DATE: March 30, l995
CASE NO: 95-CAA-1
In the Matter of:
CLIFFORD SUTHERLAND,
SCOTT TENBRINK,
FRED E. FRANKLIN,
AND AARON HAHN,
Complainants,
v.
SPRAY SYSTEMS ENVIRONMENTAL
AND WILLIAM RAE SMITH,
Respondents.
Appearances:
Andrew L. Lichtenberg, Esq.
For the Complainants
Robert K. Jones, Esq.
For the Respondents
Before: DANIEL L. LELAND
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises from a joint complaint filed
on September 13, 1994, by Clifford Sutherland, Scott Tenbrink,
Aaron Hahn, and Fred Franklin ("Complainants") against their
employer, Spray Systems Environmental, Inc., and its former
employee, William Rae Smith ("Respondents"), alleging violations
of the employee protection provisions of the Clean Air Act
("CAA") and the Toxic Substances Control Act ("TSCA").
Specifically, Complainants alleged that Respondents illegally
fired them on July 27, 1994 for complying with state and
federally mandated requirements for the asbestos removal project
at the Hermosa Middle School in
[PAGE 2]
Farmington, New Mexico ("Hermosa Project").
In a letter dated October 13, 1994, the Wage and Hour
Division of the Employment Standards Administration outlined its
findings from an investigation. Adopting these findings, the
District Director found that Complainants were engaging in
protected activity under the CAA and TSCA, namely the refusal to
perform certain preparatory work at the Hermosa Project.
Furthermore, the District Director found that Complainants
suffered adverse action, specifically their termination on July
27, 1994, as a direct result of their involvement in the above
protected activity. District Director, Norma Adams, required
Respondent Spray Systems to reimburse Complainants for lost
wages, costs incurred as a result of their unemployment, attorney
fees and other reasonably incurred litigation costs.
Additionally, the District Director required Respondent Spray
Systems to purge Complainants' personnel records of any
derogatory comments and to cease any future "blacklisting" of
Complainants.
In a telegram dated October 19, 1994, Respondents requested
a formal hearing in this case. Accordingly, a hearing was held
before the undersigned on November 29, 1994 in Albuquerque, New
Mexico.
Complainants' Position
Complainants assert that the evidence and testimony
presented at the November 29, 1994 hearing substantially support
the October 13, 1994 findings of the Department of Labor, Wage
and Hour Division. Specifically, Complainants contend that
Respondent Spray Systems fired them in reprisal for their refusal
to follow the instructions of Field Supervisor, William Rae
Smith, who required them to hazardously modify their plan for the
containment work at the Hermosa project. As for Respondents'
contentions that Complainants abandoned their jobs and displayed
poor job performance, Complainants have responded that
Respondents fired them and then prepared pretextual reasons of
poor job performance to explain their adverse action.
Complainants seek reimbursement for their lost wages, costs
incurred as a result of their unemployment, attorney fees in the
amount of $2,904.00 and other related costs in the amount of
$571.93.
Respondents' Position
Respondents request that Complainants' claims be dismissed
[PAGE 3]
with prejudice, as Complainants failed to engage in any protected
activity under either the TSCA or the CAA. Furthermore,
Respondent Spray Systems denies taking any retaliatory action
against Complainants. Specifically, Respondent contends that it
legitimately discharged Complainants on the basis that
Complainants left the job site without their supervisor's
authorization in violation of company policy. Furthermore,
Respondent maintains that Complainants suffered no compensable
damages as a result of their termination. Respondent even
suggests that Complainants intentionally left their jobs with
Respondent to pursue higher paying employment opportunities with
Respondent's competitors.
SUMMARY OF THE EVIDENCE
Respondent Spray Systems Environmental, Inc. is an asbestos
abatement company which had a contract with the Farmington, New
Mexico, School District to remove asbestos containing floor tile
and mastic from the Hermosa Middle School in July 1994.
