DATE: May 2, 1995
Case No.: 94-TSC-12
In the Matter of:
DAVID J. POPE,
Complainant
v.
ANCHOR DRILLING FLUIDS USA, INC.,
Respondent
Kathleen Key Imes, Esquire
Bruce A. Frederickson, Esquire
Lori A. Harber
For the Complainant
Michael S. Lattier, Esquire
James B. Lippert, Esquire
For the Respondent
BEFORE: HENRY B. LASKY, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This matter arises as a result of a complaint filed on
August 12, 1994, with the U.S. Department of Labor by the
Complainant. The complaint alleges that Complainant was
wrongfully discharged from his employment with Respondent herein,
in violation of numerous federal employee protection statutes
including: Toxic Substance Control Act, 15 U.S.C. §2622;
Water Pollution Control Act, 33 U.S.C. §1367; Safe Drinking
Water Act, 42 U.S.C §300j-9(i); Solid Waste Disposal Act, 42
U.S.C. §6971; Clean Air Act, 42 U.S.C. §7622. In the
Pre-Trial Statement filed by Complainant, the claim was amended
to conform to proof to include additional violations of the
Surface Transportation Assistance Act, 49 U.S.C. §31105.
The regulations applicable to alleged violations of the aforesaid
statutes are contained in 29 CFR Part 24, and 29 CFR §
1978.100-1978.111.
The aforesaid statutes generally provide that no employer
subject to the provisions of the federal statutes of which these
protective provisions are a part may discharge any employee or
otherwise discriminate against any employee with respect to the
[PAGE 2]
employee's compensation, terms, conditions, or privileges of
employment because the employee, or any person acting pursuant to
the employee's request, engaged in any of the activities
specified in 29 CFR §24.2(b).
The matter was scheduled for trial which commenced on
January 24, 1995, in Billings, Montana, and concluded January 27,
1995. The parties were ordered to file Proposed Findings of Fact
and Conclusions of Law on or before March 27, 1995. The record
was held open until May 1, 1995, for the purposes of filing
supplementary memoranda of law as requested by the undersigned,
as well as the Application for Fees and Costs on behalf of the
Complainant which was to be filed on or before April 17, 1995,
and any objections to said Application to be filed by counsel for
the Employer on or before May 1, 1995. Proposed Findings of Fact
and Conclusions of Law were received from the parties within the
time required and based upon the stipulations of counsel, the
evidence introduced at the trial, the testimony of witnesses, and
having considered the arguments of counsel and their post-trial
submissions, I make the following findings of fact and
conclusions of law, and recommended decision and order.
PROCEDURAL HISTORY
As previously stated, the underlying complaint in this
matter was filed with the Department of Labor on August 12, 1994,
by Complainant. An investigation was conducted and concluded
that Complainant, David J. Pope, was a protected employee engaged
in protected activity within the scope of the statutes and that
he was the victim of discrimination as defined and prohibited by
the statutes when he was wrongfully discharged from his
employment with Respondent herein. As a result of the
investigation, the Employer was ordered to restore employment to
Complainant and restore all lost wages and benefits to
Complainant. The aforesaid administrative decision was issued on
September 13, 1994. Respondent appealed the adverse findings and
remedy and requested a formal hearing. Complainant appealed
solely the remedy afforded by the Department of Labor in its
September 13, 1994, determination.
FACTS
The Complainant, David J. Pope, is thirty-three years old,
married, and has two young daughters, one of whom, Caitlyn, is
developmentally disabled. He also has a ten year old son from a
previous marriage.
Anchor Drilling Fluids U.S.A., Inc., is a Texas corporation
operating world wide. It furnishes drilling fluids to the oil
well drilling industry. Anchor is the successor in interest to
Davis Mud, a/k/a/, Davis Mud of the Rockies, Inc. and Unibar
Energy Services, Inc. (All references to Anchor in these Findings
and Conclusions are to it or its predecessors in-interest.)
[PAGE 3]
Complainant worked at various jobs in the oil industry and
also served two separate tours of duty in the United States Army.
Complainant trained as a paratrooper and was in the Special
Forces Unit (Green Berets), among other things. His prior work
history and his Army career are essentially untarnished. While
in the Service, Complainant received numerous medals and
commendations. Although he left high school early, he eventually
obtained his G.E.D. degree while in the military.
Complainant began working for Anchor as a swamper/driver on
July 19, 1990. As a swamper, he assisted in the loading and
unloading of semi-trailer trucks; and as a driver, he drove over
the road tractor-trailer rigs. From the time he started with
Anchor through his termination on July 15, 1994, Complainant
received numerous pay raises, accolades, and promotions. (EX 6
pps. 14-20; EX 7 p. 21) His employee file contains only one
reprimand. (EX 1 p. 1) It involved an incident in which
Complainant used an Anchor semitruck to return his son from his
summer visitation with his father in Sidney, Montana, to his
son's mother in Wyoming. Prior to using the truck, Complainant
asked for and received permission to do so from his supervisor
and district manager, Greg Sjaastad. (TR 92, line 19 - TR 93,
line 18; TR 94, line 19 - TR 96, line 18; TR 835, line 24 - TR
837, line 17)
Complainant was promoted to warehouse foreman in February,
1992. As warehouse foreman, his duties included maintaining the
warehouse inventory, mixing and rolling oil-based drilling mud
("invert")[1] , and hiring and supervising drivers and other
warehouse employees, in addition to his previous duties of
driving and loading and unloading product from the company
trucks. (TR 92, line 18 - TR 93, line 23; EX 6 p. 18)
Complainant continued in that position until January 1,
1994, when he was promoted to warehouse supervisor. His job
duties did not change with that promotion, although he actually
put in more hours than he had worked prior to the promotion. The
only things that changed were his title and that he was
thereafter paid a monthly salary rather than an hourly wage. (TR
93, line 17 - TR 94, line 22; EX 6 p. 20)
Complainant was apparently a hard worker who worked long
hours during the course and scope of his employment. There were
times that he would eat and sleep in the warehouse rather than go
home to bed. His wife would bring him lunches and dinners so
that he did not have to leave the facility. Both his wife and
the secretary at the Sidney facility, Lou Mohl, sometimes worried
about his safety because of the hours he worked. He would be
driving the truck after having been up for hours without sleep.
(TR 505, line 5 - TR 509, line 3; TR 699, lines 19-24) His wife
testified that there were occasions he would not be home for two
[PAGE 4]
days and he would sleep either in a truck or down at the
warehouse at the Anchor facility in a sleeping bag. (TR 505, line
18-21)
During the time Complainant was employed at Anchor, he felt
compelled to engage in certain practices that he perceived to be
illegal and felt to be unethical in order to keep his job. (TR
122, lines 10-25; TR 123, lines 1-6; TR 208, lines 17-24) Those
activities include the following:
1. Dumping of hazardous materials and chemicals, or
materials and chemicals which Pope perceived to be
hazardous, on a lot rented by Anchor from the City of
Sidney, Montana. (TR 101, line 22 - TR 102, line 18; TR
103, line 6 - TR 104, line 21; TR 119, line 15 - TR 120,
line 14; TR 189, lines 7-10 (ankle deep sludge); TR 116,
lines 1-21 (anti-freeze dumping).
2. Disposing of hazardous materials and chemicals, or
materials and chemicals that Pope perceived to be
hazardous, by mixing them in the invert and shipping them
to Anchor's customers for use at oil well sites. (TR 101,
line 22 - TR 102, line 4; TR 116, line 24 - TR 118, line
15; TR 172, lines 1-11; EX 58 p. 271) (Pope had a
standing order from Supervisor Sjaastad, to dump chemicals
in the invert.) (TR 205, line 1 - TR 207, line 6)[2]
3. Disposing of chemicals that were banned or restricted
or hazardous, or that Pope perceived to be banned or
restricted or hazardous, by dumping them in the garbage at
the city landfill. (TR 101, line 22 - TR 102, line 18; TR
118, lines 17-23; TR 267, lines 10-17)
4. Selling chemicals that were banned or restricted, or
that Pope perceived to be banned or restricted, to
customers and, on at least one occasion, providing the
customer with a false Material Safety Data Sheet (MSDS).
(TR 105, line 20 - TR 108, line 22; TR 210, lines 2-25; EX
32 p. 65)
5. Selling and shipping mislabeled chemicals in interstate
commerce to customers. (TR 109, line 1 - TR 110, line 17;
TR 167, lines 13-25)
6. Taking partially full drums of chemical and "topping
them off" with another chemical and selling and shipping
the diluted or altered product in interstate commerce to
customers. (TR 113, line 24 - TR 114, line 7; TR 115, lines
[PAGE 5]
8-12; TR 174, line 7 - TR 175, line 17; EX 65 p. 278, EX 66
p. 279; TR 191, lines 9-18)
7. Operating poorly maintained, dangerous, and unsafe
trucks and equipment. (TR 100, line 20 - TR 101, line 20;
TR 121, line 15 - TR 122, line 14)
8. Driving illegal hours in violation of drivers' log
limits. (TR 101, line 22; TR 120, line 21; TR 121, line
14)
9. Hauling illegally overloaded vehicles. (TR 101, line
22; EX 25 p. 58, EX 26 p. 59; TR 163, lines 9-21)
10. Shipping hazardous chemicals in interstate commerce
without hazardous materials shipping permits. (TR 163,
lines 9-21; EX 25 p. 58, EX 26 p. 59)
The fundamental predicate to the resolution of this case
involves the determination of the credibility of witnesses. The
testimony of the witnesses on behalf of the Complainant and on
behalf of the Employer are totally contradictory in most material
respects. Based upon my observations of the witnesses and the
corroborative evidence presented, I conclude that David J. Pope
was a very credible witness. His testimony with respect to the
activities which are at issue here and to those matters that he
perceived to have been illegal and unethical, was corroborated
with numerous exhibits and several former employees of Anchor,
some of whom pre-dated Complainant's employment at Anchor. In
addition, much of his testimony was corroborated by witnesses for
the Employer including Anchor's secretary in Sidney, Montana, Lou
Mohl, and Brian Bouchard, Complainant's successor at Anchor. Mr.
Bouchard, however, contradicted Complainant's testimony in many
respects, but Mr. Bouchard's contradictory testimony I found to
be evasive and lacking in credibility. Essentially, Complainant
and his corroborating witnesses support the conclusion that
employees at the Anchor facility in Sidney, Montana were
compelled to follow Greg Sjaastad's orders or they felt,
understandably, that they would lose their job. ((Orr) TR 406,
lines 10-21; (Shaide), TR 429, lines 16-22; (Brannon) TR 447,
lines 15-21; TR 448, line 19 - TR 449, line 10)
With reference to dumping of chemicals and other substances
on the warehouse lot of the Employer, it appears that invert
spills were common. While employees were required to clean up
larger spills in order to salvage the spilled products for
resale, Greg Sjaastad's philosophy with respect to contaminants
on the lot was "out of sight, out of mind... cover up, not clean
[PAGE 6]
up." (TR 399, lines 2-11; TR 426, lines 2-17; TR 445, line 20 -
TR 447, line 21; TR 453, lines 2-7; EX 88 p. 711)
Rather than properly disposing of solid sludge build-up
which accumulated at the bottom of 400 barrel upright tanks
located on the lot, the practice, as mandated by Mr. Sjaastad,
was to shovel out the sludge and spread it across the lot.[3]
(TR 103, line 24 - TR 104, line 21; TR 445, line 24 - TR 446,
line 22; TR 455, lines 5-14) The practice continued even after
Pope was fired. (Bouchard, TR 736, line 1)
Anchor admitted that it dumped used motor oil into the
invert in the past, a practice which it claims it discontinued in
1992. (TR 904, line 25 - TR 905, line 25; EX 89 p. 713; TR 554,
lines 14-21; TR 635, line 25, TR 636, line 19) Mr. Ben Orr, who
was Complainant's predecessor as warehouse supervisor and Mr.
Pope's immediate supervisor at the time he started working for
Anchor, participated in dumping used motor oil into the invert at
the direction of Greg Sjaastad, and may have dumped used anti-
freeze into the invert. (TR 401, line 13 - TR 402, line 11)
It was not uncommon for Anchor to dispose of hazardous
chemicals simply by hauling them to the city dump. It was done
at Greg Sjaastad's direction, and care was taken to conceal the
product prior to hauling it away. (TR 401, lines 1-12; EX 44 p.
77 (PC-35 haul to city dump); EX 45 p. 78 (PC-23 haul it to city
dump); EX 54 p. 267 (disposal of product at city dump))
Anchor also had an unusual "transfer in - transfer out"
system of inventory record keeping suggesting that illegal
chemical dumping occurred. For example, when a product that had
been in inventory was disposed of by dumping, hauling to the city
landfill, or otherwise, the practice was to simply prepare an
internal delivery ticket transferring the product out of
inventory. The "transfer out" practice was also used to balance
the inventory when the inventory showed a product shortage.
Overages would be corrected by transferring the product into
inventory on a delivery ticket. Sjaastad would not let Lou Mohl
show inventory overages or shortages to either the Casper,
Wyoming or Denver, Colorado offices of the company. This
practice is particularly obvious in Anchor's exhibit BB. (TR 218,
lines 11-25; TR 220, lines 3-8; TR 222, line 4 - TR 225, line 9;
TR 227, lines 8-24; TR 270, line 17-25; TR 271, lines 1-9; TR
702, lines 11-24; EX 65 p. 278)
On at least one occasion, Mr. Sjaastad ordered that a
restricted biocide be sold to a customer of Anchor. Pope, after
speaking with Thomas Wheeler, understood that the product was
banned. Anchor did not have an MSDS sheet on the product and,
following Mr. Sjaastad's instructions, Pope provided the customer
with a MSDS sheet on a different product, representing that it
was the correct MSDS sheet. (EX 32 p. 65 (Mitrol G sale to True
[PAGE 7]
Oil))
The cavalier approach to handling and shipping of chemicals
was further illustrated by the testimony of Mr. Ben Orr, who
testified that he illegally manufactured a product called Petro-
Mul, and he acknowledged that he did not have legal containers to
ship the product so he merely used 55-gallon drums for packaging
and shipping under the orders he received from his upper
managers, Michael Cowan, Bill Beck, and Greg Sjaastad. This was
prior to Mr. Pope's tenure at Anchor. (TR 403, line I - TR 405,
line 25)
Evidence was introduced at the hearing of Anchor's
conversion and deliberate mislabeling of pails of a product owned
by Anchor's competitor, Northern Chemical. (EX 38 p. 71; EX 39 p.
72; EX 64 p. 277; EX 81 (Bucket)) Anchor mistakenly obtained
possession of the product, but rather than returning it to
Northern Chemical, Sjaastad ordered the label steamed off and the
product relabeled "Uniscavenger." Uniscavenger is a fictitious
product name. Curiously, complainant purchased a pail of
"Uniscavenger" after he was fired (EX 81), and after complainant
purchased the product, Anchor falsified the delivery ticket for
the Uniscavenger by whiting out "Uniscavenger" and writing in
"Oxygen Scavenger." (TR 181, line 21 - TR 184, line 1O; TR 111,
line 6 - TR 112, line 4; TR 115, lines 13-24)
At Sjaastad's direction, the warehouse employees also
engaged in a practice of mislabeling product by rebagging one
product and labeling it something else. (TR 115, lines 12-24; TR
191, line 19, TR 194, line 10) The impact of this (other than the
obvious fact that the customer is not getting the product for
which it paid) is that the material safety data sheets which must
accompany the product are not correct.
