Carroll v. UNITIL/Fitchburg Gas & Electric Co., 1999-CAA-26 (ALJ Dec. 12, 1999)

U.S. Department of Labor

Office of Administrative Law Judges John W. McCormack Post Office & Courthouse - Room 507 Post Office Square Boston, MA 02109 (617) 223-9355 (617) 223-4254 (FAX)

DATED: December 12, 1999
CASE NO.: 1999-CAA-26

IN THE MATTER OF:

John P. Carroll
   Complainant

   v.

UNITIL/Fitchburg Gas & Electric Co.
   Respondent

For the Complainant:
   Robert C. Seldon, Esq.
   Gregory J. Angelini, Esq.

For the Respondent:
   Edward M. Kaplan, Esq.

Before:
   DAVID W. DI NARDI
   Administrative Law Judge

   This proceeding arises under the Clean Air Act, 42 U.S.C. § 7622; the Solid Waste Disposal Act, 42 U.S.C. § 6971; the Water Pollution Control Act, 33 U.S.C. § 1367; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9610; and the Toxic Substances Control Act, 15 U.S.C. § 2622.

   The Complainant, John Carroll, filed a whistleblower complaint against Unitil/Fitchburg Gas & Electric ("Respondent") pursuant to the above-mentioned statutes with the Boston office of the Occupational Safety & Health Administration by letter dated July 20, 1999 and filed on July 26, 1999. The complaint alleged that Mr. Carroll was harassed on the job (paragraph 10), his department was reorganized (paragraph 11), a hostile work environment was created (paragraph 12), his employment was terminated (paragraph 13), the Respondents attempted to coerce Mr. Carroll to not reveal various violations of federal, state and local law (paragraph 14) and his position was abolished in retaliation for making protected disclosures (paragraph 22).

   The complaint was denied by letter dated August 26, 1999. OSHA determined that all the allegations were untimely filed. Complainant timely filed a request for a hearing with Chief Judge John Vittone by letter dated August 30, 1999 and filed via facsimile the same day. The case was scheduled for hearing on November 29, 1999 and subsequently rescheduled to January 18, 2000 following an agreed upon Motion to Postpone Hearing.

   By Motion dated October 8, 1999 and filed October 12, 1999, the Respondents seek summary dismissal of the case averring that the claim was not timely filed. This Court issued an Order October 13, 1999 giving the Complainant fourteen (14) days in which to file a response. On October 27, 1999, Complainant sought a two day extension in which to file a reply which was granted telephonically. Claimant filed his brief in opposition to summary dismissal on October 29, 1999. By Motion dated November 4, 1999 and filed via facsimile the same day, Respondents sought leave to file a rebuttal brief. This request was granted on November 8, 1999 and Respondents were given until November 16, 1999 in which to file their rebuttal brief. The rebuttal was timely filed via facsimile on November 16, 1999. Later that evening, Complainant sought leave to file a Sur-Reply brief. This request was granted on November 17, 1999 and Complainant filed same via facsimile on November 18, 1999. Without seeking the leave of this Court, Complainant filed a letter on November 29, 1999 enclosing three pages of Complainant's unemployment claim file. The following day, Complainant filed a copy of the Memorandum of Agreement entered into by the parties at a mediation session. On the same day, Respondent filed a response to the Complainant's filing of the pages from the unemployment file.

   The documents submitted in support of and in opposition to the Motion for Summary Judgement support the following facts viewed in the light most favorable to the Complainant as the non-moving party:

   1. The Complainant, John Carroll, was hired as Manager of Energy Operations by Unitil/Fitchburg Gas & Electric on October 11, 1994.

   2. Mr. Carroll began making a series of protected disclosures no later than December of 1996, including, but not limited to:

- Unitil's alleged illegal scheme to evade responsibility for abatement of an asbestos contaminated electric generating facility;

- Unitil's alleged continued dominion and control over the foregoing asbestos contaminated facility;

- Unitil's alleged illegal installation of a large PCB-contaminated transformer within 30 feet of a mutilfamily apartment building;

- Unitil's alleged dumping of cyanide-contaminated waste that was 400 times the permissible EPA exposure level into a site immediately next to a navigable river.

   3. As a result of these protected disclosures, senior management allegedly began to harass and retaliate against Mr. Carroll on a continuous basis beginning no later than January of 1997.

   4. Respondent announced a proposed reorganization on March 26, 1998 which resulted in the elimination of the Complainant's position of Manager of Energy Operations.

