DATE: April 19, 1995
CASE NO: 94-CAA-15
IN THE MATTER OF
DON A. WEST,
COMPLAINANT,
v.
SYSTEMS APPLICATIONS INTERNATIONAL,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
This proceeding arises under the employee protection
provisions of the Clean Air Act (CAA), 42 U.S.C. § 7622
(1988). Complainant Don A. West alleges that he was terminated
by Respondent Systems Applications International (SAI) in
retaliation for safety related complaints he made to management
of Shell Oil Company (Shell). SAI was under contract to Shell.
On December 22, 1994, the Administrative Law Judge (ALJ) issued a
Recommended Decision and Order (R. D. and O.) that the complaint
be dismissed reasoning that internal complaints are not covered
under the CAA in the Fifth Circuit. In the alternative, the ALJ
made specific findings regarding Respondent's liability should I
find that internal complaints are covered by the CAA in the Fifth
Circuit. I adopt the ALJ's alternative recommended holding, with
the modifications identified below, and remand the case for the
sole purpose of determining the appropriate attorney's fees and
costs. The ALJ's findings of fact, R. D. and O. at 3-8, are
supported by ample evidence and I adopt them.
BACKGROUND
Statement of Facts
Complainant was an employee of SAI for approximately two and
[PAGE 2]
one half years. He worked as a data technician until May 16,
1994, when SAI transferred him to work in the field. As a data
technician, West's duties involved data base management,
scheduling components to be monitored, and uploading and
downloading the data into the data base. Field work involved
monitoring emissions in uncomfortable protective clothing, which
was a less desirable position. West was terminated on June 8,
1994.
SAI had a contract with Shell to perform emissions
monitoring on a site outside of Houston, Texas. The Shell
facility was a refinery and chemical processing plant with
approximately 26 units. Monitoring of two of the units, known as
"BPA 3 and 4," was scheduled to be conducted by SAI for the first
time in February and March of 1994.
In February, 1994, Complainant warned James Moore, Plant
Supervisor, that the BPA 3 and 4 units would be "real hard to
monitor." One reason the monitoring would be difficult was that
there were approximately 7,000 monitoring points. R. D. and O.
at 4. The monitoring had to be completed by March 31, 1994. SAI
did not concentrate on monitoring the units until the last week
in March, at which time Moore placed a daily quota on each of the
six monitoring technicians. Most of the technicians reached
their quotas and SAI did complete the monitoring in March.
After the monitoring of the BPA 3 and 4 units was complete,
Complainant became suspicious that at least some of the
technicians had simply logged numbers, without actually
monitoring each component. Complainant then compared the data of
two technicians against Shell's master equipment list. During
this comparison Complainant discovered that the technicians' data
ran in the exact same sequence as Shell's master list. The
similarities seemed highly suspicious to West because it would be
nearly impossible to duplicate the sequencing in the field.
Furthermore, each technician used a hand held computer that date
and time stamped each monitoring. West noticed that in many
instances a technician could not physically get from one
component to another within the time recorded by these two
technicians. R. D. and O. at 4.
Gary Hart was the Fugitive Emissions Coordinator for Shell.
It was Hart's job to oversee SAI's monitoring program and make
certain that it was performed in accordance with State and
Federal regulations. West and Hart first began working together
in October, 1993, when Hart assumed his position as the Fugitive
Emissions Coordinator. They worked together closely because West
was assisting Shell with the installation of a new data base
program. Though West's technical support was not part of SAI's
contract with Shell, Hart negotiated with SAI to keep West
accessible to Hart. Hart was dependent upon West for his data
[PAGE 3]
base knowledge, and SAI was well aware of this fact. R. D. and
O. at 5.
West voiced his suspicions about the monitoring at the BPA 3
and 4 units to Hart's office. West never vocalized his concerns
to any management at SAI. Hart requested that West provide him
with all of the data recently collected from the BPA 3 and 4
units. R. D. and O. at 4-5. After West gave Hart all of the
documentation, Hart, together with other Shell employees,
investigated the monitoring of the BPA 3 and 4 units. Hart and
West met daily throughout the investigation so West could remain
fully informed of Hart's investigation. Hart concluded that at
least some of the data was false. R. D. and O. at 5.