In addition, Anchor, at Sjaastad's direction, engaged in the
practice of diluting product and selling it as full strength.
Exhibit 65 is a transfer in/transfer out delivery ticket which
evidences that a 55-gallon drum of Uni-DMB was topped off with
water and mislabeled. (EX 65 p. 278; TR 174, lines 7-25) Exhibit
66 is a delivery ticket in which Unimul PE and OWA were spiked
with diesel and sold to Meridian Oil. (EX 66 p. 279; TR 175,
lines 1-14) Exhibit 33 evidences that a 55-gallon drum of Unimul
OWA was topped off with diesel, mislabeled, and sold to Slawson
Exploration. (EX 33 p. 66; TR 167, lines 17-24)
Anchor employees were also required to operate unsafe and
improperly maintained trucks and equipment. Greg Sjaastad would
not allow them to fix the equipment because of the cost involved.
They were forced to operate equipment with defective brakes, with
poor lighting, cracked windshields, poor tires, and faulty
electrical systems. (TR 385, lines 19-25; TR 386, line 22 - TR
388; TR 390 lines, 20-25; TR 391, lines 15-19; TR 393, lines 18-
[PAGE 8]
13; TR 429, line 23 - TR 430, line 23; TR 440, lines 14-25)
Anchor received citations for a number of such safety violations.
(TR 395, line 10 - TR 397, line 20) Since Complainant was
terminated the equipment has been fixed. (TR 638 line 6 - TR
639, line 2)
Anchor's drivers at the Sidney warehouse were also forced to
drive overlogged because there simply were not enough drivers to
handle the workload without running illegally. (TR 382, line 20 -
TR 383, line 2; TR 439, line 21 - TR 440, line 13; see also EX 55
p. 286 (712 mile overlog roundtrip ordered by Stokes) (EX 63 p.
276 an overlog roundtrip of 14 hours ordered by Cowan))
Exhibit 27 reveals that Anchor purchased oversize permits.
However, no such permits were ever purchased. (EX 27 p. 60;
Sjaastad TR 857, lines 2-13) Anchor regularly sent its drivers
out in overweight trucks. (EX 28 p. 61; EX 29 p. 62; EX 30 p. 63;
EX 34 p. 67; EX 41 p. 74; EX 56 p. 269; EX 57 p. 270; EX 59 p.
272; EX 61 p. 274) Most of these trucks were overloaded three-
quarter ton pick-ups. Greg Sjaastad of Anchor admitted that the
loads were illegal. (TR 857 lines 2-5)
Although some chemicals commonly sold by Anchor require a
hazardous materials permit for shipping (i.e., caustic soda),
Anchor never purchased such permits. (TR 857, lines 8-13; EX 25
p. 58; EX 26 p. 69; EX 36 p. 69; EX 37 p. 70; EX 59 p. 272; EX 60
273; EX 61 p. 274 (all showed delivery of caustic soda without
permit))
On behalf of the Complainant, Thomas Osborne, an
environmental expert, testified at the trial to the severity of
the environmental contamination at the Anchor facility in Sidney,
Montana. Essentially, he testified, that the contamination was
one of the worst cases he had ever seen in over one hundred
contaminated sites that he has inspected. (TR 300, line 18; TR
302, lines 14-25; TR 331, line 17 - TR 332, line 6) The
contamination included extremely high levels of petroleum based
organic chemicals, with some test samples registering greater
than 30,000 parts per million (ppm). By way of comparison, the
State of Montana guidelines for determining when a site is
adequately cleaned up is 100 ppm. (TR 303, lines 1-4) Excessive
levels of various heavy metal contaminants such as barium (7
times higher than the background sample), chromium (27 times
higher), and lead (25 times higher than the background sample)
also were present at the Anchor site. (TR 303, line 14 TR 304,
line 3; EX 67 pps. 280-316; EX 68 pps. 317-322; EX 71 pps. 339-
356) Volatile organics were also present at the site. (TR 322,
line 19 - TR 323, line 10; TR 324, lines 614; TR 336, line 14 -
TR 337, line 23)
Mr. Osborne found significant surface contamination near the
Anchor domestic well (discarded battery, methanol, hydrocarbon
[PAGE 9]
stained soil); he also reviewed Anchor's expert's water analysis
and noted the presence of volatile organic chemicals (Methylene-
Dichloride, Toluene, and Xylene) in the drinking water. (TR 312,
line 25 - TR 314, line EX 71 pps. 245-351; TR 322, line 13 - TR
323, line 10)
The foregoing findings are consistent with the chemical
dumping practices testified by Complainant. The contamination
was pervasive and extreme. (See TR 307 - TR 329; 330, line 20 -
TR 331, line 9; EX 71 pps. 339-356 (photographs of site))
The site was also unsafe and dangerous for workers because
it had no berms or linings for spills and no safety measures were
evident. (TR 309, line 17 - TR 310, line 2; TR 329, lines 17-23)
Apparently, Anchor hired their own environmental experts who
conducted their own sampling at the same time Mr. Osborne
conducted his. Curiously, the levels of contaminants found by
Anchor's experts in some instances exceeded the levels determined
by Mr. Osborne. (TR 322, line 19 - TR 323, line 10; TR 330, lines
2-19) It is not without significance that Anchor's counsel
specifically directed where Osborne could take pictures to
minimize the impact of the visible condition of the site to the
fact finder. (TR 306, line 2 - TR 307, line 1) It should be noted
that Anchor did not call its own expert witness to testify
regarding their findings of the degree of lot contamination.
With reference to the Complainant's allegations of
"illegalities," Anchor relied on the testimony of Brian Bouchard
and Greg Sjaastad. Both witnesses contradicted Complainant, and
both witnesses I found to be inherently incredible and not worthy
of belief. In particular, Greg Sjaastad denied virtually any
knowledge of Complainant's allegations as to what was happening
on the lot or in the warehouse. He denied virtually any
knowledge of unsafe trucking operations, and yet it was
abundantly clear that Mr. Sjaastad, as the district manager of
the Sidney facility for nearly ten years, was the man in charge
of the entire operation and he ran it in an arrogant and
autocratic fashion without regard for his employees, the
environment, or the public. His testimony is overwhelmingly
contradicted by not only the Complainant, who I found to be
truthful and credible, but also the corroborating witnesses who
testified on Complainant's behalf. The contamination of the lot
as testified to by Mr. Osborne, the environmental expert,
indicated quite clearly that the volume of saturation and
contamination was longstanding and extensive. Yet, Mr. Sjaastad
testified the perhaps on three occasions there was some spillage.
His denial of the existence of zinc chromate on the premises is
simply unbelievable. Mr. Sjaastad's management style was so
autocratic and oppressive that it is extremely doubtful that
there was anything that occurred at this Anchor facility that he
[PAGE 10]
was not fully aware of. He ultimately admitted the sending of
hazardous materials to a Sidney landfill, Sidney dump, and the
overloading of a pick-up truck with hazardous materials without
permit. (See EX 44, EX 45, EX 56, EX 59) Apparently, Mr. Sjaastad
had a management style which elicited fear on the part of his
employees and in particular, fear of losing their jobs if his
orders and wishes were not complied with. His temper, or lack of
it, was illustrated by his breaking Complainant's desk in a
moment of anger and screaming phone calls. He admitted that
there was no environmental clean up of the topsoil at the
facility from 1985 through 1994, until after Complainant was
fired. The essence of Mr. Sjaastad's testimony was self-serving
and totally lacking in credibility.
Complainant David Pope resented having to do the things he
was compelled to do at the Anchor facility in order to satisfy
Mr. Sjaastad and keep his job. He acknowledged doing them,
however, because he needed the job and the benefits it provided,
particularly in view of the problem with his developmentally
disabled daughter who required medical and therapy related
expenses of between ,500.00 to $2,000.00 per month. The
benefits he received from Anchor covered those expenses, and
Complainant could not jeopardize losing those benefits by
refusing to comply with the demands of Mr. Sjaastad
notwithstanding Complainant's discomfort that such activities
were perceived by him as being "illegal" and unethical. During
the approximate four years that Complainant was employed at
Anchor he looked for other work but was unable to secure a
position with comparable salary and benefits in the Sidney,
Montana area. (TR 128, line 21 - TR 129, line 5; TR 510, lines 2-
12)
The upper management people of Anchor were Michael Cowan and
Bill Beck. Mr. Cowan was, prior to April, 1994, located in
Denver and was regional manager for Anchor's Rocky Mountain
region. The Rocky Mountain region consists of the States of
Montana, North Dakota, South Dakota, Wyoming, Utah, and Colorado.
Bill Beck was, and still is, located in Denver and is the sales
manager for Anchor's Rocky Mountain division. Apparently,
Complainant attempted to talk with upper management about the
things that were going on at the Sidney facility but did not find
any receptive ears. Complainant felt that Mr. Sjaastad was Mr.
Cowan's "golden boy" and nothing could be done to change the
situation. (TR 128, line 6) Mr. Sjaastad was a friend of Mr.
Cowan, and Mr. Cowan did not want to hear Complainant's
complaints. (TR 817, lines 17-19) Mr. Beck simply told
Complainant to "Quit whining, quit being a baby." (TR 125, line
13; TR 123, line 21 - TR 124, line 2; TR 125, line 1 - TR 127,
line 8; TR 127, lines 15-25; TR 128, lines 1-6)
[PAGE 11]
Complainant raised his environmental concerns to Ben Orr
when Mr. Orr was Pope's supervisor in 1990 and 1991. (TR 124,
lines 9-14; TR 400, lines 6-13)
WHISTLEBLOWING - MAY, 1994
In April, 1994, upper management changed at Anchor and Dan
Kinshella, who was previously based in Anchor's home office in
Houston, Texas, was promoted to regional manager of Anchor's
Rocky Mountain division, and became based out of Denver,
Colorado. That was the position previously held by Michael
Cowan. (TR 470, lines 23-25) Kinshella hired Thomas Stokes as
Anchor's technical service manager. (TR 927, lines 20-21) That
was a position previously held by Thomas Wheeler. Mr. Stokes is
based out of Casper, Wyoming. Kinshella and Stokes were new
management who did not know Greg Sjaastad. Complainant therefore
thought that he might find a receptive ear in the person of Mr.
Dan Kinshella. (TR 129, lines 17-20)
On May 19, 1994, Complainant placed a telephone call to Dan
Kinshella reporting to him about the perceived illegalities and
unethical practices that he and other employees were compelled to
engage in order to keep their jobs at the Sidney facility. (TR 13
1, line 14 -TR 132, line 11) Complainant related the numerous
activities heretofore described that were taking place at the
Sidney facility and complained about Mr. Sjaastad's management
style. (TR 133; TR 462, line 20 - TR 463, line 17; TR 132, lines
8-11) Mr. Wayne Knutson, another former employee of Anchor, was
present in the office and heard the conversation on a speaker
phone that Mr. Pope had with Mr. Kinshella. It was during this
phone conversation that Complainant advised Mr. Kinshella that if
Mr. Sjaastad found out about the phone call he would be fired.
Mr. Kinshella assured Complainant that Mr. Sjaastad could not
fire him and that a decision of that nature had to be made by
him. (TR 570, lines 10-19) Apparently, Mr. Kinshella wanted more
proof of the things that Complainant related to him. Complainant
gave him customer oil well names and other information that would
allow Mr. Kinshella to check the relevant documentation in those
well files and elsewhere to verify what Complainant told him.
These documents could have easily been found by Mr. Kinshella
with the information Pope had given him. (See EX 25-34; EX 36-39;
EX 41; EX 44-48; EX 54-58; EX 64-66; and EX 92; TR 137, line 23 -
TR 138, line 4) However, Mr. Kinshella took no initiative to
locate these documents.
As previously stated, Mr. Wayne Knutson, a former Anchor
employee, overheard the May 19, 1994, telephone conversation
between Kinshella and Pope. Prior to the phone call, Complainant
told Mr. Knutson that he was considering making a couple of phone
calls and that things were going to be different at the Sidney
facility. Specifically that they would no longer be dumping
[PAGE 12]
chemicals illegally nor would they be driving overlogged. Mr.
Knutson noted that Pope was nervous prior to making the call.
Apparently, Mr. Knutson was in the same room with Pope during the
conversation along with Brian Bouchard. Mr. Knutson heard
Complainant tell Mr. Kinshella about the contamination on the
lot, the condition of the trucks, products being misshipped,
chemicals being dumped into the invert, and about products that
"were getting mixed up." Knutson heard Pope tell Kinshella that
Sjaastad wanted to hide the lot contamination from the EPA and
that Pope wanted to get Sjaastad away from the trucking end of
the operation. (TR 460, line 21 - TR 464, line 7; TR 467, line
10) Brian Bouchard, who significantly is still employed by
Anchor, was also present, but first he testified that he could
not remember if Mr. Knutson was present, could not remember the
substance of the conversation as related by Mr. Pope and Mr.
Knutson, and later testified that Mr. Knutson was not present. I
find Mr. Bouchard's testimony in this regard evasive and
inherently incredible.
A few days after the May 19, 1994, phone conversation,
Complainant received a call from Thomas Stokes. In response to
questions from Stokes, Complainant reiterated many of the things
that he had told Mr. Kinshella on May 19. (TR 256, line 15 - TR
257, line 15; TR 276, lines 2-22) Complainant was careful in his
conversation with Mr. Stokes because Mr. Kinshella had told him
not to say anything to anyone, and he interpreted that admonition
as including even Mr. Stokes. (TR 132, lines 21-24) Both Mr.
Kinshella and Mr. Stokes told Complainant that they planned on
being in Sidney in a few weeks and they would talk to him more
about his allegations at that time. (TR 135, lines 10-17)
Mr. Kinshella testified on behalf of Anchor that Complainant
was very vague in his allegations and the only specific matter
that he recalled was Complainant telling him of an incident in
which a chemical called Calgon Y-55 was spiked with water and
sold to a customer in a diluted state. However, this is contrary
to his statement to the Department of Labor investigator (EX 84 p
705) in which Mr. Kinshella stated: "David Pope contacted me
around May 14th or 15th by telephone and told me that there were
some problems around the invert tanks at the lot." No mention
was made of Calgon Y-55 in the statement to the Department of
Labor. On the other hand, Mr. Stokes knew from talking with Mr.
Pope about his allegations of mixing chemicals in the invert,
sending a banned biocide to an oil well location, uncontained
zinc chromate on Anchor's lot, and falsifying the MSDS sheet for
the biocide. (TR 937, lines 4-22; TR 928, lines 4-23) According
to Stokes, Mr. Kinshella was aware of Pope's specific
allegations, including knowledge about "things mixed in the
invert." (Stokes, TR 943, lines 1-13; TR 988, lines 15-16)
[PAGE 13]
Neither Kinshella nor Stokes told anyone else in the Anchor
organization about the things that Complainant was alleging.
