DATE: October 6, 1992
CASE NO. 91-TSC-5
IN THE MATTER OF
DARVIN DUANE HADLEY,
COMPLAINANT,
v.
QUALITY EQUIPMENT COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant Darvin Duane Hadley brought this case pursuant to the
employee protection provisions of the Toxic Substances Control Act, 15
U.S.C. § 2622 (1988), the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. § 9610 (1988), the Safe
Drinking Water Act, 42 U.S.C. § 300j-9 (1988), the Water Pollution
Control Act, 33 U.S.C. § 1367 (1988), and the Clean Air Act, 42
U.S.C. § 7622 (1988). Complainant alleges that he was unlawfully
discharged from his position as mechanic by Respondent, Quality Equipment
Company, on April 16, 1991, in retaliation for complaints of
environmental violations he made to the Austin-Travis County
Environmental Health Division on April 15, 1991. Stipulation and Agreed
Facts, Exhibit B (Stip. Ex. B).
After a hearing the Administrative Law Judge (ALJ) on October 10,
1991, recommended that the complaint be dismissed, finding that the
Complainant had not been discriminated against by Respondent.
Recommended Decision and Order (R.D. and O.) at 10. Neither party filed
briefs in response to my briefing order.
The record, including the parties' trial briefs, exhibits and
hearing transcript, has been reviewed closely, and it supports the
ALJ's ultimate conclusion that the complaint should be dismissed.
I disagree with the ALJ's rationale, however, and therefore set out
my conclusions regarding this case.
The Decision of the ALJ correctly summarizes the testimony of
[PAGE 2]
the witnesses. R.D. and O. at 2-6. Complainant was a mechanic for
Respondent, a company engaged in the sales and service of light to
medium weight equipment. R.D. and O. at 2. Complainant's duties
included driving the company van to work sites to repair and
maintain customers' equipment. Id. On April 10, 1991,
Complainant left work early complaining of illness, which he
attributed to leaking exhaust fumes in the maintenance van. He
went to a hospital emergency room that afternoon and did not return
to work until the morning of Monday April 15. Id.;
Complainant's Exhibit (CX) 4. In the interim Complainant's
supervisors, Jose Enrique ("Henry") Morin, and Eugene Bradley,
consulted about Complainant's situation. Morin, who is
Respondent's Service Manager (Transcript (T.) 97), tested the van.
He thought it was smoking "a little". T. 99. He changed the fuel
and the fuel filter and put the van back in service.
Id. Neither Morin, nor, according to Morin, the other
employee who drove the van during Complainant's absence, had any
difficulties with the van. Id.
Morin and Bradley decided, however, to remove Complainant from
his assignment as road mechanic and to assign him to mechanic's
work at Respondent's shop at no loss in pay. T. 42, 101. Morin
testified that they were making this switch in order to determine
if the van had been making Complainant ill. T. 69-70. Bradley
testified that they switched Complainant "to protect ourselves . .
. ." T. 42.
When Complainant returned to work on Monday, April 15, he was
told by Morin that he should remove his tools from the van, and
that he was being reassigned to work in the shop. T. 102.
Complainant was quite upset over this change, which he considered
a demotion, and went to Bradley's office to discuss the matter.
Bradley's and Complainant's descriptions of this meeting differ in
major respects. See R.D. and 0. ¶¶ 5, 7.
Complainant did not testify in any detail about the conversation he
had with Bradley on April 15. He testified that "[t]hey told me
that rather than fix the van, which would have cost them ,000,
that they wanted to put me in the shop as a mechanic." T. 11. On
the other hand, Bradley testified in detail about the meeting with
Complainant on the 15th:
Q Did he demand that you fix the van instead of
reassigning him?
A He said all it would take to fix it was a little
weather-stripping around the door. And I said, Well,
you know, that is a simple thing to do, but if it is
affecting your health, then we can't leave you on
there.
[PAGE 3]
Q And what did he say when you refused to reassign
him back to his position?
A He said if he couldn't have his job on the van he
was giving me two weeks notice.
. . .
Q Okay. And what did you say?
A I said, I don't need two weeks. We will accept
your notice as effective next Friday, next pay day.
T. 45-46.
Important aspects of this conversation are corroborated by
Robert Wiley, an outside salesman for Respondent. Wiley's office
is immediately next to Bradley's office. Wiley testified that
during the conversation between Bradley and Complainant on April
15, he overheard portions of Complainant's conversation. T. 89.