Complainants, all employees of Respondent at the time, were
assigned to work on the Hermosa Project under the supervision of
Jeff Tenbrink.[1] TR 13.
The project was additionally supervised by respondent,
William Rae Smith, an employee of Respondent, and Ronald Holtz,
an independent expert consultant, who had been retained by the
school district to oversee the entire project. TR 13. Although
Tenbrink originally planned to use a "bead-blast" or "shot blast"
method to remove the tile and mastic, Smith, upon his arrival at
the project site, changed the removal process to a chemical
method. TR 130. According to Smith, the chemical method only
necessitated the use of a terminator machine along with the
installation of one layer of 6 mil poly plastic (or "critical
barrier") and four foot splash guards around the windows. TR 14,
94, 130.
According to the Construction Standard set forth by the
Occupational Safety and Health Administration, a critical barrier
is defined as "one or more layers of plastic sealed over all
openings into a work area or any other similarly placed physical
barrier sufficient to prevent airborne asbestos in a work area
from migrating to an adjacent area." 29 C.F.R. 1926.658; TR 16.
Disagreeing with Smith, Complainants believed that Smith's
proposed installation of criticals, specifically the single layer
of 6 mil poly plastic around the windows, would not properly
contain the airborne asbestos produced by the terminator machine.
[PAGE 4]
Based on their experience, Complainants felt that one layer of
plastic was required around all air ducts, vents, trophy cases,
water fountains, doors, and every other area from which airborne
asbestos fibers could migrate. TR 15-16.
Believing that Smith's specifications for the critical
barriers were unsafe and hazardous (especially to the children
that would be entering the school in two weeks), Complainants
each informed their supervisor, Jeff Tenbrink, that they felt
uncomfortable about following Smith's instructions. TR 22, TR
57, TR 74, TR 91. Sutherland, the foreman of the project, asked
Jeff Tenbrink to speak to Smith about his and the other
Complainants' reluctance to perform the preparatory work
according to Smith's specifications. TR 24. Frustrated and
confused, Complainants waited in the parking lot while Jeff
Tenbrink spoke with William Smith. TR 92. At the direction of
Smith, Jeff Tenbrink returned to the parking lot and fired
Complainants for insubordination. TR 188.
FINDINGS AND CONCLUSIONSA. Whether Complainants engaged in "protected activity"
pursuant to the CAA and/or the TSCA.
Respondents argue that Complainants not only did not engage
in any "protected activity" but that their termination
legitimately resulted from the abandonment of their jobs rather
than as a retaliation for any "protected activity."
Both the Clean Air Act and the Toxic Substances Control Act
contain employee protection provisions which serve to protect
employees from any retaliation or discrimination resulting from
"protected activity." Under both the CAA and the TSCA, an
employee is protected if he:
1) Commences, or caused to be commenced, or is about to
commence or cause to be commenced a proceeding under
this chapter; 2) testified or is about to testify in
any such proceeding; 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. 7622(a)(1988); 15 U.S.C. 2622(a)(1988).
To establish a prima facie case, Complainants must show:
1) that they engaged in protected activity, 2) that they were
[PAGE 5]
subject to adverse action, and 3) that the employer was aware of
the protected activity when it took the adverse action. Larry
v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
Complainants must also present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Accord Mackowiak v. University Nuclear
Systems Inc., 735 F. 2d 1159, 1162 (9th Cir. 1984). Once
Complainants have established their prima facie case, Respondent
may rebut it by articulating a legitimate, non-discriminatory
reason for any adverse action taken. The employees must then establish that the
employer's proffered reason is not the true reason. Wagoner
v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov. 20, 1990);
Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y May 29,
1991).
In a whistleblower proceeding, a complainant must show that
the underlying act or its implementing regulations are involved.
Johnson, supra. In its complaint, Complainants have
alleged violations under both the CAA and the TSCA. The
substance of the complaint determines whether Complainants'
activity is protected under a particular statute. Aurich v.
Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y
Apr. 23, 1987).
