Date: December 22, 1994
CASE NO.: 94-CAA-15
In the Matter of
DON A. WEST
Complainant
v.
SYSTEMS APPLICATIONS INTERNATIONAL
Respondent
APPEARANCES:
Stephen E. Menn, Esq.
For the Complainant
Rosemary M. Collyer, Esq.
For the Respondent
BEFORE: C. RICHARD AVERY
Administrative Law Judge
RECOMMENDED DECISION & ORDERBackground
These proceedings arise under the Employee Protection Division
of the Clean Air Act, 42 U.S.C., Section 7622 (Act), and the
implementing regulations thereunder. The complainant filed a
complaint with the Secretary of Labor on June 21, 1994, alleging he
was a protected employee engaged in protected activity within the
scope of the Act and was a victim of discrimination as a result of
that activity.
An investigation was conducted by the Houston, Texas, Office
of the Wage and Hour Division of the Employment Standards
Administration. In a letter dated July 29, 1994, the District
Director determined that the Complainant had been terminated by the
[PAGE 2]
Respondent (SAI) in retaliation for engaging in protected
activities. (ALJ 1). Specifically, the Director found:
The complainant, Mr. Don A. West, reported to
Shell Oil falsification of data intended for
use in monitoring fugitive emissions at
Shell's Deer Park Manufacturing complex. Soon
after the reporting of this information to
Shell, Mr. West was removed from his position
and placed in another job of lesser status
with less access to the overall data. Less
than a month after this reassignment, Mr. West
was terminated.
As a result of this discrimination, the Director also found
Complainant to be entitled to $64,000.00 in loss compensation.
This figure was arrived at by multiplying Complainant's monthly
wage of $2,912.00 by 22, the number of months Respondent had
remaining on the life of its service contract with Shell Oil.
On August 4, 1994, Respondent appealed the recommendation of
the District Director. (ALJ 3). The matter was docketed in the
Office of Administrative Law Judges on August 5, 1994, and assigned
to the undersigned on August 17, 1994, at which time an Order
issued setting the case for trial on September 7, 1994. (ALJ 4).
Thereafter, however, by agreement of both counsel, the case was
reset for October 4, 1994.
A formal hearing was held in this matter on October 4-5, 1994,
in Houston, Texas, at which time the parties were afforded full
opportunity to present evidence and argument. The findings and
conclusions in this Decision are based upon my observation of the
witnesses who testified, upon an analysis of the entire record,
arguments of the parties, applicable regulations, statutes and case
law precedent.
Exhibits and Stipulations
The exhibits in this case consist of five Administrative
Exhibits; seven Complainant's Exhibits and seventeen Respondent's
Exhibits. At the outset of the hearing, the parties agreed that
(1) Respondent is subject to the Act and (2) that the Complainant
was an employee protected under the Act though Respondent asserted
that nothing the employee did in this instance would have placed
him under the jurisdiction of the Act for purposes of obtaining
relief.
[PAGE 3]
Issues
The following are the unresolved issues in this matter:
1. Whether the Complainant engaged in protected activity
under the Act;
2. Whether the Respondent knew or had knowledge that the
Complainant engaged in protected activity;
3. Whether the action taken against Complainant, termination
in this instance, was motivated, at least in part, by Complainant's
engagement in protected activity; and
4. What damages, if any, the Complainant is entitled to as
a result of his termination.
Findings of Fact
1. Complainant was employed with Respondent for
approximately 2 1/2 years. The majority of that time his duties
were that of a data technician. He began working in March of 1992
and was terminated on June 8, 1994.
2. During the course of Complainant's employment, Respondent
provided fugitive emissions monitoring (hazardous air leak
detection) for Shell Oil Company at its Deer Park Manufacturing
Complex. The facility was a refinery and chemical processing
plant, and some monitoring was performed by Shell itself. The air
monitoring program was in place to comply with federal, state and
local laws. Initially, Respondent was to develop hard and software
and provide field services to locate and tag the components and
train Shell personnel in the monitoring of these components.
