ARB CASE NO. 02-080
ALJ CASE NO. 01-CAA-17
DATE: March 31, 2004
In the Matter of:
TIM SMITH,
COMPLAINANT,
v.
WESTERN SALES & TESTING,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Tim Smith, pro se, Amarillo, Texas
For the Respondent:
James A. Prozzi, Esq., Pittsburgh, Pennsylvania
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Clean Air Act, 42 U.S.C.A. § 7622 (West 1995) (CAA). The Complainant, Tim Smith, alleges that Respondent, Western Sales & Testing (WST), violated the CAA when it retaliated against him for lodging complaints with the Texas Natural Resource Conservation Committee (TNRCC) and the United States Department of Labor's Occupational Safety and Health Administration (OSHA). On May 15, 2002, an Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D. & O.) recommending that Smith's complaint be dismissed. For the following reasons, the R. D. & O. is reversed in part and affirmed in part.
BACKGROUND
WST is a re-test facility for compressed gas transport containers. It reconditions vehicle chassis and re-certifies cylinder tube trailers. Its facilities consist of an office, a main fabrication shop, a paint shop and a separate grit blast shop. R. D. & O. at 4.
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WST hired Smith on October 5, 1995. He worked as WST's quality control manager. His duties included running tests related to the cylinder cleaning process, checking trailers for leaks, organizing data packs for government customers, and making decals for cylinders identifying the company trailer and the cylinder product. R. D. & O. at 4. His direct supervisor was Steve Aderholt, WST's Vice President of Sales and Production.
On or about April 24, 2001, Smith informed Aderholt that painting was being conducted with the paint shop doors open. Aderholt went to the paint shop, closed the open door, and told the painters to keep the paint doors shut. Transcript (Tr.) 96, 239. Smith testified that he informed Aderholt that paint overspray was damaging his automobile, which was parked near the paint shop doors. Tr. 125. Aderholt testified that Smith did not, at the time, report any damage to his vehicle. Tr. 96.
On April 25, Smith contacted TNRCC, informing them that "[p]ainting . . . is being done with the door open and overspray is drifting onto personal vehicles." Complainant's Exhibit (CX) 5, p. 15. Smith informed Darrell Gaddy, WST's Environmental Specialist, that he had contacted TNRCC. Tr. 127-128.
Smith testified that he contacted OSHA on May 1, 2001. Tr. 139. He complained that WST's painting operations were exposing him and his co-workers to paint fumes. He also complained about dust, open flames on gas heaters, and the lack of respirators. Tr. 140-141. Smith contends that WST was aware of these complaints.1
1 On November 5, 2001, OSHA issued a letter describing its findings during the inspections initiated by Smith's safety complaint of May 1, 2001. The letter mentions that although WST exposed loading area employees to paint fumes, "[c]ylinder painting is done at night and the area is ventilated afterward. No citation will be issued as a result of this complaint item." CX-1.
2 "Alleged Source: Paint Spray, Western Sales & Testing; Initial Problem: Painting conducting (sic) by Wester (sic) Sales & testing, 1401 East 46th, in Amarillo, is being done with the door open and overspray is drifting onto personal vehicles."
Smith claims he was discharged because he refused to perform an illegal act of falsifying government documents on or about April 18, 2001. This allegation was treated in the Order Granting Partial Summary Decision as untimely raised since, if it occurred, the event pre-dated the thirty (30) day period prior to the filing of Complainant's complaint on August 10, 2001. Accordingly, it can not serve as an independent basis for his alleged unlawful discharge.
This is an erroneous statement of the law governing the timeliness of Smith's whistleblower complaint. Under the environmental statutes, the time for filing a complaint begins to run from the date of the adverse action, not the date the employee engaged in the protected activity. Erickson v. U.S. Envtl. Prot. Agency, ARB No. 99-095, (July 31, 2001) (citing 29 C.F.R. § 24.3(b)). However, neither party has appealed the ALJ's ruling on this matter, and the ALJ's error does not affect the outcome of this case.
4 Smith has not appealed the ALJ's rulings on his blacklisting and intimidation claims. See R. D. & O. at 27; see also ALJ's January 24, 2002 Order Granting Partial Summary Decision.
5 This Board has noted that "[o]nce the respondent has presented his rebuttal evidence, the answer to the question whether the plaintiff presented a prima facie case is no longer particularly useful. The [trier-of-fact] has before it all the evidence it needs to determine whether ‘the defendant intentionally discriminated against the plaintiff'" See, e.g., Martin v. Akzo-Nobel Chemicals, Inc., ARB No. 02-031, ALJ No. 2001-CAA-16 (ARB July 31, 2003). However, because we find that WST retaliated against Smith, we issue herein a specific ruling on Smith's protected activity.