The Environmental Protection Agency has specifically
regulated the manner in which asbestos is handled within
workplaces, essentially to prevent the emissions of asbestos to
the outside air. See 40 C.F.R. Chapter 61, Subpart M,
§61.146 and §61.147 (1986). As Complainants'
allegations focus on Respondents' containment of airborne
asbestos, specifically its effect on the children attending the
Hermosa School, I find that the CAA provides the appropriate
protection to Complainants' activities. Aurich, supra.
Similarly, the TSCA seeks to prevent the unreasonable risk
of injury to health and the environment. 15 U.S.C. §2601.
In fact, the TSCA specifically mandates the installation of
"asbestos containing-material in the Nation's schools in a safe
and complete manner." 15 U.S.C. 2641(b)(1). Accordingly,
Complainants' allegations clearly fall within the TSCA's intended
coverage.
Before filing a complaint with the Secretary of Labor,
Complainants made internal complaints to their foreman, Clifford
Sutherland, and to their supervisor, Jeff Tenbrink. Properly
following the chain of command, Complainants communicated through
their supervisor who in turn complained to top management,
William Rae Smith. Internal complaints are considered "protected
activity" under both the whistleblowing provisions of the CAA and
[PAGE 6]
the TSCA. Poulos v. Ambassador Fuel Oil Co., Inc., 86-
CAA-1 (Sec'y Apr. 27, 1987); Helmstetter v. Pacific Gas &
Electric Co., 91-TSC-1 (Sec'y Jan. 13, 1993). Accordingly,
Complainants have satisfied the first element of their prima
facie case, the participation in "protected activity."
However, Respondents argue that they complied with the
substantive provisions of both the CAA and the TSCA thus
precluding any liability under the Acts. Upon a review of the
evidence, I find that Complainants made a "good faith" and
"reasonable" complaint of Respondents' unsafe removal procedures.
Simpson v. Mine Safety and Health Review Commission, 842
F. 2d 453(D.C. Cir. 1988). Based upon their experience in the
asbestos industry, Complainants reasonably believed that the use
of a terminator machine would produce airborne asbestos therefore
requiring full containment procedures.[2] As Complainants made
a "good faith" complaint, Respondents cannot now escape liability
based on a subsequent claim of compliance. Because of the
complex and frequently contradictory testimony, I am unable to
determine whether Respondents' asbestos abatement procedures
complied with the CAA and the TSC. However, irrespective of
whether Respondents actually violated the substantive provisions
of the Acts, Complainants are afforded sufficient whistleblowing
protection, as they "reasonably believed" that Respondents'
actions were harmful and violative. Minard v. Nerco Delamar
Co., 92-SWD-1 (Sec'y Jan 25, 1994). As the Secretary
observed in Minard, a proceeding under the Solid Waste
Disposal Act,
an employee's reasonable belief that his employer
is violating the Act may--depending on the particular
facts of the case--be sufficient basis for a
retaliation claim if the employer allegedly takes
action against the employee because he expressed
his belief, irrespective of after-the-fact deter-
minations regarding the correctness of the employee's
belief.
Here, as the Complainants' complaints were in good faith,
reasonable, and not frivolous, they are entitled to protection
for their actions under the Acts.
B. Whether Respondent unlawfully discriminated against
Complainants.
The second criterion for a prima facie showing of
discrimination, that Complainants suffered adverse employment
action, is also met. Specifically, Respondent Spray Systems
[PAGE 7]
terminated Complainants on July 27, 1994.
The third criterion, awareness of the protected activity at
the time of the adverse action, is clearly established by
Complainants' testimony. All four Complainants testified that
they informed their supervisor, Jeff Tenbrink, of their concerns
regarding the proper removal procedures. TR 22, TR 57, TR 74, TR
91. Furthermore, Sutherland asked Jeff Tenbrink to convey his
and the other Complainants' apprehensions to Smith. TR 24. Jeff
Tenbrink's conversation with Smith clearly made respondents aware
of Complainants' protected activity. I am persuaded by
Complainants' testimony and find said testimony to be more
credible than the contrary testimony of Smith. TR 132-133.
