Mr. Thomas asks for (1) reinstatement to his former position;
(2) correction of his performance ratings; (3) protection from
future retaliation; (4) reimbursement for expenses and restitution
of vacation time used in connection with the proceedings;
(5) reparations for loss resulting from the low performance ratings;
and (6) exemplary damages provided by the Act. Dupont denies any
retaliation took place and contends that the September 9, 1980 order
of the Department of Labor is unconstitutional, that the Department
has no subject matter jurisdiction in the case and that most of the
allegations are barred by the statute of limitations.
Findings and Conclusions
I
Dupont's Chemical, Dyes and Pigments Technical Service
Laboratory
at Chestnut Run employed 124 persons of which half were professional
and the other half support personnel. The Director was Edward W.
Stewart and Complainant's immediate supervisor was Carl H. Muendel,
Technical Service Supervisor, who was head of one of the six groups
in the laboratory.
Mr. Thomas, who was sixty years of age and had a degree in
chemistry, worked for Dupont for over 35 years. In 1977 he was
transferred to the Chestnut Run Laboratory where he was assigned
duties that included answering customer correspondence and preparing
material safety data sheets, the latter project taking most of his
time after sometime in 1979.
On September 12, 1978 Mr. Thomas advised Dupont of his opinion
that its zircon mineral sands products were a radioactivity hazard.
Meetings and discussions were held. On January 11, 1979 Mr. Thomas
asked whether the alleged hazard should be reported on the Material
Safety Data Sheet. His supervisor, Mr. Muendel, advised by memo
that after consultations and reviews it was determined that the
situation was adequately covered and, since agreement could not be
reached with him; the preparation of that data sheet had been reassigned.
On April 27, 1979 Mr. Muendel discussed Complainant's
performance
rating with him. Among other things the form notes that Complainant
"Requires excessive supervision because of judgement lapses, as in
poor choice of words & because of inattention to detail in sensitive
work. Tends to be overly defensive vs. criticism & argues opposing
views excessively -- should concentrate on major priorities of job.
Should take a more active role in moving his program." The form
notes that Complainant liked his current assignment and, while he
would prefer field sales, would consider a pigment assignment. His
rating was "S" for satisfactory.
Mr. Thomas next wrote letters concerning his interpretation of
new Occupational Safety and Health Administration (OSHA) regulations
which he thought required the hazard be reported. J. C. Watts, a
technical Service Consultant in the same group, replied on
November 15, 1979 detailing the basis for the warning used. By
memo on November 20, 1979, Mr. Thomas took issue with the Watts'
memo. On February 25, 1980 Complainant questioned a request that
he prepare a data sheet on ferric chloride except for the heath
hazard section which was to be done by another person.
On March 13, 1980 Mr. Muendel discussed Complainant's next
performance rating with him. The rating was again satisfactory for
basically the same reasons given a year earlier, including being
defensive about criticism and arguing his own views excessively.
Complainant asked for a written reply as to what actions would enhance
his chances for a reassignment to field marketing. He also submitted
a lengthy written comment on the review.
Mr. Thomas, in a memo to Mr. Muendel on March 19, 1980,
commented
on a discussion they had on Dupont's decision not to disclose a
radioactive hazard of Zircon Sands. Mr. Thomas told Muendel that,
unless Dupont reconsidered its decision, he felt compelled to report
the matter to the Department of Labor (OSHA).
As a result of the memo of March 19, a study was made of the
problem and, on April 24, 1980, a report was made on the health
hazard assessment of radioactivity of zircon sand. The report
reached the conclusion that there was no health hazard. Complainant
took issue with the report in a lengthy memo on May 1, 1980. Also on
May 1, he received a salary increase in the nature of a cost of living
increase and later that month attended a one week training course on
hazardous materials. Mr. Thomas had discussions with Dupont's legal
department and maintained that he was obligated to report the matter.
He wrote Mr. Muendel on June 30, 1980 that he thought he had no
alternative but to report the hazard to OSHA.
In late June a position in pigment group became available and
Mr. Stewart, the laboratory director, selected Complainant to fill
the opening. Mr. Stewart said this was because (1) the job was
at an appropriate level, (2) complainant was not happy with his
performance ratings, and (3) complainant's position was to be filled
by a demoted employee who needed to be in a position where his work
product could be measured.
On July 7 a complaint was filed with the Department of Labor,
occupational Safety and Health Administrator. No copy was sent to
Dupont. On July 21 Mr. Thomas was advised that he would be transferred
and he voiced no objection. On July 29 he wrote to the Secretary
of Labor complaining of discrimination by Dupont because he reported
hazards.
Complainant's transfer was effective on August 1, 1980. Eight
other professionals were reassigned at the same time, including three
who also went to the Color Coatings Group. On that same day
Complainant wrote to the Environmental Protection Agency concerning
the possible hazard of ferric chloride sold by Respondent.