Eventually, however, Shell decided it wanted more monitoring
actually performed by Respondent and a second contract was entered
into between the parties providing for Respondent's services until
March 31, 1996. (CX 4).
3. Until May 16, 1994, when Complainant was placed in the
field, his duties involved data base management, scheduling
components to be monitored and uploading and downloading the
monitoring data into the data base. Field technicians working for
Respondent were assigned to monitor various units throughout the
complex. They did this by the use of analyzers that sniffed around
seals and valves. The data obtained was stored in hand held
computers which were loaded with a file from the main frame
computer. This data was later transferred or downloaded by
Complainant into the main frame. The final results of the
monitoring were printed and signed by the technician who retrieved
[PAGE 4]
the data. The reports were given to Shell. The air monitoring
data was collected for the purpose of identifying and repairing
leaks, and each component monitored within the units had its own
number, description and type of material.
4. There were roughly 26 units on the Shell complex. As of
January 1, 1994, Respondents collected data on approximately 3.
Respondent's field technicians were individually assigned to the
areas within the units. The site supervisors usually assigned
technicians to a unit and Complainant usually assigned technicians
to areas within that unit. James Moore, Respondent's plant
supervisor, was ultimately responsible for the technicians
monitoring their assigned sites. The units were monitored monthly
or quarterly based upon the requirements of the regulations.
5. In the first quarter of 1994, for the first time,
Respondent was requested by Shell to monitor BPA 3 and 4 unit
within the Deer Park complex. This unit manufactured Biphenyl and
contained approximately 7,000 monitoring points. The data base
provided Complainant by Shell showed the unit to be difficult, and
Complainant forewarned the plant supervisor, James Moore, in
February that this would be a "real hard unit to monitor," and that
it had to be completed by the end of March.
6. Initially, James Flores was Respondent's field technician
assigned to the unit. He had difficulty gaining access to the unit
and also finding the components which required monitoring. Some
had been covered with insulation or were poorly identified. During
the last week of March, Complainant was requested by James Moore to
print out Shell's data base on the unit because it provided
descriptions of the components. The print out amounted to a master
equipment list. Six field technicians were selected and along with
Complainant met with Mr. Moore who informed the technicians that
each man had to monitor at least 300 components per day for three
days and approximately 190 components on the fourth day.
7. The number of components to be monitored appeared high to
Complainant in view of Mr. Flores previous difficulty with the
unit, but at the conclusion of the first days monitoring all
technicians came in with 300 plus components except technicians
Flores and Leal, whose readings were more in a range of 140 to 200
each. Because this unit was new to the Respondent, Complainant
expected "write ups" about changes or peculiarities within the
unit, but only Leal tendered a "write up." The data collected from
BPA 3 and 4 unit was not loaded in the main frame. It was loaded
[PAGE 5]
into a disk and maintained on a PC.
8. Following the completion of monitoring of BPA 3 and 4
units, Complainant was suspicious that at least some of the
technicians had simply logged numbers and not monitored the
components. Upon comparing the monitoring data of two technicians
against Shell's data base (master equipment list), Complainant
discovered the data supposedly gathered by these two technicians
ran in the same numbering sequence. He explained that in obtaining
the data in the field it would not be possible to follow the
sequence provided in Shell's data base. The tag line sequence in
the unit was different from that of the data base sequence. The
hand held computers used by the technicians dated and time stamped
the monitoring. In many instances a technician could not leave one
component and arrive at the next within the time recorded by these
two technicians.
9. Gary Hart was the complex coordinator for the fugitive
emissions program for Shell. It was Mr. Hart's job to oversee the
fugitive monitoring program to make certain it was performed in
accordance with State and Federal regulations. It was to Mr.
Hart's office that Complainant voiced his suspicions, rather than
to his own superiors. When Mr. Hart became aware of Complainant's
suspicions concerning the collection of false monitoring data, he
had Complainant come to his office and requested of Complainant all
the data recently collected on BPA 3 and 4 unit. The data,
contained on disk, was provided by Complainant. The two met daily
thereafter and Complainant was kept informed of Mr. Hart's
investigation as well as its results.