   5. The Complainant met with Mitchell Bodnarchuk, Vice-President and General Manager of Unitil, on the same day. Complainant alleges that Mr. Bodnarchuk assured him in that meeting that he was a valued employee and that he would be reassigned to and retained in a position at the same level and salary.

   6. Complainant again met with Mr. Bodnarchuk on April 9, 1998 at which time he was informed of the availability of a position entitled Operations Support Manager. Mr. Carroll indicated that he was not interested in this position.

   7. Mr. Carroll went on paid temporary disability on April 10, 1998. He has not worked since that date.

   8. Mr. Bodnarchuck called Mr. Carroll at home on April 17, 1998 and inquired about his interest in other positions at Unitil. Mr. Carroll asked that the discussion be postponed as he had just gone out on disability. Mr. Bodnarchuk sent a letter dated that same day which Mr. Carroll alleges contains an inaccurate account of their meeting of April 9, 1998.

   9. Respondent's Director of Human Resources, George E. Long, Jr., sent Mr. Carroll a letter dated June 19, 1998. The letter mainly concerns the return of a company vehicle which was still in the possession of Mr. Carroll. However, it did state unequivocally "As you are aware, the position of Manager of Energy Operations has been eliminated under the reorganization of the Company's operations which has been ongoing and is nearly complete." (Respondent's Motion for Summary Decision, Exhibit D)

   10. Mr. Carroll responded to the above missive by letter dated June 23, 1998. Again, the majority of the letter concerns the issue of the company car in Mr. Carroll's possession. However, Mr. Carroll did write that, "In fact, your letter dated June 19, 1998, is the first time the company has informed me that my position has been eliminated." Mr. Carroll also averred in that letter that "On April 14, 1998, the company sent me a letter stating, 'this company guarantees your position with the company and the continuation of your benefits for up to 12 weeks per year for personal disability.'" (Respondent's Motion for Summary Decision, Exhibit F)

   11. Mr. Long wrote a second letter to the Complainant dated July 9, 1998. After summarizing his version of events to date, Mr. Long wrote that Mr. Carroll's current employment status, among other things, was that his position of Manager of Energy Operations at Fitchburg had been eliminated, his short term disability would expire on October 14, 1998 and that, as of that date, his employment would be terminated due to the elimination of his position. Mr. Long wrote that this will occur unless Mr. Carroll bid on and accepted another position before that date. (Respondent's Motion for Summary Decision, Exhibit G)

   12. In response to the above letter, Mr. Carroll hired an attorney, Judith A. Miller. Attorney Miller responded to Mr. Long's letter on July 31, 1998. Attorney Miller wrote that, "Mr. Long's letter of July 9th was the first time that the Company informed Mr. Carroll that his position was, in fact, eliminated." Attorney Miller also noted that prior to receipt of that letter, Mr. Bodnarchuk had assured Mr. Carroll that his job was not in jeopardy. (Respondent's Motion for Summary Decision, Exhibit I)

   13. Former Counsel for Respondents, Glenn E. Dawson, wrote to Attorney Miller on September 1, 1998 following a phone conversation between the two on August 24, 1998. Attorney Dawson requested a meeting with the concerned parties to discuss, among other things, Mr. Carroll's "future employment status at the Company." (Complainant's Opposition to Respondent's Motion for Summary Decision, Attachment A)

   14. Mr. Long wrote to the Complainant again on October 5, 1998. That letter again explained that, "your position of Manager of Energy Operations has been eliminated with the reorganization of Fitchburg Gas and Electric Light Company. Your Sick Pay benefits will be ending on October 14, 1998. Your employment with the Company will therefore be terminated effective October 14, 1998, and you will be eligible for Severance Pay benefits if you elect to execute the enclosed Agreement and General Release." (Respondent's Motion for Summary Decision, Exhibit J)

   15. Complainant alleges that the release referred to in the above letter "also revealed for the first time that Mr. Carroll's receipt of a severance package would be conditioned on his execution of a general release containing a gag provision that would have prevented Mr. Carroll from voluntarily approaching Unitil's regulatory agencies and disclosing its illegal activities." (Complainant's Opposition to Respondent's Motion for Summary Decision, page 9) The pertinent section of the alleged "gag" provision reads as follows:

