ARB CASE NO. 04-158
ALJ CASE NO. 04-CAA-5
DATE: November 29, 2006
In the Matter of:
SEBEDO V. LOPEZ,
COMPLAINANT,
v.
SERBACO, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Kirk
P. Brown, Esq., The Law Firm of Kirk Patterson Brown, Pueblo, Colorado
For the Respondent:
Janice
L. Hirsch, Esq., Jordan Schrader PC, Portland, Oregon
FINAL DECISION AND
ORDER
Sebedo V. Lopez
filed a whistleblower complaint against his employer, Serbaco, Inc., claiming
that it violated the employee protection provisions of the Clean Air Act (CAA).[1]
Following an evidentiary hearing, a United States Department of Labor
Administrative Law Judge (ALJ) concluded that Serbaco did not violate the CAA
and recommended that we dismiss the complaint. We accept the ALJ’s
recommendation and dismiss Lopez’s complaint.
Background
Rocky Mountain
Steel Mills makes steel. RMSM’s Pueblo, Colorado mill has two steel furnaces.
Each furnace has a filter system called a “bag house.” The bag
[Page 2]
houses contain
bags that collect the steel dust that results from the manufacturing process.
This dust is a hazardous waste. “Transfer pumps” vacuum this dust into storage
silos. The dust is then loaded onto railcars and disposed. Hearing Transcript
(T.) at 34-36, 100-101.
Serbaco, a Portland, Oregon company, contracts with RMSM to operate the bag houses. Serbaco employed
Lopez as an Air Pollution Control Technician at the Pueblo mill beginning on
July 30, 2003. Lopez worked the night shift. His job was to monitor the bag
houses to make sure that the steel dust was not escaping into, and polluting,
the atmosphere. T. at 32-39.
Lopez filed his
whistleblower complaint on November 30, 2003. After investigating Lopez’s
complaint, the Department of Labor’s Occupational Safety and Health
Administration (OSHA) dismissed it on December 15, 2003. Lopez then requested
a hearing before an ALJ.
At the hearing,
Lopez testified that he had been instructed to turn the transfer pumps on at
night and turn them off at 5:00 A.M. But, said Lopez, the bag house for silo
#3 contained torn bags. Thus, when the transfer pump for that bag house was
activated, steel dust was emitted into the atmosphere. Lopez testified that at
about 9:00 P.M. on October 23, 2003, he informed his supervisor, Kim Jaynes,
about this problem and that, therefore, he did not want to turn on the transfer
pump. T. at 40, 44. According to Lopez, Jaynes responded that “we had to turn
that pump on because if we didn’t, . . . we would have to shut half of the mill
down.” Lopez testified that Jaynes “wasn’t too happy that I was kind of like
refusing to turn the pump on, because I also told him that I was concerned
about my job either way I looked at it, because if I had that transfer pump on
emitting that kind of emission up through the air, . . . what if OSHA . . . was
to approach me during that night, what am I supposed to be telling them.” At
that point, Lopez testified, Jaynes turned on the pump and then went home for
the night at 11:00 P.M. T. at 46-49. Serbaco admits that the filter bags for
silo #3 contained holes. Respondent’s Exhibit (RX) 13 at 62. The company also
admits that Lopez told Jaynes about this problem on October 23. Respondent’s Brief
at 5.
Tim Cordova, a
RMSM employee, says that he tried to contact Lopez via two-way radio at about
2:00 A.M. the next morning, October 24th. When Lopez did not answer, Cordova
searched for him in the bag house area but did not find him. Cordova then
called his supervisor, Sean Ortiz, and together they again tried to reach Lopez
by radio. Fearing Lopez might be injured, Ortiz and Cordova went to the bag
house area. Eventually, they said, they found Lopez sitting on two chairs,
asleep, with a coat pulled over him like a blanket. Ortiz called Jaynes, who
had been at home sleeping, to report that Lopez was asleep. Jaynes came back
to the mill, and at about 3:20 A.M. Ortiz and Cordova took Jaynes to where they
had found Lopez sleeping. According to Jaynes, Ortiz, and Cordova, Lopez woke
up only after Jaynes shined a flashlight in his face,
[Page 3]
called his name several
times, and Cordova pounded on a nearby metal table with a piece of steel.[2]
Jaynes immediately
discharged Lopez because he was asleep on the job. Shortly thereafter,
according to Jaynes, Lopez admitted that he had been asleep. RX 13 at 65.