10. Mr. Hart, his secretary and Shell's engineer, Eric
Lookofsky, conducted their own investigation, both by reviewing the
monitoring data provided by Complainant and by walking the unit.
Mr. Hart concluded that at least some of the data was false. About
the second week in April, Mr. Hart, told James Moore, Respondent's
plant supervisor, of his findings and that he wanted the removal of
the two technicians, Carl Ricks and A.J. McGowen. Mr. Hart met
with his superior, Tom Rulig, and both had a conference call with
the Respondent's president, Shep Burton. Mr. Burton promised an
investigation, and on April 14, 1994, Mr. Burton issued a
memorandum promising the removal of the two technicians and a
remonitoring of the unit. (CX 6).
11. Complainant and Mr. Hart first met in October, 1993, when
Mr. Hart assumed the position of fugitive emission coordinator.
They worked closely together afterwards because Complainant was
assisting Shell with the installation of a new data base program
purchased by Shell from Radian. Under the terms of Respondent's
[PAGE 6]
April, 1994, contract with Shell, except for loading the field
technicians data into the data base, Respondent no longer had any
responsibility for Shell's Radian data base. Mr. Hart was well
aware of this fact and both before and after the discovery of the
false data, Mr. Hart negotiated with the Respondent to keep
Complainant accessible to him until he had full understanding of
the data base. Everyone was aware of Mr. Hart's dependency upon
Complainant for his data base knowledge.
12. By letter dated May 12, 1994, effective May 16, 1994,
Complainant was reassigned to the field. (CX 2) On June 8, 1994,
Complainant was terminated for performance below company standards.
(CX 3). A week later Complainant approached EEOC and was
eventually directed to EPA and the Department of Labor. At the
time of his termination, Complainant was earning $2,912 per month.
Complainant does not seek reinstatement. Because he assumed he
would work with Respondent through its contract with Shell, which
had approximately 22 months remaining at the time of his
termination, Complainant feels he is entitled to 22 months of
salary as his damages. Complainant also seeks litigation expenses,
Complainant's costs of his attorney is one third of his recovery.
13. The evidence is unrefuted that in March and April, 1994,
Complainant became concerned that actual air monitoring of certain
components within BPA 3 and 4 unit of Deer Park Complex had not
occurred and that the data supplied was false and designed to
appear as if the components had been monitored in compliance with
the state and federal laws.
14. The evidence is unrefuted that Complainant reported his
suspicions to Shell rather than the Respondent, and that through
Mr. Hart, Shell instituted an investigation that determined that
certain of the data was in fact false.
15. The circumstantial evidence is such that one can
reasonably infer that supervisory personnel with Respondent knew or
suspected that Complainant had initiated and assisted Shell in its
investigation concerning the false data. Even though no witness
specifically stated that anyone of authority with Respondent knew
Complainant initiated Mr. Hart's interest, all who testified about
the subject demonstrated an awareness that Complainant was the most
knowledgeable about the data base and that Mr. Hart was his
understudy as far as the program was concerned. Mr. Hart and
Complainant had daily contact for weeks before and after the
investigation. Mr. Hart constantly tried to use Complainant's
services as much as Respondent would permit. Complainant's
involvement with Mr. Hart was a source of irritation to
[PAGE 7]
Respondent's management. Although Respondents witnesses testified
they thought Mr. Hart was the first to have identified the false
data, there is nothing in the record which supports such
conclusions. Mr. Hart in April of 1994, was dependent upon
Complainant concerning the data base and everyone concerned knew
that if Hart knew or suspected something, Complainant was the
source of his information. Richard Leal, a field technician,
testified that James Moore had complained to him about
Complainant's relationship with Gary Hart and Shell. Another field
technician, Warren Outlaw confirmed Complainant's testimony that
Moore told the field technicians that if anyone passed information
to Shell they would be fired. Garland Faulk, Respondent's regional
manager, testified that Gary Hart told him that he had become
suspicious through the data base and that Complainant had checked
the data for him. James Moore, Complainant's supervisor, testified
that Complainant went to Gary Hart too much. George Smylie,
Respondent's business unit manager who ultimately terminated
Complainant, testified that Complainant was not moved to the field
earlier because Gary Hart was new to the data base and relied on
Complainant's knowledge. He also stated that other employees were
jealous of Complainant's relationship with Mr. Hart, and that when
Complainant was moved to the field the memorandum of transfer was
worded to keep Mr. Hart happy. Certainly Respondent knew
Complainant was the informant.