According to Wiley Complainant stated that he "wanted to drive the
van. He wanted to be the road mechanic. And they talked some
more, and then I heard him say that if he couldn't drive the van
that he just didn't want to work there at all." T. 90; R.D. and O.
at 4. Henry Morin testified that immediately after the meeting
between Complainant and Bradley on the 15th, Bradley stopped by
Morin's office and relayed that Complainant
did not like that we had taken him off the van and that
if he could not drive the van no more, which was his
favorite part of that job, that he would just give him
his two-week notice. . . . [Bradley] told him that, you
know, we could make it effective the next pay period,
which would have been that Friday.
T. 105-106.
In the meantime, Complainant had gone to the lunchroom where
there was a telephone. Morin, whose office was across from the
lunchroom, T. 50, testified that he overheard Complainant making
a telephone call in which he asked the person on the other end of
the conversation to find a lawyer, because Respondent
could not do this [to him] because of [his] health
reasons. In other words, we couldn't, you know, change
him over, or I don't know what he meant by that, and
that he asked . . . whoever that person was to call and
find out what he could do about it and that he was just
going to go ahead and stick around until either he got
fired or got kicked out of the premises.
[PAGE 4]
T. 116. Brian Courtney, who maintains the rental fleet for
Respondent, testified that on April 15 before lunch Complainant
told him that he was "going to make them fire him." T. 122, 126.
Shortly thereafter Complainant left the premises and later called
in sick for the rest of the day. T. 51-52. It is undisputed that
prior to Complainant's telephone conversation on April 15,
Complainant had not made any complaints to any environmental
agencies, and Respondent had no idea that Complainant had any plans
to do so. T. 46-48. [1]
On the afternoon of April 15 Complainant made several calls to
different environmental agencies, alleging that Respondent was
pumping used oil into the ground, that waste oil tanks were
defective, that Respondent buried batteries in back of Respondent's
lot, and that there were piles of garbage on the premises. T.
14-15, 22; Stip. Ex. B.
On the morning of Tuesday, April 16, Complainant arrived at
Respondent's facility with a camera. T. 14, 32. He stopped at
Bradley's office and according to Bradley made statements to the
effect that he "was going to report [Respondent] to
environmentalists . . . ." T. 53. Sheldon Davidson, at the time an
employee of Respondent, corroborated this statement. Davidson
testified that as he and Complainant were walking into the building
on the morning of April 16, Complainant stopped at Bradley's office
and told him, "I turned you in to the EPA." T. 131. Davidson
stated that Bradley's response to this announcement was low key:
"[Bradley] just kind of said, Okay, you know, if that is what you
did." Id.[PAGE 5]
Complainant then went into the shop, did not change into work
clothes, but instead started yelling in the shop and taking pictures
of various areas which he believed showed environmental violations.
He then went out behind the shop and continued to take pictures. T.
19, 134-136. Morin testified that Complainant was not working and
was being disruptive, so he went to Bradley. T. 107-108. Morin and
Bradley decided they would pay Complainant "through the time that we
had taken his resignation and, you know, ask him to please pick up
his tools and leave." T. 108. Bradley then called for Complainant
on the loud speaker, and Morin escorted Complainant to Bradley's
office. T. 108.
There are conflicting versions of the ensuing conversation
between Bradley and Complainant. Complainant testified
that Bradley cursed at him, asking what his problem was, why was he
"doing this to" Bradley. T. 18. Complainant testified that he
responded, "[w]ell, I told him that he knew he was wrong for the
way he was acting and the way he was treating people and that
this is what was going to come of it." Id. Complainant
mentioned again that he had filed a complaint. T. 19.
Complainant testified that Bradley "didn't come out and say, I am
unhappy because you filed the complaint against me. It was just,
Why did you do it? -- it meaning why did I report him; why was I
taking pictures, and why was I doing this to him." T. 20. At
that point, according to Complainant, Bradley lost his temper and
"told me flat out, get off his property; leave his shop
immediately." T. 19. Complainant denied using any abusive
language. T. 33.
Bradley, on the other hand, testified that Complainant entered
his office and yelled a stream of profanity at Bradley. T. 54-55.
At that point, Bradley said "Why don't you load your tools and leave
now?" T. 54. Complainant then left Bradley's office, and after
[PAGE 6]
some further disruption in the shop, left the premises. T. 54-55.
