in vio-
lation of subsection (a) of this section may, within thirty
days after such alleged violation occurs, apply to the
Secretary of Labor for a review of such firing or alleged
discrimination. . . .
42 U.S.C. §9610(a),(b).
The complainant contacted the E.P.A. in the Spring of 1991,
informing them of the respondent's alleged dumping of hazardous
materials at the Skinner Landfill (Tr. 122). The incidents at
DuPont's Wurtland facility occurred on October 18 and 21, 1991,
and the incident at Ashland Oil occurred on October 31, 1991.
E.I. DuPont barred the complainant from their facilities on
November 1, 1991 (Tr. 231-32). On November 5, 1991, the com-
plainant filed a complaint with the United States Department of
Labor, Occupational Safety and Health Administration (OSHA). In
a November 13, 1992 letter to the undersigned Administrative Law
Judge, the complainant described the complaint as follows:
After the incident that occurr[ed] on October 31, 1991,
at Ashland Oil and E.I. DuPont I received a letter dated
October 31, 1991, on the same day of the incident from
[respondent's] that I was being barred from the E.I. DuPont
facilities. I then notified OSHA to file a discrimination
complaint on November 5, 1991 regarding the unsafe con-
ditions that they wanted me to perform. I still did not
know at this time I was being discriminated against because
my involvement with the EPA.
[PAGE 13]
On or about November 12, 1991, the complainant was laid
off when the respondent transferred the CSX work, the only
remaining work available to the complainant, to their Louisville,
KY, terminal (Tr. 388). On November 25, 1991, the complainant
contacted the E.P.A. for advice concerning possible adverse em-
ployment action (CX 33). In a November 19, 1992, letter to the
undersigned Administrative Law Judge, Paul Rogers, a civil inves-
tigator for the EPA, recalled this correspondence with the
complainant:
I [advised the complainant] that Section 110 of CERCLA
provided protection for individuals who had supplied
information concerning the enforcement of this Act. I
advised him that the Secretary of Labor was responsible for
investigating these charges. Since [the complainant] had
also discussed allegations which appeared to be potential
violations of OSHA and apparently intended to speak with
them, I advised him that he should consult with them
concerning a potential claim under Section 110 of CERCLA.
In April of 1992, the complainant requested additional
information from Mr. Rogers to pursue his claim (CX 1). On
April 14, 1992, Mr. Rogers notified the complainant that the
proper place to file his CERCLA claim was with the Wage and Hour
Division of the U.S. Department of Labor (CX 1). Mr. Rogers
amended his letter on April 29, 1992, providing the proper
address for Wage and Hour (CX 13). The complainant notified Wage
and Hour of his discrimination complaint on May 14, 1992 (CX 29).
Section 110[18] of CERCLA requires that the complaint be
filed within 30 days of the date on which the employee was
discharged (or fired) or otherwise discriminated against. The
discriminatory action alleged in this case, the complainant's
being laid off by his employer, took place on November 12, 1991.
The complaint was not filed with the District Director, Wage and
Hour Division, until May 14, 1992, which is 184 days after the
allegedly discriminatory event. As such, unless good cause
exists to equitably toll the statute, the CERCLA claim (docketed
under the SWDA, see supra note 1), must be dismissed.
The Supreme Court has recognized that the statutory filing
period in employment discrimination cases is not jurisdictional
in nature but rather is a statute of limitations subject to
equitable tolling in some circumstances. Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982). However, the
tolling of the statutory period for filing a complaint on
equitable
[PAGE 14]
grounds is usually very restricted. Geromette v.
General Motors Corp., 609 F.2d 1200, 1203 (6th Cir.),
cert. denied, 446 U.S. 985 (1979). Ignorance of the law -
i.e. the complainant did not know he had to file
his complaint with the District Director, Wage and Hour Division,
within 30 days of the occurrence of the alleged discriminatory
action - is not sufficient grounds for tolling the limitations
period. Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir.
1991). But raising the precise statutory claim in issue in the
wrong forum may be grounds for tolling. School Dist. of
Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981).
