Trachman v. Orkin Exterminating Company, Inc., 2000-TSC-3 (ALJ July 12, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 856-757-5403 (FAX)

Issue date: 12Jul2001

CASE NO: 2000-TSC-00003

In the Matter of

DANIEL TRACHMAN
    Complainant

v.

ORKIN EXTERMINATING COMPANY, INC.
    Respondent

Appearances:

    Michael Shen, Esquire
       For Complainant

    Douglas H. Duerr, Esquire
       For Respondent

Before: RALPH A. ROMANO
    Administrative Law Judge

   This matter was tried in New York, New York on January 9-10, 2001, and briefs filed on May 10, 2001. Upon order directing same, Complainant filed a supplemental brief on June 19, 2001¹ .

   Among other things, Respondent urges that the complaint should be dismissed because the activities advanced by Complainant as protected under the environmental jurisdictional predicates underlying this matter² , are not such as are covered thereunder.

   In his supplemental brief, Complainant argues: 1) that his initial letter complaint dated March 30, 2000 (ALJ 1)³ invokes (sufficiently to cover the activities alleged to be protected) "all" environmental protection acts, including the TSCA, the CAA, the Water Pollution Control Act, the Solid Waste Disposal Act, the Safe Water Drinking Act, and the Comprehensive Environmental Response, Compensation, and Liability Act; and that, in any event, decisional law supports such "universal invocation", and 2) that, even if this claim was filed under only TSCA and CAA, the activities advanced as protected are covered thereunder (Br.@ 3-5).

   While Complainant's letter complaint as referenced does note the TSCA, as well as the Water Pollution Control Act , "- -and other environmental protection acts" as the bases for his claim, his claim was processed and determined (to be without merit) by the Office of Administrator of the Wage and Hour Division under only TSCA and CAA (ALJ 1-letter dated June1, 2000).⁴ Now, it is this determination letter, sent to both Complainant and Respondent's counsel, which invites the filing of a request for hearing (appeal to this office). And Complainant, upon his receipt of this letter, duly⁵ filed his request for hearing (ALJ2-dated June 22, 2000). There is no evidence that Complainant or his counsel ever, in any way, objected to such manner of processing and determination of his complaint under only these statutes, or otherwise alerted the Administrator or the Respondent to the apparent erroneous limiting of the scope of his complaint. Indeed, the legal argument section of the closing brief filed by Complainant begins with an unequivocal assertion that this claim is brought "- - under the Clean Air Act- - - and the Toxic Substance Control Act- - "(@11), and (only) these two statutes were referenced on the record as jurisdictional predicates at the very outset of the trial (Tr. @5).

   Moreover, Respondent's receipt of the determination letter noting only TSCA and CAA as the statutory bases underlying this claim, no doubt governed the preparation of its defense of this case (see Resp. Br.@1), and any broadening of the jurisdictional scope of this matter after the presentation of its defense would adversely affect its due process rights to its prejudice.

   Finally, Complainant's suggestion that the decision reached in Richter v. Baldwin Assocs. Case No. 84-ERA-9 (3/12/86) stands for the proposition that a (whistleblower) complaint filed under any one of the environmental statutes invokes jurisdiction under all other such statutes (Br.@ 3-4), finds no support in any fair reading of that decision. There, the issue resolved was that protected activity under the Energy Reorganization Act is to be broadly interpreted to include the making of safety complaints internally as opposed to a reporting to a governmental authority. No approval or sanctioning of any such " universal invocation" is even touched upon in this decision.

   Complainant made several categories or types of complaints⁶ . Common to all of these complaints/concerns is an alleged improper application and disposal of pesticides (Compl' Br. @ 2-3). But, pesticides are specifically excluded from coverage under the TSCA, 15 U.S.C. 2602 (2) (A) ( B) (ii). And, Complainant's reliance on the holdings of Melendez v. Exxon, 93-ERA-6 (ARB 7/14/00) and Minard v. Nerco Delamar, 92-SWD-1 (Sect'y 1/25/94) to avoid this coverage exclusion, is clearly misplaced. In both these cases, the complainant's were found to have engaged in covered protected activities because of their "reasonable belief" or "reasonable perception" that the chemical substances or compliance posture which generated their concerns were covered under the respective statutes. In Minard, the Secretary found it inappropriate to require the average person to untangle an ambiguous complex regulatory definition of a particular chemical substance for coverage to obtain under the environmental statute there involved. So too, in Melendez, the employee's lack of knowledge of the specific requirements of a statute applicable to the facility where he worked (or to require the employee to independently research the question of statutory compliance), was excused since to require otherwise would not foster the overall interests of the legislation to encourage the making of complaints about health hazards. But, in the instant case, there exists no ambiguity in definition of a substance or doubt about the technical merits of a possible violation of a statute. The statute is clear and unambiguous as regards the exclusion of pesticides from among those items covered under the TSCA. Nothing special or extraordinary is required of the employee. He need only to read the statute! I find that no coverage exists for Complainant's safety concerns under the TSCA.