The Department of Labor advised Dupont cf the complaint on
August 22, 1980. After investigation the Department of Labor on
September 9, 1980 found Dupont had violated the Act and directed that
certain actions must be taken to abate the violation and afford
relief. Dupont was advised of its appeal rights. It did timely
appeal, but the telegram went astray. The matter was clarified at
the hearing and it was found that the delay was not the fault of
Dupont.
In the meanwhile the EPA complaint concerning the ferric
chloride was forwarded to the Department of Labor, being received
on August 20. On October 9 it was forwarded to the Office of
Administrative Law Judges.
II
Dupont first argues that the finding of the Area Director on
September 9, 1980 is an order in violation of Section 23(b)(2)(A)
of the Act and therefore Dupont has been denied its right to a
hearing. As we understand the situation, the Area Director's
letter was the notification in writing of the result of the
investigation conducted pursuant to the above section. His finding
would become final unless appealed. Still, Dupont had an
opportunity for a hearing, which it has taken advantage of by a
timely appeal. Therefore, Dupont's argument of a decision being
made without the due process of a hearing, is not well founded.
Dupont's next argument, that the court lacks subject matter
jurisdiction under the Act because the complaint was filed with
the wrong agency of the Federal Government, is also rejected. it
is expected that, if an individual files a complaint with the wrong
agency of the Federal Government, the complaint will be forwarded to
the proper office or the complainant will be advised where to file.3
When more than one agency has jurisdiction over the subject matter
or they have jurisdiction over various aspects of the subject matter
the confusion is compounded. To restrict the instant complaint because
it was sent to OSHA instead of EPA, is unreasonable. Then too, a later
complaint was made to EPA. True the hazard complained of was different,
but the question here is not whether Mr. Thomas is right or wrong,
but rather whether he was discriminated against because he threatened
to, or did, report a hazardous material made by Dupont.
Dupont next argues that the statute of limitations apply because
Section 23(b)(1) provides that the complaint be made within 30 days
of the acts of discrimination. This would, it urges, put the low
performance ratings beyond consideration. There is little merit in
this position because the performance ratings were background for and
considered in the reassignment. Also, if the ratings effected
Mr. Thomas' job level or salary they would be continuing discriminations
commencing on the dates they were given and still effecting his
employment. Therefore, Dupont's argument of limitations is dismissed.
Turning to the merits of the case we find that proof of a
violation of the Act involves a two-step process. The employee must
first prove a discriminatory act the employer. The essence of
discrimination is treating like individuals differently. Once
discrimination is proven, the employee must show discriminatory
animus or intent. Because proof of discriminatory animus is seldom
neat or obvious, circumstances surrounding the discrimination must
be carefully examined to determine whether the employer's reason for
taking the action is the actual motive of a mere pretext. However,
since the prohibited reasons for discrimination are set forth in the
act, only those reasons can be considered in this proceeding, it
being noted that Complainant also has age discrimination complaints
pending.
Considering first the performance ratings, Mr. Thomas has failed
to show that they were discriminatory in that he was treated
differently from other individuals. There is no information as to how
other individuals were treated when they maintained a running dispute
with management, as was the case here. Under such circumstances
management's ratings seem reasonable. But, assuming arguendo that
Mr. Thomas was discriminated against for his conflict with management,
that reason is not one of the reasons set forth in the law. The first
threat to report the alleged violations was made on March 19, 1980,
almost a year after the first rating and six days after the second one.
Thus, even though the ratings involved to some degree Mr. Thomas'
position on hazardous materials, they could not be said to be based
upon the yet to be made threat to report the situation.
Next we look at the reassignment of Mr. Thomas and again
find that he has failed to show discrimination. It should be
remembered that he suffered no loss of salary or level of employment
and the new assignment was in the same building. Also, on the same
day eight other professional employees were reassigned, including
three to the same group and in the last two years 83 laboratory
employees were reassigned. These figures do not indicate that
Mr. Thomas was treated differently from other employees. It must
be also noted that while Mr. Thomas requested consideration for
field marketing, he had indicated to Mr. Muendel that he would
consider a pigment assignment in discussions on his performance rating
on April 27, 1979.
Mr. Stewart, in uncontroverted testimony, said that he decided in
late June to reassign Mr. Thomas for three reasons, one of which was
because Complainant was not happy with his performance ratings.
Mr. Thomas did not protest his reassignment to Dupont when he was
advised on July 21, 1980 that it would take place. He contends that
he does not know his present job as well as did his predecessor
but this is true of all reassignments and was true of Complainant's
assignment to the Engineering and Product Safety Group.
In view of the above the Complainant has failed to establish that
he was discriminated against.
RECOMMENDED DECISION
It Is Ordered that the complaint that E. I. Dupont De Nemours
and Company violated the Toxic Substances Control Act in its rating
in 1979 and 1980 of Mr. Lovick P. Thomas and his reassignment on
August 1, 1980 be dismissed with prejudice.
JOHN W.
EARMAN
Administrative Law
Judge
Dated: December 17, 1980
JWE:kat
[ENDNOTES]
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