CASE NO. 88-WPC-2

In the Matter of

COMPLAINT OF RAYMOND IVORY
AND EVANS COOPERAGE, INC.

APPEARANCES:

DAVID FINE, ESQ.
FRANK REPASS, ESQ.
    Fine, Fine, Dieth & Repass
    335-337 Decatur Street
    New Orleans, LA 70130

E. FREDERICK PREIS, JR., ESQ.
KENNETH LAUTER, ESQ.
    McGlinchey, Stafford, Mintz, Cellini
    & Lang, P.C.
    643 Magazine Street
    New Orleans, LA 70130

BEFORE: KENNETH A. JENNINGS
    Administrative Law Judge

   This matter arises under the Federal Water Pollution Control Act of 1972, 33 U.S.C. §1367, hereinafter called "the Act." The Act prohibits any person from discharging or otherwise discriminating against an employee who has engaged in activity protected by the Act.

   Raymond Ivory, the Complainant in this matter, filed a complaint with the Wage and Hour Division, United States Department of Labor, on December 15, 1987, alleging that he was discharged by Respondent, Evans Cooperage, Inc., on December 1, 1987, because he was engaged in activity protected by the Act.

   The Wage and Hour Division on January 15, 1988 issued its notification of findings letter finding that Complainant was a protected employee engaging in a protected activity within the ambit of the Act, and that discrimination as defined and prohibited by the statute was a factor in the discharge. On January 21, 1988, Respondent timely filed a telegraphic request for a formal hearing.

   A formal hearing was held in Metairie, Louisiana and each of the parties was offered full opportunity to present evidence and argument at the hearing. Complainant is seeking reinstatement to his previous position and payment of lost wages. Pursuant to permission granted at the hearing, post-hearing briefs were filed by both parties and have been reviewed and considered in reaching my findings and conclusions. Based upon the entire record, including my observations of the witnesses and their demeanor, I make the following decision.

   On December 1, 1987, Evans Cooperage, Inc., discharged the Complainant, Raymond Ivory, for allegedly failing to perform his duties properly, for insubordination towards his supervisor, and engaging in combative behavior with his fellow workers.

   Raymond Ivory had been employed by Evans Cooperage, Inc., since May 17, 1982. Claimant was a laborer/production worker until he was promoted effective September 2, 1987 to acting leaderman. Claimant's supervisor for both positions was Horace Williams.

   Respondent evaluated Claimant on a yearly basis, and these evaluations have been submitted into evidence. On May 28, 1987 Ivory was given an overall evaluation of 2.3 which is considered between good and excellent. On August 27 Complainant was promoted to the acting leaderman position. Complainant was evaluated as having "the ability to work with other employees and infuse in them the incentive to work safely and efficiently."

   Horace Williams, Complainant's supervisor, and a reconditioning plant manager, has worked for Employer for 10 years. (Tr., p. 10). Complainant was one of 100 employees that Williams supervised. Williams testified at the hearing that employees supervised by Ivory complained to him about Ivory's

behavior. Walter Barrios, personnel and insurance manager for Employer testified that Complainant was a good employee until several incidents occurred when he took over his new job as acting leaderman.

   The following matters detail in chronological order the series of events leading up to Claimant's suspension and subsequent termination. Williams testified that he began receiving complaints from workers that Complainant was not properly sharing forklifts with them. Williams testified that once Complainant assumed the responsibility of leaderman, he started to change and wanted to control everybody. Williams stated that he discussed with Ivory on four to five occasions that this type of behavior wasn't acceptable. Williams stated that he did not write up an employee warning on those occasions because he is very "employee oriented" and it's not his style.

   Williams testified that on November 13, 1987, Complainant got into a physical fight with a fellow employee, Benjamin Preston. Preston testified that he and Complainant argued at work over the use of a forklift. Later, as Preston was ready to leave work for home in his car, Complainant opened his car door, pulled him out and the two began to wrestle. Preston then got back in his car, drove off and was followed for a while by Complainant in his truck.

   Horace Williams testified that he called both Complainant and Mr. Preston into his office. Williams told Complainant that there was no way that a man in Complainant's position of responsibility could jump on another employee like that. Williams told Complainant at that point that he was going to put him on a 2 weeks probationary period and he would be watching his actions closely. Williams stated that Complainant's behavior did not improve after this period. (Tr. p. 90).

   Several days later, on November 16, 1987 Complainant allegedly argued with another employee, Rex Williams, over the use of a forklift. Rex Williams testified at the hearing, however, that he did not have a fight over the forklift with Complainant. Complainant testified that he was never reprimanded for any incident with Rex Williams. (Tr., p. 51).

   Horace Williams testified that on November 18, 1987 Complainant had left a job incomplete without notifying anyone.

Williams called Complainant into his office the next day to discuss the situation and Complainant was unresponsive and walked out of his office. Williams followed Complainant who in turn used profanity about the job and walked off. Williams stated that he considered this a major act of insubordination and he told Complainant to "punch out." Williams said he suspended Ivory on an indefinite basis.

   Apparently within 1 hour of being suspended, Complainant called 911 and made a complaint to the Jefferson Parish Sheriff's Office, alleging that Employer was pumping acid into a barge which was going to be released into the Harvey Canal. Complainant testified that he had been wanting to file a complaint for a long time and since he was suspended at the time, he figured there was nothing Employer could do to him as long as he was suspended. (Tr., p. 69). Complainant stated that he did not know he was on an indefinite suspension. Complainant was terminated within 2 weeks.