16. The evidence does not require a finding that
Complainant's relocation to the field on May 16, 1994, was
motivated by his activity in reporting the false data to Shell. As
early as January 27, 1994, the fact Complainant would ultimately be
removed to the field was discussed and memorialized in writing. (RX
11). There was an ongoing exchange with Mr. Hart and Respondent
about Complainant and Respondent's lack of obligation to further
provide his services under the new contract. Therefore, it appears
from the record that Complainants move to the field was inevitable
and a fact contemplated by all prior to the discovery of false
data, Arguably that event might have sped the process, but the
transfer was destined.
17. The evidence is convincing that Complainant's termination
on June 8, 1994, was motivated, at least in part, because
Complainant worked too closely with Shell personnel and because he
reported the logging of false monitoring data to Shell. In
February, 1994, Complainant was given a written assessment of his
job performance. (CX 1). The appraisal's first sentence stated:
"Don's overall performance during this period has been excellent to
outstanding." On May 12, 1994, when notified of his transfer to
the field, the first sentence of the memorandum stated: "On May
16, 1994, I am reassigning you to field work, realizing you have
[PAGE 8]
done an excellent job interfacing with Radian Data Base personnel
and working out seemingly insurmountable problems." (CX 2). That
memorandum went on to explain that the tasks of unloading and
downloading could thereafter be handled by Pam LaRue, a Shell
employee, and that after May 23, 1994, Complainant was to remain in
the field "unless Mr. Hart requires anything on Radian that Pam is
still unsure of." The first week in June, 1994, Gary Hart
testified, when approached by Respondent, he recommended
Complainant be considered as James Moore's replacement for site
supervisor. On June 8, 1994, Complainant received the last
memorandum which in part stated:
On several occasions your Site Supervisor,
Scooter Moore, discussed with you the volume
and type of work you provided in the database
support capacity and the requirement to report
concerns, questions and problems to your
supervisor. You have not demonstrated
consistent, direct communication with your
supervisor over the last several months which
has had a negative impact on the management
and economic viability of the project. Your
performance remains at a level below the
company's stand and your employment cannot be
continued under these conditions.
18. The reasons offered for Complainant's termination by
Respondent are a pretext. The termination memorandum was written
by Mike Smylie, Respondent's business unit manager. At the hearing
Mr. Smylie proffered his reasons for terminating the Complainant,
but the reasons predated Complainant's transfer to the field and
related to events that had taken place while Complainant was
working on the data base. Mr. Smylie testified Complainant did not
train Pam LaRue as he was supposed to, yet the memorandum of May
12, 1994, specifically stated "this task has now been reduced to an
upload/download situation that can be handled by Pam LaRue." (CX
2). Also, Mr. Smylie testified that prior to his transferring
Complainant into the field, Mr. Hart had told him he no longer had
need of Complainant "inside." (Tr. 296). Another reason for the
termination, according to Mr. Smylie, involved Complainant's
failure with scheduling of field technicians in the uploading and
downloading of their hand held computers. Yet again this was a
reason earlier given for moving Complainant to the field, not
termination. (Tr. 298-300). Next, supposedly was Mr. Hart's
refusal to pay for some of Complainant's overtime spent on the data
base. However, this obviously was a problem between Respondent and
Shell. Found throughout the testimony is the fact that Mr. Hart
[PAGE 9]
and Respondent had on going negotiations over how much time
Complainant could spend on Shell's Radian data base since the new
contract did not provide for such expenses, and Mr. Hart
continually sought Complainant's assistance. Lastly, Mr. Smylie
testified that Complainant's "special relationship with Mr. Hart
was growing and people felt like anytime we reprimanded Mr. West
for anything, it immediately got back to Mr. Hart." (Tr. 302).
