He was
based at Clean Harbors' New Britain, Connecticut facility. As part of his training, Dutkiewicz
received a copy of the Driver's Guide to Hazardous Materials, CX 27 (excerpts) and 44, which
explained the Department of Transportation (DOT) regulations governing transportation of
hazardous materials. Dutkiewicz regularly transported PCBs, carcinogens, corrosives, and
poisonous gases. CX 1a at 3.
Clean Harbors implemented a new policy of imposing additional
demurrage charges on its customers for extra time spent by the drivers correcting mistakes made
in preparing the hazardous materials for transport. T. 85. In light of the additional charges, some
customers complained that Dutkiewicz wasted time on their sites by checking and preparing
tendered waste drums. T. 86. According to Dutkiewicz, his superiors at Clean Harbors pressed
him not to take the time to fix drums according to the hazardous materials regulations. T. 89.
Dutkiewicz disagreed because he did not want to violate the regulations concerning the proper
condition and labeling of hazardous materials. Id.
To document the reasons for his taking extra time at customer sites,
Dutkiewicz designed and used a form listing the problems he encountered and corrected. CX 9;
T. 87, 412. Some of the completed forms showed leaking drums, waste on the outside of drums,
surface rust on lids, and missing bung caps and labels. CX 9 (all); T. 99-104, 106, 109, 113-114.
When customer Allied Signal complained about the extra time Dutkiewicz took, the General
Manager of Clean Harbors' New Britain facility, Thor Cheyne (Cheyne), directed him in writing
not to cause Allied Signal to incur extra demurrage charges "regardless of condition of
drums." CX 11a; T. 121.
[Page 3]
Account Manager Peter Ferrio sought business for Clean Harbors by
placing sales calls and presenting information on the company to potential customers. T.605.
Ferrio was not Dutkiewicz's supervisor, T. 662, was not present when Dutkiewicz picked up
waste shipments, never loaded any shipments himself, and did not have responsibility for safety
or compliance with hazardous waste regulations. T. 641, 674. Ferrio testified that in November
or December 1993 customers began to complain about Dutkiewicz taking too much time at their
sites. T. 612. Shortly thereafter, Dutkiewicz received a favorable performance evaluation and
a salary raise. CX 7a; T. 94-98.
Dutkiewicz received both oral and written warnings about log book
violations, RX 4b, 4e, and was warned orally and disciplined in writing for transporting loads
without load locks and for double stacking drums. T. 446; see RX 4g. Although Cheyne
mentioned the customer complaints to Dutkiewicz, the company did not give him any written
warnings about the complaints. T. 216.
In a second six-month performance review dated September 1, 1994,
Cheyne gave Dutkiewicz the overall rating of "meets expectations" and a salary
raise.
CX 7b. About two weeks later, Ferrio sent a memorandum informing Cheyne that customers had
complained about Dutkiewicz's poor customer relations, uncooperative attitude, taking too much
time, and causing DOT violations. RX 5b; T. 633-634. Ferrio asked Cheyne either to reassign
or replace Dutkiewicz. T. 634; RX 5b. Two days after Ferrio's notification, Cheyne discharged
Dutkiewicz, stating that Dutkiewicz wasted too much time fixing waste drums and could not be
sent to customers any more. T. 169.
Dutkiewicz promptly telephoned and wrote to the company's Vice
President for Compliance, Health and Safety to complain that he was pressured to transport
drums
that were not properly labeled and prepared for shipment. CX 3a; T. 109. The company
investigated the situation and upheld the discharge. T. 172-173. Dutkiewicz' wife next
telephoned the Director of Transportation Compliance and threatened to inform the press and the
Federal government if the discharge decision were not reversed. T. 174, 520-521. The Director
of Human Resources notified Dutkiewicz that the company would again review the discharge
and
that Dutkiewicz would be paid for the next three weeks. T. 175.
After the review, Clean Harbors offered Dutkiewicz a new position as a
driver based at Bristol, Connecticut, transporting waste between the company's facilities. T. 213.
The offer placed conditions on rehire, including a requirement that Dutkiewicz direct any
questions about his duties to John Caron (Caron), Transportation Coordinator, or if Caron was
unavailable, to Brian Monahan, Director of Logistics. CX 21a; T. 215, 789-790.