Neither Mr. Kinshella nor Mr. Stokes kept any notes regarding
their respective conversations with Complainant.
Kinshella and Stokes visited the Sidney facility on June 1
and 2, 1994. On the evening of June 1, 1994, Kinshella, Stokes,
and Sjaastad had dinner and, at that time, according to Mr.
Kinshella, Mr. Sjaastad spoke well of Complainant's job
performance. (TR 576, lines 3-5) No mention was made of problems
involving Pope's work or of his abilities. (TR 944, lines 15-18)
Stokes had been requested by Kinshella to investigate Pope's
allegations and on June 2, spent about ten or fifteen minutes
talking with engineers who expressed their dissatisfaction with
time off and vacation time that Sjaastad was allowing. None of
the engineers admitted their awareness of the problems that Pope
was alleging. Stokes did not speak with any of the warehouse
employees then employed by Anchor. It should be noted the
engineers are not involved in the trucking operations; nor are
they involved in the day to day operations of the facility. They
do not participate in mixing invert at the lot. The engineers
job is merely to monitor mud operations at the well sites many
miles from the Sidney facility. During the June 1-2, 1994,
visit, Kinshella spent only about ten minutes talking to Pope
about the allegations he had made. The conversation occurred
towards the end of the visit and consisted of Kinshella asking
Pope to supply more proof. Mr. Kinshella did virtually nothing
to investigate the allegations of Complainant. He did check the
invoices at the Denver office to see if there had been a sale of
Calgon Y-55 over the past couple of years. He did not check
delivery tickets or ask anyone in Sidney, Casper, or Houston to
check delivery tickets. He did not check the well files in
Sidney. He was simply relying on Complainant to provide proof to
verify his allegations. When Kinshella continued to press for
additional proof, Complainant suggested that he talk to past and
present employees, but Mr. Kinshella did not want to do that. (TR
138, lines 14-21; TR 139, lines 1-4)
After the May 19, 1994, telephone call to Mr. Kinshella
matters deteriorated between Mr. Sjaastad and Mr. Pope even
though Mr. Sjaastad allegedly did not know about the phone call
until June 21, 1994. (TR 826, lines 13-24) The relationship
apparently deteriorated because pursuant to Mr. Kinshella's
orders, Pope refused to engage in some of the illegal and
unethical things that Mr. Sjaastad was demanding. (TR 140, lines
3-9) Throughout the remainder of June, 1994, the tension mounted
and on June 21, 1994, Kinshella made the decision to place Stokes
in charge of Pope. Kinshella communicated his decision to
Sjaastad and this was purportedly the first time that Mr.
[PAGE 14]
Sjaastad knew of Pope's May 19, 1994, call. Sjaastad was
extremely upset with the decision. Sjaastad admitted that during
the June 21, 1994, call Kinshella told him that Complainant had
made allegations about "shorting customers and a bunch of stuff."
(TR 797, lines 10-11)
On July 7, 1994, Mr. Pope was injured while unloading a 50-
pound sack of material from a truck into a mud house at a well
site. He suffered two imploded vertebral discs, one at the
cervical spine level and one at the thoracic spine. He also
suffered a torn vertebral ligament in his low back. Complainant
called Mr. Stokes the next day and told him of his injury and
asked if a contract trucker could be hired since he was the only
truck driver then employed at the Sidney facility. Mr. Stokes
denied the request and asked complainant to continue to drive but
use additional swamper help if he needed it.
Complainant continued to drive until July 13, 1994, when he
could no longer stand the pain. On July 12, 1994, Complainant,
still in his capacity as warehouse supervisor, hired a new
driver, Ron Churchill. Mr. Pope and Mr. Stokes signed an
employee status report hiring Churchill on July 13, 1994.
Complainant filed his claim for workers' compensation benefits on
July 12, 1994. (EX 12) Apparently, the claim was refiled by Mr.
Stokes four days after Mr. Pope was fired. (EX 13)
On July 13, 1994, one day after Complainant filed for
workers' compensation benefits, Mr. Kinshella made the decision
to terminate Mr. Pope effective July 15, 1994. However, he first
testified that he made the decision to terminate Mr. Pope on or
about June 24 or 25, 1994, and he told Stokes to start looking
for someone to replace Mr. Pope. He first testified he decided
to fire Complainant as part of a joint decision with Mr. Stokes.
However, he continued to list Mr. Pope as warehouse manager for
the Sidney facility. July 13 was also the day the new driver,
Ron Churchill, was hired. Kinshella, for reasons that are
inexplicable, communicated his decision to fire Mr. Pope to Greg
Sjaastad and told Mr. Sjaastad to carry out the termination. (TR
654, lines 11-13) The only reason given on the employee's status
report evidencing Pope's termination was:
"Management has decided that Pope's inability to work with
others is not conducive to good work habits and the
company's objectives." (EX 4 p. 6)
On July 15, 1994, Complainant came to the warehouse to check
on his workers. He was summoned to Mr. Sjaastad's office where
he was informed that he was terminated. (TR 143, lines 1-25)
Complainant asked for the reason, and Mr. Sjaastad told him it
was due to his inability to get along with others. Complainant
[PAGE 15]
asked for written reasons for his discharge, and Sjaastad replied
that Anchor was not required to provide written reasons. (TR 145,
lines 15-18) Complainant left the facility and returned to his
home.
Because of the assurances he had received from Kinshella and
Stokes that Sjaastad could not fire him, Complainant telephoned
Stokes and asked about the termination. Stokes confirmed that he
was terminated because of "the things going on between you and
Sjaastad." (TR 144, lines 10-12) Stokes later told Mr. Pope that
it was because of the allegations of toxic dumping he had made to
Kinshella. (TR 256; TR 257; TR 276)
July 15, 1994, was a Friday, and on Monday, July 18, 1994,
Complainant contacted his present counsel, Kathleen Key Imes, for
the first time. His attorney instructed Complainant to call
Anchor's Houston office and request a written statement of the
reasons for his termination and to have that statement sent to
him in care of his new attorney. The letter from Anchor was
dated July 18, 1994, and received by fax by counsel for
Complainant on July 20, 1994. Curiously, the employee for Anchor
testified that the drafted letter of termination to Attorney Imes
was prepared over the weekend of Friday, July 15, 1994, through
Sunday, July 17, 1994, which is inherently incredible as it was
prior to the attorney being contacted by Complainant.
The Anchor letter listed the reasons for Complainant's
termination as poor work habits and inability to follow
supervisor's directions. Examples referred to were failure to
complete accountability sheets in a timely manner, not reporting
to work on time, inability to work with others, and leaving early
before work was completed, and these were considered and decided
that they were not conducive to the company's objectives and good
work habits. (EX 8 p. 22) Apparently, the letter was drafted
after conferring with Dan Kinshella and Greg Sjaastad.
LEGAL ANALYSIS
A. JURISDICTION
There is no dispute that the Secretary of Labor has
jurisdiction over this case pursuant to the Toxic Substances
Control Act, 15 U.S.C. §2622(b), the Water Pollution Control
Act, 33 U.S.C. §1367(b), the Safe Drinking Water Act, 42
U.S.C. §300j-9(i), the Solid Waste Disposal Act, 42 U.S.C.
§6971(b), and the Clean Air Act, 42 U.S.C. §7622(b).
However, Anchor Drilling argues that the Secretary does not have
jurisdiction over this case under the employee protection
provisions of the Occupational Safety and Health Act, 29 U.S.C.
§660, and the Surface Transportation Assistance Act, 49
U.S.C. §31105.
1. Occupational Safety and Health Act
Anchor's contention that the Secretary does not have
jurisdiction over Complainant's cause of action under the
[PAGE 16]
Occupational Safety and Health Act (OSHA) is correct. Under
OSHA, employee complaints of retaliatory discharge are made to
the Secretary of Labor, and the Secretary brings suit against the
employer if the Secretary finds a violation of OSHA's employee
protection provision. 29 U.S.C. §660(c)(2). Thus, there is
not a private right of action under OSHA's employee protection
provision. George v. Aztec Rental Center, Inc., 763 F.2d
184, 186 (5th Cir. 1985).
2. Surface Transportation Assistance Act
Anchor also contends that the Secretary of Labor does not
have jurisdiction over Complainant's cause of action under the
employee protection provision of the Surface Transportation
Assistance Act (STAA). Anchor first raised this jurisdictional
objection at the hearing when it objected to the introduction of
evidence concerning Anchor's alleged violations of the STAA. At
the time, Anchor's objection was denied. However, Anchor raised
its objection once again in its post-hearing papers. Anchor
argues that neither Complainant's original complaint to the
Department of Labor, nor the narrative report prepared by the
Department's investigator include allegations of violations of
the STAA. (TR 14, line 6 - TR 17, line 8.) Anchor stated that
the first time that it was aware of any alleged violations of
that Act was on December 12, 1994, when counsel for Anchor
received a supplemental response from Complainant stating that he
was alleging violations of the STAA.[4] Anchor argues that
because Complainant did not specifically allege violations of the
STAA in his complainant and because there was no investigation of
these allegations or a preliminary order discussing their merits,
Complainant has not followed the proper administrative procedures
and, therefore, the Secretary does not have jurisdiction to
decide the merits of these allegations.
Anchor further argues that it would be a violation of its
Fifth Amendment Due Process rights to allow Complainant to
recover under the STAA. Anchor contends that it received notice
that Complainant was alleging violations of the STAA almost two
weeks after discovery had closed and two days prior to the
submission date for its pre-trial statement. Thus, Anchor argues
that it was not given reasonable notice of the alleged
violations, was not allowed to conduct discovery on the matter,
and was denied the opportunity to fully and fairly prepare and
present a defense to the allegations against it.
Complainant, however, contends that the Secretary does have
jurisdiction over his allegations under the STAA. Complainant
alleges that the original complaint was drafted broadly, broad
enough to include allegations of violations under the STAA. In
addition, Complainant argues that Rule 15, Federal Rules of Civil
Procedure allows for pleadings to be amended, even up to and
[PAGE 17]
through the time of trial. Complainant further argues that
Respondent can not argue surprise or prejudice as Respondent was
aware of these allegations well before trial, and these
allegations were included in his pre-trial statement.
Complainant filed a complaint with the Department of Labor
on August 12, 1994, in the form of a letter written by his
attorneys. The letter stated, in part, that:
Mr. Pope was discharged from his employment as warehouse
supervisor with the Sidney branch of Anchor Drilling in
violation of numerous federal employee protection statutes,
possibly including the following: Toxic Substances
Control Act, 15 U.S.C. §2622; Water Pollution Control
Act, 33 U.S.C. §1367; Safe Drinking Water Act, 42
U.S.C. §300j-9(i); Solid Waste Disposal Act, 42 U.S.C.
§6971; Clean Air Act, 42 U.S.C. §7622.
The letter went on to state that:
During Mr. Pope's employment with Anchor Drilling, he
became aware of many illegal practices with respect to the
sale and disposal of toxic chemicals, including but not
limited to the following:
1. Sale of banned chemicals to customers. For example, a
customer of Anchor Drilling was experiencing a bacteria
problem in its reserve pit and wanted something to kill the
bacteria. Pursuant to the directive of Mr. Pope's
supervisor, Greg Sjaastad, Anchor Drilling sold this
customer a chemical, Mitrol-G, banned by the Environmental
Protection Agency. Mr. Pope was ordered by Mr. Sjaastad
to deliver the chemical and forge a Material Safety Data
Sheet with respect to the chemical. Upon investigation
of this action by authorities from the State of North
Dakota, Anchor falsified information regarding the contents
of its drilling mud.
...
3. Disposal of hazardous chemicals by mixing them with oil
mud and Invert and then shipping the same to
customers rather than disposing of them at a proper dump
site.
4. Falsifying product identification.
Section 31105(a)(1)(A) of the STAA prohibits an employee's
discharge because he has filed a complaint "related to a
[PAGE 18]
violation of a commercial motor vehicle safety rule, regulation,
standard, or order..." Internal Complaints, e.g., to an
employer, are protected. Protection is not dependent on actually
proving a violation. Yellow Freight System, Inc. v.
Martin, 954 F. 2d 353, 356-357 (6th Cir. 1992).
Department of Transportation (DOT) regulation 171.2 states
that "[n]o person may offer or accept a hazardous material for
transportation in commerce unless...the hazard material is
properly classed, described, packaged, marked, labeled, and in
condition for shipment...." DOT regulation section 172.200
provides: "[e]ach person who offers a hazardous material for
transportation shall describe the hazardous material on the
shipping paper[5] in the manner required by this subpart."
Regulatory section 172.202 provides: "(a) The shipping
description of a hazardous material on the shipping paper must
include (1) The proper shipping name ... [and] (5)(c) The total
quantity of the material covered one description must appear
before or after, or both before and after, the description
required and authorized by this subpart. DOT regulation 171.2(g)
provides:
No person shall unlawfully alter, remove, deface, destroy
or otherwise tamper with --
(1) Any marking label, placard, or description on a
document required by the Act, or a regulation issued
under the Act;...
49 C.F.R. §171.2(g)(1).
A complainant's initial charge is not a formal pleading
setting forth legal causes of action which may serve to limit a
suit. Richter v. Baldwin Associates, 84-ERA-9 (Sec'y
March 12, 1986). Its purpose is merely to initiate an
investigation. Id. Furthermore, under the STAA, a
complainant is accorded an opportunity for de novo hearing
of his complaint 29 C.F.R. §1978.106. A complainant is not
therefore limited by the findings of the Department of Labor
investigator. Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y Aug. 5, 1992).
Here, it is clear that although the STAA was not
specifically cited in the complaint several violations, or
perceived violations, of the STAA have been alleged by
Complainant. The complaint alleges that Anchor transported
hazardous chemicals without properly classifying, describing, or
marking them in violation, or perceived violations of DOT
regulatory sections 171.2(g), 172.200, and 172.202. I therefore
find that Complainant alleged violations under the STAA in his
August 12, 1994, complaint. The DOL investigator's failure to
[PAGE 19]
discuss these issues does not prevent me from considering them in
a de novo hearing.
Complainant included additional allegations of Anchor's
violations of the STAA in his pre-trial statement. Evidence
supporting these allegations was admitted at trial over Anchor's
objection. Federal Rule of Civil Procedure, Rule 15, states, in
relevant part:
If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action
will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party's action or
defense upon the merits.[6]
In the absence of prejudice to the opposing party, leave to amend
should be freely given. Wyshak v. National Bank, 607 F.
2d 824, 826 (9th Cir. 1979).