EMPLOYEE shall keep entirely secret and confidential, and shall not disclose to any person or entity in any fashion or for any purpose, (other than to EMPLOYER or persons designated by EMPLOYER), any information or document relating to EMPLOYER and obtained during employment that is not available to the general public, including, without limitation, any information, general or specific, relating to EMPLOYER's business, marketing, sales, operations, customers, strategies, plans, or business practices, except as required by governmental or regulatory agencies (emphasis added). (Respondent's Motion for Summary Decision, Exhibit J)

   16. Mr. Long wrote to Mr. Carroll again on October 19, 1998. Mr. Long indicates that, based on a recent conversation between the parties' attorneys, the Company was changing Mr. Carroll's employment status as previously described in the letter dated October 5, 1998. Specifically, Mr. Long wrote that the Complainant's "employment with the Company will not be terminated effective October 14, 1998. However, since your Sick Pay benefits have been exhausted as of that date, you will be in an unpaid status." Mr. Long also indicated that the agreement not to terminate the Complainant's employment at that time was based upon his attorney's request that she be allowed to present the specifics of his claim. Mr. Long also wrote that once the written specification of the claim was received there would be further discussions between the pertinent parties "with respect to it and with respect to your future employment status." (Complainant's Opposition to Respondent's Motion for Summary Decision, Attachment B)

   17. Complainant's new counsel, Attorney Sharen Litwin, wrote a demand letter to Respondents on November 3, 1998. In a section of the letter detailing the factual allegations of the claim, Attorney Litwin wrote that Mr. Carroll held the position of Manager of Energy Operations "until it was eliminated in late March or April, 1998." The letter also alleged: wrongful discharge in violation of public policy, tortious interference with contractual and/or advantageous business relations and intentional infliction of emotional distress. (Respondent's Motion for Summary Decision, Exhibit L)

   18. The parties engaged in settlement discussions over the next several months and entered into mediation on June 30, 1999. At the conclusion of the mediation, Counsel for Complainant conveyed a settlement proposal to Respondents. This proposal was rejected on July 4, 1999. (Complainant's Opposition to Motion for Summary Decision)

   19. The following day, July 5, 1999, Complainant alleges that Respondents threatened to sue him if he did not return certain documents which the Respondents averred contained privileged information. This threat to sue was re-iterated in a letter dated July 8, 1999 from Attorney Glenn Dawson, representing Respondents, to Attorney Robert Seldon, now representing the Complainant. (Complainant's Opposition to Motion for Summary Decision, Attachment E)

   20. Attorney Seldon then wrote a letter delivered via facsimile to Attorney Dawson dated July 15, 1999. The letter stated that the Respondent's failure to respond to the proposal made by Complainant, "has left us with no choice except to demand that Unitil unconditionally and immediately reinstate John." The letter also enclosed a copy of the complaint which was subsequently filed with OSHA. (Respondent's Motion for Summary Decision, Exhibit N)

   21. Mr. Long then wrote a letter to Mr. Carroll dated July 16, 1999 in which he wrote that since the above letter dated July 15, 1999 indicated that settlement discussions did not resolve the disagreement, "this will serve to notify you that your employment with the Company is being terminated in all respects as of the date of this letter." The letter also stated that, "because your termination stemmed from the Company's reorganization that eliminated your position, you are eligible for Severance Pay benefits as communicated to you in my October 5, 1998 letter, provided that you are willing to execute an appropriate General Release." (Respondent's Motion for Summary Decision, Exhibit O)

   22. Mr. Carroll then filed the Complaint which is the basis for this action with OSHA on July 26, 1999. (Respondent's Motion for Summary Decision, Exhibit P)

   The standard for granting summary decision is set forth at 29 C.F.R. §§ 18.40(d). This section, which is derived from Fed. R. Civ. P. 56, permits an Administrative Law Judge to recommend summary decision for either party where "there is no genuine issue as to any material fact." 29 C.F.R. §§ 18.40(d). The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Gillilian v. Tennessee Valley Authority, 91-ERA-31 (Sec'y Aug. 28, 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The determination of whether a genuine issue of material fact exists must be made viewing all the evidence and factual inferences in the light most favorable to the non-movant. Id. (citing OFCCP v. CSX Transp., Inc., 88-OFC-24 (Asst. Sec'y Oct. 13, 1994)).

