DATE: June 24, 1992
CASE NO. 88-SWD-3
IN THE MATTER OF
CHILTON D. WILLIAMS,
COMPLAINANT,
v.
TIW FABRICATION & MACHINING, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) issued by the Administrative Law Judge (ALJ) on
June 8, 1989, in this case, which arises under the employee
protection (whistleblower) provision of the Solid Waste Disposal
Act, as amended (SWDA), 42 U.S.C. § 6971 (1988).
Complainant Chilton D. Williams, a highly skilled machinist,
was employed by Respondent TIW Fabrication & Machining, Inc.
(TIW), initially in 1986 and again in late 1987 and early 1988 at
its fabrication, machining, and welding facility in Albuquerque,
New Mexico. In the interim, Complainant subcontracted machine
shop work from TIW. Hearing Transcript (T.) 64-65, 200.
Williams testified that during his second tenure at TIW's
facility, he found the working conditions to have deteriorated
significantly. Unguarded machinery gears and inoperative brakes
on cutting, drilling, and boring equipment posed the risk of
severed hands and fingers. A broken switch on a planer
necessitated wiring alterations, creating an electrical hazard.
Employees, including managers, routinely disposed of oil,
solvents, and acids, e.g., acetone, chromic acid, xylene,
methyl
[PAGE 2]
ethyl ketone (MEK), by dumping them in the toilets or the ground.
[1] Flammable liquids were stored in open containers, and
welding was performed in close proximity. Chemical spills were
mopped with rags which then were left for collection by a
cleaning service. The facility was not heated in the winter,
ventilation was poor, and the drinking water tasted foul. TIW
maintained a well, and a trailer court was located adjacent to
the property. See T. 69-105, 170-177, 183-188 (Williams);
T. 202-206, 211-216, 221-229 (Welder/Mechanic Murphy); T. 234-
236, 248-249 (Fabrication Foreman Boyce).
Williams complained to TIW management about these conditions
and practices on numerous occasions in late 1987 and early 1988.
Management declined to address his concerns. Finally, on
April 29, 1988, Williams filed a complaint with the Occupational
Safety and Health Administration (OSHA). On Friday, May 13, OSHA
inspectors attempted to conduct a workplace inspection but were
denied entry by TIW management. [2] On Monday morning, May 16,
Williams was laid off, effective at the completion of his work
shift. Williams contends that his complaints motivated TIW to
lay him off in violation of the SWDA, and the ALJ has recommended
that he should prevail. I agree as described below.
ANALYSIS
1. The Merits
Under the burdens of proof and production in "whistleblower"
proceedings, Complainant first must make a prima facie showing
that protected activity motivated Respondent's decision to take
adverse employment action. Respondent may rebut this showing by
producing evidence that the adverse action was motivated by a
legitimate, nondiscriminatory reason. Complainant then must
establish that the reason proffered by Respondent is not the true
reason. Complainant may persuade directly by showing that the
unlawful reason more likely motivated Respondent or indirectly by
showing that Respondent's proffered explanation is unworthy of
credence. Dartey v. Zack Co., Case No. 80-ERA-2, Sec.
Dec., Apr. 25, 1983. Cf. Roadway Exp., Inc. v.
Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987).
In order to establish a prima facie case, Complainant must
show that he engaged in protected activity, that he was subjected
to adverse action, and that Respondent was aware of the protected
activity when it took the adverse action. Complainant also must
present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action.
Under the SWDA,
No person shall fire, or in any other way
discriminate against . . . any employee . . .
by reason of the fact that such employee
. . . has filed, instituted, or caused to
[PAGE 3]
be filed or instituted any proceeding under this chapter or
under any applicable implementation plan, or has testified or is
about to testify in any proceeding resulting from the
administration or enforcement of the provisions of this
chapter or of any applicable implementation plan.
42 U.S.C. § 6971(a). The referenced chapter is "Chapter 82,
Solid Waste Disposal," 42 U.S.C. §§ 6901-6992k (1988),
which governs, inter alia, the treatment, storage,
transportation, and disposal of hazardous waste. Subchapter III,
42 U.S.C. §§ 6921-6939b. The chemicals used by TIW are
regulated under the Act, 40 C.F.R. § 261.33(f) (1991), and TIW is subject to
regulation as a "small quantity generator." 40 C.F.R. § 261.5(a) and
(g). Accordingly, Williams' complaints about chemical storage
and disposal are covered substantively under the SWDA
whistleblower provision. SeeJohnson v. Old Dominion
Security, Case Nos. 86-CAA-3, et seq., Sec. Dec., May
29, 1991, slip op. at 15; Aurich v. Consolidated Edison Co. of
New York, Inc., Case No. 86-CAA-2, Sec. Remand Order, Apr.