   As regards coverage under the CAA, none but one of Complainant's safety concerns may possibly be interpreted to involve the release of toxins into ambient air⁷ . That is, the alleged improper disposal of pesticides in an open dumpster on the sidewalk adjoining Respondent's premises (Compl' Br.@2-3). A careful review of Complainant's testimony underlying this concern (Tr.@ 47-54), however, discloses a focus not upon the possible fouling of the ambient air via the (dumpster) placement of Respondent's product- waste, but upon possible physical (vs. respiratory) contact with such waste. For example, Complainant: discusses a "triple rinsing- -" and "- - wrap[ing] in newspapers" of the pesticide containers as the proper method of disposal; notes his "- - picking up empty - - containers from the street"; and his worry about "schoolkids walking down the block- - "(Tr.@ 50-51), and "- - the

dumpster [rolled out for garbage pickup at night] and all types of chemicals [being] readily there to public access- -no lock or chain put on the dumpster, and no effort to segregate the hazardous from the cardboard and just the mere empty containers" (Tr.@ 54emphasis supplied). Also, Complainant includes "- -animals- -" and "...pets and wildlife.."among possible victims of the alleged improper disposal (Tr.@ 157;58).`⁸ This testimony clearly suggests that the basis for Complainant's anxiety about the dumpster situation was not a perceived danger to people from the contamination of (ambient) air, but danger to people and animals from some form of physical contact with the waste, a danger not covered under the CAA. I find that these activities/complaints are not protected under the CAA.

   Offered to prove this awareness element is Complainant's testimony about his final five minute face to face conversation with Joseph Bajjani (Respondent's Regional Manager) just prior to Bajjani's firing⁹ of Complainant (Tr.@103-106). Complainant speaks of his mention to Bajjani of "- - safety issues" (Tr.104-105), of "- -the proper application of chemical for public safety- - "(Tr.@ 105), and of "- - reporting-- safety problems- - " (Tr.@106). But upon close questioning about the detail of this conversation (Tr.@133, et seq.)¹⁰ , it is clear that no reporting, or mention of Complainant's previous reporting, of safety hazards was made at this meeting to Bajjani. This becomes clear when Complainant is specifically asked to, and finally does, define and specify those "- - safety- - allegations- -" (made by him to Bajjani at this meeting) that Bajjani was intent on investigating during Complainant's suspension. And, these allegations were "- - the drinking and driving- - " of the co-employees Complainant was surveiling after working hours¹¹ (Tr.@ 137; see also103-4). Consistent with this clarification, Bajjani testified that Complainant never raised environmental safety complaints to him prior to the firing (Tr. 239-240), nor did Complainant mention to him prior to the firing, his previous raising of environmental safety complaints (Tr.@ 244). And, Bajjani was unaware of any such complaints made by Complainant (Tr.@244-5). As finally teased from Complainant, " [t]he main focus [of Bajjani's meeting with Complainant] was [Complainant's]- - threats and stalking of employees - - "(Tr.@ 244). Also, both Robert Armstrong (Complainant's immediate supervisor), and Naresh Duggal (Respondent's Quality Control Manager), testified that, while each was aware of various of Complainant's reports of environmental safety concerns, neither ever informed Bajjani of same at any time prior to the firing (Tr.@ 356;196). Moreover, strengthening Armstrong's credibility on this point, is the fact that he had every reason not to advise Bajjani of any work disruptive complaints voiced to him by Complainant, since Armstrong was fearful of

¹Service thereof was not effected until June 20, 2001.

²I.e., Toxic Substances Control Act (TSCA), 15 U.S.C.2622, and Clean Air Act (CAA), 42 U.S.C. 7622.

³Exhibits are marked "ALJ" for Administrative Law Judge exhibits, "C" for Complainant's exhibits, "R" for Respondent"s exhibits, and "Tr."for trial transcript.

⁴Consistent therewith, the Administrator's transmission of this matter to this office (ALJ1-letter dated June 1, 2000) encloses a "Discrimination Case Activity Worksheet" noting the "Case Type" to be TSCA, and the "Statutory Implications "to be TSCA and CAA.

⁵Respondent has moved to dismiss this claim for Complainant's failure to serve upon it a copy of this request for hearing.

⁶All complaints regarding occupational concerns, i.e. protective working equipment, etc. are not addressed, as such do not impact the environmental statutes here involved, and no jurisdiction lies with this office over these types of complaints.

⁷Which release is an essential element for invocation of coverage under the CAA. 42 U.S.C.1857 (b) (1), 7602(g), 40 C.F.R.50.1(e) (2000), Kemp v. Volunteers of America, Case No. 00-069 (ARB, 12/18/00) .

⁸Treated as a merely fortuitous opportunity to indicate possible airborne hazard, is Complainant's "Quite probably- - " answer to Respondent counsel's question whether any waste product was "- - blowing up in the air- - "(Tr.@156). There appears no other discrete mention of this type of hazard in this record.

⁹See Tr.@ 245-6 where Bajjani, without contradiction in this record, testifies that he alone made the decision to terminate Complainant.

¹⁰Even though Complainant again includes as part of this conversation a concern about his failure to "report[ing] dangerous things or improper use to [Bajjani] directly", his feeling that " improper use of - chemical[s] [was not on Bajjani's] mind..", and his "stress[ing of] the improper application of the non-sewer-rated chemicals, which polluted the groundwater.." (Tr. @ 136).

¹¹See Tr. @ 45-6; 250-1 for detail concerning this surveillance.