U.S. Department of Labor Office of Administrative Law Judges
Commerce Plaza
603 Pilot House Drive, Suite 300
Newport News, VA 23606
Date: June 23, 1997
Case No.: 96-SWD-2
In the Matter of
KEVIN L. ISHMAEL,
Complainant,
v.
CALIBUR SYSTEMS, INC.,
and
UNITED PETROLEUM CORP.,
Respondents,
DAVID S. CLARK, Esq.
and
BRUCE C. BRYANT, Esq.
For Complainant
NEAL S. MELNICK, Esq.
For Respondent
[Page 2]
Before: FLETCHER E. CAMPBELL, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises from a claim under the employee protection
section of the Solid Waste Disposal Act ("the act"), 42 U.S.C. 6971. Complainant
seeks back pay, reinstatement or front pay, compensatory damages, exemplary damages, and
attorney's fees and costs as a result of his termination from employment with Respondent.
Calibur leases the office space shared with UPC from Mike Thomas. UPC subleases
the space from Calibur (Tr. 335). There is no sublease agreement and no lease payments made
between the two entities (Tr. 337). There is no physical separation between the offices of
Calibur
and UPC (Tr. 337). Calibur is a wholly owned subsidiary of UPC, and Mike Thomas is the
single
largest stockholder of UPC (Tr. 340).
Keene was not present for any of the relevant events which occurred
on February 21, 1996 (CX-8, 6).
DISCUSSION
A. Evidentiary Issues
Complainant objects to the admission of RX 1-2 and 4-6.
[Page 16]
Complainant's first request for production of documents to Respondent Calibur dated August 2,
1996, 5 states, "Please produce copies of any documents upon which you will rely upon as
evidence in the defense of this matter." Respondent did not produce RX 1-2 and 4-6.
They
did not list these documents on Respondent's Exhibit list prepared on August 26, 1996 as
required
by my Pre-Trial Order 1 dated August 6, 1996. However, pursuant to my order involving
documentary evidence (Tr. 6), all evidence is admitted subject to a post-hearing motion to strike.
Complainant did not file a motion to strike these documents, and they are, therefore, admitted
into
evidence. Although they are part of the record, I accord these documents little weight for the
following reasons: 1) Respondent did not produce them pursuant to a specific discovery request;
2) the convictions indicated in RX-6 are more than 10 years old38; and 3) Complainant's three convictions
were for misdemeanors.39
B.
1The following abbreviations will be
used as
citations to the record:
CX - Complainant's Exhibits
RX - Respondent's Exhibits
TR - Transcript.
2Complainant indicated that the
gasoline
levels in the tanks were measured with a stick which was marked in inches to indicate the gallons
in the tank. The stick
was slowly inserted in the top of the tank, straight through the center hole and a measurement
taken. If the measurement
indicated a variance, the procedure would be repeated to verify the variance (RX-3, 34).
Complainant also indicated
that the tanks held 8,000 gallons (EX-3, 31).
3In his deposition, Complainant
indicated
that he had noticed a discrepancy over thirty days (RX-3, 40).
4Complainant had worked with
Sgt. Uher
as an informant previously (RX-3, 45).
5Most of the witnesses in this case
referred
to TDEC as the EPA. In fact, TDEC is the state agency charged with monitoring and enforcing
the regulations of the
U.S. EPA. Any reference by any witness of calls made to or from the EPA in this case were in
actuality to or from
TDEC unless otherwise noted.
6Dwight Thomas and Mike
Thomas are
cousins (Tr. 281).
7This is consistent with the
statement made
by Complainant in his deposition on August 27, 1996. At that time Complainant testified that
Mike Thomas stated,
"If I find out, that it is true, that you offered to cooperate with them off the record, you will
be fired" (RX-3,
57).
8Complainant's employment
records
indicate that his starting salary was $22,000 per year (CX-13). After looking at his employment
records, Complainant
admitted that he was unsure if his beginning salary was $20,000 or $22,000 (Tr. 110).
9Complainant testified that he
received,
"a couple hundred dollars on one day, $300 on another time" (Tr. 113).
10Respondent introduced RX-1
and
RX-2 from the registrar of Michigan State University stating that there was no record of
Complainant being admitted to,
attending or receiving a degree from the university (RX-1; RX-2). Complainant objected at the
hearing to the admission
of RX-1, RX-2, RX-4, RX-5, and RX-6 because they were not produced subject to a request for
documents nor listed
on Respondent's Exhibit list. I address this issue, infra, page 17.
11In response to a letter from
Respondent's counsel (RX-4), Robert Ianni of the State of Michigan Department of Attorney
General stated that
Complainant did assist the office in an investigation in 1993-94. However, he was not an
employee, nor did he have the
title of special investigator. Complainant was not on the payroll of the Attorney General and was
not involved in any
active investigation (RX-5). Ianni went on to state that Complainant's assistance may have made
him an agent of that
office. Although Complainant received no payment for his services, Ianni notes that it would not
be unusual for the state
police to reimburse Complainant for any expenses including lost wages (RX-5).