Bradley's version of his conversation with Complainant on the 16th
is corroborated by Wiley, who graphically described Complainant's
half of the verbal altercation, which, according to Wiley, was
filled with profanity. T. 90-92. Wiley testified that he could not
hear Mr. Bradley's side of the conversation, but, from what he heard
Complainant say, he thought that a fight might ensue. T. 90, 92.
The ALJ found Complainant's version of this meeting not credible,
R.D. and O. at 10, and I give weight to that determination.
There are two theories of this case each leading to the same
result: i.e., that Complainant was not retaliated against in
violation of the various environmental whistleblower provisions. The
ALJ found it necessary to engage in a "dual motive" analysis of the
case, concluding that: 1) Complainant did not quit his job on the
morning of April 15, prior to making any environmental complaints;
2) Respondent learned of Complainant's environmental complaints
either on the afternoon of April 15 or the morning of April 16; 3)
Respondent terminated Complainant on April 16; 4) the fact that
Respondent terminated Complainant shortly after
learning that Complainant had or was intending to make environmental
complaints "supports an inference that [Complainant's] protected
activity may have played a role in his dismissal;" and 5)
Complainant would have been terminated irrespective of his protected
activity because he used "extremely obscene and abusive language"
with Bradley on the morning of April 16. "It is within the
prerogative of an employer to dismiss an employee for th[at] type of
insubordination." R.D. and O. at 8-10. Although I agree with the
ALJ's ultimate conclusion, I disagree with his finding that
Complainant did not quit on April 15. Accordingly I find that
Complainant failed to make out a prima facie case of retaliatory
discharge, and thus the dual motive analysis was unnecessary.
To establish a prima facie case of retaliatory discharge
under the various whistleblower provisions invoked here, a
complainant must show that: (1) the complainant engaged in
protected conduct; ( 2) the employer was aware of that conduct;
and ( 3) the employer took some adverse action against him. The
complainant must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Dean Dartey v. Zack Company of Chicago,
Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8.
See alsoMackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984); DeFord v. Secretary of Labor, 700
F.2d 281, 286 (6th Cir. 1983); McCuistion v. TVA, Case No.
89-ERA-6 Sec. Dec., Nov. 13, 1991, slip op. at 5-6. I find,
contrary to the ALJ, that Complainant quit his job in the late
[PAGE 7]
morning of April 15, before he had made or threatened to make any
environmental complaints. Rather, he quit because he had been
removed from his assignment as the road mechanic. That removal in
turn was not based on any illegal motive, but was accomplished
because Complainant alleged that driving the van had been causing
his illness. See footnote 1 above. Because all of
Complainant's protected activity occurred after he had quit
his job on April 15, he did not make out a prima facie case that
Respondent terminated him on April 16 because of his
protected activity.
The ALJ found it necessary to proceed to a dual motive analysis
because he concluded that Complainant had not resigned on April 15.
That finding is not supported by the evidence and the ALJ's
credibility determinations. First, Bradley and Wiley, two witnesses
whom the ALJ credited, testified that on April 15 the Complainant
stated that if he could not drive the van, he did not want to work
for Respondent. T. 45, 90. Although the ALJ dismisses the import
of Wiley's testimony by stating that Wiley did not specifically
remember Complainant's resigning, R.D. and O. 9, I conclude that is
the correct reading of Wiley's testimony. In any event, Wiley's
testimony was merely corroborative of Bradley's testimony in which
Bradley unequivocally stated that Complainant had resigned on April
15. T. 45. Second, Henry Morin, who the judge also found to be a
credible witness, see R.D. and O. at 9, testified that
immediately after Complainant's meeting with Bradley on April 15,
Bradley told Morin that Complainant had given notice and would be
leaving on April 19. T. 105-106. Thus, three witnesses whom the
ALJ found credible gave testimony clearly supporting the conclusion
that Complainant resigned on April 15. The only witness to directly
contradict this evidence was also the one witness that the ALJ found
was not credible in at least two instances -- the Complainant.
See R.D. and O. at 9 n.5, 10.
The ALJ rejects the conclusion that Complainant resigned on
April 15 based on Morin's testimony that Complainant told an
unknown person on the telephone on April 15 that he intended to
get himself fired, and the testimony by employee Brian Courtney
that Complainant had told him the same thing around lunch time on
the 15th. "It would defy logic for Complainant to say that he
intended to get himself fired after having just resigned.
