Date: May 31, 1996
Case No. 95-TSC-15
In the Matter of
RICHARD SIPES,
Complainant
v.
ARCTIC SLOPE INSPECTION SERVICE ("ASIS"),
ALYESKA PIPELINE SERVICE COMPANY, and
CHRISTIAN ENGINEERING d/b/a VECO
ENGINEERING COMPANY
Respondents
ORDER
This case arises under the employee protection provisions of
three environmental protection statutes: the Toxic Substances
Control Act of 1976, 15 U.S.C. §2622; the Water Pollution
Control Act, 33 U.S.C. §1376; and the Safe Drinking Water
Act, 42 U.S.C. §300h(b)(1)(a). Several motions are pending
before the court, including four for summary decision and five
relating to other matters. These motions, which are discussed
in turn below, were addressed in a telephone conference with the
parties on May 29, 1996.
The respondents are Alyeska Pipeline Service Company
("Alyeska"), Arctic Slope Inspection Services, Inc. ("ASIS"),
and Christian Engineering d/b/a VECO Engineering company
("VECO"). ASIS and VECO are Alyeska subcontractors providing,
respectively, inspection and engineering services. Complainant
filed his complaint with Wage-Hour on November 14, 1994,
asserting that his employment as a technician with ASIS/Alyeska
on the Alaska pipeline was officially terminated on October 28,
1994 in retaliation for his complaints to management, federal
regulators and investigators about falsification of corrosion
tests to determine whether the pipeline is in danger of rupturing
and causing an oil spill. He alleged that his termination was
the culmination of a series of retaliatory events, including
removal from his work crew (the "Pitbus" crew), and threats of
physical harm by Harry Hawkins, a senior technician on the
"Pitbus" crew alleged to have committed the falsification, and
harassment and intimidation by engineers Jim Schaefer and Gary
[PAGE 2]
Hale of VECO. He amended his complaint on December 2, 1994, to
include an allegation that the refusal of ASIS/Alyeska to rehire
him for any of six available inspection coordinator positions was
further retaliation for protected activities. Wage-Hour found
that complainant had established a violation of the employee
protection provisions of the environmental statutes at issue, and
the respondents appealed. A hearing is scheduled in Anchorage,
Alaska, commencing June 10, 1996.
A. The motions for summary decision are as follows:
(1) by Alyeska, filed on 4/25/96, on the grounds that the
concerns raised by complainant are not protected activities under
the environmental protection statutes at issue in the case;
(2) by ASIS, filed on 5/10/96 on the grounds that complainant's
claims predating 10/14/94 are time barred, that the complainant
can not establish a prima facie case of reprisal, that
ASIS is not a joint employer with ALYESKA and VECO and is
therefore not responsible for their acts or conduct, and that
complainant was not qualified for the Inspection Coordinator
position;
(3) by VECO, filed on 5/10/96, on the grounds that complainant
is not an employee of VECO within the meaning of the applicable
statutes;
and
(4) by ALYESKA, filed on 5/10/96, on the grounds that any
alleged retaliation by Alyeska occurred more than 30 days before
complainant filed his complaint, because Alyeska had nothing to
do with complainant's termination by ASIS in 10/94, and that the
complaint is therefore untimely.
Summary decision is appropriate where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. 29 C.F.R. § § 18.40, .41;
See F.R. Civ. P. 56. When determining whether an issue of
material fact exists, the inferences to be drawn from the
underlying facts must be viewed in the light most favorable to
the non-moving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
This case is inappropriate for summary decision because of
the existence of numerous contested issues of material fact which
cannot fairly be determined without a full hearing. Construing
the underlying facts in the light most favorable to the
complainant, the court could find, inter alia, that
complainant
[PAGE 3]
had a reasonable belief that his expressed concerns constituted a
violation of the applicable environmental statutes, that he was
qualified for the positions for which he was denied employment,
that ASIS, VECO and Alyeska acted in concert insofar as the
adverse employment actions of which he complains, and that their
actions constituted an ongoing retaliatory course of conduct
which was continuing within thirty days of his filing of his
complaint. Accordingly, the motions for summary decision are
DENIED.
B. Other motions.
(1) Complainant filed a petition on 5/15/96 to reserve the
right to use all material previously produced by respondents in
discovery and in respondent's prehearing exchange. Respondents
oppose the petition as subverting the process of pre-listing a
limited set of exhibits in order to facilitate the parties'
preparation for trial.
As discussed at the May 29, 1996 pre-hearing conference, the
pre-listing of exhibits for trial is not intended to preclude use
of unlisted exhibits for impeachment and rebuttal purposes.
Complainant's counsel represented that he expects at most minor
deviations from his exhibit list in his case in chief. The court
recognizes that, given the factual complexity of this case and
the numerous documents involved, both parties may find such minor
deviations necessary. Accordingly, the petition is GRANTED.
(2) Respondents filed a joint motion on 5/17/96 to dismiss
complainant's "blacklisting" claims, which they allege are raised
for the first time in complainant's prehearing statement.