Mark E. Blumer, First Assistant Attorney General of the Michigan
Department of
Attorney General indicated the his office had worked with Complainant on a "matter of
sufficient significance and
for a sufficient period of time to allow us to develop a firm opinion of his character"
(CX-22). This comment was
made in a letter written as a recommendation of Complainant for licensure with the Division of
Emergency Medical
Services in Lansing, Michigan (CX-22).
12Respondent offered RX-6 as
rebuttal
for this statement which indicates that Complainant was convicted of disorderly conduct on
October 21, 1976,
misdemeanor receiving and concealing stolen property worth less than $100 on February 21,
1980, and misdemeanor
larceny of $100 or less on March 26, 1982 (RX-6). As stated supra note 10, Complainant
objected to RX-6 on
the grounds that this document was not revealed subject to a request for discovery or listed on the
exhibit list. In
addition, Complainant objected that the evidence is inadmissible under 29 C.F.R. §18.609
as evidence of past
crimes. These issues are addressed, infra, page 17.
13Complainant did not take
advantage
of the offer of health care benefits while employed by Respondent because at the time he was
able to get health care
insurance through his wife's employer at a lower rate (Tr. 38). Complainant testified that Mike
Thomas had indicated
that he would subsidize Complainant's choice of his wife's insurance but did not follow through
with this promise. It is
no longer possible for Complainant to get health insurance through his wife's employer (Tr. 38).
14Roberts indicated that she
could not
remember the exact amount but guessed that it was between 300 and 500 gallons over the four to
five days prior to
February 21, 1996 (Tr. 45).
15Capt. Moehl indicated that he
contacted the state EPA (CX-2, 9). The official name of this organization is the Tennessee
Department of Environment
and Conservation (TDEC).
16Mike Thomas refers to the
CFO as
Bill Keene (CX-4, 8). However, in Mr. Keene's deposition he states that his name is Douglas
Keene (CX-8), and in his
testimony at the hearing he states that his name is Lee Douglas Keene (Tr. 327).
17Keene, the CFO, states that,
in fact,
he is paid by UPC but in the past has been contracted to UPC and paid by Calibur. This change
occurred on the advice
of the Internal Revenue Service (Tr. 328).
18Harrop testified at the hearing
that he
was in the office the entire day on February 21, 1996 and another individual would have ordered
the investigation (Tr.
313; CX-6, 28).
19Harrop testified that he
informed
Mike Thomas that Ownby had called Complainant to the office (Tr. 309).
20Later in his deposition, Mike
Thomas
stated that he had said, "If he was lying to me about the incident he would be fired"
(CX-4, 81).
21In fact the changing of the
locks was
completed by 4:32 PM by Stan the Locksmith, as noted on the cash receipt for payment (CX-7,
B).
22In his deposition, Ownby
testified
that it was approximately thirty to forty minutes after the call from Chambers before
Complainant was called (CX-9,
20).
23This was determined from a
comparison of receipts and sales versus inventory, not a physical examination of the Oak Ridge
facility (Tr. 237).
24However, in his deposition,
Ownby
testified that, after being informed of the situation, Mike Thomas said, "If this is true then
Kevin should be
fired" (CX-9, 23).
25In his deposition, Ownby
stated that
Complainant did not arrive at the office until around 12:00 and was sent to lunch at 12:30 to
12:45(CX-9, 21, 25).
26In his deposition, Ownby
testifies
that he called TDEC at 2:00 or 3:00 PM (CX-9, 24).
27Ownby testified at his
deposition that
the original complaint was made by a man at the Sevierville location stating that Complainant
had made sexual advances
toward two women at that location. The women were never contacted to verify this story (CX-9,
40).
28Dwight Thomas took over
this
position when Ownby went on unpaid medical leave due to a back injury (CX-7, 8).
29However, at his deposition,
Dwight
Thomas testified that Mike Thomas said, "If it's true that he what he said about being
anonymous talking to the
EPA or something . . . he should be terminated or fired" (CX-7, 41).
30However, in his deposition,
Dwight
Thomas indicated that he did not know who decided that the locks should be changed and a
locksmith called (CX-7, 38).
31However, shortly after this
statement
he testified that he had one of the "ladies in the office" gather the monthly summaries
and review those
documents (Tr. 276).
32In his deposition, Harrop
stated that
after he, Ownby and Dwight Thomas tried to contact Chambers, that Mike Thomas "put
his head in the
door." Harrop did not indicate what, if anything, Mike Thomas contributed to the meeting
at that time (CX-6, 34).
33Harrop testified at his
deposition that
an acceptable variance on a gasoline tank was 1% + 130 gallons per month (CX-6, 46).