Lopez also signed Serbaco’s “Employee Status Change” form dated October 24,
2006, which indicates that he had been discharged because he had “made a ‘bed’
and “was sleeping on 2 chairs.” RX 13 at 60. Serbaco’s “Employee Handbook”
makes sleeping while on duty an “unacceptable activity,” a “serious violation”
of its conduct guidelines, and grounds for termination. RX 3 at 16-19. Moreover,
Jaynes stated that Dave Ellis, a manager for RMSM, informed him that Serbaco
employees caught sleeping on the job would not be allowed to continue to work
at the RMSM jobsite. RX 13 at 62.
Although Lopez
admits that he was sitting on two chairs when Jaynes, Ortiz and Cordova found
him, he denies that he was asleep and denies that Ortiz and Cordova had
previously attempted to contact him by two-way radio. T. at 50-52. Lopez also
testified that although he signed the “Employee Status Change” form, the form
was blank at the time that he signed it. T. at 57-58. In essence, Lopez
testified that within hours of his complaining to Jaynes about turning on the
transfer pump, Jaynes trumped up a reason to fire him. T. at 63.
As previously noted,
the ALJ recommended that Lopez’s complaint be dismissed. Recommended Decision
and Order (R. D. & O.) at 7. Lopez appealed. We have jurisdiction to
decide this matter.[3]
In CAA cases, the Administrative Review Board (ARB) reviews the ALJ’s findings
and conclusions de novo.[4]
[Page 4]
Discussion
The Legal
Standard
The CAA
prohibits employers from retaliating when their employees engage in certain
protected activities:
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 (or any person acting pursuant to a request of the employee) –
(1) commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding under this chapter or a proceeding for the
administration or enforcement of any requirement imposed under this chapter or
under any applicable implementation plan . . . [or]
* * *
(3)
assisted or participated or is about to assist or participate in any manner in
such a proceeding or in any other action to carry out the purposes of this
chapter.
42
U.S.C.A. § 7622(a)(1), (3).
To
prevail on his CAA complaint, Lopez must establish by a preponderance of the
evidence that he engaged in protected activity, that Serbaco was aware of the
protected activity, that he suffered adverse employment action, and that Serbaco
took the adverse action because of his protected activity.[5]
To show that adverse action was taken “because of” protected activity, Lopez
must show that his protected activity was a “motivating” factor in Serbaco’s
decision to dismiss him.[6]
[Page 5]
Protected
Activity, Employer Knowledge, Adverse Action
Under the CAA,
an employee engages in protected activity when he or she expresses a concern,
and reasonably believes, that the employer has either violated Environmental
Protection Agency (EPA) regulations implementing the CAA or has
[Page 6]
emitted or might emit, at a risk to the general public, potentially hazardous materials
into the ambient air.[7]
The ALJ
concluded that Lopez engaged in protected activity, of which Serbaco was aware,
when he told Jaynes that turning on the transfer pump in silo #3 would cause
steel dust to enter the atmosphere. R. D. & O. at 6. As noted, Serbaco
admits that the bags in the silo #3 baghouse contained holes and that Lopez
told Jaynes about this problem. And Serbaco does not contest the ALJ’s
conclusion that Lopez engaged in protected activity. Therefore, we will assume
that Lopez engaged in activity that the CAA protects and that Serbaco was aware
of this activity. In addition, the ALJ properly concluded that Lopez suffered
an adverse employment action when Jaynes fired him on the morning of October
24, 2003. Id.
Protected
Activity Motivating Adverse Action
Lopez’s
whistleblower complaint fails because he did not prove by a preponderance of
the evidence, as he must, that reporting the steel dust emission problem motivated
Jaynes’s decision to fire him.