Once more this was a problem that had existed prior to
Complainant's transfer to the field, but yet is also an indication
of the concern Respondent had with Complainant's closeness to
Shell. The fact that Complainant's relationship with Mr. Hart was
Respondent's motivation in the termination of the Complainant could
hardly be made clearer than by Mr. Smylie's own summation:
Overall, again, I think Shell micro managed
this project. They did it in such a fashion
they were involved in every tiny detail of our
business. At no other site have we been told
we had to keep certain employees on. At Shell
we were told that pretty much, we could do
what we wanted with the exception of Mr. West.
I think Mr. Hart had grown reliant upon Mr.
West for regulations or whatever and,
therefore, didn't want him terminated from the
project.
19. It appears to me from the record that Complainant
"participated" in carrying out the stated purpose of the Act which
in part reads "to protect and enhance the quality of the Nation's
air resources so as to promote the public health and welfare and
the productive capacity of its population." 42 U.S.C. 7401(b)(1).
He reported falsification of air monitoring data collected to
protect the Nation's air. Whether or not his conducted amounted to
protected activity under the Act is a legal question and will be
discussed hereinafter.
Conclusion of Law
In a case such as this the burden is on the Complainant to
prove by a preponderance of the evidence that retaliation for
protected behavior was a motivating factor in his termination. The
requirements for establishing a prima facia case are that (1) the
Complainant engaged in protected activity; (2) the Respondent was
aware of such conduct; and (3) the Respondent took some action
adverse to the Complainant which was more likely than not the
result of the protected activity. See Dean Dartey v.
Zack Co., 82-ERA-2 (1983). Once Complainant establishes a
prima facia case,
[PAGE 10]
then Respondent has the burden of producing evidence that the
adverse action was motivated by legitimate, non-discriminatory
reasons. If Employer is successful, Complainant, as the party
bearing the ultimate burden of persuasion, must then show that the
proffered reason was not the true reason, but a pretext for
retaliation.
In this instance, for the reasons previously discussed in
detail, it is my finding that Respondent was aware that
Complainant's suspicions initiated the investigation by Shell
concerning the entry of false air monitoring data by Respondent's
field technicians and that Complainant's termination was more
likely than not the result of his conduct in that regard. The real
question in this case is whether or not Complainant's activity was
protected within the meaning of the law?
As pointed out by Respondent, since 1984 the Fifth Circuit has
held that the filing of internal reports is not protected activity
under Federal whistleblower statutes unless there is specific
statutory language to the contrary. Brown and Root, Inc. v.
Donovan, 747 F.2d 1029, 1936 (5th Cir. 1984). In that case the
Fifth Circuit specifically held that "employee contact that does
not involve the employee's contact or involvement with a competent
organ of government is not protected under Section 5851." While
this particular case involved the whistleblower provisions of the
Energy Reorganization Act, subsequently the holding was apparently
extended to cases arising under the Clean Air Act. In re
Willey, 831 F.2d 545 (5th Cir. 1987). The Secretary of Labor,
however, has not chosen to follow the Fifth Circuit's decision in
Brown and Root and instead has followed the Tenth Circuit in
Kansas Gas & Electric v. Brock, 780 F.2d 1505, (10th Cir.
1985), cert. denied, 478 U.S. 1011 (1986), holding that
internal safety complaints are protected. SeeGoldstein
v. Ebasco Constructors, Inc., Case No. 86-ERA-36, Sec. Dec. and
Order, April 7, 1992, slip op. at 5-10, appealed docketed,
No. 92-4576 (5th Cir. June 15, 1992); Willy v. The Coastal
Corp., Case No. 85-CAA-1, Sec. Dec. and Order of Remand, June
4, 1987, slip op. at 2-8.