23, 1987, slip op. at 4.
Moreover, the SWDA protects both (1) Williams' internal
complaints to TIW management and (2) his external complaints to
Federal and State regulatory agencies. Kansas Gas & Elec. Co.
v. Brock, 780 F.2d 1505, 1510-1512 (10th Cir. 1985), cert.
denied, 478 U.S. 1011 (1986), citingNLRB v.
Scrivener, 405 U.S. 117 (1972) and NLRB v. Retail Store
Employees Union, Local 876, 570 F.2d 586 (6th Cir.), cert.
denied, 439 U.S. 819 (1978) (protection afforded during all
stages of participation in order to maintain the integrity of the
administrative process in its entirety). Finally, the chapter
definition of the term "person" encompasses TIW and the
individual managers who discharged Williams. 42 U.S.C. §
6903(15). [3] Respondent thus was prohibited from
discriminating against Williams because he made complaints about
the chemicals.
Williams also met his burden of showing adverse action and
causation, the remaining elements of a prima facie case.
Williams' "layoff" was tantamount to discharge. It closely
followed his protected activity, temporal proximity being legally
sufficient to establish the "causation" element. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989), citingKeys v. Lutheran Family and Children's Services of
Missouri, 668 F.2d 356 (8th Cir. 1981) (less than two
months); Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980),
cert. denied, 450 U.S. 979 (1981) (23 days).
Additional evidence reinforces the inference. On the
morning of Williams' May 16, 1988, layoff, General Manager and
Vice-President Sieker, who had denied OSHA entry on the preceding
Friday, chastised Williams for apparent compliance with
established procedures and directed him to sweep the floor
despite the existence of abundant machining work. T. 112-113.
Early that afternoon, Williams approached Production Manager
McLellan to point out a mistake in a blueprint. According to
Williams, McLellan rejoined:
I will correct the problem with the print,
but you're getting terminated because of all
your complaints and bitching and I don't have
to listen to all this BS anymore. . . . I
have hired a man starting this morning. We
don't have enough work for three [machinists]
and I'm getting rid of you.
T. 113. Fabrication Foreman Boyce testified about his
conversation with two other supervisors following his return from
medical leave on May 22. They related that Williams "had got
fired because he had blew the whistle to OSHA." T. 232-234, 243-
244. When asked by Boyce about Williams, McLellan explained:
"[W]e got rid of that troublemaker last week." T. 233, 248
(Boyce). Welder/Mechanic Murphy testified that in June 1988
McLellan related that "Williams had turned them into OSHA."
T. 216-217.
McLellan laid off Williams pursuant to Sieker's instruction.
It is uncontroverted that many of Williams' internal complaints
were directed to McLellan and Sieker. I find that, at the very
least, these managers strongly "suspected" that Williams had
filed similar complaints with OSHA. See T. 220 (Murphy).
TIW defends (1) by arguing that Williams did not complain to
OSHA about the chemicals and thus his external complaint is not
protected under the SWDA and (2) by positing a legitimate,
[PAGE 4]
nondiscriminatory reason for the layoff -- insufficient machining
work. The evidence shows that in filing his April 29, 1988,
complaint, Williams was concerned in part with his respiratory
condition. During the preceding three- to four-month period,
Williams had been exposed to welding smoke. A job beginning on
April 15 exposed him for a period of four to five days to dust
"boiling in the atmosphere." T. 128. He sought medical
treatment for flu-like symptoms on April 21 and was diagnosed as
having pneumonia. T. 127. He subsequently obtained a medical
release to return to work effective May 10.
Williams testified to being "pretty sick" when he filled out
his OSHA complaint. He stated: "I think mostly [the complaint]
was on the grinding of the big cylinders and no ventilation, no
exhaust, no safety guards, no respirators, and the condition of
the toilet facilities and the water, water situation." Williams
deposition at 36-37. Although the inspectors who received his
complaint focused on "[t]he ventilation and the sanitation and
the work hazards," Williams did recall complaining about
"improper storage or disposition of chemicals." He testified:
"I mentioned it and they weren't too concerned about that. It
wasn't apparently their area." Id. at 162. When asked
whether he "complained to OSHA about [his] belief that the well
water ha[d] something wrong with it," Williams testified: "I
mentioned it. They were not too concerned, I don't think that's
their area, there's too many departments." Id.