Timely filing of a complaint with the E.P.A., or with the wrong
office of the Department of Labor, may warrant tolling of the 30
day limitations period. Sawyers v. Baldwin Union School
Dist., 85-TSC-1 (Sec'y. October 5, 1988); Dartey v.
Zack Co., 82-ERA-2, (Sec'y. April 25, 1983).
The complainant's November 5, 1991, complaint to OSHA does
not toll the CERCLA statute of limitations because it is un-
related to the incidents giving rise to the CERCLA (SWDA)
complaint. The Marshall court held that tolling is
appropriate where "the plaintiff has raised the precise
statutory claim in issue but has mistakenly done so in the
wrong forum." 657 F.2d at 20 (citingSmith v.
American President Lines, Ltd., 571 F.2d 102 (2d Cir.
1978)(emphasis added). The complainant's November 5, 1991,
complaint is in response to E.I. DuPont's barring of the
complainant for alleged argumentative behavior to employees of
DuPont and its customers on October 18, 21 and 31; the com-
plainant's May 14, 1992, CERCLA complaint (SWDA) is in response
to the respondent's alleged adverse employment actions stemming
from the complainant's discussions with the E.P.A. The complain-
ant acknowledged this in his November 13, 1992, letter to the
undersigned Administrative Law Judge when he stated that his
contacting of OSHA on November 5, 1991, was related to his
barring from E.I. DuPont due to his refusal to work in unsafe
conditions, and at that time he was not aware of any adverse
employment actions related to his conversations with the E.P.A.
Thus, since the complainant's November 5, 1991, OSHA complaint is
not precisely related to his CERCLA (SWDA) claim, it does not
toll the statute of limitations.
The complainant's November 25, 1991, correspondence with
the E.P.A. is insufficient to toll the statute of limitations.
In Sawyers, the Secretary held that timely filing of a
complaint with the E.P.A., or with the wrong office of the
Department of Labor, may warrant tolling of the 30-day
limitations period. 85-TSC-1 (October 5, 1988). While the
complainant's discussion with the E.P.A. concerned activities
relating to the CERCLA complaint
[PAGE 15]
(alleged adverse employment action stemming from the complain-
ant's contacting the E.P.A.) and occurred within the 30-day
limitation period, it did not rise to the level of filing a
complaint. Department of Labor regulations establishing Pro-
cedures for the Handling of Complaints Under Federal Employee
Protection Statutes, including the SWDA (docketed under CERCLA),
require that the complaint be in writing and include a full
statement of the acts or omissions, with pertinent dates, which
are believed to constitute the violation. 29 C.F.R.
§24.3(c); seealsoMarshall, 657 F.2d
at 19; Sawyer, 85-TSC-1 (October 5, 1988). In the present
case, the complainant merely called Mr. Rogers of the E.P.A. and
asked if his layoff could be related to his previous talks with
the E.P.A. No writing was filed with the E.P.A. explaining the
respondent's alleged acts or omissions. I am unwilling to find
that the complainant's phone call to Mr. Rogers constitutes a
filing of a complaint within the meaning of the regulations.
Therefore, the complainant's November 25, 1991, phone call to the
E.P.A. is insufficient to toll the 30-day statute of limitations.
Nor am I willing to find that the E.P.A.'s alleged mis-
leading of the complainant merited tolling of the statute.
Complainant argues that the E.P.A. failed to apprise him of the
correct forum in which to file his CERCLA claim and erroneously
directed him to OSHA. Courts, however, have not found agency
confusion to be a reason to toll the statute of limitations.
See Marshall, 657 F.2d at 21; see generallyWilliams v. Army and Air Force Exch. Serv., 830
F.2d 27, 30-31 (3d Cir. 1987). Besides, Mr. Rogers' November 19,
1992, letter states that he advised the complainant to contact
the Secretary of Labor concerning his CERCLA complaint, as well
as OSHA. Had the complainant acted on this advice and contacted
the Secretary's Office, he would likely have been directed to the
proper forum (Wage and Hour) and avoided the statute of
limitations problem. Thus, regardless of
whether the E.P.A. misled the complainant or not, their actions/
inactions were insufficient to toll the statute of limitations.