Lopez argues
that the ALJ ignored evidence that demonstrates that Serbaco was motivated to
fire him because of what he reported to Jaynes. Complainant’s Brief at 3-6. He
points to the fact that Jaynes admitted that problems existed in the silo #3
baghouse. And he points to his testimony that other Serbaco employees had
ordered him to turn on the silo #3 transfer pump, and that Jaynes told him that
half the mill would shut down if the pump was not activated and “people weren’t
going to be very happy about that.” Also, according to Lopez, after he told
Jaynes about his concerns, Jaynes “made a face and got like a little attitude”
before he, Jaynes, turned the pump on. T. at 44-46. In addition, Lopez argues
that we should credit a written statement from former Serbaco employee Jason
Quick, who, like Ortiz, Cordova, and Jaynes, did not testify at the hearing.
Quick’s statement (CX 5) confirms the silo #3 baghouse problem and indicates that
Lopez had been told to turn the transfer pump on only after dark so that
inspectors would not be able to see the steel dust emissions.[8]
These facts, along
with the fact that Jaynes fired Lopez very shortly after their conversation
about turning on the transfer pump, constitute relevant circumstantial evidence
that Jaynes fired Lopez because he reported the emission problem.[9]
[Page 7]
Serbaco, of
course, contends that the record supports a finding that it legitimately fired
Lopez because he was sleeping on the job. Respondent’s Brief at 4-5. Lopez
asserts that he was not sleeping, and that firing him for sleeping is a pretext
for the real reason he was fired – reporting the silo #3 emission problem. If
Lopez could prove that Serbaco’s reason for firing him is not believable, he
might prevail here.[10]
But we find that Lopez did not prove that firing him for sleeping on the job
was a pretext for discrimination.
Lopez admits
that he was sitting down with his feet propped up on another chair when Jaynes,
Ortiz, and Cordova found him. Therefore, he confirms Cordova’s and Ortiz’s
statements that he was using two chairs. Even so, Lopez argues that we should
give more weight to his version of the events surrounding his firing because he
testified at the hearing whereas Serbaco did not call Cordova, Ortiz, and
Jaynes as witnesses but only submitted their written statements about those
events. Therefore, he could not question them. Complainant’s Brief at 8. But
the statements, though hearsay, are not therefore necessarily less probative.
Lopez also
argues that the Cordova and Ortiz statements evidence “collusion” because
Cordova and Ortiz are RMSM employees, but Carol Doty, Serbaco’s operations
manager, prepared the statements, and the statements are practically
identical. Complainant’s Brief at 7-8. Carol Doty did prepare the statements,
and they do contain identical descriptions of finding Lopez asleep. Nevertheless,
the statements are admissible, and the fact that they are identical does not,
in and of itself, mean that Lopez’s testimony is entitled to more weight.
Lopez’s second
argument concerning pretext is that RMSM and Serbaco conspired to concoct the
story about his sleeping on the job. In essence, Lopez argues that because he
refused to turn on the transfer pump, he jeopardized the entire mill
operation. A mill shutdown would not only hurt RMSM but would also end
Serbaco’s contract with RMSM. Therefore, according to Lopez, Serbaco and RMSM
had a “powerful motivation” to be rid of him. Complainant’s Brief at 9-10.
But Lopez’s
conspiracy argument fails because the record contains no evidence that either
Cordova or Ortiz had any knowledge that Lopez had refused to turn on the silo
#3 transfer pump or that he had complained to Jaynes about the steel dust
emissions. Therefore, Cordova and Ortiz could not have been concerned that
Lopez might cause the RMSM plant to shut down and thus have been motivated to
scheme with Jaynes to fire Lopez.
[Page 8]
Thus, Lopez
presented some evidence, but not a preponderance, that Jaynes discharged him
because he complained about the steel dust emissions in silo #3 and did not
want to turn the transfer pump on. The record demonstrates that Jaynes fired
Lopez because Jaynes believed Lopez was asleep on the job, a serious violation
of company rules.