Dutkiewicz accepted the employment offer and upon reporting to Bristol,
he met with Caron and Monahan, who told Dutkiewicz that he was on a "short leash"
[Page 4]
and would be watched closely. T. 219-220, 788; RX 8. Monahan noted in a memorandum that
any coaching or disciplinary actions taken would be documented and kept on file. RX 8; T. 788.
About three months after his return to work, Dutkiewicz was discharged
without warning. T. 206, 217, 250-251. Dutkiewicz timely filed this complaint, alleging that
both the rescinded and the final discharges violated the STAA.
DISCUSSION
The STAA prohibits discharging or otherwise discriminating against an
employee because he "has filed a complaint or begun a proceeding related to a violation of
a commercial motor vehicle safety regulation, standard or order, or has testified or will testify in
such a proceeding. . . ." 49 U.S.C.A. §31105(a)(1)(A). An employee's internal
complaint to superiors conveying his reasonable belief that the company was engaging in a
violation of a motor vehicle safety regulation is a protected activity under the STAA.
Stiles v. J. B. Hunt Transportation, Inc., Case No. 92-STA-34, Sec. Dec. and Ord.,
Sept. 24, 1993, slip op. at 3-4 and cases there cited; see also R. D. and O. at 16.
Clean Harbors proffered as a legitimate basis for initially discharging
Dutkiewicz, the numerous customer complaints about Dutkiewicz. Clean Harbors contends that
the ALJ did not adequately consider its evidence on this point and "incorrectly ruled that
crucial testimony of customer complaints was hearsay and therefore not admissible to counter
complainant's assertions that he was discharged for engaging in protected conduct." Resp.
Br. at 17.
None of the complaining customers testified at the hearing. Rather,
Account Manager Ferrio recounted complaints about Dutkiewicz that customers orally made to
him. Hearsay is a "statement, other than one made by the declarant while testifying at the
. . . hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid.
801(c); see also 29 C.F.R. §18.801(c). Clean Harbors argues that the testimony
of customer complaints was offered to show the state of mind of the listener and therefore the
testimony was not hearsay. Resp. Br. at 17. Since the ALJ allowed the testimony of customer
complaints and properly determined the weight it was due, see Adams v. Coastal Production
Operators, Inc ., Case No. 89-ERA-3, Sec. Dec. and Remand Ord., Aug. 5, 1992, slip op. at
10, we find no error in the ALJ's treatment of the evidence.
Customer complaints may constitute a valid reason to discharge an
employee. See R. D. and O. at 17. According to Ferrio, many Clean Harbors customers
[Page 5]
complained that Dutkiewicz took too much time loading shipments, that his behavior was
irritating and condescending, and that some of his work was inaccurate. Id ; T. at
615-616, 625. Clean Harbors therefore offered evidence of a legitimate reason for the first,
rescinded
discharge.
Under the applicable DOT regulations, the driver is responsible for
checking the manifest for errors and missing information. 49 C.F.R. §172.200 et
seq .; see CX 27 at 2. The driver must recognize and identify the markings on
containers to determine regulatory compliance for purposes of proper handling, loading, and
emergencies. 49 C.F.R. §172.300 et seq .; see CX 27 at 2. The
regulations direct the driver not to accept damaged or leaking packages, incompatible materials,
or improperly prepared shipments. CX 27 at 4; T. 368-369. Clean Harbors' policy requires
drivers to comply with the DOT regulations governing handling of hazardous materials. T. 702,
705. In addition to work place discipline, failure to comply with these regulations can result in
fines or jail. CX 27 at 2.
When Clean Harbors personnel told Dutkiewicz that he had to load
shipments faster, he replied that the regulations required him to check the waste shipment's
packaging and labeling and that is what took so much time. T. 124-126. The form he designed
to document the problems he found with shipments revealed failure to label drums, waste on the
outside of drums, leaking drums, surface rust on lids, and missing bung caps. CX 9. Dutkiewicz
did not transport drums until they complied with the regulations.