I find that Anchor Drilling's defense was not prejudiced by
allowing Complainant to present evidence regarding Anchor's
additional violations of the STAA. As stated above, although the
complaint did not refer specifically to the provisions of the
STAA as a basis for Pope's complaint, the nature of the alleged
violations fall within the scope of the STAA, such that Anchor
had notice of these assertions from the start. Furthermore, the
wording of the complaint left open the possibility that the
allegations stated therein may have supported violations of
additional Acts. Anchor was well aware of this fact as it sent
Complainant interrogatories "saying you have alleged that there
were possibly other federal acts involved in this case, could you
please tell us what you're alleging." (TR 17, lines 9-17) Anchor
was informed of Complainant's allegations under the STAA prior to
the date that its pre-trial statement was due. In addition,
Complainant clearly stated these alleged violations in his pre-
trial statement. Nonetheless, I note that Anchor did not object
to Complainant's actions in its pre-trial statement, but waited
until the day of trial in order to raise its objections.
Furthermore, nothing occurred at the time of the hearing that
would lead me to believe that administrative due process had been
denied in that Anchor was unable to offer a sufficient defense.
"Notwithstanding a possible lack of notice prior to the
administrative hearing, due process is not offended if an
agency decides an issue the parties fairly and fully
litigated at the hearing. [T]he test is one of fairness
under the circumstances of each case - whether the employer
[PAGE 20]
knew what conduct was in issue and had an opportunity to
present his defense." Yellow Freight System, Inc. v.
Martin, 954 F. 2d 353, 358 (6th Cir. 1992) (citing
Soule Glass and Glazing Co. v. NRLB, 652 F2d 1055,
1074 (1st Cir. 1981)).
I find that Anchor was aware of the conduct in issue and had
ample opportunity to present its defense, and was therefore
neither prejudiced or deprived of due process as a result of the
admission of the aforesaid evidence. Mr. Sjaastad even admitted
at trial to the shipping by truck of hazardous material to a
Sidney landfill and the overloading of trucks with hazardous
materials without permit.
Accordingly, Complainant's claim is amended to conform to
proof to include additional violations of the Surface
Transportation Assistance Act. Despite my finding that the
Secretary has jurisdiction over Complainant's STAA complaint, I
note that my finding is somewhat superfluous in light of the fact
that, as discussed below, I find that Anchor has violated the
Toxic Substances Control Act, the Water Pollution Control Act,
and the Solid Waste Disposal Act.
B. DEFENSES
1. Statutory Defense
All of the federal environmental whistleblowing statutes
involved in this case contain express defenses, or exclusions,
which exclude relief offered with respect to any employee who,
acting without direction from his or her employer, deliberately
causes a violation of any requirement of this chapter. 15 U.S.C.
§2622(e) (TSCA); 33 U.S.C. §1367(d) (FWPCA); 42 U.S.C.
§6971(d) (SWDA). Anchor contends that evidence was
presented which shows that, without direction from Anchor, Pope
deliberately caused violations of several of the Acts.
For the following reasons, I find Anchor's contention to be
totally without merit. First, it is clear that the activities
Mr. Pope engaged in were at the direction of, and in compliance
with, the requirements of his then immediate supervisor, Greg
Sjaastad. Furthermore, his compliance with his supervisor's
orders was not intentional, but was done under duress. It has
been stated that the statutory bar that Anchor is asserting
herein most clearly resemble the equitable doctrine of "unclean
hands"' whereby relief is denied to those guilty of improper
conduct in the matter as to which they seek relief. English
v. General Electric Company, 683 F. Supp. 1006, 1013-14
(E.D.N.C. 1988), aff'd, 871 F.2d 22 (4th Cir. 1989). The
doctrine of "unclean hands," however, involves "willful" or
"intentional" misconduct, as opposed to negligent or inadvertent
acts. See Preload Technology v. H.B. Construction Co.,
Inc., 696 F.2d 1080,
[PAGE 21]
1090 (5th Cir. 1983). An individual's actions cannot be
considered voluntary, and therefore intentional or deliberate,
when they are performed under duress. See Employers Ins. of
Wausau v. United States, 764 F.2d 1572, 1575 (Fed. Cir.
1985). Here, Pope was clearly under duress. Pope involuntarily
complied with Sjaastad's orders because he knew from Sjaastad's
attitude and his history of firing other employees that did not
acquiesce to his demands that he would lose his job if he did not
comply. Furthermore, Pope knew that he could not lose his job
because he needed the income and benefits that it afforded in
order to provide for his family and his disabled daughter,
Caitlyn. I find that Complainant involuntarily performed these
activities as a result of Sjaastad's coercive acts and because he
had no other alternative. I note that during the approximate
four years that Complainant was employed at Anchor, he looked for
other work but was unable to secure a position with comparable
salary and benefits in the Sidney, Montana area. In addition, an
employer is precluded from asserting a defense of unclean hands
when it caused the employee to do the act for which it is
asserting the defense. See Bryan v. Hall Chemical Co.,
993 F.2d 831, 835 (11th Cir. 1993). Based on the foregoing, I
find that an employee who acts under duress for fear of losing
his job and in compliance with the supervision provided by the
employer is not precluded from obtaining relief under the
employee protection provisions of the applicable statutes herein.
2. Good Faith
Anchor additionally contends that Complainant cannot recover
in this case because his whistleblowing was not done in good
faith. Anchor argues that an employee's allegations must be
inspired by a desire to inform or protect the public and not to
extort protection for one's job, remove a superior, or out of a
desire for personal vindictiveness. If allegations are not made
in good faith, Anchor argues, the employee conduct is not
protected and, therefore, is not entitled to the shelter which
the acts provide. See e.g., Wolcott v. Champion International
Corp., 691 F. Supp. 1052, 1059 (W.D. Mich. 1987); Johnson
v. Benson, et al, 384 N.W.2d 367 (1986) (unpublished
decision); Melchi v. Burns Intern. Sec. Services, Inc.,
597 F. Supp. 575, 583 (E.D. Mich. 1984); and Fiorillo v. U.S.
Dept. of Justice, Bureau of Prisons, 795 F. 2d 1544, 1550
(Fed. Cir. 1986).
Anchor argues that Complainant's real motivation behind
making his complaints to Anchor's upper management was his desire
to have his supervisor, Greg Sjaastad, removed from his position.
Anchor basis its contention on evidence which shows that Pope did
not inform Anchor employee's of the perceived violations in his
monthly safety meetings, and that Pope admitted his ulterior
motives to other Anchor employees, including Lou Mohl, Tom
[PAGE 22]
Stokes, Wes Erickson, and Brian Bouchard. Furthermore, Anchor
argues that the "letter" written by Pope's attorney and which
Pope threatened to send to Anchor's customers, alleging bad
business practices and environmental misdeeds on the part of
Anchor, was an attempt on Pope's part to extort Sjaastad's
dismissal from Anchor management.
As previously stated, one of the reasons Complainant
expressed his concerns about Anchor's illegal environmental
practices to Dan Kinshella at the time that he did was because
Kinshella was a new manager who Pope thought might be more
willing to listen to his concerns. Apparently, prior management
had less than receptive ears when Complainant attempted to talk
with them about the things that were going on at the Sidney
facility. Another significant factor was that one of Pope's co-
employees, Paul Fiorenza, quit his job on May 19, and placed
phone calls to both OSHA and EPA regarding the Sidney facility
(TR 129, lines 6-25; TR 513, lines 21 - TR 514, line 8) In
addition, other employees were complaining to Pope about the
working conditions. (TR 464, lines 17-18) Complainant and his
wife discussed his responsibilities as warehouse supervisor and
for his workers, and weighed the risk of making a telephone call
to Mr. Kinshella, recognizing the possibility Complainant might
be fired for his whistleblowing activity. (TR 516, line 3 - TR
518, 7) Although Mr. Pope appears somewhat naive, his naivety
impresses as being sincere, his motive in talking to Mr.
Kinshella strikes me as an altruistic effort to improve the
safety of Anchor's equipment and the environment at the lot
across the street from Anchor's warehouse. (TR 153, lines 15-19;
TR 154, lines 8-14) Complainant's motivation was not to secure
Mr. Sjaastad's termination; he did not want Sjaastad's job as he
recognized that he was unqualified for such position. (TR 243,
line 4-1 1) Complainant essentially wanted Mr. Sjaastad "off of
his back" so that he could no longer force Complainant and other
employees to continue to engage in what Mr. Pope considered
"illegal" and unethical practices. (TR 139, line 15 - TR 140,
line 9)
In regard to the letter, Wes Erickson, a mud engineer
employed at the Anchor Sidney facility, testified that Pope
mentioned to him that he had a letter which he was allegedly
planning to send to oil companies as early as May 20, 1994. (TR
899, lines 2-23; TR 91 lines 9-13) It should be noted, however,
that in his statement to the Department of Labor investigator (EX
89 pps. 713-14), Mr. Erickson said Pope first told him about the
oil company contacts in mid-July. This inconsistency casts grave
doubt on the credibility of Mr. Erickson, who is presently still
employed by Anchor. It is also significant to note the on
November 15, 1994, after Mr. Pope's termination, Mr. Erickson was
[PAGE 23]
promoted to acting district manager, replacing Greg Sjaastad who
is still employed with Anchor, but who is currently working
merely as a mud engineer.
It should also be noted that Complainant explained that
although he talked to Erickson about a letter, it was not the
same letter that Erickson had referred to in his testimony.
Complainant stated that sometime after June 17, 1994, he asked
Erickson to come forward with what he knew because Kinshella
wanted more proof of the allegations that he had made. (TR 1015,
lines 1-25) Erickson would not come forward because he was afraid
of losing his job. (TR 1015, line 19) Complainant then told
Erickson that he had spoken with a lawyer friend of his and asked
if there was any way to protect Anchor's current and former
employees from retaliation if they came forward with what they
knew was going on at the Sidney facility. (TR 1016, lines 1-1 1)
Pope informed Erickson that the lawyer told him the they could
draw up some sort of letter agreement that would afford the
employees the protection they needed. (TR 138, line 23 - TR 139,
line 4) Nonetheless, Erickson would still not come forward for
fear of losing his job. It is clear from Complainant's testimony
which I credit, that although Complainant may have mentioned a
letter to Erickson, its contents were not to be used to extort
Sjaastad's dismissal from Anchor upper management.
Mr. Kinshella also testified regarding the alleged "letter."
Kinshella stated that during the May 19 telephone call,
Complainant told him that he had retained an attorney and
threatened to send a letter to Anchor's customers detailing the
things that were going on the Anchor facility. Mr. Stokes also
claims to have had a conversation with Pope about alleged letter.
Mr. Kinshella, however, made no mention of the letter in his
statement to Department of Labor, nor was there any corroborating
evidence introduced by Anchor regarding "the attorney" who wrote
this letter. Based on the significant discrepancies in testimony
from Anchor's witnesses, the total lack of proof regarding the
existence of a "letter" or Complainant's alleged attorney, and
the self-serving nature of Mr. Erickson's statements, I cannot
credit any of this testimony. However, I do find it quite clear
from Complainant's testimony that no such letter ever existed.
(TR 133, line 5 - TR 134, line TR 135, lines 18-25) I credit
Complainant's testimony that he neither threatened to go to
Anchor customers with a letter, nor said that he had a lawyer.
(TR 133, lines 5 - TR 134 line 3; TR 1013, line 15 - TR 1014,
line 15).
C. PRIMA FACIE CASE
To prevail in a retaliatory adverse action case arising
under 29 C.F.R. Part 24, and the statutes enumerated therein, the
employee must initially present prima facie case
consisting of a
[PAGE 24]
showing that he engaged in protected conduct, that the employer
was aware that conduct and that the employer took some adverse
action against him. In addition, as part of his prima facie
case, "the plaintiff must present evidence sufficient to
raise the inference that...protected activity was the likely
reason for the adverse action." Cohen v. Fred Mayer,
Inc., 686 F.2d 793 (9th Cir. 1982).
1. Protected Activity
In general, a person is deemed to have violated the employee
protection provisions of the statutes involved in this case if
such person intimidates, threatens, restrains, coerces,
blacklists, discharges, or in any other manner discriminates
against any employee who has commenced, or caused to be
commenced, or is about to commence a proceeding under any one of
the statutes, a proceeding for the administration or enforcement
of any requirement imposed under such statute, or has filed a
complaint relating to a violation of commercial motor vehicle
safety and health regulations. 29 C.F.R. §24.2(b)(1), 29
C.F.R. §1978.100. The Secretary has consistently held that
reporting safety and quality problems internally to one's
employer is a protected activity under the enumerated statutes.
Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov.
20, 1990); Guttman v. Passaic Valley Sewerage Comm'rs, 85-
WPC-2 (Sec'y Mar. 13, 1992); Williams v. TIW Fabrication &
Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992); Willy v.
The Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987); Yellow
Freight System, Inc. v. Martin, 954 F. 2d 353, 356-57 (6th
Cir.)(STAA). To be covered under the employee protection
provision, a complaint need only be grounded in conditions
constituting a reasonably perceived violation of the underlying
act. See Yellow Freight System, Inc. v. Martin, 954 F.2d
353, 357 (6th Cir. 1992); Johnson v. Old Dominion
Security, 86-CAA-3 (Sec'y May 29, 1991); Aurich v.
Consolidated Edison Co., 86-ERA-3 (Sec'y Aug. 5, 1992).
As stated above, Complainant's statements to Kinshella that
Anchor transported hazardous chemicals with falsified or
inaccurate shipping papers in violation, or a perceived violation
of 49 C.F.R. §§172.200, 172.202(d), and 171.2(g)
constituted protected activity under the STAA. Department of
Transportation regulations also prohibit operating poorly
maintained, dangerous, and unsafe trucks and equipment (49 C.F.R.
§392.7), driving illegal hours in violation of drivers' log
limits (49 C.F.R. §§395.3, 395.8), hauling illegally
overloaded vehicles (49 C.F.R. §392.9), and shipping
hazardous materials without hazardous materials shipping permits
(§172.200). Additionally, sections 2605 and 2614 of the
Toxic Substances Control Act make it illegal for any person to
distribute in commerce or dispose of a substance that the EPA has
banned. Furthermore, section 2604 of
[PAGE 25]
that Act precludes the manufacture of chemical substances without
notice to the Administrator of the EPA. The Solid Waste Disposal
Act[7] requires transporters of hazardous waste to keep records
regarding the hazardous waste transported and their source and
delivery points, to transport such waste only if properly
labeled, and to comply with a manifest system (42 U.S.C.
§6923); prohibits the disposal of hazardous waste at any
facility which does not hold a permit for the disposal of such
waste (42 U.S.C. §6923); prohibits all land disposal of
hazardous waste (§6924(d)); and requires certification,
through a permit system, that performance standards for the safe
treatment, storage, and disposal of hazardous wastes have been
met (42 U.S.C. §6925). Section 1321 of the Water Pollution
Control Act disallows the discharge[8] of oil or hazardous
substances into or upon the navigable waters of the United
States. This section applies to all "waters of the United
States," not just to the classical "navigable waters of the
United States," U.S. v. Ashland Oil & Transp. Co., 364 F.
Supp. 349, 350 (D.C. KY 1973), aff'd, 504 F.2d 1317 (6th
Cir. 1974), and therefore could reasonably apply to groundwater.