I agree with the ALJ that a "fair reading of this
[testimony] indicates that TIW's hazardous waste practices were
brought to OSHA's attention." R.D. and O. at 9. Certainly the
"water situation" and the condition of the "well water" related
by Williams raised the possibility that TIW had contaminated the
water table by dumping acids and solvents in the ground. Based
on the frequency and extent of Williams' complaints and his
outspoken approach to job performance, see, e.g.,
T. 169-170, 248-249, I also find persuasive the ALJ's finding
that Williams characteristically "express[ed] his opinions on all
matters he objected to." Id. I note that even absent an
external SWDA complaint, Williams would gain protection for his
internal complaints about the chemicals. Cf. Yellow
Freight System, Inc. v. Martin, 954 F.2d 353, 355-357 (6th
Cir. 1992) (complaint or proceeding need only be related to a
violation under a particular law; the violation need not comprise
the only or even the predominant subject of the complaint or
proceeding); Monteer v. Milky Way Transport Co., Inc.,
Case No. 90-STA-9, Sec. Dec.,
July 31, 1990, slip op. at 3 (although complaint concerned lost
compensation primarily, covered safety aspect also pertained).
As to TIW's proffered "legitimate" reason for Williams'
[PAGE 5]
layoff, I find it to be pretextual. An examination of
Respondent's Exhibits 4, 8, and 18 establishes that TIW laid
Williams off at a time when it was amassing a backlog of
contracts calling for precision machining. In this regard, I
expressly adopt the ALJ's analysis. R.D. and O. at 11 (final,
carryover paragraph (par.)), 12 (fourth and fifth pars.), 13
(all full pars.). [4] This finding also is supported by
testimony regarding volume of machining work and TIW's practice
of accumulating backlogs. T. 114-119 (Williams), 221 (Murphy),
237-241 (Boyce). Finally, irregularities in notice and
methodology associated with Williams' layoff support a finding of
pretext. See T. 236, 250-251, 253. Compare T.
292-295, 311-313 and 431-436. Williams thus has
established that TIW unlawfully discharged him in retaliation for
filing protected SWDA complaints.
2. The Remedy
Williams reportedly suffered an "industrial accident" on
April 19, 1988. He took medical leave through Monday, May 9, and
returned to work, pursuant to his physician's release, on May 10.
He performed his machinist duties through Friday, May 13 when
OSHA attempted its workplace inspection. At the conclusion of
his work shift on Monday, May 16, he was unlawfully laid off.
Williams sought interim employment by filing employment
applications in August and September 1988 and by following up on
"word of mouth" referrals. T. 150-152. At the time of the
hearing in February 1989, he was employed part time as a
machinist. T. 148.
By letter of August 1, 1989, TIW unconditionally offered to
reinstate Williams to his former machinist position, requesting
that he report to work on August 14. Williams refused the offer
by letter dated August 11. His physician's accompanying
memorandum stated that Williams was unable to perform his duties
as a machinist pending a consultation performed by a pulmonary
medicine specialist. The consultation elicited the following
determination:
[Williams] should not work in environments
that would expose him to dust, fumes, or
other toxic substances, the patient is unable
to wear a respirator because of his severe
airflow obstruction. He is unable to perform
any type of employment that would require
exertion to any extent, certainly duties of a
machinist would fall under this category.
TIW 12/27/89 Motion to Set Aside R.D. and O., Exh. D at 2.
Refusal of an unconditional offer of reinstatement to a
[PAGE 6]
substantially equivalent position constitutes a breach of the
obligation to mitigate damages. Giandonato v. Sybron
Corp., 804 F.2d 120, 124-125 (10th Cir. 1986) (employee who
rejected unconditional offer of reinstatement not entitled to
back pay or reinstatement after date of offer). Accordingly, the
back pay period for Williams is tolled on August 14, 1989, when
he declined to return to work.
TIW claims, however, that Williams should be awarded no back
pay because he was permanently disabled from the time of his
layoff and was unable to accept reinstatement had it been offered
earlier. TIW is correct that in some circumstances an employer
may not be liable for back pay during periods that an unlawfully
discharged employee is unavailable for work. But see, B.