Ferrio testified that customers complained about Dutkiewicz reexamining
and changing the labels and packaging that the customers' own compliance departments already
had checked:
Mr. Macomber told me that Mr. Dutkiewicz took it upon himself to
begin changing drum labels without Mr. Macomber's permission,
that Mr. Dutkiewicz insisted on changing things that had been
reviewed and audited by our entire compliance people and him and
his entire compliance people.
T. 619; see also T. 614-615, 625. Therefore, Clean Harbors discharged Dutkiewicz the
first time, at least in part, because he insisted on following the regulations despite customer
complaints. The ALJ correctly noted that Dutkiewicz did not have to prove that the tendered
waste drums actually violated the regulations; it was sufficient for him to show that he had a
reasonable belief that there were such violations. R. D. and O. at 16. We agree with the ALJ that
the documentary evidence, together with Dutkiewicz's testimony, shows that Dutkiewicz had a
[Page 6]
genuine, reasonable belief on many occasions that drums tendered to him for shipment did not
comply with the DOT regulations. R. D. and O. at 16.
Where, as here, there are both legitimate and unlawful reasons for the
discharge, the burden of proof is on the respondent to show that it would have discharged the
complainant for the legitimate reasons alone even if the complainant had not engaged in any
protected activities. Harris v. Apaca Van Lines, Case No. 91-STA-39, Sec. Fin. Dec.
and Ord., Aug. 31, 1992, slip op. at 2. In such a case, the respondent bears the burden that the
legitimate and the unlawful motives cannot be separated. Id. In the absence
of testimony from any of the complaining customers, there is no basis for concluding that any
customer complaints that were unrelated to Dutkiewicz's enforcement of the STAA and motor
carrier regulations would have been sufficient to justify Clean Harbors' adverse action.
The documentary evidence supports the view that Clean Harbors was most
alarmed with Dutkiewicz' insistence on verifying proper packaging and labeling since the only
written direction Dutkiewicz received concerned the time issue. After Dutkiewicz provided his
supervisor, Cheyne, with drum inspection forms documenting the deficiencies in shipments
tendered by Allied Signal, CX 9b, 9e, Cheyne directed Dutkiewicz in writing "to get in and
out of Allied [Signal's plant] regardless of condition of drums." CX 11a. We agree with
the ALJ's interpretation that Cheyne ordered Dutkiewicz to transport Allied Signal's waste
regardless of the condition of the drums. R. D. and O. at 17. Since Cheyne did not testify, there
is no convincing evidence which would lead us to read the note differently.2
Clean Harbors has not met its burden of showing that it would have
discharged Dutkiewicz even if he did not insist on proper packaging and labeling of hazardous
materials tendered for shipment. Therefore, we agree with the ALJ that Dutkiewicz has
prevailed
on his complaint that the initial, rescinded discharge violated the STAA. See R. D. and
O. at 18.
After changing its mind about the first discharge, Clean Harbors offered
Dutkiewicz a driver position based at Bristol. The company's written offer of reemployment
required Dutkiewicz to contact only Caron, "for any questions or concerns about your
assignment or how you are to carry out your duties," and provided only one other person to
contact if Caron was unavailable, Brian Monahan (Monahan). CX 21a.
Three months after being reemployed, Dutkiewicz was again discharged.
Monahan cited three reasons for firing Dutkiewicz: a lengthy phone message to a company Vice
President in which Dutkiewicz criticized a new procedure for tracking waste; an unauthorized
request for a cellular telephone in a pickup truck he was assigned to drive; and a contact with the
Massachusetts Department of Environmental Protection (DEP). T. 812-813. Monahan faulted
Dutkiewicz for not asking Caron about either the new waste tracking procedure or the cellular
telephone prior to contacting higher managers in the company. T. 798.
[Page 7]
It is undisputed that Dutkiewicz received no oral or written warnings
concerning any of the events cited as the basis for the second discharge. Monahan testified that
the incidents occurred one after the other and there was no time to give a warning. T. 829-830.
The ALJ found that the second discharge was tainted by the first, unlawful
discharge for several reasons. First, no one at Clean Harbors provided a copy of, or discussed,
the written employment contract with Monahan, who made the second discharge decision.