   The Water Pollution Control Act, 33 U.S.C. §1367 provides:

"No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter."

   Under this statute, the general rule is that the burden of proof placed on the parties is identical to the burden placed in employment discrimination cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §200e. Rousseau v. Teledyne Mobile Offshore, Inc., 619 F.Supp. 1513, 1521 (W.D. La. 1985). Under Title VII, a complainant must first prove a prima facie case of discrimination. Once this prima facie case has been demonstrated, the burden shifts to the respondent to articulate a legitimate, nondiscriminatory reason for their action in terminating the Complainant. If the Respondent meets that

burden, the Complainant then must prove by a preponderance of the evidence that the reasons offered by Respondent are not the true reasons but instead are a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

    In the instant case, for Complainant to prove a prima facie case he must demonstrate that the supervisor who made the decision to discharge him was aware of his complaint to the authorities, that Prior to the complaint, his work was satisfactory, and that he had been discharged shortly after making his complaint.

   For the first prong of this prima facie case, i.e., whether the supervisor was aware of Complainant's complaint, the testimony reveals in this case that Horace Williams, Complainant's supervisor had knowledge of his complaint within several hours after suspending Complainant.

   The second thing Complainant must demonstrate for a prima facie case is that prior to his complaint, his work was satisfactory. The evidence and testimony reveals that prior to Complainant's promotion to acting leaderman, he was a very good employee, getting high employee evaluations. Once Complainant assumed his new position, his attitude and work deteriorated. Horace Williams, Complainant's supervisor has adequately testified about Complainant's problems with fellow employees, his insubordination, and leaving a job incomplete. It is apparent that Complainant would not have been suspended if his job performance was satisfactory. As Complainant did not make his complaint to authorities until after his suspension, one can only conclude the reason for Complainant's suspension was unsatisfactory job performance.

   Complainant has demonstrated that he was discharged shortly after making his complaint, as his complaint was filed on November 19, 1987 and he was discharged on December 1, 1987, less than 2 weeks later.

   Because Complainant has not demonstrated that his work was satisfactory prior to his complaint, this Judge find that Complainant has not presented a prima facie case and therefore his claim under the Act must fail.

   Nevertheless, assuming arguendo that Complainant has presented a prima facie case, Respondent has articulated a strong legitimate, non-discriminatory reason for terminating Complainant.

   Walter Barrios, Personnel Manager for Respondent, testified that the offenses set forth in Complainant's Separation Notice are sufficient to terminate Complainant and employees have been terminated in the past for less,

   Mr. Robert Evans, chairman of the board for Respondent, testified that he based his decision to terminate Complainant on his inability to direct people, because of his incident with Benjamin Preston, and because of his insubordination towards his supervisor, Horace Williams.

   Complainant argues that the reasons articulated by Respondent are not legitimate, but rather are pretexts for the real reason Complainant was terminated, i.e., he made a water pollution complaint.

   In arguing his case, Complainant points to the fact that standard company procedure was not followed in this case, specifically there were no written warnings issued to Complainant for his violations. Complainant introduced evidence showing that he had been issued written warnings in the past for four "minor" violations.

   Walter Barrios testified that no employee warnings were written for the incidents of November 13, 16, and 18, 1987. Barrios asserted, however, that employee warnings are sometimes written when an incident occurs and sometimes not. Barrios stated that sometimes a manager will write up a warning immediately, and sometimes he may wait a week or so before he has an opportunity to write a warning. Barrios testified that Respondent terminates approximately 14 to 15 employees a year and it is not uncommon to terminate somebody when an Employee Warning Form is not drafted. Furthermore, Barrios stated that it was not unusual that no warnings were filed in this case since the first incident occurred on November 13, 1987 and the suspension was November 19, 1987.

   Barrios testified that he advised Mr. Evans that a complaint had been made by Complainant and under no circumstance should a person be terminated because of any complaint made against the

company. (Tr., p. 37). Barrios stated he was particularly careful to make sure there was just cause to fire Complainant because of the water pollution laws. Horace Williams testified that he is aware of the rules considering the Water Pollution Act and he did not take into account Complainant's complaint when recommending his termination. Williams stated that in fact if he had written up Complainant's fight, he would have been terminated at that point in time. (November 13, 1987).

   Complainant argues that this Judge can conclude that his termination was for impermissible reasons by comparing the separation notices of other discharged employees with his. These documents have been submitted by Respondent. Complainant argues that his offenses are minor in comparison to previously terminated employees.

   I do not find that argument persuasive. An examination of the separation notices reveals that many past discharged employees were in similar situations as Complainant. For example one was discharged for insubordination, refusal to work, and abusive language to his leaderman. Another was discharged for foul language and striking another employee. Another was discharged for confrontations with employees, a bad temper and cursing out a leaderman and supervisor.

   Therefore, I find that Respondent did not take into account Complainant's complaint of water pollution in discharging him.

   I reverse the findings of the Wage and Hour Division, United States Department of Labor, that Respondent, Evans Cooperage, Inc., discharged Raymond Ivory on December 1, 1987 because he was engaged in a protected activity, namely his complaint to the Jefferson Parish Sheriff's Office about the discharge of acid into the Harvey Canal.

   For the foregoing reasons it is hereby recommended that the Secretary issue an ORDER that the January 15, 1988 decision of the Administrator of the Wage and Hour Division, Employment

Standards Administration, United States Department of Labor, be REVERSED and that the complaint of Raymond Ivory be DISMISSED.

       KENNETH A. JENNINGS
       Administrative Law Judge

DATED: November 30, 1988
Metairie, Louisiana

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