The complainant's May 14, 1992, CERCLA complaint falls
outside the 30-day statute of limitations period and sufficient
cause does not exist to toll the statute. Therefore, I find that
the CERCLA (SWDA) complaint was not filed in a timely fashion and
should be dismissed.
Surface Transportation Assistance Act Discussion
The remaining justiciable issue arises under 49 U.S.C. App.
§2305(b), which is part of the Surface Transportation
Assistance Act of 1982 (the Act). In this opinion, 49 U.S.C.
App. §2305(b)
[PAGE 16]
will be referred to as §405(b) - the section number used by
Congress in the original Act. Section 405(b) of the Act
provides:
No person shall discharge, discipline, or in any manner
discriminate against an employee with respect to the
employee's compensation, terms, conditions or privileges
of employment for refusing to operate a vehicle when such
operation constitutes a violation of any Federal rules,
regulations, standards, or orders applicable to commercial
motor vehicle safety or health, or because of the employee's
reasonable apprehension of serious injury to himself or the
public due to the unsafe condition of such equipment. The
unsafe conditions causing the employee's apprehension of
injury must be of such nature that a reasonable person,
under the circumstances then confronting the employee, would
conclude that there is a bona fide danger of an accident,
injury, or serious impairment of health, resulting from the
unsafe condition. In order to qualify for protection under
this subsection, the employee must have sought from his
employer, and have been unable to obtain, correction of the
unsafe condition.
49 U.S.C. §2305(b).
To establish a prima facie case under §405, the
evidence must demonstrate: (1) that the complainant engaged in
protected activity; (2) that he was the subject of adverse
employment action; and (3) that there was a causal link between
his protected activity and the adverse action of his employer.
Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th
Cir. 1987); Moyer v. Yellow Freight Sys., Inc., 89-
STA-7 (Sec'y. November 21, 1989), aff'd in part and rev'd in
part on other grounds, sub nom., Yellow Freight Sys., Inc.,
v. Martin, 954 F.2d 353 (6th Cir. 1992), citing Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248
(1981) and Mt. Healthy City School Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977); McGavock v. Elbar,
Inc., 86-STA-5 (Sec'y July 9, 1986). If the complainant
satisfies these requirements, then the evidentiary burden shifts
to the respondent to prove that the complainant was laid off for
a legitimate non-discriminatory reason. The evidence produced by
the respondent to rebut the presumption of discrimination only
has to raise a genuine issue of fact as to whether discrimination
actually occurred; it does not have to prove at this stage that
it was actually motivated to lay off the complainant because of
the proffered reason. Burdine, 450 U.S. at 454, 455. The
complainant must then prove that the respondent's explanation for
laying him off is not the "true reason" and is in fact
pretextual. Moravec[PAGE 17]
v. HC & M Transp., Inc., 90-STA-44 (Sec'y Jan. 6, 1992).
Whether the Complainant Engaged in Protected Activity
The alleged protected activity involves the complainant's
claim that he understood that he was required to stand over the
unloading line during the unloading process and his refusal to do
so. In analyzing protected activity under §405(b), courts
have treated the "when" and "because" clauses separately. Under
the "when" clause ("when such operation constitutes a violation
of any Federal rules . . ."), "a driver must show that the
operation would have been a genuine violation of a federal safety
regulation at the time he refused to drive - a mere good
faith belief in a violation does not suffice." (emphasis added)
Yellow Freight Sys., Inc. v. Martin, 983 F.2d 1195,
1199 (2d Cir. 1993); see also Brame v. Consolidated
Freightways, 90-STA-20 (Sec'y June 17, 1992); Robinson
v. Duff Truck Lines, Inc., 86-STA-3 (Sec'y March 6, 1987)
(the Secretary has consistently required a complainant to prove
that a truck was actually unsafe when he seeks protection under
the "when" clause). Under the "because" clause, the complainant
need not prove that his refusal to perform an act was grounded in
an actual violation, only that his belief in the perceived danger
was genuine and reasonable. Yellow Freight Sys., Inc. v.