Accordingly, I find that Smith knew of the protected activity at
the time that he terminated Complainants.
Additionally, the record contains sufficient evidence to
raise the inference that the protected activity was the likely
reason for Respondents' adverse action. The proximate timing of
the protected activity in relation to the adverse action may
support an inference of causation. Johnson, supra. Here,
Complainants engaged in protected activity, namely communicating
their concerns regarding the proper removal procedures through
their supervisor, Jeff Tenbrink. Immediately following Jeff
Tenbrink's conversation with Smith, Complainants were terminated.
I find that the timing of these events raises an inference of
causation. Mackowiak v. University Nuclear Systems, Inc.,
735 F. 2d at 1162; Couty v. Dole, 886 F. 2d 147, 148 (8th
Cir. 1989). Accordingly, I find that the Complainants have
established a prima facie case of unlawful discrimination.
Respondents attempts to rebut Complainants' prima facie case
by arguing that they did not terminate Complainants but rather
that Complainants chose to leave their jobs.[3] According to
company policy, "leaving the jobsite without proper
authorization" constitutes employee misconduct.[4] RX 4,5,6.
Respondents contend that Complainants' retreat into the parking
lot qualified as an overt act of insubordination. RX 2.
Based on the evidence, I find that Complainants' retreat
into the parking lot constituted neither an abandonment of their
jobs nor an act of insubordination. Instead, Complainants' walk
into the parking lot qualified as a legitimate refusal to perform
the preparatory work according to Respondents' specifications.
After informing their supervisor of their concerns, Complainants
retreated into the parking lot to await further instructions as
to how to properly proceed with the job.
[PAGE 8]
In fact, Smith acknowledged the true reason for
Complainants' walk into the parking lot, that Complainants were
protesting his work instructions. Smith testified that he told
Jeff Tenbrink that "if they (Complainants) decided to leave and
not do things the way they were instructed, that they were going
to have to be reprimanded and replaced." TR 134. Smith's
blatant admission precludes Respondents from now offering the
excuse of job abandonment or insubordination to explain its
termination action. I find these excuses to be a mere pretext
for Respondents' illegal discharge of Complainants. Accordingly,
Respondents have failed to successfully rebut Complainants' prima
facie case of discrimination.
RELIEF
Reinstatement, Lost Wages, and Front Pay
Once the Court determines that a violation has occurred,
Complainants are entitled under the CAA and the TSCA to
reinstatement and back pay. 42 U.S.C. §7622(b)(2)(B); 15
U.S.C. §2622(b)(2)(B).
Respondent Spray Systems is ordered to offer Complainants
their former jobs or other comparable positions.[5] 42 U.S.C.
§7622(b)(2)(B); 15 U.S.C. §2622(b)(2)(B); Johnson,
supra. However, Complainants have indicated that they are
not interested in resuming their previous positions with
Respondent. Nonetheless, I find that according to the Acts,
Complainants are entitled to the relief of reinstatement and
should be given the opportunity to resume their jobs.
Additionally, Respondent Spray Systems is ordered to pay
Complainants the total amount of back pay incurred from the date
of termination until the date of reinstatement. Back pay is
appropriately tolled when the unlawful discrimination is
remedied. James v. Stocklam Valves and Fittings, 559 F.
2d 310, 358 (5th Cir. 1977). Generally, such unlawful
discrimination is remedied upon a bona fide offer of
reinstatement. Ford Motor Co. v. EEOC, 458 U.S. 219
(1983); Figgs v. Quick Fill Corp., 766 F. 2d 901 (5th Cir.
1985).
The appropriate method to compute the back pay award is to
determine the compensation that Complainants would have earned
had they continued under the employ of Respondent minus any
amount earned by Complainants through alternative employment.