Based on the foregoing, I find that the allegations made by
Pope to Kinshella concerning the activities that were taking
place at the Sidney facility, as set forth in the "Facts" section
of this Recommended Decision and Order, demonstrate illegal
conduct on the part of Anchor, or at least conduct that Pope
reasonably could have perceived to have been illegal, under the
Surface Transportation Assistance Act, the Toxic Substances
Control Act, the Solid Waste Disposal Act, and the Water
Pollution Control Act. Complainant, however, concedes, and I
find, that there is not sufficient evidence in the record to find
that the Clean Air Act was actually violated, or that there was a
perception of violation sufficient to support an action under the
whistleblowing provisions of that Act. I also find that there is
not sufficient evidence in the record to find that Pope's
complaint was based on possible violations of the Safe Drinking
Water Act. That Act directs EPA to set health-based standards
for contaminants in drinking water, and to require public water
system owners to come as close as possible to meeting these
standards and to notify the state authority when the standard has
been violated. As Anchor is not the owner of a public water
system, it could not have violated the Act.
2. Anchor's Knowledge of the Protected Activities
The second element of a prima facie case requires
proof that the employer was aware of the complainant's protected
activities prior to the occurrence of the alleged retaliatory
acts. This requirement has clearly been satisfied. Mr. Knutson
testified that he was in the office and heard Complainant tell
Kinshella
[PAGE 26]
about the contamination on the lot, the condition of the trucks,
products being misshipped, chemicals being dumped into the
invert, and about products that "were getting mixed up."
Furthermore, Mr. Stokes testified that both he and Kinshella knew
about Pope's allegations of mixing chemicals in the invert,
sending a banned biocide to an oil well location, uncontained
zinc chromate on Anchor's lot, and falsifying the MSDS sheet for
the biocide. Although Kinshella attempted to show through his
testimony that Complainant was very vague in his allegations, I
have found his testimony to be unworthy of credence. In
addition, I also do not credit the testimony of Brian Bouchard
who testified that Mr. Knutson was not present during Pope's
conversation with Kinshella.
3. Adverse Action
In order to establish the third element of a prima facie
case, there must be proof that the employer in some way took
action that was adverse to the complainant. Here, Complainant's
discharge unquestionably constitutes adverse action.
4. Inference of a Causal Connection Between the Protected
Activity and the Adverse Action
In order to met this element of his prima facie case,
Complainant must present evidence sufficient to raise the
inference that his protected activity was the likely reason for
the adverse action. The motives for adverse actions against
employees are necessarily subjective and for this reason it is
rare that there is direct evidence of any adverse action against
the employee. However, it is well established that such a
connection can be proven by circumstantial evidence.
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1162 (9th Cir. 1984). Thus, for example, it has been held
that the proximate timing of the protected conduct and the
adverse action can be sufficient to raise the inference of
causation. Jim Causley Pontiac v. NLRB, 620 F.2d 122, 126
(6th Cir. 1980).
Pope's protected activity was in sufficient proximity to his
termination to raise the inference of causation. Pope's
telephone call to Dan Kinshella occurred on May 19, 1994, and he
spoke to Mr. Stokes regarding the same alleged violations
approximately one week later, on May 25, 1994. Although
Complainant was actually terminated on July 15, Kinshella
admittedly made the decision to replace him on June 24 or 25.
Thus, there were approximately thirty days between Pope's
protected activity and his termination. Under the facts of this
case, I find that this amount of time is sufficient to raise an
inference of causation. At the time of Complainant's
whistleblowing activity, Kinshella was in the process of
reorganizing the Sidney facility. As Complainant was the only
driver, Kinshella needed to keep him on until he could find a
[PAGE 27]
replacement. Once Pope had hired a replacement driver, he was
terminated by Anchor.
In addition, there is also direct evidence that Complainant
was terminated because of his whistleblowing activity.
Complainant testified at the hearing that Mr. Stokes told him
that he was terminated because of the allegations of toxic
dumping that he had made to Kinshella. I credit Pope's testimony
on this issue and find that Complainant has met his burden of
raising the inference of causation.
D. ANCHOR'S EVIDENCE OF LAWFUL MOTIVES
Once the employee establishes a prima facie case, the
employer has the burden of producing evidence to rebut the
presumption of disparate treatment by presenting evidence that
the alleged disparate treatment was motivated by legitimate,
nondiscriminatory reasons. Significantly, the employer bears
only a burden of producing evidence at this point; the ultimate
burden of persuasion of the existence of intentional
discrimination rests with the employee. Burdine, 450 U.S.
at 254-55.
Anchor contends that it had legitimate, nondiscriminatory
reasons for terminating Pope. When Complainant was first
terminated by Anchor, he was told that he was fired because he
could not get along with others, specifically Mr. Sjaastad. In a
letter to Complainant's attorney, however, Anchor stated that it
terminated Complainant because of his poor work habits and
inability to follow his supervisor's directions. Examples
referred to were his failure to complete accountability sheets in
a timely manner, failure to report to work on time, inability to
work with others, and tendency to leave early before his work was
completed.
In addition, after the litigation herein was commenced,
Anchor asserted six new reasons for terminating Complainant.
This time Anchor professed that, in addition to his inability to
get along with Mr. Sjaastad, Complainant was justifiably
terminated because: 1) He ran the warehouse low on a product
called Salt Gel in April, 1994, and it had to be purchased from a
competitor at a higher cost; 2) He ran the Sidney warehouse low
on a product called Barite in May, 1994; 3) He was not properly
calling in purchase orders; 4) He did not perform adequately in
servicing an Amerada Hess well that Sjaastad was engineering; 5)
He allegedly borrowed a mud house from a competitor without first
obtaining permission; and 6) He made arrangements to ship barrels
to Anchor's Houston warehouse without proper permission.
I find that this evidence is sufficient to meet Anchor's
burden of producing evidence which shows that its motive for
terminating Complainant was legitimate and nondiscriminatory.
See St. Mary's Honor Center v. Hicks, _ U.S. __, 113 S.
Ct. 2742
[PAGE 28]
(1993).
E. CONCLUSIONS REGARDING ANCHOR'S MOTIVES
If the employer successfully rebuts the employee's prima
facie case, the employee may still prevail if he is able to
show that the employer's proffered reasons for its conduct were a
mere pretext. "[The employee] may succeed in this either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing the
employer's proffered explanation is unworthy of credence."
Burdine, 450 U.S. at 256 (citation omitted).
Alternatively, the employee may also prevail if the evidence
shows that the employer was motivated by both prohibited and
legitimate reasons, i.e., that the employer had "dual motives."
In this instance, the employee can prevail if he shows by a
preponderance of the evidence that his protected conduct was a
motivating factor in the employer's action, and if the employer
fails to show by a preponderance of the evidence that it would
have reached the same decision even in the absence of the
protected conduct. Mt. Healthy School Dist. Bd. of Education
v. Doyle, 429 U.S. 274, 287 (1977). In short, in such a
"dual motives" case, the employer bears the risk that the
influence of the legal and illegal motives cannot be separated.
Pogue v. U.S. Department of Labor, 940 F.2d 1287, 1291
(9th Cir. 1991).
Anchor stated that it terminated Complainant because of poor
work habits, such as his failure to report to work on time and
tendency to leave early before his work was completed. The
record reveals, however, that Complainant was a very diligent
employee. Complainant put in long hours, sometimes with little
or no sleep. On occasion he would work up to 90 hours per week,
often sleeping in his truck or at the warehouse. When he did
report to work late, it was because he had worked into the early
hours of the morning. Even Mr. Kinshella admitted on cross-
examination that Mr. Pope's alleged failure to report to work on
time and alleged tendency to leave work early before completing
his work were not major factors in his decision to terminate Mr.
Pope. (TR 676, line 25 - TR 677, line 5) In addition, Brian
Bouchard, another of Anchor's witnesses, verified that
Complainant was a good worker who worked nights and weekends when
necessary. (See also the testimony of Lou Mohl.) (TR 699 - TR
700) Thus, the suggestion that Complainant was terminated because
he had poor work habits, arrived late for work, or left early
from work is totally unsupported by the evidence. Evidence to
the contrary, however, is credible. The testimony of
Complainant, his wife, his former supervisor, Ben Orr, and Anchor
employees Brian Bouchard and Lou Mohl clearly show that
Complainant was a hard working employee, and any suggestion to
the contrary by Mr. Sjaastad borders on the ludicrous. I found
[PAGE 29]
Lou Mohl's testimony that Complainant was a good worker who spent
many hours at the facility, and her explanation of how shocked
she was when he was terminated to be particularly enlightening.
Clearly, the aforesaid reasons for termination were pretextual.
Anchor's next purported reason for terminating Complainant
was his inability to follow his supervisor's directions,
specifically his failure to complete accountability sheets in a
timely manner. I find Anchor's reliance on this reason to be
particularly ironic. Complainant followed Sjaastad, his
supervisor's, directions for four years, even when the directions
were contrary to his conscience. It is clear that he did so in
order to protect his job and benefits and to provide for his
family. Complainant's disciplined military bearing is consistent
with his ability to follow orders and directions. It should be
noted that after speaking with Mr. Kinshella on May 19, 1994,
Complainant stopped following Sjaastad's directions to do those
things which he perceived to be illegal or unethical. It is also
noteworthy that at the time of Complainant's termination, he was
under the supervision of Thomas Stokes and not Greg Sjaastad.
Sjaastad had ordered him to complete accountability sheets, and
Mr. Kinshella and Mr. Stokes told him not to comply. (TR 673,
line 5; TR 1001, lines 3-11; TR 147, line 12 - TR 148, line 7) As
a matter of fact, on May 19, 1994, after talking with Mr.
Kinshella, Mr. Stokes instructed Sjaastad to discontinue the use
of accountability sheets. Thus, Complainant was, in fact,
following his supervisor's orders. Certainly, this reason for
termination is blatantly pretextual.
The next reason given by Anchor for Complainant's
termination was his inability to get along with others. I find
this reason to be quite curious. Complainant apparently got
along quite well with the other people he worked with. (See
testimony of Bouchard, TR 480; TR 482; testimony of Mohl, TR 700;
testimony of Knutson, TR 460; testimony of Orr, TR 382) On the
other hand, Mr. Sjaastad was essentially disliked by virtually
all of his employees. (Mohl, TR 700; Orr, TR 410; Brannon, TR
449; Erickson, TR 914). It is quite evident that Complainant did
not get along with Greg Sjaastad. However, except for upper
management, apparently no one else did either. I therefore find
this reason for Complainant's termination to be pretextual.
Anchor asserted additional reasons for Complainant's
termination after the litigation herein commenced. I note that
the first six of these do not appear in the letter containing
Anchor's reasons for terminating Complainant which was requested
by Complainant and sent to his counsel by Anchor's Houston
office. These six reasons were articulated only after
Complainant had filed his claim against Anchor. In fact, the
first time Complainant ever heard about these reasons was when he
[PAGE 30]
read them in Mr. Kinshella's deposition. Based on this evidence,
I cannot conclude that Anchor actually based its decision to
terminate Complainant on these reasons. I therefore find that
they are pretextual. However, if, for some reason the Secretary
finds that Anchor did base its decision to terminate Complainant
on these reasons, I will consider their merits.
In regard to Anchor's proffered explanation that Complainant
ran the warehouse low on Salt Gel in April, 1994 so that it had
to be purchased from a competitor at a higher cost, I find that
the evidence does not support this excuse for any variety of
reasons. Anchor's warehouse ran low on Salt Gel in April, 1994
not because of Complainant's error, but because the supplier from
whom the material was ordered had a flood in its Georgia plant
and therefore could not ship the product to Anchor. (TR 150) In
addition, it was not unusual for Anchor to run low on product,
especially Salt Gel and Barite, since they are two of the
products most widely used by Anchor. (TR 1027) Furthermore, it
was common practice for Anchor to borrow product from a
competitor, or vice versa, and replace it when Anchor received
its own product shipment. (TR 1027 - TR 1028) Mr. Beck, Sales
Manager for Anchor's Rocky Mountain Division, was aware of the
Salt Gel order, and the incident did not concern him.[9] (TR 619
14-20). No Anchor manager ever included a written reprimand to
Complainant regarding the Salt Gel incident. Furthermore, this
was one of only two incidents where the inventory ran low during
the approximately two years that Pope was responsible for
maintaining the inventory. Based on the foregoing, I also find
this reason to be pretextual.
Another of Anchor's excuses for terminating Complainant was
that he ran the Sidney warehouse low on a product called Barite
in May of 1994. The evidence regarding the Barite incident
involves a remarkable amount of contradictory testimony,
including Sjaastad's testimony that he was concerned because Mr.
Stokes ordered Barite in an amount that would overload the Sidney
warehouse. Mr. Beck later testified that Sjaastad ordered the
product, and then Stokes testified that Pope ordered the product.
The inconsistencies among Anchor's witnesses in this regard are
endless. On May 17, 1994, the day the Barite was ordered,
Kinshella reportedly put Sjaastad in charge of maintaining the
inventory at the Sidney warehouse and took the authority away
from Pope. In any event, no notes were taken regarding the
incident and no written reprimands were included in Pope's file
for the alleged Barite incident, and such concoction is
considered to be pretextual.
The allegation that Pope was not properly calling in
purchase orders is totally without foundation. I find the same
lack of evidentiary support with reference to his alleged failure
[PAGE 31]
to service the Amerada Hess oil well. With reference to the
practice of borrowing mud houses at Anchor's Sidney facility,
such practice had gone on for years and was considered
acceptable. I therefore find this excuse to be totally
pretextual. Similarly, the allegations with respect to the
shipping of barrels to a Houston warehouse without permission was
totally explained, and understandably so, by Complainant.
Moreover, on cross-examination, Mr. Stokes corroborated Mr.
Pope's account of the barrel incident. Once again, no notes of
these incidents were taken by Anchor management, no reprimands
were included in Mr. Pope's file, and prior to the hearing, no
mention of these incidents was made by any Anchor employee or
referenced in any of the documents containing the reasons for Mr.
Pope's termination. I find that all of the aforesaid were
desperate pretextual attempts to justify Complainant's wrongful
termination.
I find, based upon the credible evidence and the totality of
the record, that after Complainant blew the whistle on May 19,
1994, for matters which he perceived to be illegal, unethical, or
violative of law, the end result was his termination from his
employment. Even Greg Sjaastad admitted to Mike Shaide, a former
Anchor employee, that Complainant was fired because he went over
Sjaastad's head to higher level management. (TR 432, line 4 - TR
433, line 12) In addition, after Mr. Pope was terminated, Mr.
Stokes called him regarding his workers' compensation claim and
told him he was fired because of his complaints to Kinshella
about the toxic waste dumping and shipping. (TR 256 - 257; TR
276) I specifically find that all of the reasons stated in
Anchor's letter to Complainant regarding the reasons for his
termination were pretextual. This finding is bolstered by Mr.
Kinshella's testimony on cross-examination that all but one of
these reasons were not the real reason for his termination. (TR
676 - TR 677) I also find that the reasons purported by Anchor to
justify Pope's termination which were not expressly stated in
Pope's termination documents were concocted after the fact and
are entirely pretextual. This finding is supported by the
totality of the record and is bolstered by the fact that
Complainant was an exemplary employee and had absolutely no
problems whatsoever until he blew the whistle.