Reich, 38 F.3d 76, 82 (2d Cir. 1994). The complainant's
concern could be couched in terms of either driving unsafe
vehicles or engaging in unsafe acts. See 128 Cong. Rec.
29192 (1982); see also Brock v. Roadway Express,
Inc., 481 U.S. 252, 262 (1987). Section 405(b) also requires
that the complainant have "sought from and was unable to obtain
correction of the unsafe activity." SeeLewis Grocer
Co. v. Holloway, 874 F.2d 1008, 1011-12 (5th Cir.
1989).
In the present case, the complainant is unable to avail
himself of the "when" clause of §405(b). The complainant
must show that he was discharged "for refusing to operate a
vehicle when such operation constitutes a violation of any
Federal Rules . . .." The complainant fails to meet the language
of the clause for two reasons. First, the complainant's alleged
protected activity, refusing to stand over the unloading line, is
unrelated to the operation of a vehicle. Secondly, the
complainant produced no evidence demonstrating that his allegedly
being asked to stand over the unloading line constituted an
actual violation of a federal safety regulation.[19] See
Martin, supra. In fact, no violation relating to the
complainant's act was ever proven.[20] Moreover, Faust did not
contact his employer, as even he has acknowledged is the
proper procedure to follow (see n. 10, supra. and Tr. 318-
19), to attempt to have the allegedly unsafe condi
[PAGE 18]
tion corrected and so cannot avail himself of the protection of
the statute in any event. Therefore, the complainant is unable
to demonstrate that he engaged in protected activity through
application of the "when" clause in §405(b).
The complainant's allegedly protected activity could only
come within the ambit of the statute if it is encompassed by the
"because" clause. But the "because" clause, on its face, cannot
apply since the allegedly protected activity has nothing to do
with the operation of the vehicle, unless discharging liquid
cargo, using the truck's pump, while the vehicle is stationary,
is included in the concept "operate a vehicle."[21]
However, even if the "because" clause arguably applies to
discharge of a stationary tank truck, Faust's claim must be
rejected because he did not engage in protected activity. The
complainant must show that he had "reasonable apprehension of
serious danger to himself or the public...." The circumstances
of the Ashland incident as a whole indicate to me that Faust was
not concerned about safety during the unloading process an had no
legitimate basis for a complaint based on his refusal to engage
in an unsafe discharge procedure at Ashland.
From the moment he arrived at the Ashland facility, Faust
exhibited a disagreeable attitude. Apparently, being admonished
for making a U-turn to access the unloading facility, rather than
following Ashland's posted route, set him off. His attitude de-
teriorated further upon being told to get out of the cab of his
truck to observe the hose connections while unloading, and to
wear his complete safety suit. His assertion that he was ordered
to stand over the discharge hose while it contained acid under
pressure, rather than 25-30 feet away, is not credible. The
Ashland officials involved, having many years of experience
working around hazardous chemicals, would not have given such a
direction. Common sense would tell you that standing near a
pressurized hose, valves and pipe connections while unloading
acid would be foolish and potentially dangerous. I do not
believe that Faust was told to stand so close to the discharge
hose that he was placed in danger.
Faust's refusal throughout the incident to don his complete
protective suit, whether or not he believed it adequately pro-
tected him, further demonstrates his lack of concern about
safety. The events at the Ashland terminal on October 31 were
precipitated by Faust's uncooperative and argumentative behavior,
and not by any safety concerns. Faust cannot invoke the protec-
tion of the "whistleblower" statute to relieve himself of the
consequences of his own misbehavior.
[PAGE 19]
Further, since Faust failed to enlist the assistance of his
employer, Chemical Leaman, in sorting out any perceived safety
concerns he might genuinely have had, he cannot avail himself of
the protection of the statute even if he did engage in protected
activity.