Back pay should continue during the intervening period between
the date of the hearing and the date of reinstatement.
Johnson,
[PAGE 9]
supra.
Subsequent to their termination by Respondent, Complainants
have sought and obtained alternative employment. On September 1,
1994, Clifford Sutherland began working part time (approximately
20 to 30 hours per week) as an asbestos abatement supervisor for
Compliance Technologies, Inc. earning $15.00 an hour.[6] While
employed with Respondent, Sutherland earned $12.00 an hour plus
$3.00 per diem on a forty hour a week basis. TR 38.
Fred Franklin found a job with Compliance Technology at the
end of September, earning $13.81 an hour.[7] TR 87. Franklin
earned $9.00 an hour plus $3.00 per diem while working for
Respondent. TR 88.
On September 14, 1994, Scott Tenbrink started working full
time for Systems Environmental, earning $13.81 an hour. As an
employee of Respondent, Scott Tenbrink earned $15.00 an hour or
$600 a week. TR 68.[8]
Also working for Systems Environmental, Aaron Hahn has
earned $13.81 an hour since September 14, 1994. Under the employ
of Respondent, Hahn earned $10.00 an hour. TR 76. Prior to
working for Systems Environmental, Hahn worked for a bowling
alley as a mechanic's helper. TR 75.[9]
Complainants' earnings made through interim employment
should be appropriately offset from the total back pay awards.
Johnson, supra.
Complainants are additionally entitled to interest on back
pay. Payment of prejudgment interest is appropriately awarded on
the total back pay amount. Wells v. Kansas Gas & Electric
Co., 85-ERA-0022 (Sec'y Dec. March 21, 1990).
With regard to front pay, I do not find such an award to be
appropriate in light of the evidence in this case. In certain
circumstances, front pay may be awarded prospectively if
reinstatement is impractical, impossible, or an inadequate
remedy. For instance, reinstatement may not be feasible due to
ongoing antagonism between a discriminated employee and the
discriminating employer. However, in this case, I find no
evidence to suggest any continued hostility between Complainants
and Respondent Spray Systems which would prevent an amicable
working relationship. Wildman v. Lerner Sores Corp., 771
F. 2d 605, 614-616 (1st Cir. 1985).
[PAGE 10]
B. Blacklisting; Expunging of Employment Records
Although Complainants have not alleged any specific
blacklisting activities taken against them, there was some
testimony to suggest that one of the Complainants, Clifford
Sutherland, was "blacklisted" in retaliation for his protected
activity. Jeff Tenbrink testified that he has been given
instructions by his managers not to hire Clifford Sutherland
because of Sutherland's pending suit against Respondent. TR 193.
However, there is no specific evidence to suggest that Respondent
has engaged in any actual blacklisting against Sutherland.
In fact, Chris Boyles, owner of Spray Systems, has testified
that neither he nor anyone under his employ has discussed the
Complainants with any prospective employers. TR 121.
Additionally, Respondents argue that Sutherland has suffered no
actual injury, as he is currently working in the asbestos
industry. Respondents' post-hearing brief, p. 9. Regardless, I
find that effective enforcement of the CAA and the TSCA requires
"a prophylactic rule prohibiting improper references to an
employee's protected activity whether or not the employee has
suffered damages or loss of employment opportunities as a
result." Earwood v. Dart Container Corp., 93-STA-0016,
(Sec'y Dec. December 7, 1994).
Although no specific blacklisting activity has been found, I
order Respondent Spray Systems not to engage in any future
blacklisting against Complainants. Additionally, I order
Respondent to expunge Complainants' personnel records of any
derogatory references or comments.
C. Attorney Fees and Costs
Complainants are entitled to any reasonably incurred
costs and expenses. 42 U.S.C.§7622(b)(2)(B); 15
U.S.C.§2622(b)(2)(B). Complainants' counsel, Andrew
Lichtenberg, Esq., has submitted an attorney fee request of
$3,475.93, representing 26.4 hours of attorney time at $110.00
per hour plus $571.93 in other litigation related costs.