Second, the contract put Dutkiewicz on a "short leash" in which all his actions were
scrutinized more closely than those of other new employees. Finally, contrary to the promise of
providing written warnings, Clean Harbors did not warn Dutkiewicz about any of the incidents
that led to the second discharge and did not tell him the specific reasons for the final discharge.
R. D. and O. at 18.
The telephone call Dutkiewicz made to DEP concerned the lack of a
current vehicle identification card in the rental truck he was assigned for a specific load.
See RX 12. In this instance, Dutkiewicz first telephoned Caron, who had left for the day.
Dutkiewicz next telephoned a 24-hour supervisor, who advised him to take a different truck on
the run. After a shift change, a second 24-hour supervisor confirmed the earlier advice and told
Dutkiewicz to take a different truck. Nevertheless, Dutkiewicz telephoned DEP to inquire about
the lack of a vehicle identification card, and the contact with DEP was one of the stated reasons
for the second discharge.
We are concerned any time that an employer faults an employee for
seeking information from, or making a complaint to, a government agency such as DEP. See,
e.g. , Adams, slip op. at 13 (discharge for reporting oil spill to the Coast Guard
violated analogous employee protection provision of the Clean Water Act). Here, even though
Dutkiewicz received an acceptable response from Clean Harbors employees -- that he should
drive a different truck rather than the one that lacked a vehicle identification card -- he still had
the right to speak with DEP concerning a safety issue within that agency's purview. We find
therefore that one of the articulated reasons for the second discharge directly violated the STAA.
See Homen v. Nationwide Trucking, Inc ., Case No. 95-STA-45, Sec. Dec. and Ord., Feb.
10, 1994, slip op. at 4 (driver reporting unsafe vehicles to California Highway Patrol constituted
protected activity).
Monahan also faulted Dutkiewicz for bucking the agreed-upon chain of
command when he left the voice mail message concerning a problem with the waste tracking
system. The record does not reveal whether the problem Dutkiewicz raised was related to
transporting waste consistent with the DOT regulations. We note that an adverse action taken
because an employee circumvented the chain of command to raise a safety issue would violate
the employee protection provision. Pillow v. Bechtel Constr., Inc., Case No.
87-ERA-35,
Sec. Dec. and Rem. Ord., July 13, 1993, slip op. at 22, aff'd sub nom. Bechtel Constr. Co.
v. Dep't of Labor, 98 F.3d 1351 (11th Cir. 1996); see also Pogue v. United
States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991) (superior's anger over employee's
[Page 8]
failure to follow chain of command in reporting a whistleblower complaint was pretext for anger
over the making of the complaint).
Since there was at least one impermissible reason among those articulated
for the second discharge, Clean Harbors had the burden of establishing that it would have
discharged Dutkiewicz for legitimate reasons even if he had not engaged in any protected
activities. There is no record evidence that the company discharged any other employees for
bucking the chain of command to complain about a company procedure or system, or for asking
for a benefit such as a cellular telephone.
Unlike other employees, Dutkiewicz had a written requirement not to
bring
issues to managers other than Caron or, in Caron's absence, Monahan. One reason for the special
requirement for Dutkiewicz was his engaging in protected activities during his first employment
with Clean Harbors. Therefore, we agree with the ALJ that the reasons for the first discharge
tainted the potentially "legitimate" reasons articulated for the second discharge.
Upon
review of the record, we find that Clean Harbors did not show that it would have discharged
Dutkiewicz the second time if he had never engaged in any protected activities during his
employment with the company. Therefore, Dutkiewicz has prevailed on his complaint that the
second discharge also violated the STAA.
REMEDIES
A successful complainant under the STAA is entitled to affirmative action
to abate the violation, reinstatement to the former position with the same pay, terms, and
privileges of employment, attorney fees and costs, and may also be awarded compensatory
damages. 49 U.S.C. §31105(b)(3). Clean Harbors has reinstated Dutkiewicz to a driver
position based in Bristol, at his former rate of pay and with the same employment benefits.
