For the Complainant:
Dale L. Ingram, Esq., Law Office of Dale L. Ingram, P.C., Kansas City, Missouri
For the Respondent:
S. Ruth Lehr, Esq., Law Offices of S. Ruth Lehr, Kansas City, Missouri
FINAL DECISION AND ORDER
This case is before the Administrative Review Board (ARB) pursuant to the employee protection provisions of the Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 1995) and the Department of Labor's (DOL) implementing regulations set out at 29 C.F.R. Part 24 (2003). Christine Evans asserts that her employer, Baby-Tenda, violated the employee protection (whistleblower) provisions of the CAA when Baby-Tenda harassed and then terminated her for raising environmental safety concerns. Following a hearing, an Administrative Law Judge (ALJ) concluded that Baby-Tenda had violated the CAA. In his Recommended Decision and Order (R. D. & O.), he ordered Baby-Tenda to reinstate Evans, and to pay back wages, compensatory and exemplary damages, and medical and relocation costs. Baby-Tenda appealed. We reverse.
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BACKGROUND
Baby-Tenda, located in Kansas City, Missouri, manufactures and sells baby furniture. Evans was employed in Baby-Tenda's plant from March 1999 until her termination on March 8, 2000.
Evans testified that she filed a complaint with the Occupational Safety and Health Administration (OSHA) in October 1999 in which she claimed that Baby-Tenda did not have safety guard catches on some of its equipment, that an employee was injured on the job, and that paint fumes were escaping from Baby-Tenda's manufacturing plant into the outside air. HT at 230-231; see also Respondent's Exhibit (RX) 1. The record, however, does not contain a copy of this complaint that Evans says she filed with OSHA.
Thereafter, on January 4, 2000, Baby-Tenda's management gave Evans a written warning after she had confronted other employees concerning her personal life. RX 2; CX 1 at 93. Evans received a second written warning on February 8, 2000, because she ignored a verbal warning to avoid personal conversation with other employees and because she worked too slowly. RX 3; CX 1 at 92.
Also in February 2000, David Jungerman, Baby-Tenda's owner and president, and two other employees, Leo Wynne and Kenny Neff, removed asbestos insulation from pipes inside the Baby-Tenda plant during after-work hours. HT at 36, 78, 122, 237-241, 301. Evans testified that she learned about the asbestos removal from Neff, who was her boyfriend. HT at 236, 241, 301. Evans then called the Kansas City Health Department (KCHD) and requested literature regarding the hazards of asbestos, though, as discussed below, the record is not clear about the details of this call. HT at 242-243, 304-306, 311-312.
Lisa Jeter, another employee of Baby-Tenda, was also concerned with the asbestos removal. On March 7, 2000, she filed an asbestos complaint with KCHD, OSHA, and the Environmental Protection Agency (EPA). RX 18; HT at 76, 88, 106-107; see also CX 1 at 217-252. That same day KCHD inspectors arrived at the plant, but Baby-Tenda's secretary did not allow them to enter the plant because the plant manager was at lunch. RX 18. Then, the next morning, Evans asked her supervisor why there was dust on her worktables and why the tables had been moved from their usual location. HT at 249-251, 307. Later that morning, after meeting with Evans, Jungerman terminated her. Jungerman asserts that he did so because that morning Evans had been wandering around the plant talking and gossiping with other workers despite two previous warnings about leaving her workstation to wander and gossip. RX 17; HT at 260-261, 392-393. Shortly after Evans had been terminated, the KCHD inspectors arrived again and, with Jungerman, inspected the plant for asbestos. HT at 42, 394-395; see also RX 18.
Evans filed a whistleblower complaint with OSHA on April 4, 2000. CX 1 at 1. She alleged that Baby-Tenda management had harassed her and finally terminated her "after accusing her of contacting OSHA and the EPA." Id. OSHA found the complaint to be valid. CX 1 at 16-17, 21, 24. Subsequently, Baby-Tenda requested a hearing with the Office of Administrative Law Judges. CX 1 at 13. The ALJ conducted a hearing on November 6 and 7, 2001, in Kansas City, Missouri. The ALJ issued his Recommended Decision and Order on September 30, 2002.