Schlei & P. Grossman, Employment Discrimination Law, Five-Year
Cum. Supp., Ch. 38 at 530 and nn. 30, 31 (2d ed. 1989) (Schlei &
Grossman) (claimant's disability or decision to attend school
does not necessarily terminate back pay; facts of each case play
important role in determining termination date). Here, Williams
apparently filed a claim for workers' compensation with the New
Mexico Department of Labor Workers' Compensation Division on
August 30, 1989. TIW 12/27/89 Motion, Exh. A. The parties'
petition for a lump sum settlement of that claim was granted by
the Division on June 22, 1990. TIW 8/3/90 Letter, Exhs. A and B.
[5] In conjunction with that proceeding, a physical impairment
figure (PIF) of 30-45 percent was assessed by Williams' physician
in June 1990. Id., Exh. B at 2. TIW's submissions also
suggest
an earlier assessment, reflected in the September 7, 1989,
publication of results of pulmonary function testing apparently
performed on June 27, 1989. TIW 12/27/89 Motion, Exh. D.
Finally, TIW points to Williams' November 7, 1988, answer to its
interrogatory No. 20 and a fragment of a sentence in Williams'
post-hearing brief as evidence that he became permanently
disabled on the April 19, 1988, date of his accident. TIW 8/3/90
Letter at 3.
I do not deem this evidence of earlier disability
necessarily dispositive of this issue. At bottom, it reflects
only Williams' unexplained conclusion as to the nature of his
condition. I consider more significant the facts that Williams'
physician released him to return to work following his accident,
that he performed his machinist duties until unlawfully
discharged, and that he performed machining in interim
employment. While Williams' physician and the consultant
reportedly agreed as of late August or September 1989 that
Williams then "ha[d] a permanent disability which would impair
his ability to be gainfully employed in his chosen profession of
machining," they expressed no opinion as to exactly when Williams
[PAGE 7]
became disabled. TIW 12/27/89 Motion, Exh. D. In short, while
suggesting that Williams' condition may have deteriorated during
late 1988 and early 1989, the record affords little basis for
substantiating permanent disability until mid- to late 1989, when
the results of the medical specialist's consultation were
published. SeeCanova v. NLRB, 708 F.2d 1498,
1505-1506 (9th Cir. 1983). In these circumstances, I adopt the
discrete date that TIW directed Williams to return to work as
curtailing its back pay liability. Williams is awarded back pay
for the period between his layoff and the refused reinstatement,
and TIW's 12/27/89 Motion to Set Aside R.D. and O. hereby is
denied.
While employed by TIW, Williams received hourly compensation
of $12.50 during each 40-hour work week. Interim earnings at any
replacement job will be deducted from the back pay award. Any
unemployment compensation received will not be deducted.
Enstrom v. Beech Aircraft Corp., 712 F. Supp. 841, 853 (D.
Kan. 1989) ("[a] statutory benefit to plaintiff should not reduce
the judgment against defendant for its wrongful conduct").
Williams' permanent disability settlement likewise is not
deductible. Whatley v. Skaggs Companies, Inc., 707 F.2d
1129, 1135-1136 (10th Cir.), cert. denied, 464 U.S. 938
(1983); Aguinaga v. United Food & Com. Workers Intern.,
720 F. Supp. 862, 876-877 (D. Kan.
1989). [6]
The SWDA provides that upon finding a violation, the
Secretary shall order the party committing the violation to take
affirmative action to abate the violation, including, but not
limited to, rehiring or reinstatement of the employee with
compensation. 42 U.S.C. § 6971(b). Employees wrongfully
discharged under comparable employment discrimination provisions,
e.g., Title VII, may recover an amount equal to wages the
employee would have earned but for the illegal discrimination,
along with lost fringe benefits such as medical and life
insurance, vacation pay, and pension benefits. Schlei & Grossman
at 535-537 and nn. 65, 66. The remedy is designed to restore
victims to the wage and employment positions they would have
occupied absent the unlawful discrimination. Albemarle Paper
Co. v. Moody, 422 U.S. 405, 421 (1975).