The second week in April, Hart went to James Moore with his
findings. Hart requested the removal of the two technicians
based upon his conclusion that they had entered false data. Hart
then spoke with SAI President, Shep Burton. On April 14, 1994,
Burton informed Hart that SAI would conduct their own
investigation, monitor all of the components again, and remove
the two technicians from the site. CX 6. [1] R. D. and O. at
5.
On May 12, 1994, effective May 16, 1994, Complainant was
reassigned from the office to the field. CX 2. On June 8, 1994,
Complainant was terminated for "performance below company standards." CX 3. On June 21, 1994, Complainant filed this
complaint with the Department of Labor.
Procedural Issues
Respondent filed an objection to the late filing of
Complainant's Post-Hearing Brief. The ALJ never ruled on the
objection in the R. D. and O. I will accept the brief since
Complainant's Brief and Respondent's Reply Brief simply reiterate
the same points previously identified.
DISCUSSION
Under the burdens of proof and
production in "whistleblower" proceedings, Complainant must first
make a prima facie showing that protected activity
motivated Respondent's decision to take an adverse employment
action. Respondent may rebut this showing by producing evidence
that the adverse action was motivated by a legitimate,
nondiscriminatory reason. Complainant must then establish
that the reason proffered by Respondent was pretextual. At all times, Complainant has the burden of establishing that
the real reason for his discharge was discriminatory.St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742
(1993); Thomas v. Arizona Public Service Co., Case No. 89-
ERA-19, Sec. Dec., Sept. 17, 1993, slip op. at 20.
In order to establish a prima facie case, a
Complainant must show that: (1) he engaged in protected conduct;
(2) the employer was aware of that conduct; and (3) the employer
took some adverse action against him. Carroll v. Bechtel
Power Corp., Case No. 91-
[PAGE 4]
ERA-0046, Sec. Dec., Feb. 14, 1995, slip op. at 9, citing
Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Dec., Apr. 25, 1983, slip op. at 7-8. Additionally,
the Complainant must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Id. See also Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984);
McCuistion v. TVA, Case No. 89-ERA-6, Sec. Dec., Nov. 13,
1991, slip op. at 5-6.
The first issue to determine is whether West engaged in
protected activity. As the ALJ correctly noted, I have
consistently found that internal complaints are protected
activity consistent with the broad remedial purposes of the
whistleblower acts. R. D. and O. at 9. This holding has also
been endorsed by numerous courts. See, e.g., Passaic Valley
Sewerage Com'rs v. Department of Labor, 992 F.2d 474 (3d Cir.
1993) (PVSC); Couty v. Dole, 886 F.2d 147 (8th Cir.
1989);Kansas Gas and Electric Co. v. Brock, 780
F.2d 1505 (10th Cir. 1985); Mackowiak, 735 F.2d
1159 (9th Cir. 1984); Consolidated Edison Co. of N.Y., Inc. v.
Donovan, 673 F.2d 61 (2nd Cir. 1982).
The ALJ based his decision that internal complaints are not
protected activity upon the Fifth Circuit holding in Brown &
Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The
Court in Brown & Root held that the filing of an internal
quality control report was not protected under the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851(a)(3).
However, the Brown & Root case was legislatively
overturned, effective October 24, 1992. 42 U.S.C. §
5851(a)(1)(A). For any case filed after that date, even in the
Fifth Circuit, internal complaints are protected under the ERA.
This case was filed on or about
June 21, 1994. Further, this proceeding arises under the CAA,
for which I have consistently held that, even in the Fifth
Circuit, internal complaints are protected activity. Willy v.
The Coastal Corp. & Coastal States Mgmt. Corp., Case No. 85-
CAA-1, Sec. Dec., June 4, 1987, slip op. at 8; and, after remand,
Willy v. The Coastal Corp. & Coastal States Mgmt. Corp.,
Case No. 85-CAA-1, Sec. Dec., June 1, 1994, slip op. at 13. [2]
Therefore, the ALJ erred in finding that West did not engage in
protected activity at the time he made internal complaints.
Additionally, the allegation that West constantly
circumvented the chain of command by going directly to Hart is
evidence of protected activity. T. 78-79, 98. [3] Under the
whistleblower statutes it is not permissible to find fault with
an employee for failing to observe established channels when
making safety complaints. See, e.g., Pillow v. Bechtel
Construction, Inc., Case No. 87-ERA-35, Sec. Dec., July 19,
1993, slip op. at 22; and Pogue v. United
States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991)
(Both cases under the ERA).