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ISSUE
Did Evans prove by a preponderance of evidence that she engaged in activity protected under the CAA?
JURISDICTION AND STANDARD OF REVIEW
The environmental whistleblower statutes, such as the CAA, authorize the Secretary of Labor to hear complaints of alleged discrimination because of protected activity and, upon finding a violation, to order abatement and other remedies. Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 9 (ARB Feb. 28, 2003). The Secretary has delegated authority for review of an ALJ's initial decisions to the ARB. 29 C.F.R. § 24.8. See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).
Under the Administrative Procedure Act, the ARB, as the Secretary's designee, acts with all the powers the Secretary would possess in rendering a decision under the whistleblower statutes. The ARB engages in de novo review of the recommended decision of the ALJ. See 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir. 1997); Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ Nos. 97-CAA-2, 97-CAA-9, slip op. at 15 (ARB Feb. 29, 2000).
DISCUSSION
The Legal Standard
Pursuant to the CAA:
No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) –
(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan . . . [or,]
(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.
42 U.S.C.A. § 7622(a)(1), (3). See also 29 C.F.R. §§ 24.2(a), 24.3(a), 24.4(d)(3).
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To prevail under the CAA, the complainant must establish by a preponderance of the evidence that she engaged in protected activity, that the respondent was aware of the protected activity, that she suffered adverse employment action, and that the protected activity was the reason for the adverse action, i.e., that a nexus existed between the protected activity and the adverse action. Seetharaman v. General Electric Co., ARB No. 03-029, ALJ No. 2002-CAA-21, slip op. at 5 (ARB May 28, 2004).1
1 In discussing the legal standard governing proof of discrimination in cases arising under the CAA, the ALJ misstates the respondent's burden of proof under a "dual motive" analysis. See R. D. & O. at 16. Under the CAA, once the complainant has proven discrimination, the respondent need only demonstrate by a preponderance of evidence, not "clear and convincing" evidence, that it would have taken the same unfavorable personnel action in the absence of protected activity. On the other hand, under the Energy Reorganization Act, 42 U.S.C.A. § 5851(b)(2)(D) (2000), the respondent's dual motive burden is by clear and convincing evidence. See Cox v. Lockheed Martin Energy Sys., Inc., ARB No. 99-040, ALJ No. 97-ERA-17, slip op. at 6 n.7 (ARB Mar. 30, 2001).
2 Both the OSH Act and the CAA prohibit employers from discriminating against employees who engage in protected activity. See 29 U.S.C.A. § 660(a); 42 U.S.C.A. § 7622. As already noted, the Secretary of Labor has delegated final decision making authority in whistleblower actions under the CAA to this Board, but we have no comparable authority under the OSH Act. There, the sole whistleblower enforcement mechanism is an action the Secretary brings in a United States district court. See 29 U.S.C.A. § 660(c)(2).
3 Pursuant to the Kansas City Air Quality Control Code, Chapter 8 of the Code of Ordinances, City of Kansas City, Missouri, the Kansas City Health Department inspects businesses when asbestos is being removed to guarantee removal is conducted properly and also responds to outdoor air complaints under the CAA. See [Kansas City]Code of Gen. Ords., Chapter 8, §§ 8-1- 8-20.
4 The record also indicates that OSHA and the EPA did not investigate the complaints that were filed with them until after Baby-Tenda had terminated Evans. See RX 19, 21; CX 1 at 217-252.
5 Jeter and Gilbertson also testified about their concerns regarding the asbestos removal but did not indicate that they expressed their concerns to Baby-Tenda's management. HT at 72-82, 88, 98-101, 105-107 (Jeter); 120-125, 131-139, 141-153 (Gilbertson).