While employed by TIW, Williams was covered by a group long-
term disability insurance policy, the policyholder being TIW
Systems, Inc. [7] See Exh. P-25. As discussed above,
Williams became permanently disabled between his discharge in May
1988 and the fall of 1989, when his disability was medically
confirmed. Had Williams not been unlawfully discharged, he would
have been subject to the insurance policy at the point at which
he became permanently disabled. Accordingly, making Williams
whole in these circumstances requires recovery of any benefits
that he would have received by operation of his lost disability
[PAGE 8]
insurance. See 29 C.F.R. § 24.6(b)(2).
ORDER
Respondent TIW Fabrication & Machining, Inc., is ordered to
compensate Complainant Chilton D. Williams as follows:
1. Back pay is awarded for the period beginning
Tuesday, May 17, 1988, and continuing through Friday,
August 11, 1989, at the rate of $12.50/hour for each
40-hour workweek, less any compensation received from
replacement employment and less the ,000 back pay
award received by Williams as the result of the
January 31, 1989, settlement between TIW and the Environmental Improvement Division of the New Mexico
Health and Environment Department. [8]
2. Prejudgment interest is awarded on the back
pay amount to be determined under Section 6621 of the
Internal Revenue Code at the rate used in computing
interest charged on underpayment of Federal taxes.
SeeJohnson v. Old Dominion Security,
Case Nos. 86-CAA-3, et seq., Sec. Dec., May 29,
1991, slip op. at 24, 32; Wells v. Kansas Gas &
Electric Co., Case No. 85-ERA-22, Sec. Dec., Mar.
21, 1990, slip op. at 17 and n. 6, appeal
dismissed, No. 91-9526 (10th Cir. Aug. 23, 1991).
3. TIW is ordered to compensate Williams for any
insurance benefits he would have received had he not
been unlawfully laid off, including any benefits
inuring from Williams' group health insurance and long-
term disability insurance. T. 135, 140-141; Exh. P-25.
Counsel for Complainant is granted a period of 20 days from
receipt of this Decision and Order to submit any petition for
costs and expenses, including attorney's fees. 42 U.S.C.
§ 6971(c). Respondent thereafter may respond to any
petition within 20 days of its receipt.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Acetone and xylene are hazardous due to their ignitability;
the hazard associated with chromic acid is toxicity; and MEK is
both ignitable and toxic. See 40 C.F.R. § 261.33(f)
(1991).
[2] An inspection conducted on May 19, 1988, by the New Mexico
Health and Environment Department, Environmental Improvement
Division (EID), Occupational Health and Safety Bureau, disclosed
violations of the New Mexico Occupational Health and Safety Act.
Exhs. P-16, P-17. After conducting a hazardous waste inspection
on August 4, 1988, EID determined that TIW had violated the New
Mexico Hazardous Waste Management Regulations. Exhs. P-37, R-6,
R-7.
[3] A "person" is "an individual, trust, firm, joint stock
company, corporation (including a government corporation),
partnership, association, State, municipality, commission,
political subdivision of a State, or any interstate body."
[4] My reading of Respondent's Exhibit 18 suggests an error in
the ALJ's calculations which hereby is corrected. The fourth
sentence in the third paragraph on page 13 of the R.D. and O. is
amended to state: "Additionally, 35 of those 201.5 hours were
billed as overtime (roughly 14 percent of his total 234 billable
hours)."
[5] The workers' compensation settlement documents list the
"date of accident" as April 19, 1988. In his August 30, 1989,
claim, Williams listed the accident date as September 17, 1987,
through May 16, 1988, coinciding with his second tenure at TIW.
[6] Although workers' compensation awards that are identifiable
as compensation for lost wages during a back pay period may be
deducted from a back pay award, an award in reparation of
permanent physical injury is not compensation for loss of wages
during a particular period and is not deductible. This
distinction has been explained as follows: "'temporary
disability payments are a substitute for lost wages during the
temporary disability period, while permanent disability is for
permanent bodily impairment and is designed to indemnify for the
insured employee's impairment of future earning capacity or
diminished ability to compete in the open labor market.'"
Canova v. NLRB, 708 F.2d at 1504, quotingRussell v. Bankers Life Co., 120 Cal. Rptr. 627, 634
(1975). In the absence of proof that Williams' workers'
compensation benefits were designed as compensation for lost
wages for the particular back pay period at issue, no setoff is
permitted.
[7] TIW is a wholly owned subsidiary of TIW Systems, Inc.,
which is located in Sunnyvale, California. T. 258.
[8] This award represented back pay for a two-week period after
which the Division determined that Williams should have been able
to obtain a replacement job. Exh. R-1 at 3.