[PAGE 5]
The second element requires Complainant to show that
Respondent was aware of Complainant's protected activity.
It is clear from the record that Respondent knew or should
have known that Complainant had either initiated or assisted
Shell in its investigation concerning the false data. The ALJ
held and I agree that "certainly Respondent knew complainant was
the informant." R. D. and O. at 6.
The third element requires Complainant to show that
Respondent took an adverse action against him. On June 8, 1994,
West was terminated by SAI. Additionally, West alleges that SAI
took an adverse action against him when he was transferred to a
field position on May 16, 1994. The field position was
considered to be a less desirable position, although West's
salary remained the same. SAI offered credible evidence to show
that it intended to transfer West to the field eventually,
regardless of the safety complaints, although the transfer may
have been expedited due to West's protected activity. R. D. and
O. at 6, 7. Nevertheless, West clearly established that his
termination by Respondent was an adverse action against him.
The final element requires Complainant to present
evidence sufficient to raise an inference that the protected
activity led to the discharge. West must show that there is a
causal link between his protected disclosures to Hart and his
ultimate termination. In whistleblower cases the proximity in
time between the decisionmaker's awareness of Complainant's
protected activity and the adverse employment action is
sufficient to raise an inference of causation. See
Zessin v. ASAP Express, Inc., Case No. 92-
STA-33, Sec. Dec., January 19, 1993, slip op. at 13;
Bergeron v. Aulenback Transp., Inc., 91-STA-38,
Sec. Dec., June 4, 1992, slip op. at 3. (Both cases under the Surface
Transportation Assistance Act).
In this case, West was transferred to the field on May 16,
1994, which was approximately one month after Hart confronted SAI
regarding the record falsifications. West was then terminated
three weeks after his transfer to the field, and during one of
those weeks West was on vacation. Although the transfer may have
been inevitable, I find that the proximity in time between SAI's
awareness of West's complaints, and his transfer and ultimate
discharge is sufficient to raise an inference of causation.
Respondent must present evidence to show that the
adverse action was motivated by legitimate, nondiscriminatory
reasons. Respondent's termination letter to West articulated
SAI's reasons for discharging him. In relevant part the letter
states that West had "not demonstrated consistent, direct
communication with [his] supervisor over the last several months
which has had a negative impact on the management and economic
viability of the project." CX 3. The letter goes on to state
that West's
[PAGE 6]
performance remained at "a level below the company's standard."
CX 3. The reasons offered by Respondent at the hearing included
insubordination, contact with Hart for which Shell refused to
pay, and company morale because West would tell Hart everything
that was happening at SAI. T. 303 et. seq.
Much of Respondent's reasoning encompasses protected
activity on the part of Complainant. Complainant's lack of
direct communication with SAI management was a result of his
direct communication with Hart. And, "low employee morale"
allegedly resulted because of West's communications with Hart.
But, West's contact with Hart was the avenue by which he engaged
in protected activity. Only SAI's allegations of below standard
performance and insubordination are plausible non-pretextual
reasons for West's discharge. However, those allegations do not
hold up to further scrutiny.
Complainant met the burden to show that the reasons
given by Respondent for discharging him were pretextual. In
January, 1994, Complainant was reviewed based upon his
performance for the previous twelve months. In his yearly
review, West's overall performance was rated "excellent to
outstanding." CX 1. When West was transferred to the field,
Moore noted that West had "done an excellent job" working with
Shell in setting up the new data base. CX 2. Moore further
stated that West's expertise would be needed in the field and
that was the reason for the transfer. CX 2. Thus, Respondent's
stated reasons for discharging West are either related to his
protected activity, or are contradicted by Respondent's own
performance evaluations of West's work. As such, I find that
West was discharged by SAI for engaging in protected activity
under the CAA. 42 U.S.C. § 7622.
Damages
The ALJ suggested that, if I find in favor of Complainant,
he be awarded the equivalent of six months salary plus attorney's
fees equal to one third of West's recovery. The initial
Department of Labor investigator ordered wages equivalent to
West's salary for the number of months remaining on SAI's
contract with Shell at the time of West's discharge. Neither of
these calculations of damages follow prior decisions issued
regarding the appropriate calculation of damages.