Moreover, [Complainant's] behavior on the morning of April 16 is
consistent with an intent to provoke Bradley into terminating
him." R.D. and O. at 9 (footnote omitted). I reject the ALJ's
conclusion that the only logical reading of these events forces
the conclusion that Complainant did not resign on April 15 but
instead was terminated on April 16. The discussion section of
the ALJ's decision does not repeat the entire sentence of Morin's
testimony. Morin said that he overheard Complainant state that
[PAGE 8]
he "was just going to go ahead and stick around until either he
got fired or got kicked out of the premises." R.D. and O. at 5;
T. 115-116. I conclude from this statement that Complainant
intended to try to transform what had been a resignation into a
firing, so that he could argue that he had been retaliated against
for engaging in protected activity. Similarly, Complainant's
statement to Courtney that he was "going to make [Respondent] fire
him . . .", R.D. and O. at 5, can be read as a threat to force
Respondents to take action against him so that he could claim that
he had been fired rather than be held to his reslgnation.
Complainant's behavior during the remainder of the day on April
15, and early on April 16 is consistent with an intent to provoke
Respondent to take some action against him. Thus, Complainant spent
the afternoon of the 15th "with the blue pages of the phone book .
. . calling government agencies until [he] located the one that was
supposed to handle his complaint." T. 22. He then stopped by
Bradley's office on his way in to work on the 16th with a camera
around his neck and claimed that he had reported Respondent to the
EPA. T. 52. The conclusion that Complainant engaged in this
behavior in order to obscure the fact that he had resigned his job
is also supported by the fact that, although he had reported fumes
in the van to Respondent, and he testified that personnel at the
emergency room had urged him to contact EPA, T. 19, 22, Complainant
did not make his complaints about the van, but instead about leaking
oil, buried batteries and other alleged environmental infractions at
Respondents premises. T. 14-15, 22; Stip. Ex. B.
Thus the evidence leads me to the conclusion that Complainant
resigned on April 15 for reasons totally unrelated to
the purposes of the various environmental statutes under which
this action was brought, and that he was asked to leave Respondent's
facility the following day because of his disruptive and abusive
behavior. Therefore, Complainant failed to make out a prima facie
case of retaliatory discharge under the various environmental
statutes cited. In any event, even if Complainant had not resigned
on April 15, the ALJ was correct in concluding that Complainant is
not entitled to relief. First, under the analysis applied in
whistleblower cases, even if a complainant makes a prima facie case
of retaliatory discharge, the respondent is allowed the opportunity
to come forward with evidence that it discharged the complainant for
legitimate reasons. Thus, as the Secretary of Labor stated in
Dartey v. Zack, slip op. at 8:
If the employee establishes a prima facie case, the
employer has the burden of producing evidence to rebut
the presumption of disparate treatment by presenting
[PAGE 9]
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. . . . If the
employer successfully rebuts the employee's prima facie
case, the employee still has "the opportunity to
demonstrate that the proffered reason was not the true
reason for the employment decision. . . . [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
that the employer's proffered explanation is unworthy
of credence." . . . The trier of fact may then
conclude that the employer's proffered reason for its
conduct is a pretext and rule that the employee had
proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the
employer was not motivated, in whole or in part, by the
employee's protected conduct and rule that the employee
has failed to establish his case by a preponderance of the
evidence.
(citations omitted.)
Respondent has successfully rebutted whatever case Complainant
made out, and were it necessary for me to reach this point, I would
conclude that Complainant has failed to sustain his complaint by a
preponderance of the evidence. The ALJ found that Complainant used
extremely obscene and abusive language during his conversation with
Bradley on the morning of April 16. R.D. and O. at 10. A verbal
confrontation with a supervisor in the context of protected
activity, which involves the use of abuse and obscenities far
exceeding the bounds of behavior appropriate to the workplace, may
justify discipline if the employee's conduct was so extreme or
egregious as to take it outside the pale of protected activity.
NLRB v. Clark Manor Nursing Home Corp., 671 F.2d 657
(lst Cir. 1982) (Union activist who hurled obscenities and abuse
upon anti-union employees after the union lost an election was
justifiably discharged); NLRB v.Cement Transport,
Inc., 490 F.2d 1024, 1030 (6th Cir. 1974) (Employee's reference
to company's president as a "son-of-a-bitch" not egregious or out of
context in a labor struggle); Acme-Arsena Co. v. NLRB, 804
F.2d 359 (6th Cir. 1986) (Discharge of union steward for using
vulgar language was not justified when use of profane language was
not egregious conduct that exceeded the bounds of protected
activity). Here, Complainant was arguably engaging in protected
activity -- he was informing his
[PAGE 10]
supervisor that he had reported Respondent to various
environmental enforcement agencies, and he had been called away
from taking pictures of alleged environmental hazards. [2]
The sequence of events, occurring over a relatively short time
period, would normally support an inference of causation.
