ARB CASE NO. 99-109
ALJ CASE NO. 99-CAA-11
DATE: October 31, 2000
In the Matter of:
MICHAEL B. GARCIA,
COMPLAINANT,
v.
WANTZ EQUIPMENT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Michael B. Garcia, pro se, Sacramento,
California
For the Respondent: Russell W. Carlson, Esq., Law Offices, Sacramento, California
FINAL DECISION AND ORDER
This case arises under the employee protection provisions of the
Clean Air Act ("CAA'), 42 U.S.C. §7622 (1994). The facts of this case are
as follows. On September 2, 1998, Wantz Equipment ("Respondent")
terminated Michael Garcia from his position as a mechanic/welder on the grounds that,
despite repeated warnings, he continued to work on personal projects during his regular
duty hours. Garcia subsequently filed a complaint with the Occupational Safety and
Health Administration ("OSHA") alleging that the real reason Respondent
terminated him was because he contacted the Air Resources Board concerning
Respondent's practice of purging toxic vapors from gasoline or diesel tankers that came
into Wantz Equipment for repair directly into the atmosphere. In view of the allegedly
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retaliatory nature of his termination, Garcia argued that Respondent violated the
employee protection provisions of the CAA, which, among other things, states:
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 . . .
1) commenced, caused to be commenced, or is about to
commence a proceeding under this chapter . . .
3) assisted or participated or is about to assist or participate
in any manner in such proceeding or in any other action to
carry out the purpose of this chapter.
42 U.S.C. §7622 (1994).
After reviewing the complaint, the Regional Administrator of OSHA
("Administrator") found that Respondent terminated Garcia for working on personal
projects and not in retaliation for contacting the Air Resources Board. As a result, the
Administrator concluded that Respondent did not violate the employee protection provisions of
the CAA. Garcia objected to the Administrator's determination and the matter was referred to
an Administrative Law Judge ("ALJ").
Following an evidentiary hearing in this case, the ALJ found that
Respondent terminated Garcia because he ignored repeated warnings to refrain from working
on his personal projects during his regular duty hours and not because he contacted the Air
Resources Board. In light of that finding, the ALJ concluded that Garcia's termination did not
violate the employee protection provisions of the CAA. Therefore, by Recommended Decision
and Order (RD&O") dated May 17, 1999, the ALJ recommended that Garcia's complaint
be dismissed with prejudice. Garcia then filed a petition for review before the Administrative
Review Board ("Board") pursuant to 29 C.F.R. §24.8 (1999).
As part of his case before the ALJ, Garcia asserted that other employees
worked on personal projects during duty hours, but were not disciplined. Garcia then argued
that, because he was the only one disciplined for such misconduct, Respondent's reason for
terminating him was pretextual. However, Respondent presented testimony from two witnesses
who stated that, although other employees used company equipment and materials to work on
personal projects, they were not similarly situated to Garcia because they did not engage in that
activity on company time. On appeal, Garcia essentially urges us to re-evaluate and discredit the
testimony on which the ALJ relied.