U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
FTS 920-1571
FAX (804) 722-3448
DATE: October 10, 1991
CASE NO.: 91-TSC-5
In the Matter of
DARVIN DUANE HADLEY,
COMPLAINANT
v.
QUALITY EQUIPMENT COMPANY,
RESPONDENT.
Appearances:
J. PATRICK WISEMAN, ESQ.
For the Complainant
PATRICK J. O'CONNELL
For the Respondent
BEFORE: THEODOR P. VON BRAND
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
Preliminary Statement
Complainant, Duane Hadley, brought this action alleging that
Respondent, Quality Equipment, discharged him in violation of the
whistleblower provisions of the Toxic Substances Control Act
(hereinafter "TSCA"), 15 U.S.C. §2622. Specifically, Mr. Hadley
alleges that he was dismissed on April 16, 1991, in retaliation for
making or threatening to make complaints about improper disposal or
storage of oil, gasoline, and car batteries.
[Page 2]
Respondent argues that Hadley voluntarily resigned on April
15, 1991 after having been reassigned as a shop mechanic from his
position as a road mechanic. Respondent explains that Complainant
was reassigned because of health problems that he attributed to
exhaust fumes from the company van he drove while performing his
duties as a road mechanic. Respondent denies any knowledge of
complaints or threats of complaints to environmental agencies made
by Hadley before April 15. Finally, Respondent argues that Hadley
left Quality Equipment on April 16 after having been asked to leave
for making obscene and abusive comments to his supervisor and for
disrupting work in the shop.
1 The following abbreviations will
be used as citations to the
record: CX - Claimant's Exhibits; JX - Joint Exhibits; Tr. -
Transcript.
2 Hadley also stated that
Courtney had urged him to call EPA.
(Tr. 22).
3 Complainant has not made out a
prima facie case that his
reassignment to the shop was done in retaliation for protected
activity because: 1) he has not presented any evidence, beyond his
own bare assertion that he had told co-workers that he was going to
make environmental complaints, that he had engaged in protected
conduct prior to April 10, and 2) Complainant has not presented any
evidence that Respondent knew or had reason to know of any
protected activity he may have exercised prior to April 10.
4 Complainant's Exhibits 5, 6,
and 7 are missing from the
record. These exhibits are photographs taken by Hadley of various
alleged environmental violations at Quality Equipment. The subject
matter of each photograph is described at Tr. 15-17. As the record
contains sufficient evidence to conclude that Complainant engaged
in protected activity on April 15 and 16, the loss of these
exhibits is harmless.
5 Consideration of the record
as a whole compels the
conclusion that Hadley's denial of making any such statement
(Finding 5) is not credible.
6 In its brief, Respondent
argues that Hadley did resign, but
then immediately regretted having done so and consequently planned
to get himself fired in order to invoke whistleblower protection.
While this scenario is possible, on this record it is not
plausible.