   Respondent contends that summary decision is warranted as Mr. Carroll failed to file his complaint within thirty days of the alleged violations.¹ It is Respondent's position that Mr. Carroll received final and unequivocal notice that his position had been eliminated in the letter dated June 19, 1998 from Mr. Long. This fact is evidenced, Respondent argues, by Mr. Carroll's letter dated June 23, 1998 in which he stated that the above letter "was the first time the company has informed me that my position has been eliminated." Therefore, even if the June 23, 1998 letter is used to ascertain the date when Carroll first knew of the alleged discriminatory action, the complaint should have been filed no later than July 23, 1998 in order to comport with the applicable statute of limitations. As the complaint was not filed until July 26, 1999, it is untimely.

   Respondent relies on the Fourth Circuit's decision in English v. Whitfield, 858 F. 2d 957 (4th Cir. 1988).² Vera English brought a claim against her employer under the Energy Reorganization Act alleging unlawful discrimination as a result of safety complaints made to the Nuclear Regulatory Commission. In that case, English was informed by the company in a letter dated May 15, 1984 that, among other things, the temporary assignment she was given was reduced to 90 days, during which time she could attempt to secure another position with the company. If she did not secure a permanent position she would

   Complainant responds with a two pronged argument: the Respondent never gave Mr. Carroll final and unequivocal notice until he was actually terminated on July 16, 1999 and the Respondent engaged in a continuous campaign to gag Mr. Carroll from revealing alleged illegal activities culminating with his termination on July 16, 1999. Expanding on the former contention, Complainant argues that this case does not hinge simply on the elimination of Mr. Carroll's position; that Mr. Bodnarchuk assured Mr. Carroll of an equivalent position with the company if the reorganization adversely effected his then current position; the notice of termination was conditioned upon Mr. Carroll not finding another position with the Company; the notice of termination was withdrawn on two occasions and a salary increase was awarded on another occasion.³ Expanding on the latter contention, Complainant argues that the Respondent attempted to gag him on three occasions regarding alleged illegal activities by the Company. These attempts were: the letter dated October 5, 1998 to Mr. Carroll from Mr. Long which conditioned receipt of a severance package on the execution of a general release, the letter dated July 8, 1999 from Respondent's counsel demanding return of documents it considered covered by the attorney/client privilege and the termination letter dated July 16, 1999 which again conditioned receipt of a severance package on the execution of a general release.

   Complainant derides reliance on the "one decade old case" of English v. Whitfield and urges reliance on three more recent cases. Connecticut Light & Power v. Secretary of Labor, 85 F. 3d 89 (2nd Cir. 1996); Whitaker v. CTI-Alaska, Inc., ARB Case No. 98-036 (May 28, 1999); Ross v. Florida Power & Light Co., ARB Case No. 98-044 (March 31, 1999). Connecticut Light & Power is cited in support of Complainant's position that the Respondent attempted to gag Mr. Carroll. In that case, the employer offered a settlement agreement which included provisions that prohibited the employee from appearing or

¹ All of the statutes pursuant to which Mr. Carroll filed his complaint contain a limitation period of thirty days. Clean Air Act, 42 U.S.C. § 7622, (b)(1); Solid Waste Disposal Act, 42 U.S.C. § 6971(b); Water Pollution Control Act, 33 U.S.C. § 1367(b); Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610(b); Toxic Substances Control Act, 15 U.S.C. § 7622(b).

² Respondent also puts forth arguments as to why the doctrines of equitable tolling and equitable estoppel are not available in this case. However, as the Complainant is not relying on either doctrine, the applicability of same will not be addressed.

³ In the filings submitted subsequent to the Sur-Reply brief, Complainant asserts that Respondent contesting Mr. Carroll's entitlement to unemployment benefits is another violation in retaliation for protected activities. Complainant's argument hinges on the fact that the document submitted by Respondent to contest the unemployment benefits states that Mr. Carroll did not consider "other open positions." Complainant writes that this statement is in direct contradiction with a statement in the Motion for Summary Decision that Mr. Carroll was only considered for one position. This argument is without merit. Mr. Carroll was clearly and expressly informed that he could apply for any open positions. Complainant also argues that a statement written by an employee of the Division of Employment and Training which states that Complainant was notified that his position was eliminated on October 5, 1998 contradicts the notion that he received final and unequivocal notice in June. This statement is irrelevant. The letter of June 19, 1998 clearly and unequivocally stated that Mr. Carroll's position had been eliminated. The letter of October 5, 1998 indicated that his employment would be terminated on October 14, 1998. These facts are clear from the documentary evidence and are not impugned by the misstatement contained in the unemployment files.