There is absolutely nothing in this record to indicate that
the Complainant here had any contact or involvement with a
competent organ of the State or Federal governments. To the
contrary, there is evidence of record that no governmental agency
was contacted, or at least not contacted until Complainant's
termination. Therefore, the issue becomes the state of the law and
which precedent will be followed. If, as I believe he must, the
Secretary adopts the interpretation provided by the Fifth Circuit,
Complainant's case must be denied on the grounds that he did not
[PAGE 11]
engage in protected activity. However, should the Secretary refuse
to follow the Fifth Circuit and adopt his own previous
precedences, then in that event Complainant's activity was
protected in that he was assisting or participating in carrying out
the purpose of the Act. The ultimate decision is with the
Secretary of Labor.
Damages
As previously stated, Complainant does not seek reinstatement
and was awarded by the Director $64,000.00 which represented his
monthly salary times the approximate 22 months remaining on
Respondent's service contract with Shell. Of course, Complainant
seeks an affirmance of this award, plus an additional one third as
attorney's fees. Respondent strongly disagrees.
It is the Respondent's position that Complainant was an "at
will" employee, that he has done nothing to mitigate his damages
since his termination and that such an award would be a "windfall"
since Complainant had no guarantee he would remain for the duration
of the Respondent's contract with Shell. Respondent further
maintains that once Complainant stated he did not wish
reinstatement he was no longer eligible to receive "front pay."
To some extent, I agree with Respondent. While working with
the data base full time, Complainant had different job duties than
those of the field technicians. The field technicians wore boots,
fire retardant clothes, helmets and goggles. Complainant, on the
other hand, was housed in a trailer in the middle of the complex in
an office environment. There is unrefuted testimony that he had
threatened to quit if ever transferred to the field. Also,
Complainant was an "at will" employee who had no guarantee that he
would finish the term of Respondent's contract with Shell. In
fact, under the terms of the new contract the Respondent seemed
acutely aware of expenses and during the summer of 1994 apparently
laid some employees off. Lastly, the Complainant has done
virtually nothing to mitigate his wage losses by seeking employment
since his termination. Taken together, all this causes me to
conclude that 22 months advance salary would neither be actual nor
compensatory damages to this Complainant, but would amount to
exemplary damages which are not provided for under the Act.
29 C.F.R. §24.6 provides the Secretary of Labor with the
authority to require affirmative action to abate the violation, to
order payment of back wages and where appropriate compensatory
damages as well as the expense of litigation including attorney's
fees. Therefore, it is my finding in this circumstance should the
[PAGE 12]
Secretary of Labor decide not to follow the Fifth Circuit and to
award damages that six months wages would be appropriate
compensatory damages to reasonably compensate the Complainant while
he sought employment. Additionally, an attorney's fee of $5,824.00
should be granted since one third of the recovery was the fee
arrangement Complainant had with his attorney. Mr. Menn did an
excellent job in his preparation and presentation of the
Complainant's case and such a fee is not unreasonable. Lastly, it
is my recommendation that if the Secretary of Labor determines a
violation occurred, he should also order that Respondent expunge
the reasons stated for terminating Complainant contained in
Complainant's exhibit 3 from Complainant's personnel records and
that Respondent should be ordered to give any future employer who
might inquire about the Complainant a good recommendation.
RECOMMENDED ORDER
While I do not condone the conduct of the Respondent, in this
instance it is my recommendation that the Secretary of Labor be
bound by the law of the Federal Circuit wherein the case arises and
that since the conduct of this Complainant does not amount to
protected activity within the law of the Fifth Circuit, his
complaint should be dismissed. Alternatively, should the Secretary
of Labor decline to follow the law of the Fifth Circuit, as he has
done in the past, then it is my recommendation that the Complainant
should prevail on his complaint and a final order should issue
awarding the following relief: (a) $17,472.00 in compensatory
damages and $5,824.00 in attorney's fees all to be paid by
Respondent and (b) that Respondent be ordered to expunge the stated
reason for termination contained in Complainant's exhibit 3 from
Complainant's personnel record and that Respondent provide any
future employer who might inquire about the Complainant a good
recommendation.
SO ORDERED this 22nd day of December, 1994, at Metairie,
Louisiana.
_____________________________
C. RICHARD AVERY
Administrative Law Judge
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