In making this determination, I am not unmindful of Mr.
Kinshella's testimony that the major reason for Pope's
termination was his inability to get along with his supervisor,
Greg Sjaastad. Although I have found this reason to be
pretextual, I note that it could be considered a legitimate
reason for firing Complainant. As it is therefore possible that
Anchor could have been motivated by both prohibited and
legitimate reasons, i.e., that it had "dual motives" for firing
[PAGE 32]
Complainant, I must consider the "dual motive" analysis.
F. DUAL MOTIVE ANALYSIS
Under the dual motive analysis, once the trier of fact has
found, as I have, that the employee has proven by a preponderance
of the evidence that the protected conduct was a motivating
factor in the employer's action, the employer, in order to avoid
liability, has the burden of proof or persuasion to show by a
preponderance of the evidence that it would have reached the same
decision even in the absence of the protected conduct. Mt.
Healthy, 429 U.S. at 287.
I find that Anchor has not met its burden. It is clear that
Complainant had an almost completely untarnished work history at
Anchor. The only formal reprimand that Pope received was in 1991
for an activity for which he had received permission from his
supervisor, Greg Sjaastad. On the other hand, Complainant
received several promotions and raises from Anchor for the work
that he had been performing. In fact, in February of 1992,
Sjaastad wrote a letter to upper management in which he stated:
In the past, I've needed the same number of truck driver
employees as mud engineers. Since David Pope has been
here, I've been able to get the same amount of work done
with 2 fewer employees.
Besides being a truck driver, mechanic, responsible 24 hour
service employee, he also takes care of loading and
unloading the thousands of barrels of oil mud that goes
(sic) thru (sic) the plant . . . .
Simply put, he is under paid and indispensable to my
operation in Sidney. (EX 7)
It appears that Sjaastad and Pope's inability to get along
began only after Pope engaged in his protected activity. Thus,
Anchor's proffered reason for terminating complainant was a
result of his whistleblowing activity. After Complainant's May
19, 1994, telephone call to Kinshella, matters deteriorated
between Sjaastad and Pope because, pursuant to Kinshella's
orders, Pope refused to engage in some of the illegal and
unethical things that Sjaastad was demanding. Lou Mohl testified
that in May, 1994, there was a lot of tension between Pope and
Sjaastad, and they were not talking to each other any more. (TR
695, lines 8-12) Furthermore, it is clear that Sjaastad was angry
with Pope over the fact that Pope had told Kinshella and Stokes
about his illegal practices. Apparently, Sjaastad heard of
Pope's allegations from Kinshella and Beck on June 21. (TR 826,
lines 17-24). Although, in isolation, the animosity between
Sjaastad and Pope and his reaction to Pope's refusal to follow
[PAGE 33]
orders might have justified some disciplinary action, I conclude
that Anchor has failed to meet its burden of proving Pope's
termination would have occurred in the absence of his
whistleblowing activity. See Pogue, 940 F.2d at 1291. It
is well settled that "[i]n dual motive cases, the employer bears
the risk that 'the influence on legal and illegal motives cannot
be separated.'" Mackowiak v. University Nuclear Systems,
Inc., 735 F. 2d 1159, 1164 (9th Cir. 1984).[10]
G. DAMAGES
I have found that Anchor violated the employee protection
provisions of the Toxic Substances Control Act, the Solid Waste
Disposal Act, the Surface Transportation Assistance Act, and the
Water Pollution Control Act. The Secretary of Labor is therefore
empowered to order all appropriate remedies, including injunctive
relief, compensatory and exemplary damages, and attorneys' fees
and costs. Here, Complainant has requested an award of back pay,
an award of front pay in lieu of reinstatement, compensatory
damages for emotional distress, and exemplary damages.
Complainant additionally requests future medical expenses for the
care of his daughter, Caitlyn. Lastly, Complainant requests
attorneys fees and costs incurred in the prosecution of this
action.
1. Back Pay
The "goal of back pay is to make the victim of
discrimination whole and restore him to the position that he
would have occupied in the absence of the unlawful
discrimination." Blackburn v. Martin, 982 F.2d 125 (4th
Cir. 1992). Thus, an award of back pay is computed by
determining the compensation that a complainant would have
received had respondent continued his or her employment and by
offsetting this amount by any amounts earned in replacement jobs.
Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 29,
1991.)
Complainant's economic expert, Dr. Ann Laing Adair,
testified that the present value of Complainant's back pay award
is $22,816.00. TR 357, lines 4-9; CX 105, p. 1. This amount
includes $19,814 for the present value of Complainant's past wage
losses, ,853 for the present value of Anchor Drilling's share
of the cost associated with the medical and dental coverage that
Complainant had during his employment, and ,150 for the present
value of Anchor's contribution to Complainant's 401K plan. CX
105. Complainant is clearly entitled to compensation for his
past wage loss. In addition, as Anchor Drilling's contribution
to his 401K plan is a fringe benefit which he would have received
had he not been wrongfully terminated, this amount should also be
included in Complainant's damage award in order to make him
whole. Galindo v. Stoody Co., 793 F.2d 1502, 1517 (9th
Cir. 1986). However, the Ninth Circuit has held that when
calculating
[PAGE 34]
a damage award, the proper measure of health insurance benefits
is "the amount of any actual expenses incurred" by the employee,
and not the premiums that employer would have made on his or her
behalf. E.E.0.C. v. Farmer Bros. Co., 31 F.3d 891, 902
(9th Cir. 1994) (citing Galindo v. Stoody Co., 793 F. 2d
1502, 1517 (9th Cir. 1986)). The Ninth Circuit reasoned that
"lost insurance coverage, unless replaced or unless actual
expenses are incurred, is simply not a monetary benefit owing to
the plaintiff." Based on this Ninth Circuit precedent, I cannot
award Complainant the ,853 in medical and dental premiums, and
Dr. Adair's finding must be reduced from $22,816 to $20,963.
Under this standard, however, the premiums Complainant paid
for Anchor's COBRA plan are reimbursable, as this was an "actual
expense incurred" by Complainant. In a supplemental brief,
Complainant submitted evidence in the form of an affidavit by
Nicole Pope which states that the Popes have paid $403.11 per
month for their COBRA plan since Complainant's termination on
July 15, 1994.[11] Thus, during the 6 months between July 15,
1994 and January 24, 1995, the date of the hearing, Complainant
has spent $2,418.66 for medical insurance which he would
otherwise have had but for Anchor's illegal acts. Anchor
therefore must pay Complainant $2,418.66 in order to compensate
him for his out-of-pocket insurance expenses and make him whole.
Accordingly, Anchor is liable to Complainant for back pay in the
amount of $23,381.66 ($20,963 + $2,418.60).
Once the plaintiff establishes the gross amount of back pay
due, the burden shifts to the defendant to prove facts which
would either negate the existence of liability or which would
mitigate that liability. NLRB v. Browne, 890 F.2d 605,
608 (2nd Cir. 1989). Anchor argues that it is not liable to
Complainant for any back pay because Complainant has been
disabled since the time of his termination. Alternatively,
Anchor argues that if Pope does receive an award of back pay, it
should be reduced by the amount of workers' compensation benefits
that he has been receiving. In addition, Anchor argues that
because Complainant has failed to mitigate his damages, his back
pay award should be cut off or reduced.
a. Disability
In support of its contention that it is not liable for back
pay, Anchor relies on Canova v. N.L.R.B., 708 F.2d 1498
(9th Cir. 1983). In Canova, the Ninth Circuit, relying on
American Manufacturing Co., 167 N.L.R.B. 520 (1967), held
that "absent unusual circumstances..., an employer is not liable
for back pay during periods that an improperly discharged
employee is unavailable for work due to a disability."
Canova, 708 F.2d at 1505. It is undisputed that Pope was
injured on July 7, 1994, that he has been unable to work since he
was terminated from
[PAGE 35]
Anchor's employ, and that he has received workers' compensation
benefits in the form of temporary total disability from the date
of his injury. Therefore, absent any unusual circumstances,
Anchor would not be liable for any back pay.
In American Manufacturing Co,. the N.L.R.B. found
that unusual circumstances would include "periods of illness
which occur because of industrial accidents suffered during the
course of interim employment or are otherwise attributable to the
unlawful conduct of the Respondent." American Manufacturing
Co., 167 N.L.R.B at 522. The N.L.R.B. went on to state that
"equity and reason require that periods of unavailability for
work because of illness or accident must be considered on a case-
by-case basis." Id.
I find that Complainant's disability was the result of
unusual circumstances which will not relieve Anchor of its
liability for back pay. Anchor intentionally, and for the
purpose of retaliating against Complainant for his whistleblowing
activities, took actions which caused Complainant's present
disability. Complainant sustained a back injury on July 7, 1994,
while unloading a 50-pound sack of material from a truck into a
mud house at a well sight. He called Tom Stokes the following
day, told him of his injury, and asked if he could hire a
contract trucker since he was the only truck driver then employed
at the Sidney facility. Stokes denied Complainant's request,
forcing Complainant to continue driving until July 13, 1994, when
he could no longer stand the pain. Once Complainant hired a
replacement driver, Anchor terminated him. While Complainant's
initial injury may not be considered an unusual circumstance, the
fact that he was compelled by Anchor to drive a truck for 6 days
with an injured back, thereby causing his injury to be
exacerbated, is clearly an unusual circumstance. Driving a truck
with two imploded discs is not an everyday occurrence, and
Complainant would not have continued driving the trucks but for
Anchor's unlawful conduct.[12] Thus, Complainant's excessive
loss of income due to his disability is related to Anchor's
unlawful discrimination. Based on the foregoing, Anchor is
liable for Complainant's back pay award.
b. Workers' Compensation
Pursuant to Ninth Circuit precedent:
only those workers' compensation awards that are
identifiable as compensation for lost wages during the
backpay period may be deducted from a backpay award. An
award which is reparation for permanent physical
injury...is not compensation for loss of wages during a
particular period and is not deductible.
[PAGE 36]
Canova, 708 F. 2d at 1504 (citing American
Manufacturing Co., supra.).
Anchor argues that under Montana law, temporary total
disability benefits are intended as compensation for wage loss.
Anchor makes this argument based on conjecture. Complainant
argues that pursuant to Montana law, temporary total disability
benefits are paid as reparation for the physical damage suffered
by the complainant. In support of his contention, Complainant
relies on Russette v. Chippewa Cree Housing Authority, 874
P.2d 1217 (Mont. 1994). In Russette, the Supreme Court of
Montana noted that the Montana legislature intended "benefits
such as medical benefits, indemnity benefits, and temporary total
disability benefits [to be benefits] which have as their purpose
a claimant's physical restoration." Id., at 1219. It is
clear from Russette that the temporary total disability
benefits that Complainant has been receiving are reparation for
permanent physical injury, not compensation for loss of wages,
and are not deductible from his back pay award.
c. Mitigation
Anchor Drilling further argues that its liability for back
pay should either be cut off or reduced based on a mitigation
theory. Anchor argues that Complainant has failed to mitigate
his damages as he has not looked for work since his termination.
In addition, although Anchor acknowledges that Complainant's
physical condition has not fully allowed him to seek employment,
it argues that he has not sought to prepare himself for present
or future employment through training or further education during
his disability. However, the record clearly shows that up to the
time of the hearing, Complainant simply could not have mitigated
his damages. Claimant's physical condition precluded him from
working or from looking for work. Complainant suffered two
imploded discs[13] and a torn vertebral ligament in his lower
back on July 7, 1994. TR 141, lines 1-5; TR 543 line 12 - TR 545
line 15. During the six months that Complainant was off work,
his doctors were waiting in order to see how much his back would
heal itself before sending him back to work. TR 546, lines 1-11.
Complainant testified that he looked into vocational
rehabilitation and further education, but his vocational
counselor instructed him that they could not go forward until his
doctors submit their reports and outline his work restrictions.
TR 546, lines 22-25; TR 547, lines 1-4. As of the time of the
hearing, these reports had not been issued. I credit
Complainant's testimony regarding these issues and find that
Anchor has not met its burden of proving facts which would
mitigate its liability. Nord v. United States Steel
Corp., 758 F.2d 1462, 1470 (llth Cir. 1985).
[PAGE 37]
Generally, an award of back pay runs from the date of
termination until the date of judgment. Dunlap-McCuller v.
Riese Organization, 980 F.2d 153, 159 (2nd Cir. 1992),
cert. denied, -U.S.-, 114 S. Ct. 290 (1993). However,
there will be no final judgment in this case until the Secretary
of Labor issues his final decision and order, and I am unable to
foretell when this will occur. Therefore, for the sake of
administrative convenience, Complainant's back pay award will be
calculated as of January 23, 1995, the day prior to the hearing.
See Hansard v. Pepsi-cola Metropolitan Bottling Co., 865
F.2d 1461 (5th Cir. 1988), cert. denied, 493 U.S. 842, 110
S.Ct. 129 (1989). (employee awarded back pay from the date of
termination to the time of trial, and front pay from the date of
trial to the time of his retirement). Accordingly, I find that
Complainant is entitled to an award of back pay from July 15,
1994, the date of his termination, through January 23, 1995, the
day prior to the hearing, in the amount of $23,381.66.
2. Front Pay
Complainant is also entitled to reinstatement as a remedy
for Respondent's violation of the employee protection provisions
of the above named statutes. Reinstatement is generally the
preferred remedy for a discriminatory discharge; however, front
pay may be awarded if reinstatement is not feasible.
Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435,
1448 (11th Cir. 1985), cert. denied, 474 U.S. 1005 (1985);
Hansard v. Pepsi-Cola Metropolitan Bottling Co., 865 F. 2d
1461, 1469 (5th Cir. 1989), cert. denied, 493 U.S. 842
(1989); and Nord v. United States Steel Corp., 758 F.2d
1462, 1473 (11th Cir. 1985). "Front pay may be particularly
appropriate in lieu of reinstatement where discord and antagonism
between the parties would render reinstatement ineffective as a
make-whole remedy." Goldstein, 758 F.2d at 1449. Both
parties have stated that they do not wish Complainant to be
reinstated. In light of the animosity between Complainant and
Mr. Sjaastad, the fact that Complainant has filed several actions
against Anchor Drilling in addition to this matter, and the fact
that Complainant's back injury will undoubtedly prevent him from
returning to his job at Anchor Drilling, I agree that it would be
inappropriate to order reinstatement.[14] I will therefore
address the issue of front pay.
Front pay is an award for the reasonable future period
required for the victim of discrimination to reestablish his or
her rightful place in the job market. Gross v. Exxon Office
Sys. Co., 747 F.2d 885, 889 (3rd Cir. 1984). Computing an
award for future damages is inherently speculative, and an award
will be overturned if it is unduly so. Dunlap-McCuller v.
Riese Organization, 980 F.2d 153, 159 (2nd Cir. 1992),
cert. denied, __ U.S._, 114 S.Ct. 290 (1993). In order to
alleviate some of the
[PAGE 38]
speculation, the Sixth Circuit in Fite v. First Tennessee
Production Credit Ass'n, 861 F.2d 884, 893-94 (6th Cir.
