United States Court of Appeals
For the First Circuit
No. 97-2083
CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.,
Petitioner,
v.
ALEXIS M. HERMAN, SECRETARY,
UNITED STATES DEPARTMENT OF LABOR
Respondent, and
THOMAS DUTKIEWICZ,
Intervenor.
PETITION FOR REVIEW OF THE FINAL DECISION AND ORDER
OF THE ADMINISTRATIVE REVIEW BOARD OF
THE UNITED STATES DEPARTMENT OF LABOR
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Gary S. Matsko, with whom Judith Ashton and
Davis, Malm & D'Agostine, P.C. were on brief, for petitioner.
Barbara Werthmann, Counsel for Appellate Litigation, with
whom Marvin Krislov, Deputy Solicitor for National Operations, Joseph M.
Woodward, Associate Solicitor for Occupational Safety and Health, and Barbara A.W.
McConnell, Attorney, U.S. Department of Labor, were on brief, for respondent.
Thomas M. Dutkiewicz, on brief pro se.
June 10, 1998
LYNCH, Circuit Judge.Thomas Dutkiewicz was fired
by his employer, Clean Harbors Environmental Services, Inc., after he repeatedly complained he felt
his supervisors were pressuring him to violate Department of Transportation ("DOT")
regulations for hauling hazardous materials, and that he would not do that. The company said he was
fired because customers complained about his abrasive manner. Dutkiewicz complained to the
company that he had been unfairly and unlawfully terminated. The company rehired Dutkiewicz for
a different position, kept him on a short leash, and fired him three months later.
Dutkiewicz filed a complaint with the U.S. Department of Labor under
the employee protection provisions of the Safety Transportation Assistance Act of 1982
("STAA"), 49 U.S.C. § 31105, claiming both his employment terminations were
in retaliation for his safety complaints and his refusal to violate federal regulations. The
Administrative Law Judge ("ALJ"), in a recommended decision and order, found in
favor of Dutkiewicz and awarded back pay, reinstatement, and compensatory damages. The
Administrative Review Board ("ARB") affirmed the ALJ's recommendation and also
upheld the damages award. Clean Harbors petitions for review to this court, raising one pure issue
of law and arguments that the ARB decision is not supported by substantial evidence.
When an employee has "filed a complaint or begun a
proceeding," the STAA, 49 U.S.C. § 31105(a)(1)(A), protects that employee from
retaliatory adverse employment actions. The question of law, one of first impression in this
court, is whether this section protects an employee who has filed purely intracorporate
complaints about alleged violations of federal law. We agree with the ARB's interpretation that it
does. We also find that substantial evidence supports the ARB's findings that Dutkiewicz in fact
"filed" such internal complaints, and that his employment terminations were causally
related to that protected activity.
I.
A. Factual Background
Clean Harbors is an environmental services company based in Braintree,
Massachusetts. Its services include treating, storing, hauling, and disposing of hazardous waste.
Dutkiewicz began working for Clean Harbors as a truck driver in August of 1993, out of the
company's service center in New Britain, Connecticut. Dutkiewicz' primary duty was to haul
hazardous waste between the customers' facilities and Clean Harbors' treatment plant in Bristol,
Connecticut. This job required Dutkiewicz to inspect the waste containers for compliance with the
law, to inventory, and to load the waste containers onto his truck before hauling them. All of these
activities are governed by DOT and Environmental Protection Agency ("EPA")
regulations. If customers do not properly prepare their drums of waste for shipment, the driver must
spend time at the customers' facilities bringing the drums into compliance with the regulations.1
1Clean Harbors' policy requires drivers
to follow the regulations. Failure to comply with the regulations could result in civil fines for
Dutkiewicz personally and for the company, see 49 C.F.R. § 107, a serious health
hazard for Dutkiewicz and for the workers at the treatment facility who handle the drums, and a
danger to the environment. Drivers may be stopped by federal inspectors for compliance spot-checks. The driver is the one responsible for keeping track of the contents of the truck, making sure
that the contents comply with the regulations, and ensuring that all the paperwork is in order and
accurately describes the contents. See 49 C.F.R. §§ 171.2, 177.801.
Dutkiewicz testified that he personally had been stopped on numerous occasions. If a customer has
inadequately or inaccurately filled out the manifests, it is the driver who must explain the
inadequacies to the inspector. See 49 C.F.R. §§ 177.801, 802.
2The job coordinator is the first
person to whom the drivers report. He sets up and coordinates the drivers' jobs.
3The compliance department was
located at corporate headquarters in Braintree, Massachusetts.
4Much of the material that was hauled
by drivers at the New Britain facility was taken to the Bristol facility for treatment and disposal. The
employees at Bristol had an interest in the state of the drums coming into that facility.
5The ARB did not reach the issue of
whether Dutkiewicz had also engaged in the protected activity of refusing to drive a vehicle. We
review the final agency decision as announced in the decision of the ARB. SeeSecurities and Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 87 (1943)
(reviewing courts must judge the agency's decision on the grounds upon which the agency stated its
decision was based). Courts have fashioned an exception to the Chenery doctrine, and on
occasion have affirmed an agency decision on a ground not specifically articulated by the agency
where "it is clear that based on the valid findings the agency would have reached the same
ultimate result" on different grounds. Consolidation Coal Co. v. Smith, 837
F.2d 321, 323 n.3 (8th Cir. 1988) (citing Salt River Project Agric. Improvement and Power
Dist. v. United States, 762 F.2d 1053, 1060-61 n.8 (D.C. Cir. 1985)). We need not
consider this exception because we affirm the agency based on its articulated ground.
6This case does not involve the very
different issue of complaints which prove to be a matter of only internal concern to the employer.
Cf.Hinchey v. Nynex Corp., F.3d , 1998 WL
244245, *9 (1st Cir. May 20, 1998).
7For example, the language does not
say where a complaint must be filed. The fact that Congress could have used broader language,
which more clearly encompasses internal complaints, does not mean that the language it did use
necessarily does not encompass such complaints.