Lopez might also
have prevailed by showing that Serbaco’s reason “[wa]s only one of the reasons
for its conduct, and another motivating factor [wa]s [his] protected” activity.[11]
But “when the protected activity and the adverse action are separated by an
intervening event that independently could have caused the adverse action, the
inference of causation becomes less likely because the intervening event also
could have caused the adverse action.”[12]
Here, while arguing that he was not asleep, Lopez admits that employees of both
Serbaco and RMSM found him sitting on two chairs in a posture that Serbaco
interpreted as that of sleep, and in a room dark enough that the other men
needed to use a flashlight in order to see. Moreover, this incident occurred
after Lopez engaged in the protected activity, and before he was fired.
Therefore, this intervening incident eliminated the causal link that otherwise
might have been suggested by the temporal proximity between the protected
activity and the adverse action.[13]
[Page 9]
Conclusion
Accordingly,
because Lopez has not demonstrated by a preponderance of the evidence that
Serbaco retaliated against him in violation of the CAA, we DISMISS his
complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
A. LOUISE OLIVER
Administrative Appeals Judge
[1] 42 U.S.C.A. § 7622 (West 1995). The
implementing regulations are found at 29 C.F.R. Part 24 (2006).
[2] Jaynes, Ortiz, and Cordova did not testify
at the hearing. The ALJ admitted unsworn written statements about these events
from Ortiz and Cordova and a sworn affidavit with an attached statement from
Jaynes. See RX 11, 12, 13. Hearsay evidence is admissible in whistleblower
hearings concerning the environmental statutes like the CAA. 29 C.F.R. §
24.6(e)(1); 63 Fed. Reg. 6614, 6619 (Feb. 9, 1998).
[3] 29 C.F.R. § 24.8; see also Secretary’s
Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB
the Secretary’s authority to review cases arising under the CAA).
[4] See 5 U.S.C.A. § 557(b) (West 1996);
Kemp v. Volunteers of America of Pa., Inc., ARB No. 00-069, ALJ No.
2000-CAA-6, slip op. at 3 (ARB Dec. 18, 2000).
[5] See Saporito
v. Central Locating Servs., ARB No. 05-004, ALJ No. 2001-CAA-13, slip op.
at 5 (ARB Feb. 28, 2006). We note that the ALJ discussed and applied the prima
facie case analysis. R. D. & O. at 4-5. Since this case was fully
tried, such analysis was unnecessary. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 2000-CAA-15, slip op. at 3 n.7 (ARB May 30,
2003).
[6] In Saporito, we inadvertently said
that a CAA complainant must prove by a preponderance of the evidence that “his
protected activity contributed to the employer’s decision to take adverse
action.” Slip op. at 5. We should have said “motivated” instead of
“contributed to.” See Dierkes v. West Linn-Wilsonville Sch. Dist., ARB
No. 02-001, ALJ No. 2000-TSC-002, slip op. at 6-7 (ARB June 30, 2003)
(distinguishing between complainant’s burden under Toxic Substance Control Act
(TSCA) (“motivating” factor) and complainant’s lower burden under revised
Energy Reorganization Act (ERA)(“contributing” factor)); Kesterson v. Y-12
Nuclear Weapons Plant, ARB No. 96-173, ALJ No. 1995-CAA-12, slip op. at 5
& n.5 (ARB Apr. 8, 1997) (distinguishing between “motivated” standard used
in environmental cases under acts including TSCA and CAA, and new “contributing
factor” standard used in ERA cases). Prior to the enactment of the 1992
amendments to the ERA, the ERA burdens of proof were applied in environmental
cases; thus cases decided under the pre-1992 ERA are also instructive. See,
e.g., Goldstein v. Ebasco Constructors, Inc., 1986-ERA-36, slip op.
at 15 n.3 (Sec’y Apr. 7, 1992) (“I do not accept a requirement, as asserted by
Respondent, that Complainant must prove that ‘but for’ his protected activity,
the adverse action would not have been taken. If the employee carries his
burden of proving by a preponderance of the evidence that retaliation was a motivating
factor in the adverse action, the employer has the burden of proving” that it
would have taken the same action anyway) (emphasis added); Wagoner v.