1988), listed some factors that a court can look to in order to
calculate an award for future damages. These factors include the
availability of alternate employment opportunities, the
employee's work and life expectancy, an employee's duty to
mitigate, and the present value of any future salary or
retirement benefits. Id., (citing Shore v. Federal
Express, 777 F.2d 1155, 1160 (6th Cir. 1985)).
Dr. Adair, Complainant's economic expert, testified
regarding the amount of future economic loss that Complainant
will incur as a result of Anchor Drilling's illegal termination.
Dr. Adair's testimony included references to the present value of
Complainant's future salary, his work and life expectancy, and
the availability of alternate employment opportunities. Dr.
Adair stated that the 1995 value of Complainant's future losses,
including future wage loss, future medical and dental benefit
losses, and what would have been Anchor Drilling's future
contribution to his savings plan, totals $900,653.[15] TR 357,
lines 14-18. Dr. Adair calculated this total based on several
assumptions. Dr. Adair assumed that Complainant's future life
expectancy would be 45.6 years and that Complainant's non-
disabled[16] work life expectancy would be 29.8 years. Dr.
Adair also assumed that Complainant would not obtain suitable
alternate employment during his work life expectancy. CX 105, p.
2; TR 364. Dr. Adair was forced to make this assumption because
she did not have a vocational report or any other information
that could tell her what, if any, suitable alternate employment
Complainant would be able to obtain in the future. TR 363, lines
1720; TR 355, lines 20-25. Based on these assumptions, I find
Dr. Adair's findings to be reasonable. However, as explained
above, I must exclude from her total finding the present value of
Complainant's future medical benefit losses, $82,190, bringing
Dr. Adair's total to $818,463.
Although Dr. Adair based her findings on the assumption that
Complainant would not find suitable alternate employment during
his work life, both parties seem to agree that Complainant will
be able to return to work at some time in the future and that,
therefore, he would be entitled to less than the total award of
$818,463. Complainant argues that he is entitled to four years
of lost wages and benefits, but Anchor argues that six months
should be a sufficient time for him to reestablish his place in
the job market.
Whether Complainant can return to work in six months or in
four years will be determined by Complainant's diligence in
mitigating his damages. However, as stated above, Anchor has not
carried its burden of showing that Complainant has not been
[PAGE 39]
diligent in mitigating his damages. In Dominic v.
Consolidated Edison Co. of New York, Inc., 822 F.2d 1249,
1258 (2nd Cir. 1987), the Second Circuit stated that an
employer's failure to show that an employee had not mitigated
damages does not entitle him to a lifetime front-pay award. The
court stated that "[i]n calculating the size of a front-pay
award, a court must estimate the employee's ability to mitigate
damages in the future. Such a determination is committed to that
court's discretion."
At the time of the hearing, there was no evidence available
in regard to the time when Complainant will be able to return to
work. According to Complainant, the doctors who evaluated him
for his workers' compensation claim have not yet issued reports
stating either when he will be able to return to work, or the
type of work he will be able to perform when he does return to
work. TR 539, lines 3-7; TR 541, lines 2-7. Complainant stated
that his doctors are waiting in order to evaluate the extent to
which his back will heal itself before they make any decision on
whether or not he can return to work.[17] TR 545, lines 22-25.
In addition, Complainant testified that if his condition becomes
worse, he will most likely need surgery. If surgery is required,
the time when he could return to work could be severely
prolonged. However, there is some evidence that when Complainant
does return to work, he will be restricted to lifting 25 pounds,
and 50 pounds on occasion. TR 545, 16-21. Complainant would
therefore be precluded from returning to jobs, like his previous
employment, which involve heavy lifting. As there is already a
scarcity of jobs available in Sidney, Montana, a small town of
approximately 4000 people, this restriction in his employment
options could result a significant increase in the amount of time
it would for him to find suitable employment. TR 102, lines 21-
24; TR 510, 9-11. In fact, he may even be required to attend
vocational rehabilitation or enroll in school in order to find a
process that could take two to three years.
Based upon Complainant's back injury, the possible need for
surgery and the scarcity of jobs in Sidney, Montana, it is
reasonable to conclude that it would take four years for
Complainant to find a comparable job. Although it may be argued
that my finding is speculative, Anchor is the cause of this
uncertainty, and it may not take advantage of an uncertainty that
it created. Wulf v. City of Wichita, 883 F. 2d 842, 889
(10th Cir. 1989). "Furthermore, '[the] mere fact that damages
may be difficult of computation should not exonerate a wrongdoer
from liability.'" Id. (citing Equal Opportunity Comm'n
v. Prudential Fed. Sav. And Loan Ass'n, 763 F.2d 1166, 1173
(1Oth Cir. 1985), cert. denied, 474 U.S. 946, 106 S.Ct.
312 (1985)). I do note, however, that Complainant submitted
evidence of attempt to mitigate his damages along with his
Supplemental Brief.
[PAGE 40]
Complainant stated in an affidavit that as of April 10, 1995 he
has been doing some part time, temporary work for father. He
stated that he will be working a maximum of 30 hours per week at
a rate of $6.00 per hour. As this is a temporary job which will
only last through mid to late June, Complainant will earn a total
of approximately $2,160. As I am presently aware of the future
income that Complainant will receive from this short-term
employment, I will deduct the wages from this job from his lump
sum award. I hasten to add, however, that all other possible
income that Complainant may receive in the future is far too
speculative for me consider in determining his front pay award.
Accordingly, I find that Complainant is entitled to an award
of four years of front pay, beginning on January 24, 1995.[18]
During these four years, Complainant will also incur out-of-
pocket expenses for insurance premiums for Anchor's COBRA plan
and any other substitute insurance coverage that he may require
for his family's medical care.[19] This cost will be $19,349.28
($403.11/mo x 48 mos), and will be included in Complainant's
front pay award. Thus, Complainant's total front pay award is
$127,050.08 ($818,463 in lost front pay/29.8 yrs = $27,465.20 per
yr; $27,465.20 x 4 yrs = $109,860.90; $109/860.90 + $19,359.28 =
$129,210.08; $129,210.08 - $2,160 = $127,050.08).
3. Compensatory Damages for Emotional Distress
Complainant is entitled to receive compensatory damages,
including damages for emotional distress. DeFord v. Secretary
of Labor, 700 F.2d 281 (6th Cir. 1983). In order receive
compensatory damages, the complainant must show that he
experienced mental and emotional distress and that the wrongful
discharge caused the mental and emotional distress. Blackburn
v. Martin, 982 F.2d 125, 131 (4th Cir. 1992), (citing
Carey v. Piphus, 435 U.S. 247, 263-64 & n. 20, 98 S.Ct.
1042, 1052 & n. 20 (1978)). Such proof can be accomplished by
showing the nature and circumstances of the wrong and its effect
on the plaintiff. Carey, 435 U.S. at 264 n. 20.
In this case, it is clear that Complainant suffered
emotional distress, humiliation and anxiety as a result of Anchor
Drilling's adverse actions. This emotional distress and anxiety
is documented in the testimony of Complainant's wife, Nicole, as
well as Complainant's own testimony. Nicole testified that
Complainant's personality changed after he was fired. TR 527,
lines 7-15. She testified that he was depressed and difficult to
get along with and that he lost self-esteem because he could no
longer provide for his family. Additionally, Nicole testified
that Complainant and she attended several sessions of marriage
counseling. TR 540, lines 15-22; TR 527 lines 20-25, TR 528
lines 1-8.
Complainant further testified as to how Anchor's retaliatory
[PAGE 41]
discrimination caused him to lose his self-esteem. Complainant
stated that he always excelled in every job that he performed,
and it was hard for him to accept that he would have to tell
future employers the he was fired because of his alleged
incompetence and inability to get along with his coworkers. See
TR 176, lines 2-8. Furthermore, Complainant testified that he
feels that he has failed his family as they are also suffering as
a result of his termination. TR 177, lines 1-7. Because Nicole
must stay home with the couple's oldest daughter, Caitlyn,
Complainant is the only source of income for the family. This is
why, Complainant testified, he continued working for Anchor
Drilling for as long as he did; he needed to earn sufficient
income and have the proper insurance to take care of his family
and pay his daughter's medical bills. TR 176, lines 9-23.
However, now that he is unemployed, he can do neither, and
according to Complainant, he has had to "lower" himself to borrow
money from his mother-in-law in order to pay the bills. TR 176,
lines 14-15. It is very hard for Complainant to accept that he
is 33 years old and unable to provide for his family. Based on
Complainant's military achievements and his obvious pursuit of
excellence, it is reasonable to conclude that he would suffer a
greater degree of emotional distress as a result of this
humiliation and loss of self esteem than a typical victim of
retaliatory discharge.
The record also shows that Complainant experienced anxiety
as a result of his significant financial difficulties. In
addition, just prior to the trial, Complainant learned of even
greater financial worry; he learned that the COBRA policy his
mother-in-law had been paying for would no longer pay much of the
cost of Caitlyn's medical care. At the time, Complainant was
uncertain as to where he was going to obtain the money to pay for
these expenses. He testified that he is scared and has lost a
lot of sleep because of his financial situation.
It is clear from the foregoing that Complainant is entitled
to damages for the emotional distress that Anchor Drilling has
caused him. In determining how much to award in emotional
distress cases, the Secretary has attempted to ensure that
comparable injuries result in comparable awards. See e.g.,
McCuistion v. Tennessee Valley Authority, 89-ERA-6 (ALJ Nov.
1991); Lederhaus v. Donald Paschen & Midwest Inspection
Service, Ltd., 91-ERA-13 (ALJ Oct. 1991). There have been
numerous emotional distress cases resting upon similar facts
where an award of $50,000 has been held to be reasonable and not
unlawfully disproportionate with awards in comparable cases.[20]
I find that the anxiety, humiliation and emotional strain that
Complainant is experiencing as a result of his unlawful
termination is sufficient to sustain an award of $50,000.
[PAGE 42]
4. Exemplary Damages
The Toxic Substances Control Act expressly provides for an
award of exemplary damages "where appropriate." 15 U.S.C.
§2622(b). An award of punitive damages is appropriate where
"the defendant's conduct is shown to be motivated by evil motive
or intent, or when it involves reckless or callous indifference
to the federally protected rights of others." Smith v.
Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983). Once the
requisite state of mind has been found, "the trier of fact has
the discretion to determine whether punitive damages are
necessary, 'to punish [the defendant] for his outrageous conduct
and to deter him and others like him from similar conduct in the
future.'" Rowlett v. Anheuser-Bush, Inc., 832 F. 2d 194,
205 (1st Cir. 1987) (citing Smith, 461 U.S. at 53-54)).
See also, Johnson v. Old Dominion Security, 86-CAA-3
(Sec'y May 29, 1991)).
The conduct of Respondent herein clearly shows an intent
sufficient to meet and surpass the threshold for an exemplary
damage award. Here, Anchor manifested reckless and callous
indifference to the public health purposes of the above named
environmental statutes and the Surface Transportation Assistance
Act in its treatment of Complainant, its customers, and the
public at large. Anchor's reckless and self-serving policy of
illegally mixing chemicals in the invert endangered not only
Complainant, but its customers. Furthermore, Anchor's illegal,
immoral and unethical dumping of hazardous materials on a lot it
rented from the city, disposal of chemicals in the city landfill,
and operation of poorly maintained, unsafe and overloaded
vehicles on the highways shows a flagrant indifference not only
to Complainant and his fellow coworkers, but to the public at
large. The extent of contamination not only on the rented lot,
but near a domestic water well, shows a wanton reckless disregard
for, and a callous indifference to the legally protected rights
of others. The most egregious and offensive aspect of Anchor's
actions is that it deliberately disregarded these rights for the
sole purpose of maximizing its profit. TR 209, lines 1-10; TR
386, lines 6-13.
Anchor's motive in firing Complainant was clearly to punish
him for his whistleblowing activities. Furthermore, despite
Complainant's request for authority to hire a contract trucker to
replace him because he had seriously injured his back, Anchor
required him to continue driving its trucks. When Complainant
could no longer drive Anchor's trucks because he could no longer
stand the pain, Anchor waited for him to hire his replacement
before terminating him. Thus, Anchor was able to fully take
advantage of Complainant before it simply disposed of him like a
dirty dishtowel. These actions clearly show a resolve to
actually take action to effect harm. An additional example of
[PAGE 43]
Anchor's sinister motive was its attempt to punish and inflict
harm on Complainant by initiating a bogus criminal complainant
against him after this litigation had commenced. TR 159, line 21
- TR 161, line 4; CX 16, p. 32. Based on the foregoing, I find
that Anchor's wanton, reckless disregard for individuals' rights
and its callous and malevolent treatment of Complainant gave it
the requisite state of mind to meet the threshold for an
exemplary damage award.
I also find that an exemplary damage award is necessary for
deterrence. Anchor Drilling operates world wide and has sales of
$5.2 million a year for the Rocky Mountain region alone, and the
Sidney district does 25 to 40 percent of this business. TR 471,
line 23 - TR 472, line 23. In addition, during his 10 year
tenure at Anchor, Sjaastad increased Anchor's market share in the
Sidney district from about 10 percent to 70 percent. Sjaastad
was able to increase Anchor's profit in the Sidney district by
cutting corners and by failing to comply with safety regulations.
It is clear to me that Anchor will continue to force its
employees to pollute the environment and will continue to
jeopardize the safety of its workers, as well as the safety of
others, as long as it is able to make a profit. Therefore, I
find that the best way to deter Anchor from taking the public
safety so lightly is to award Complainant punitive damages in the
amount of $200,000.
The Supreme Court has stated that the following
considerations are relevant to a determination of whether a
punitive damages award is excessive or inadequate:
(a) whether there is a reasonable relationship between
the punitive damages award and the harm likely to result
from the defendant's conduct as well as the harm that
actually has occurred; (b) the degree of reprehensibility
of the defendant's conduct, the duration of that conduct,
the defendant's awareness, any concealment, and the
existence and frequency of similar past conduct; (c) the
profitability to the defendant of the wrongful conduct and
the desirability of removing that profit and of having the
defendant also sustain a loss; (d) the "financial position"
of the defendant; (e) all the costs of litigation; (f)
imposition of criminal sanctions on the defendant for its
conduct, these to be taken in mitigation; and (g) the
existence of other civil awards against the defendant for
the same conduct, these also to be taken in mitigation.
Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1127 (9th Cir.
1994), cert. denied, - U.S.-, 115 S.Ct. 734 (1995) (citing
Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 21-22,
11 S.Ct. 1032, 1045-46 (1991))
[PAGE 44]
An analysis of these considerations leads me to conclude
that a $200,000 exemplary damage award is adequate in this case.
A reasonable relationship exists between the amount of punitive
damages awarded and the harm likely to result from Anchor's
conduct as well the harm that has already occurred. Anchor's
intentional, reckless, wanton and callous conduct in disregarding
its statutory obligations and the rights of others is so
egregious, I find that $200,000 in punitive damages is a
conservative amount to award. I also find that this award is
fully commensurate with the degree of reprehensibility of
Anchor's conduct. The testimony of Complainant's environmental
expert shows that the sheer volume of saturation and
contamination on the lot across from Anchor's warehouse indicates
that the pollution of that lot was longstanding and extensive.