Another circumstance which removes this matter from the
protection of the STAA is Faust's filing and pursuit to a final
decision of a claim under the employee protection provision of
the Occupational Safety and Health Act (OSHA), 29 U.S.C.
§660(c)(1988). The alleged safety violation of which Faust
complained is more appropriately an OSHA violation than an STAA
violation since an unsafe activity in employment is alleged, but
it did not involve operation of a vehicle. E.g.
Foley v. J.C. Maxxwell, Inc., 95-STA-11 (Sec'y.
July 3, 1995), (ALJ May 5, 1995). The complainant should not be
permitted to pursue essentially the same remedy for an alleged
violation arising from the same incident and based on the same
assertions of fact under both the OSHA and STAA in different
administrative judicial agencies before different ALJs. In
effect, to allow such a bifurcated procedure provides the
complainant with a private right of action not available under
OSHA. E.g. Taylor v. Brighton Corp.,
616 F.2d 256 (6th Cir. 1980).
Since Faust has not established that he engaged in protected
activity under either the "when" or "because" clauses of
§405(b), and moreover, did not contact his employer
regarding the allegedly unsafe condition at Ashland in an attempt
to have that condition corrected, he has not made out a
primafacie case that he engaged in protected
activity.
CONCLUSION
The complainant failed to establish equitable grounds for
tolling the otherwise untimely complaint under CERCLA. The
complainant has failed to establish that he engaged in protected
activity under the STAA.
ORDER
IT IS RECOMMENDED that the CERCLA (SWDA) and STAA complaints
filed by William B. Faust be dismissed.
___________________________
J. MICHAEL O'NEILL
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] This matter has been docketed as a case arising under the
Solid Waste Disposal Act (SWDA), 42 U.S.C §6971.
[2] The Act was again amended in July 1994. Pub.L.No. 103-272;
108 Stat. 990 (1994). This provision was reorganized for clarity
and consistency, without substantive change. See 49
U.S.C.A. §31105 (West 1994).
[3] Throughout this Decision and Order, respondent and Chemical
Leaman will be used interchangeably.
[4] Some of the exhibits were not received in their entirety and
some were admitted for procedural purposes only. Also admitted
were pages 1 and 15-133 of the complainant's February 8, 1994,
deposition and Todd Slawson's February 9, 1994, deposition.
[5] In this decision, "RX" refers to the respondent's exhibits,
"CX" refers to the complainant's exhibits and "Tr." refers to the
transcript of the hearing.
[6] The Skinner Landfill is a refuse facility located in West
Chester, Ohio.
[7] These incidents are discussed infra.
[8] Chemical Leaman's Driver's Manual, which was distributed to
its drivers, explained in part that "[m]ost customers served by
[Chemical Leaman] have specific regulations governing the actions
of non-employees while in their plant facilities. These
regulations are designed to assure the safety and well-being of
visitors as well as plant employees. It is your responsibility
to follow all customer plant regulations." (RX 11).
[9] Mr. Lawson did not testify and was not deposed.
[10] Rodger Marty, Chemical Leaman's Regional General Manager,
testified that drivers, when called upon to engage in activity
they deem to be unsafe, are to inform the customer of this, shut
down the job and call their dispatcher (Tr. 416). The complain-
ant acknowledged that he is not to engage in an argument with a
customer if he has a disagreement and should instead contact his
dispatcher (Tr. 318-19).
[11] James Richards, the driver trainer at Chemical Leaman,
testified that Chemical Leaman drivers are only capable of
handling small spills and are not trained in emergency response
(Tr. 30). The equipment available to Chemical Leaman drivers
(PVC suits, rubber boots, safety goggles and gloves) is designed
for minor spills (Tr. 29).