See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989);
Mackowiak v.University Nuclear Systems, Inc., 735 F.
2d 1159, 1162 (1984). [3] Here, however, Complainant already
had informed Bradley of his contact with the EPA earlier in the
morning; the confrontation that occurred later consisted almost entirely
of a stream of obscene invective in which Complainant informed Bradley
how much trouble he had created for Respondent. R.D. and O. at ¶¶
8, 9; T. 54-55, 82-83, 84, 90-92. In this respect this case is far
more egregious than Dunham v. Brock, 794 F. 2d 1037, 1041
(5th Cir. 1986), in which the court ruled that "[a]busive and profane
language coupled with defiant conduct or demeanor justify an
employee's discharge on the grounds of insubordination" even
though the employee had also engaged in protected activity under
the employee protection provision of the Energy Reorganization
Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). I
conclude that Complainant's behavior on the morning of April 16
was so beyond the bounds of behavior appropriate to the workplace
that Complainant failed to prove that Respondent's firing him for
that behavior would have been mere pretext.
Finally, assuming that Complainant had managed to establish
that his protected activity played a part in his alleged firing on
April 16, I conclude that Respondent has met the test articulated in
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and proved
by a preponderance of the evidence that Complainant would have been
fired in any event. Under Price Waterhouse, 490 U.S. at
243-244, a case brought under Title VII of the Civil Rights Act of
1964, as amended,
[PAGE 11]
42 U.S.C. 2000e et seq. (1988), a plurality of the Supreme Court
held that "once a plaintiff in a Title VII case shows that gender
played a motivating part in an employment decision, the defendant
may avoid a finding of liability only by proving that it would have
made the same decision even if it had not allowed gender to play
such a role." I have applied this same "dual motive" test in
employee protection cases such as the one before me. See,
Goldstein v.Ebasco, No. 86-ERA-36, Dec. and Ord. Apr.
7, 1992, slip op. at 12, n.3. Here, even if were I to assume that
Complainant's whistleblowing activities, which became known at the
earliest around noon on April 15, were a motivating factor in
Respondent's alleged decision to terminate Complainant, Respondent
established that it would have fired Complainant in any event
because of his obscene and highly inappropriate behavior on April
16. Thus, even under a "dual motive" analysis of this case I would
conclude that the complaint should be dismissed.
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Complainant did not establish that his transfer from road
mechanic to shop mechanic was the result of illegal retaliation
under any of the environmental statutes cited. I adopt the ALJ's
findings, R.D. and O. at 8 n.3, that Complainant did not present
convincing evidence that he engaged in protected activity prior
to the date of his reassignment, or that Respondent knew or had
reason to know of any protected activity Complainant may have
exercised prior to reassignment. Even were I to assume that
Complainant's complaint about the fumes in the van constituted
protected activity, Respondent's actions cannot be construed as
retaliatory. Respondent tried to address Complainant's problem
in two ways: Bradley removed Complainant from the alleged source
of his health problems and tested and made minor repairs to the
van. Both Bradley and Morin testified that by transferring
Complainant to the shop they hoped to learn whether his health
problems were being caused by the van. T. 45, 48-49, 69-70, 101.
That fact, coupled with the fact that Complainant suffered no loss
in pay or hours worked leads me to conclude that the transfer was
not adverse action. I specifically reject Complainant's testimony
that he was assigned to do janitorial work in the shop. See
T. 11. Even when Complainant had been assigned as road mechanic,
when he was not out on calls in the field he was doing mechanic's
work in the shop. T. 72. For example, Morin testified that on
April 15 Complainant had an ongoing mechanic's assignment waiting
for him in the shop. T. 71-73.
[2] See, e.g.Adams v. Coastal Production
Operators, No. 89-ERA-3, Dec. and Ord. of Remand, Aug. 5, 1992,
slip op. at 8-9.
[3] The ALJ held that "[t]he fact that Bradley terminated
[Complainant] shortly" after Complainant made his environmental
complaints known and after his photograph taking "supports an
inference that [Complainant's] protected activity may have played a
role in his dismissal." R.D. and O. at 9. It is necessary,
however, to view the events of the morning of April 16 as a whole.
Having done so, I do not draw the inference that the ALJ concluded
was possible.