Counsel for the complainant indicated at the May 29, 1996 pre-
hearing conference that he did not intend, by use of this term,
to expand the claims already before the court. Accordingly, the
motion is DENIED.
(3) Respondents filed a joint motion on 5/17/96 to strike
portions of complainant's prehearing statement, the "Statement of
Facts" and "Argument," on the grounds that counsel had previously
agreed to reserve such briefing until after the hearing, and that
complainant should not be permitted an unfair advantage by
presenting his case in advance without the opportunity for a
proper reply. Inasmuch as the respondents have managed to
include their own versions of the facts, as well as substantial
argument, in the other motions before the court, this motion is
DENIED.
(4) Respondents filed a joint motion in limine on
5/20/96
[PAGE 4]
to exclude the testimony of complainant's proposed expert witness
on "victim blaming." Respondents argue that the proposed
evidence does not met the requirements of 29 C.F.R §18.702
because it is not based on scientific, technical, or other
specialized knowledge, and will not assist the court as trier of
fact to understand the evidence or determine a fact in issue, and
because the proposed expert witness, Joan M. Haratani, Esq., is
not qualified by credentials, training and/or experience to
provide an expert opinion on the specific subject. Complainant
argues that these objections, even if valid, go to the weight but
not the admissibility of the evidence.
Ms. Haratani is a partner in the law firm of Crosby, Heafey,
Roach & May in its product liability group. (Exhibit 1 to
respondents' motion). Her area of legal expertise is product
liability, business torts and hospital liability, with experience
in complex pharmaceutical liability and insurance bad fath. She
earned her J.D. from the University of California at Davis School
of Law in 1984. According to Ms. Haratani's affidavit (Exhibit 3
to complainant's opposition to joint motion in limine),
she has gained specialized knowledge about victim blaming,
because of her heritage as a third generation Japanese American
who has been subjected to many incidents of racism, as the child
of Japanese Americans whose families were interned during World
War II, and through her involvement in informal surveys and
discussions about discrimination with other attorneys in her
capacity as co-chair of the Bias and Diversity Committee of the
Asian American Bar Association of California, and as a member of
the American Bar Association Conference of Minority Partners.
She states also that she has written articles concerning
diversity issues, such as "Strategies for Hiring and Keeping
Minority Workers," The Small Business Success Guide, June,
1993; "Legal Medicine for Sexual Harassment of Health Care
Workers," Healthscan, July/August 1993, and "How to
identify and Combat Victim Blaming' in the Workplace." The
Bottomline, Vol 1, No. 1 (Winter/Spring 1995-1996).
Complainant asserts that victim blaming occurs when the
wrongdoer cannot directly face the wrongdoing and therefore
expresses his guilt or discomfort about the wrongdoing by finding
the victim to be the one at fault, and that Ms. Haratani has
gained specialized knowledge of this kind of conduct by virtue of
her personal, direct experience of discrimination and retaliation
as a third generation Japanese- American. Complainant argues
that Ms. Haratani will testify that, when an employee challenges
the conduct of a superior, particularly one who is well-liked,
that employee is likely to be blamed by management or other
[PAGE 5]
employees, and that her testimony will assist the trier of fact
to determine that complainant's removal from the PITBUS was
devised not for legitimate business reasons, but to support Harry
Hawkins because he was well-liked; that human resources
department manager LoAnn Larson avoided investigation of his
alleged falsification because of unwillingness to face the
reality of the complainant's accusations; and that complainant's
walking off the Pitbus job in June, 1994, and his subsequent
emotional breakdown, which respondents used as justification for
his layoff in October, 1994, were to be expected and are
consistent with that of other harassed employees who are blamed
for identifying a supervisor's wrongdoing.
The court finds the respondents' objections to be well
taken. Some of the evidence proposed appears to be mere argument
about inferences to be drawn from the facts at issue -- i.e. that
the respondents' proffered legitimate reasons for taking certain
actions are pretextual and amount to "blaming the victim." The
complainant has demonstrated no basis for a determination that
the court needs specialized assistance, as opposed to common
sense reasoning, in this regard. Nor does Ms. Haratani, despite
her regrettable personal experiences, have the type of general
expertise in the social sciences or psychiatry that would qualify
her to testify authoritatively about "victim blaming," or to
characterize complainant's behavior, including his emotional
breakdown, as a forseeable result of the alleged retaliation
against him. Thus, although her testimony may have some
relevance and is arguably admissible under 29 C.F.R §18.402,
the court chooses to exclude it as a waste of time under 29 C.F.R
§18.403.
Accordingly, the motion to exclude Ms. Haratani's testimony
is GRANTED.
(5) Respondents filed a joint motion on 5/22/96 to exclude
telephonic testimony at the hearing by certain of complainant's
witnesses unless respondents are first provided with an
opportunity for an in-person deposition of such witnesses.
Counsel indicated at the May 29, 1996 prehearing conference that
they are in the process of attempting to resolve this issue.
Accordingly, ruling on the motion will be DEFERRED.
SO ORDERED.
________________________
EDITH BARNETT
Administrative Law Judge
Washington, D.C.
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