See June 18, 1997 letter from Jonathan Black to Dutkiewicz and July 24, 1997 letter
from
Gary Matsko. Since reinstatement clearly was possible, the ALJ correctly denied the request for
front pay. R. D. and O. at 19. See also Clifton v. United Parcel Svc. , ARB Case No.
97-045, Final Dec. and Ord., May 14, 1997, slip op. at 1-2 (no front pay where reinstatement is
an
appropriate remedy).
We affirm the ALJ's back pay calculation. Dutkiewicz is entitled to back
pay of ,100 per week from January 16, 1995 to June 1, 1995, after which he began a lower
paying job. From June 2, 1995 until his layoff from the lower paying job effective June 13,
1997,3 Dutkiewicz is entitled to $500 per
week in back pay.
Dutkiewicz claims that upon his reinstatement to Clean Harbors, he did
not earn full pay during training and while awaiting the results of a DOT-required physical
[Page 9]
examination prior to being assigned to drive. Dutkiewicz letter of July 16, 1997. Dutkiewicz
resumed driving for Clean Harbors on July 22, 1997. Gary Matsko letter of July 24, 1997. For
the period beginning June 14, 1997, Clean Harbors shall pay Dutkiewicz the difference between
,100 per week and the amount he actually earned from his reemployment with Clean Harbors,
until such time as Dutkiewicz worked a full week at full pay.4
We agree with the ALJ's ruling that unemployment compensation
Dutkiewicz received is not deducted from the amount of back pay owed. Clean Harbors shall
pay
interest on the back pay calculated according to 26 U.S.C. §6621.
The ALJ found that unrefuted testimony of Dutkiewicz and his wife
established that he suffered severe emotional distress because of his relocation to a different state
to take a lower paying job, his concerns for his family's survival, difficulties with his marriage,
and ongoing peptic ulcer disease, all of which were proximately caused by his discharge. We
affirm the ALJ's award of $30,000 in compensatory damages.
Dutkiewicz is not entitled to an attorney fee award because he appeared
pro se . Since he did not document the costs of bringing this complaint, Dutkiewicz is
not entitled to an award of costs.
As abatement of the violation, Clean Harbors shall expunge from its files
any reference to the adverse actions taken against Dutkiewicz, and shall post notice of its STAA
obligations at its Bristol, Connecticut facility.5
ORDER
Respondent shall:
1. Pay to Complainant back pay of ,100 per week for the period from
January 16, 1995 to June 1, 1995 and of $500 per week for the period from June 2, 1995 to June
13, 1997. For the period staring June 14, 1997, Respondent shall pay the difference between
,100 and the amount Complainant has earned through reemployment, until the time that
Complainant has worked a full week at full pay. Respondent also shall pay Complainant interest
on the back pay calculated in accordance with 26 U.S.C. § 6621.
2. Pay complainant $30,000 in compensatory damages.
[Page 10]
3. Expunge from all its files any references to the adverse actions
against Complainant.
4. Post notice of its STAA obligations at its Bristol, Connecticut
facility.
SO ORDERED .
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
1 Documentary evidence will be
referred to
as "CX," "RX," and "ALJX" for Complainant's,
Respondent's, and
ALJ's exhibits.
2 A Clean Harbors witness
admitted
that Cheyne's note could be read to order Dutkiewicz to transport drums no matter what their
condition.
T. 731 (Cellucci). The ALJ rejected as unduly strained Clean Harbors' preferred interpretation,
Resp. Br.
at 8, that Cheyne's note directed Dutkiewicz to work quickly and leave behind any drums that did
not
comport with DOT regulations. R. D. and O. at 17. We agree.
3 According to his letter of June
17,
1997, Dutkiewicz was laid off effective June 13, 1997.
4 Dutkiewicz also states that
upon
reemployment, for the first time he will be assigned to drive to Chicago and other destinations
that require
a week away from home. Dutkiewicz letter of July 16, 1997. Clean Harbors adequately
explained the
reason for the new type of assignments as necessary to give Dutkiewicz a sufficient number of
driving
hours for full time work. Gary Matsko letter of July 24, 1997.
5 The ALJ also ordered posting
at
the company's New Britain facility. Clean Harbors recently closed that facility, however.
Respondent's
Reply to Complainant's Response to Order, p. 3.