[12] The parties were in disagreement over what Glenn Lawson was
wearing during the unloading process. The complainant testified
that Lawson was wearing a rubber apron and not a full safety suit
(Tr. 139, 143). As such, the complainant did not feel he needed
to wear his full safety suit (Tr. 299). Mr. Slawson testified
that Lawson was wearing a full safety suit that day (Slawson
depo. at 34). Mr. Hughes testified that it was general practice
at Ashland that all employees wear full safety suits during the
unloading process and that Mr. Lawson always complied with this
practice (Tr. 531). Basil Armstrong, a Chemical Leaman driver,
testified that he has seen employees at Ashland wearing only
rubber aprons during the unloading process (Tr. 66). Mr. Hughes
testified that Ashland employees wear aprons during "gravity
loading" and full safety suits during "pressure loading" (Tr.
558).
[13] There is some confusion as to how Mr. Morgenthaler learned
of the Ashland incident. Mr. Hughes testified that he told Todd
Slawson to contact DuPont and let them know what happened (Tr.
530); Mr. Slawson does not recall contacting DuPont (Slawson
depo. at 29). A representative from Ashland called Chemical
Leaman who in turn contacted Mr. Morgenthaler at DuPont (Tr.
231). Mr. Morgenthaler testified that he then called Mr. Hughes
to apologize for the incident (Tr. 231-32); Hughes did not recall
speaking with Morgenthaler (Tr. 544, 546). In any event, Mr.
Morgenthaler learned of the incident and decided to bar the
complainant from DuPont facilities.
The complainant alleges that much of the information
conveyed from Ashland and DuPont to Chemical Leaman concerning
the incidents in question was documented by the Chemical Leaman
dispatcher in "hot books." The complainant, who unsuccessfully
attempted to obtain the books during discovery, implies that the
respondent destroyed the "hot books" to eliminate compromising
information (Tr. 11). John Gross, Chemical Leaman's then
Director of Human Resources, testified that he has no knowledge
of the existence of the "hot books." (Tr. 482-83). Absent any
additional information, I am unwilling to find that the
respondent intentionally destroyed the hot books to eliminate
prejudicial evidence.
[14] John Gross testified that other Chemical Leaman drivers
have been barred from other facilities, although not DuPont (Tr.
441-42).
[15] The CSX work was available to the complainant because union
members senior to Faust uniformly bypassed the work, allowing him
to choose it (Tr. 60, 164). The complainant also worked one day
hauling "216 materials", which include soaps, fatty acids, paints
and latexes (Tr. 103, 165).
[16] In the previous two to three years, Chemical Leaman
transferred most of the dry bulk work out of their Ross, Ohio
plant (Tr. 461-62).
[17] Respondents submitted deposition testimony of the
complainant taken on February 8, 1994. The majority of the
testimony concerns the complainant's post-Chemical Leaman
employment.
[18] Section 110 is the section number used by Congress in the
original Act.
[19] In his Post-Hearing Brief, complainant directed the court
to the Regulations Pertaining to the Transportation of Hazardous
Materials, particularly sections dealing with the attendance and
surveillance of a stationary truck. 49 C.F.R. §397.5.
However, these Regulations do not address the situation at bar
and cannot be found to have been violated.
[20] The respondent was cited for failing to adequately train
their drivers in emergency response, but that violation was
unrelated to the complainant's protected activity.
[21] E.g. Statutory provisions which protect
employees for participating in agency proceedings are accorded
"exceptionally" broad application. NLRB v. Retail Store
Emp. U., Local 876, 570 F.2d 586, 590-91 (6th Cir.), cert.
denied, 439 U.S. 819 (1978); Pettway v. American
Cast Iron Pipe Co., 411 F.2d 998, 1004-008 (5th Cir. 1969);
EEOC v. Kallir, Phillips, Ross, Inc., 401 F. Supp.
66, 70-71 (S.D.N.Y. 1975); see also Marshall v.
Whirlpool Corp., 593 F.2d 715, 724-25 (6th Cir. 1979),
aff'd, 445 U.S. 1 (1980). The impetus is to protect all
forms of access to respective agencies at all stages of
administrative process and thus to prevent agencies' channels of
information from "being dried up by employer intimidation. . . .
" NLRB v. Scrivener, 405 U.S. 117, 121-24 (1972).
