U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-066
ALJ CASE NO. 95-CAA-18
DATE: October 17, 1997
In the Matter of:
THOMAS COMBS,
COMPLAINANT,
v.
LAMBDA LINK,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER OF DISMISSAL
This matter arises under the employee protection provisions of the Clean Air
Act, 42 U.S.C. §7622 (1988), the Toxic Substances Control Act, 15 U.S.C. §2622, and
the Federal Water Pollution Control Act, 33 U.S.C. §1367 (collectively "the
Acts"), and the applicable implementing regulations at 29 C.F.R. Part 24. Complainant,
Thomas Combs (Combs), alleges that Respondent, Lambda Link (Lambda), violated the employee
protection provisions of the Acts when it terminated him from his position as an installer with the
company after only two weeks of employment and shortly after he had engaged in activity protected
by the Acts.
[Page 2]
The Administrative Law Judge (ALJ), in a Recommended Decision and Order
(R. D. and O.) issued on January 18, 1996, dismissed the complaint, finding that Combs would have
been fired "regardless of the asbestos concerns because of his involvement in a drunken party
that resulted in his filing a police complaint and having emergency treatment in a hospital."
R. D. and O. at 2.
We conclude that the case should be decided pursuant to a dual motive
analysis under the standards articulated in the case of Dean Darty v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983. As modified below, we concur with
the decision of the ALJ to deny the complaint.
BACKGROUND
Combs was hired as an installer on November 9, 1994. Within a week he was
transferred to the Elmendorf Air Force Base Hospital job site in Alaska. The ALJ found that on the
day Combs reported to the job site, November 15, 1994, the on-site foreman (John Nelson),
"walked him through a portion of the job site, and pointed out certain tiles and told Tom
Combs not to touch those because they contain asbestos." Transcript (T.) 93, R. D. and O. at
2. Regarding Combs' concerns over asbestos in the workplace, the ALJ found that:
1) Combs communicated those concerns to his co-worker, Joe Kelly, including
the fact that Combs' father had "died of asbestos" and that the substance
"scared the living hell out of [him]." CX 17, T. 64, R. D. and O. at 3;
2) Kelly then communicated those concerns about asbestos to Lambda's chief
executive officer (CEO) on November 16, 1994 and the CEO promised to supply the
crew with protective masks. CX 17, T. 73-75, R. D. and O. at 3; and
3) "On the same day complainant had told foreman Nelson that, [i]f we
don't get protection from asbestos, I'm going to the EPA.'" Id. T. 184.
The other crucial factual component in the case concerns the so-called
"recreational activities" of Lambda's crew members and, in particular, a crew party
which occurred on the evening of November 17 and the morning of November 18, 1994. We concur
with the ALJ's findings regarding this event, as set forth at R. D. and O. at 3-6, summarized as
follows.
Following the workday on the evening of the 17th, several members of the
crew began a drinking binge, ostensibly in celebration of Tim Combs' (Complainant's brother)
birthday. As the crew got increasingly drunk, their party moved from various Anchorage area clubs
back to one of the company-rented motel rooms where they arrived at about 2 or 3 a.m. to continue
drinking.
[Page 3]
The drunken conversation turned to the subject of various crew members'
ethnic origins and/or purity. At some point in this conversation, Combs was attacked by crew
member Joseph Kelly who, upon being referred to by, "the N word," R. D. and O. at 4,
hit Combs above his left eye. Combs was taken to the hospital where seven stitches were used to
close the wound. The area police were summoned and issued a citation to Kelly. Both Kelly and
Complainant were fired. Lambda's CEO noted that Combs was fired because of "the
fight." See R. D. and O. at 3-4 and RX 1.
The ALJ found that, "[t]here were ample grounds to fire both Mr. Kelly
and Mr. Tom Combs." R. D. and O. at 6. He found support for Lambda's decision in the
provisions of its employee handbook (RX 1) despite his acknowledgment that "complainant
did not receive a copy of the manual." RX 8, at 4, R. D. and O. at 6. The ALJ found that
"the guidelines [the handbook] establishes for employee conduct are rather obvious."
Id.
1 While we agree that the
employer's policies against certain unacceptable conduct, i.e., fighting or instigating fights
with co-employees are common sense provisions of shop discipline, see infra at 5, which
were reasonably applied in this instance, we make no finding regarding the hotel room as
"company property."
2 It is beyond dispute, as noted
above, that Combs engaged in protected activity by raising issues of concern regarding the presence
of asbestos and that his threat to go to the EPA took his complaint beyond its initial occupational
focus to a broader environmental concern. See Aurich v. Consolidated Edison Co., Case No.
86-CAA-2, Sec. Dec. Apr. 23, 1987, slip op. at 3-5.
3 In addition, the ALJ reached a
conclusion which we must expressly reject. At page 7 of the R. D. and O., the ALJ held that a
supervisor (Nelson) with more than three years on the job had a higher value to the company than
Complainant and that this difference in "value" provided, "a rational legitimate
business basis for treating the two differently."
Finally, with respect to the ALJ's disparate treatment analysis concerning other
Lambda employees, we affirm his conclusion that the evidence concerning Nelson's drunkenness
is inconclusive, R. D. and O. at 7, and that the incidents (alleged by Complainant to be comparable)
involving employees Fisher and Bridgeman simply are not comparable, i.e. they failed to
directly implicate the company.
4 We agree with the ALJ's
conclusion that the temporal proximity between the protected activity and Combs' discharge, the
employer's knowledge of his asbestos complaint, R. D. and O. at 6, and the ALJ's express and well
supported rejection of the employer's denial of knowledge of the asbestos concerns, R. D. and O.
at 4, is sufficient to establish that Combs' protected activity played a role in causing the adverse
action.