Technical Prods., Inc., 1987-TSC-4, slip op. at 2-3 (Sec’y Nov. 20, 1990)
(“[T]he ERA burdens of proof are applicable to claims arising under the TSCA
whistleblower section. . . . [T]he ERA burdens of proof have not been limited
solely to ERA cases; they have been applied to cases arising under other
environmental whistleblower statutes, including all of the other statutes
implementing 20 C.F.R. Part 24 [including the CAA]. . . . See also, Lopez
v. West Texas Utilities, [1986-ERA-25,] slip op. at 1-2 (Sec’y July 26,
1988)], applying ERA burdens to all statutes mentioned in 29 C.F.R. 24.1
[including the CAA]. . . . The applicable burdens and order of presentation of
proof are set forth fully in Dartey v. Zack”); Dartey v. Zack Co.,
1982-ERA-2, slip op. at 4-6 (Sec’y Apr. 25, 1983) (whistleblower complainants
must show that retaliation was a “motivating” factor) (citing Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-65) (1981)); see
also Price Waterhouse v. Hopkins, 490 U.S. 228, 240-44 (1989) (“To construe
the words ‘because of’ as colloquial shorthand for ‘but-for’ causation . . . is
to misunderstand them. . . . [T]he words ‘because of’ do not mean ‘solely
because of’ . . . . [A] Title VII plaintiff must show only that an impermissible
reason] played a motivating part in [the] employment decision.”)
(emphasis added); Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977) (employment discrimination plaintiff has “the burden . . . to show
that his conduct was . . . a ‘substantial factor’ or to put it in other words,
that it was a ‘motivating factor’ in the [adverse action]”) (citation
omitted) (emphasis added).
A
complainant must prove more when showing that protected activity was a
“motivating” factor than when showing that such activity was a “contributing”
factor. See, e.g., Kester v. Carolina Power & Light Co., ARB No.
02-007, ALJ No. 2000-ERA-31, slip op. at 5-7 (ARB Sept. 30, 2003); Van der
Meer v. Western Ky. Univ., ARB No. 97-078, ALJ No. 1995-ERA-38, slip op. at
3 (ARB Apr. 20, 1998).
[7] Knox v. United States. Dep’t of the
Interior, ARB No. 06-089, ALJ No. 2001-CAA-3, slip op. at 5 (ARB Apr. 28,
2006).
[8] Serbaco employee Joe Lopez, no relation,
made a similar statement. See CX 6.
[9] Contrary to Lopez’s argument, the ALJ did
not ignore this evidence. See R. D. & O. at 6.
[10] See Burdine, 450 U.S. at 256; Sasse
v. Office of the United States Attorney, ARB Nos. 02-077, 02-078, 03-044,
ALJ No. 98-CAA-7, slip op. at 19 (ARB Jan. 30, 2004); Jenkins v. United
States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at
16-17 (ARB Feb. 28, 2003).
[11]
Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004); see also St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 517-18 (1993) (plaintiff can prevail by showing that “whatever
the stated reasons for [the adverse action], the decision was . . . premised
[upon an impermissible reason]”); id. at 517 (citing McDonnell
Douglass Corp. v. Green, 411 U.S 792, 804-805 (1973) (plaintiff may meet
ultimate burden to prove discrimination by showing either that the
employer’s explanation is not true, or that “a discriminatory reason
more likely motivated the employer”)); Price Waterhouse, 490 U.S. at
247 n.12 (plaintiff does not need to prove employer’s decision “pretextual” to
prevail, if plaintiff instead is able to “satisfy the factfinder that it
is more likely than not that a forbidden characteristic played a part in the
employment decision”).
[12] Keener v. Duke Energy Corp., ARB No.
04-091, ALJ No. 2003-ERA-12, slip op. at 11 (ARB July 31, 2006) (citing Barber
v. Planet Airways, Inc., ARB No. 04-056, ALJ No. 2002-AIR-19, slip op. at
6-7 (ARB Apr. 28, 2006) and Tracanna v. Arctic Slope Inspection Serv.,
ARB No. 98-168, ALJ No. 1997-WPC-1, slip op. at 8 (ARB July 31, 2001)).
[13] Lopez presented no evidence to suggest that
other employees whom Serbaco concluded were sleeping on the job were treated
more leniently, and Serbaco presented evidence that RMSM had said it would not
again permit on its premises any Serbaco employees who were found asleep.