When a complainant states at a hearing that reinstatement is
not sought, as occurred here, the parties or the ALJ should
inquire as to why. If there is such hostility between the
parties that reinstatement would not be wise because of
irreparable damage to the employment relationship, the ALJ may
decide not to order reinstatement, and may order front pay. If,
however, the complainant gives no strong reason for not returning
to his former position, reinstatement should be ordered. See
Dutile v. Tighe Trucking, Inc., Case no. 93-STA-31,
Sec. Dec.,
[PAGE 7]
Oct. 31, 1994, slip op. at 4-5. (under the Surface Transportation
Assistance Act).
Here, I do not find sufficient evidence in the record to
support a finding of an environment so hostile as to allow front
pay damages. Therefore, I am ordering that West be reinstated.
Respondent's back pay liability will terminate upon the tendering
of a bona fide offer of reinstatement, even if West
declines the offer. See Dutile, slip op. at 4;
Assistant Sec'y and Zessin v. ASAP Express, Inc., Case No.
92-STA-33, Sec. Dec., Jan. 19, 1993, slip op. at 14; and
Assistant Sec'y and Phillips v. MJB Contractors, Case No.
92-STA-00022, Sec. Dec., Oct. 6, 1992, slip op. at 4-5 (Under the
Surface Transportation Assistance Act respondent owes back pay
until reinstatement or declination of offer).
Evidence that West failed to mitigate his damages would
reduce the amount of back pay owed. West testified that he had
been unemployed since SAI discharged him. T-II. 96 et
seq. West further testified that he had made numerous job
applications at a variety of establishments. SAI has the burden
of establishing that the back pay award should be reduced because
West did not exercise diligence in seeking and obtaining other
employment. See Hufstetler v. Roadway Express, Inc., Case
No. 85-STA-8, Sec. Dec., Aug. 21, 1986, slip op. at 53; and
Dutile, slip op. at 5. (Under the Surface Transportation
Assistance Act). Respondent does argue that West could have been
more diligent in his job search, however, I do not find evidence
sufficient to reduce West's back pay award.
Attorney's Fees and Costs
The ALJ is required, if requested by Complainant, to assess
against Respondent such fees and costs as were "reasonably
incurred." 42 U.S.C. § 7622 (b)(2)(B). In this case the
fee arrangement between Complainant and his counsel would not be
controlling. Rather, Complainant has the burden to establish the
reasonableness of the fees. To accomplish the fee application,
the attorney needs to submit to the ALJ a fee petition detailing
the work performed, the time spent on such work, and the hourly
rate of those performing the work. Complainant must also submit
an itemization of costs. On review of the fee petition and
objections, if any, raised by Respondent, the ALJ should
determine a reasonable fee to be paid by Respondent to
Complainant's attorney and appropriate costs. Tinsley v. 179
South Street Venture, Case No. 89-CAA-3, Sec. Dec., Aug. 3,
1989, slip op. at 4, and cases cited therein. Therefore, this
matter is remanded to the ALJ for the sole purpose of determining
the appropriate attorney's fees and costs to be paid by
Respondent.
CONCLUSION
Accordingly, I hereby ORDER the following:
[PAGE 8]
(1) Respondent shall reinstate West to his former position
with SAI, either as a data technician or field monitor,
forthwith;
(2) Respondent shall pay West back pay in the amount of
$2912.00 per month, from June 8, 1994, until such time as SAI
makes a bona fide offer of reinstatement;
(3) Respondent shall change all of West's employment
records to appropriately reflect that West was unlawfully
discharged, and make clear that Complainant did not do anything
improper which led to his discharge; and (4) The ALJ shall determine the fee's and costs reasonably
incurred by Complainant in accordance with my directions above,
and award such fees and costs to West's counsel.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] References in this decision to ALJX, CX and RX pertain to
the exhibits of the ALJ, Complainant, and Respondent,
respectively.
[2] The parties and the ALJ made reference to two Fifth Circuit
decisions regarding Complainant Willy. The dependence
upon those Fifth Circuit opinions is misplaced. The issue of
internal complaints under the CAA was not considered by the Court
of Appeals in either of the decisions. See, In re Willy,
831 F.2d 545 (5th Cir. 1987), aff'd 112 S.Ct. 1076 (1992)
(parties were seeking immediate resolution of a discovery issue
before the Secretary issued a Final Decision and Order); and
Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir. 1988)
(issue on appeal was Willy's claim of wrongful discharge under
Texas state law).
[3] References in this decision to T. and T-II pertain to the
two days of transcripts, October 4, 1994, and October 5, 1994,
respectively.