Complainants' Closing Brief, exhibit A. Neither Respondents nor
their counsel has objected to this fee request. In consideration
of the quality of the representation, the nature of the issues
involved, and the amount of money at stake, I find the total
requested fees of $3,475.93 to be reasonable and appropriate.
RECOMMENDED ORDER[PAGE 11]
Spray Systems Environmental is ordered to:
1. Offer each Complainant reinstatement to his former or
comparable position with all of the compensation, terms,
conditions, and privileges of the Complainants' former
employment;
2. Compensate Complainant Sutherland for back pay through
the date upon which an offer of reinstatement is made at a weekly
rate of $495.00 minus any interim earnings;
3. Compensate Complainant Tenbrink for back pay through the
date upon which an offer of reinstatement is made at a weekly
rate of $600.00 minus any interim earnings;
4. Compensate Complainant Franklin for back pay at a weekly
rate of $375.00 through the date upon which Franklin obtained a
higher paying job at Compliance Technology;
5. Compensate Complainant Hahn for back pay at a weekly rate
of $400.00 through September 14, 1994, (minus the wages he earned
while working at the bowling alley) at which time he obtained a
higher paying job;
6. Pay interest on all back pay awards to be calculated
pursuant to 26 U.S.C. §6621(1988)(rate for the underpayment
of Federal income taxes);
7. Expunge the personnel records of each Complainant of any
derogatory comments and refrain indefinitely from engaging in any
future blacklisting activities;
8. Pay to Complainants' counsel, Andrew L. Lichtenberg,
Esq., attorney fees in the amount of $2,904.00 and reimbursement
for costs in the amount of $571.93.
SO ORDERED
______________________________
DANIEL L. LELAND
Administrative Law Judge
DLL:rh:mv
Pittsburgh, Pennsylvania
[ENDNOTES]
[1] As of July 1994, Clifford Sutherland had been employed by
Respondent for 17 months (TR 25); Scott Tenbrink had worked for
Respondent for three weeks (TR 41); and Aaron Hahn and Fred
Franklin had worked for Respondent for less than two months (TR
71 and 81).
[2] Although Aaron Hahn and Fred Franklin are relatively new to
the asbestos industry (TR 71 and TR 81), Clifford Sutherland has
worked in the asbestos removal industry for seven years (TR 12)
and Scott Tenbrink for approximately six years (TR 41).
[3] Additionally, Respondents have submitted a total of five
employee warning notices signed and dated August 8, 1994, citing
Complainants' failure to wear hard hats. RX 2. As all of these
warning notices were completed subsequent to the termination date
of July 27, 1994, the notices could not have effectively warned
Complainants of any poor performance prior to their termination.
[4] Respondents offered post-hearing three signed statements by
Complainants Scott Tenbrink, Fred Franklin, and Clifford
Sutherland, acknowledging various examples of company misconduct.
Said statements have been admitted post-hearing as Respondents'
exhibits 4, 5, and 6 respectively.
[5] I find no indication in the record that Respondent has
already made a bona fide offer of reinstatement.
[6] Sutherland is to provide the Court within 30 days with an
itemization of his earnings since his discharge by the Respondent
so that a precise award of back pay can be determined.
[7] It is assumed that Fred Franklin's employment with Compliance
Technology Inc. is on a full time basis, as there is no evidence
to the contrary. Franklin is to provide the Court within 30 days
with the exact date that he began working for Compliance so that
this date can be used to terminate his back pay award.
[8] Tenbrink is to provide the Court within 30 days with an
itemization of his earnings since his discharge by the Respondent
so that a precise award of back pay can be determined.
[9] As Aaron Hahn did not testify to the contrary, it is assumed
that he is working on a full time basis for Systems
Environmental. Hahn is to provide the Court within 30 days with
an exact itemization of his earnings at the bowling alley,
specifically his rate of pay and the total number of hours
worked.