Furthermore, Sjaastad admitted that he was aware that Anchor was
dumping hazardous materials at the Sidney landfill and that
Anchor's trucks were being overloaded with hazardous materials
without permit. In addition, Complainant was not the first, nor
the last, of Anchor's employees to be forced do illegal acts at
the risk of losing his job. Moreover, I find that Anchor has
destroyed documentary evidence[21] and attempted to remove
topsoil from the contaminated lot[22] in order to cover up its
illegal activities.
The record shows that Anchor has profited considerably from
its illegal conduct, and it should be forced to disgorge some of
that profit in order to compensate for its illegal activities.
Furthermore, in order for an award to constitute meaningful
punishment, the size and wealth of the defendant must be taken
into consideration. Simply because the amount necessary to
constitute punishment and deterrence is sizable does not mean
that the award of punitive damages is a windfall for the
plaintiff. McKnight v. GMC, 705 F. Supp. 464, 468-69
(E.D. Wis. 1989), aff'd in part and rev'd in part on other
grounds, 908 F.2d. 104 (7th Cir. 1990). The instant case
involves deliberate wrong doing by a wealthy employer, and an
award of anything less than $200,000 would not punish Anchor for
its outrageous conduct, nor deter other large companies from
engaging in similar conduct. Furthermore, the punitive damage
award is not out of proportion to the amount of compensatory
damages awarded. Moreover, there are several discriminatory
discharge cases, resting upon similar facts, where awards of
greater that $200,000 have been held to be reasonable.[23]
5. Future Medical Care for Caitlyn
The purpose of compensatory damages is to make the
complainant "whole." Blackburn v. Martin, 982 F.2d 125
(4th Cir. 1992). Fringe benefits are an important part of an
employee's overall compensation package and, therefore, a
employee cannot be
[PAGE 45]
made whole without receiving compensation for the loss of these
benefits. "Accordingly, a damage award...should include those
fringe benefits which the employee would have actually received
had his or her employment not been wrongfully terminated."
Galindo v. Stoody Co., 793 F.2d 1502, 1517 (9th Cir.
1986). Where an employee's fringe benefits include medical and
life insurance, a plaintiff should be compensated for the loss of
those benefits if the plaintiff has purchased substitute
insurance coverage or has incurred, uninsured, out-of-pocket
medical expenses for which he or she would have been reimbursed
under the employer's insurance plan. Id.; E.E.0.C. v. Farmer
Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994).
Because of her physical condition, Complainant's daughter,
Caitlyn, generates a significant amount of medical bills each
month. Caitlyn has a severe case of attention deficit
hyperactivity disorder, and she has been diagnosed as having a
pervasive developmental disorder. TR 499, lines 11-13. Caitlyn
sees several different doctors, including a clinical
psychiatrist, a neuropsychologist, a pediatric neurologist, and
her family doctor. TR 500, lines 1-5. In addition, Caitlyn has
an occupational therapist, a physical therapist, and two speech
therapists. TR 500, lines 12-14. Complainant's wife, Nicole,
estimated that Caitlyn's medical bills amount to between ,500
and $2,000 per month. TR 504, lines 1-2.
While Complainant was working at Anchor Drilling, the
insurance that he received through his employment paid for eighty
percent of Caitlyn's medical bills, after a $200 deductible. TR
178, lines 6-7. Following Complainant's termination,
Complainant's mother-in-law began paying for medical insurance
through Anchor Drilling's COBRA plan. Notwithstanding this, at
the time of the hearing, $5,049 in insurance claims which
previously had been covered by Complainant's insurance were being
denied under Anchor's COBRA plan by the insurance company. TR
360, lines 15-18; TR 500, lines 15-22. Although Nicole Pope has
since stated she has received correspondence from the insurance
carrier which apparently states that these costs will be covered,
Affidavit of Nicole Pope, p. 3., there is no evidence as
to whether these costs have, in fact, been paid. In addition,
coverage under the COBRA plan will apparently last for only 18
months after Complainant's termination, and substitute insurance
may not pay for the cost of Caitlyn's preexisting conditions.
By way of his back pay and front pay awards, Complainant is
being compensated for the cost of the substitute insurance
coverage that he has, and will have to incur as a result of
Anchor's discriminatory conduct. However, it is apparent that
the Popes will incur uninsured, out-of-pocket medical expenses in
the future as a result of Caitlyn's disability, expenses which
they otherwise would have been reimbursed for under Anchor's
insurance plan. Pursuant to Galindo, Anchor is
responsible for these expenses, and I find a period of four years
is appropriate. Caitlyn's medical expenses cost an average of
,750 per month, and Complainant has already incurred $5,049 in
out-of-pocket expenses as a result of the insurance company's
denial of his claim. I therefore award Complainant past and
future out-of-pocket medical expenses in the amount of $89,049
(,750/mo x 48 mos = $84,000; $84,000 + $5,049 = $89,049).
Anchor is entitled to receive credit for all medical expenses
reimbursed by its insurance.
6. Attorneys' Fees
Complainant's Counsel has submitted an application for
attorneys' fees and costs for services performed in this matter.
Anchor has been given until May 1, 1995, to respond with
objections, if any, and Complainant has ten (10) days thereafter
to reply. A Supplemental Order Awarding Attorneys' Fees will be
issued subsequent to this Recommended Decision and Order.
ORDER
1. Anchor shall pay Complainant back pay in the amount of
$23,381.66.
2. Pre-judgment interest based on the interest rates set forth
in 26 U.S.C. §6621 is ordered on the entire back pay award.
3. Anchor shall pay Complainant front pay in the amount of
$127,050.08.
4. Anchor shall pay Complainant compensatory damages for
emotional distress in the amount of $50,000.
5. Anchor shall pay Complainant punitive damages in the amount
of $200,000.
6. Anchor shall pay Complainant past and future out-of-pocket
medical expenses in the amount of $89,049. Anchor is entitled to
receive credit for all medical expenses reimbursed by its
insurance.
HENRY B. LASKY
Administrative Law Judge
[ENDNOTES]
[1] "Invert" in an oil-based drilling fluid emulsion or "mud"
comprised of diesel oil, salt water, and various other solid and
liquid chemicals, used in the oil well drilling industry to cool
and lubricate the drilling bit to carry cuttings from the hole to
the surface and to stabilize the hole being drilled. (TR 87, line
20 - TR 90, line 22.)
[2] One of the chemicals that Supervisor Sjaastad ordered Pope to
dispose of by dumping it into the invert was zinc chromate. (TR
162, lines 2-1; TR 163, lines 4-6) The zinc chromate was in
sparsely marked buckets and Pope did not know what the chemical
was. (TR 1022, line 3 - TR 1024, line 20) He first found out what
the product was when he was in the process of scooping the
product by hand from the bucket into the invert mix. Wes
Erickson informed Pope what the chemical was and told him not to
"mess" with it. (TR 162, lines 12-15)
[3] The sludge consisted of diesel oil saturated solids and
chemical that precipitated out of the invert which was stored in
400 barrel upright tanks. That precipitate sludge may have
contained any number of chemical products that were mixed into
the invert as well as diesel oil and salt water. (Sjaastad TR
810, line 20 - TR 811, line 10)
[4] Complainant also alleged violations of the Occupational
Safety and Health Act in this supplemental response. However,
that issue was already disposed of on other grounds.
[5] Shipping paper means a shipping order, bill of lading,
manifest or other shipping document serving a similar purpose....
49 C.F.R. §171.8
[6] The regulations governing adjudicatory proceedings before the
Office of Administrative Law Judges, United States Department of
Labor, state that the Rules of Civil Procedure for the District
Courts of the United States shall be applied in any situation not
provided for or controlled by these rules, or by any statute,
executive order or regulation. 29 C.F.R. §18.1. Although
these regulations discuss the procedure for amending pleadings
when the issues are tried by express or implied consent of the
parties, 29 C.F.R. §18.5(e), §18.43(c), the regulations
do not discuss the situation where, as here, the evidence has
been objected to. I will therefore follow the Federal Rules of
Civil Procedure.
[7] The Solid Waste Disposal Act is also known as the Resource
Conservation and Recovery Act (RCRA).
[8] "Discharge" includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping....
33 U.S.C. §1321(2).
[9] I am aware that Mr. Back testified at the hearing that the
Salt Gel incident concerned him insofar as Anchor "had to go out
and buy Salt Gel and probably pay as much for it if not a little
more than we were selling it for." However, I find the testimony
that he gave at his deposition, which I relied on in my analysis,
to be more credible.
[10] I have found Anchor's other purported reasons for
terminating Complainant to be pretextual. However, if they are
found to be legitimate, they also would not be sufficient to meet
Anchor's burden. Many of the incidents pointed to by Anchor,
including the May 20 Amerada Hess incident, the June 17 Mud House
incident, and the June Barrel incident, occurred after
Complainant's protected activity. A showing that the
disciplinary acts occurred after the protected activity
has been held insufficient to meet an employer's burden under the
dual motive analysis. See Pogue v. U.S. Dept. of Labor,
940 F.2d 1287, 1291 (9th Cir. 1991). Furthermore, the remainder
of Anchor's reasons for terminating Complainant were not
sufficiently egregious to warrant termination in light of
Complainant's exceptional 4-year work history at Anchor.
Instances such as Pope's failure to report to work on time (when
he practically lived at the Sidney facility); running the
warehouse low on Salt Gel (when even Mr. Back stated that this
incident did not concern him); and running the warehouse low on
Barite (when this was only the second incident of this type that
occurred in two years, and Pope was otherwise disciplined for his
actions when Anchor allegedly took his ordering duties away from
him) simply would not warrant termination unless illegal motives
were also involved.
[11] As Respondent has not submitted any objection to this
evidence, I will rely on it in considering the issues herein.
[12] As an example of an employer's unlawful conduct, the
N.L.R.B. cited Moss Planing Mill, Co., 110 N.L.R.B. 933,
in which an employee was disabled because he was assaulted by his
employer. The actions that Anchor took which resulted in
Complainant's disability were done intentionally and were
therefore similar to the actions of the employer in Moss.
[13] An imploded disc causes the disc material to rupture inward
into the spinal cord, causing pressure on the cord, instead of
rupturing outward. TR 544, lines 1-7.
[14] The animosity between Complainant and Mr. Sjaastad is of
such dimension as to preclude reinstatement as a viable remedy
even without reference to Complainant's physical inability to
perform the work. Even Brian Bouchard was prompted to warn
Nicole Pope, Complainant's wife, of Mr. Sjaastad's anger and
advise her to be wary and watch out for Sjaastad. (TR 520).
[15] Dr. Adair did not include in this figure damages for pain
and suffering, the lost value of Complainant's ability to perform
services around the house, TR 358-59, the value of out-of-pocket
expenses associated with medical costs, TR 359, bonuses,
seniority raises or management promotions, TR 360-61, or
employers contributions to the life insurance policies
Complainant had while employed at Anchor, TR 361.
[16] Dr. Adair testified that she was aware of Complainant's
disability, but that she had been instructed by Complainant's
attorneys to use a non-disabled work life expectancy in her
calculations because the decision to terminate Complainant was
made prior to his disability. TR 369-370.
[17] Apparently, after some conservative treatment, another MRI
will be performed in order to see if the discs are still
compressing against the spinal cord. TR 545, lines 22-25.
[18] In Deloach v. Delchamps, 897 F.2d 815, 822 (5th Cir.
1990) found that a front pay award compensating the employee for
five years was not too speculative.
[19] I note that 18 months after his termination date,
Complainant will no longer be eligible for coverage under
Anchor's COBRA plan.
[20] Ruhlman v. Hankson, 461 F. Supp. 145, 150-51 (W.D.
Pa. 1978). aff'd, 695 F. 2d 1195, 1197 (3rd Cir. 1979), cent.
denied, 445 U.S. 911, 100 S.Ct. 1090 (1980) (evidence of
emotional distress and its accompanying physical side effects
amounting to more than "some pressure and embarrassment"
sufficient to sustain award of $50,000); Webb v. City of
Chester, Ill., 813 F.2d 824, 836-37 and nn. 3,4 (7th Cir.
1987) (in upholding award of $20,000 for embarrassment and
humiliation, court noted that a review of discharge cases brought
for violation of rights showed awards for embarrassment,
humiliation, and mental distress ranging up to $50,000); and
Wulf v. City of Wichita, 883 F.2d 842, 875 (1Oth Cir.
1989) (award should have been no greater than $50,000 where
plaintiff testified "that his job was 'very stressful' [and] that
he was angry depressed, scared and frustrated" and his wife
testified "that he was under 'tremendous emotional strain' and-
that they experienced significant financial difficulties.")
[21] The record contains evidence of Anchor's destruction of
documentary evidence. Complainant wrote information concerning
Anchor's illegal activities on "sticky notes" which he had hidden
in papers on top of Sjaastad's file cabinet. After his
termination, these notes disappeared, even though the papers they
had been hidden in had been on Sjaastad's file cabinet for four
years. (TR 154, lines 15-25; TR 155 line 10 - TR 156 line 9)
Subsequent to Complainant's discovery that these documents were
missing, he obtained a restraining preventing Anchor from
destroying any other documents. (CX 96) Notwithstanding this,
Anchor continued to destroy relevant evidentiary documents such
as Complainant's drivers' log (CX 95), and Brian Bouchard's,
safety check (CX 94). (TR 156 line 10 - TR 157 line 18; TR 158,
lines 6 - 8).
[22] After Anchor was served with the Department of Labor
complainant on August 18, 1994, it began a large scale cleanup
and removal of topsoil. Although prior cleanup attempts had been
made, none were of the extent after Anchor received the DOL
complaint. It was then that Anchor brought in heavy equipment,
dug five-foot trenches and began to stockpile the contaminated
soil for hauling away from the site. (TR 158 line 13 - TR 159
line 20; TR 865, lines 2 - 21; TR 869, lines 2 - 9). On August
19, 1994, Complainant obtained a restraining order preventing any
further removal of contaminated soil until his environmental
experts could conduct on-site testing (CX 97)
[23] McKnight v. GMC, 705 F. Supp. 464 (E.D. WI 1989),
aff'd in part and rev'd in part on other grounds, 908 F.2d 104
(7th Cir. 1990)(Where plaintiff was discharged in retaliation for
his race discrimination complaints by large corporation, $500,000
in punitive damages was not unreasonable); Southwest Forest
Industries, Inc. v. Sutton, 868 F.2d 352 (10th Cir. 1989),
cert. denied, 494 U.S. 1017, 110 S.Ct. 1320 (1990)(Where
plaintiff was discharged in retaliation for filing workmens'
compensation claims, ,000,000 in punitive damages did not shock
the conscience); and Marello v. Zack Co., 637 N.E.2d 1183
(Ill. App. Ct. 1994)(Where plaintiff's were discharged for
reporting violations of Federal laws and regulations governing
quality assurance and document controls for nuclear power plants,
$375,000 in punitive damages for deterrence did not shock the
conscience.)