However, Chambers of TDEC
indicated that there was no acceptable release of gasoline (CX-3, 17).
34The notice of deficiency,
issued on
March 27, 1996, indicated that the method of release detection used by the Oak Ridge facility
was inadequate and that a
new method must be implemented. The notice reflected that TDEC was aware that renovations
were underway at the
Oak Ridge facility which might correct the deficiency (CX-3, F).
36At his deposition, Keene
indicated
that Don Patton, who is head of Jackson United Petroleum, a subsidiary of UPC, was also on the
UPC payroll (CX-8,
9).
37James Fitzgerald is a banker
with
Credit Land Bank in New York. Teddy Phillips is with Phillips and Jordan, a local company in
Knoxville. Jamie Rose
is an attorney with Brown, Todd & Hayburn in Lexington, Kentucky (Tr. 335; CX-4, 9).
(a) General rule. For the purpose of attacking the credibility of a
witness,
evidence that the witness has been convicted of a crime shall be admitted if the crime was
punishable by death or
imprisonment in excess of one year under the law under which the witness was convicted, or
involved dishonesty or
false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not
admissible if a
period of more than ten years has elapsed since the date of the conviction or of the release of the
witness from the
confinement imposed for the conviction, whichever is the later date.
The U.S. Court of Appeals for the Sixth Circuit has found that
evidence of crimes
committed more than ten years hence should rarely be admitted even under a balancing test.
U.S. v. Sims, 588
F.2d 1145, 1147 (6th Cir. 1978). The probative value of this information is minimal and does
not in any way outweigh
the prejudicial effect.
39See, supra, note 12.
Generally, only evidence of previous felonies is admissible for the purpose of attacking the
credibility of a witness.
40The testimony on this fact is
hazy at
best. Complainant testified that Ownby called him approximately fifteen to twenty minutes after
Chambers did, and it
took Complainant thirty five to forty five minutes to gather the records at the Oak Ridge location
and drive to corporate
headquarters (Tr. 94). This account would have Complainant arriving between 11:55 A.M. and
12:05 P.M. Ownby
testified alternatively at Complainant arrived either around noon or around 12:10 P.M. (Tr. 235;
CX-9, 21) but also
states that Complainant was not even asked to come to the office until 11:40 or 11:50 A.M.
(CX-9, 20) and may have
been sent to lunch after the meeting as early as noon (CX-9, 25). Dwight Thomas testified that
he arrived at the office at
11:30-11:45 and went directly to the meeting with Ownby, Harrop and Complainant (Tr. 273).
Although, this
particular discrepancy is relatively minor, it mirrors a larger problem with the testimony of
Respondent's witnesses.
41Respondent points to
previous
problems recorded in Complainant's employment file. The customer complaints and the
unsubstantiated complaint of
sexual harassment are irrelevant here. Ownby, Dwight Thomas and Mike Thomas agree that
regardless of his employee
record, there were no plans to terminate Complainant prior to February 21, 1996 (CX-9, 16; Tr.
251; Tr. 279; CX-4,
35). In addition, Dwight Thomas indicated that Calibur had never terminated a manager due to
customer complaints
(CX-7, 27). The fact that Dwight Thomas attempted to bolster these complaints with written
records after
Complainant was terminated is a further act of discrimination (Tr. 285; CX-7, 35). In any case, I
find that these prior
complaints played no role in Complainant's termination from employment.
42Mike Thomas testified by
deposition
and was unavailable for testimony at the hearing. At one point in his deposition, he indicated
that he said, "If I
find out that you reported--didn't follow procedure and didn't report to the company, and the
company report--and the
proper channels weren't followed, that you are fired" (CX-4, 60). This is the only mention
of a failure to follow
procedure as the reason for Complainant's termination. Shortly thereafter, Mike Thomas
changed his story and said that
he had stated, "If he was lying to me about the incident he would be fired" (CX-4,
81).
Billy Joe Ownby indicated at the hearing that Mike Thomas said,
"If Kevin
had lied to us about the anonymously -- . . . he should be fired" (Tr. 236). But at his
deposition, held only two
weeks prior to the hearing, Ownby made no mention that Complainant's veracity had anything to
do with his termination
but testified that Mike Thomas said merely, "If this is true then Kevin should be
fired" (CX-9, 23).
Dwight Thomas testified at the hearing that Mike Thomas stated,
"If Kevin's
lying to us, he should be fired" (Tr. 276). However, again, at his deposition, two weeks
prior to the hearing,
Dwight Thomas testified that Mike Thomas said, "If it's true that he what he said about
being anonymous
talking to the EPA or something . . . he should be terminated or fired" (CX-7, 41). At his
deposition, Dwight
Thomas made no statement that Claimant's veracity was an issue in his termination.
Ken Harrop, although present for the meeting on February 21, 1996,
could not
even remember when or if Mike Thomas joined the meeting (Tr. 312; CX-6, 34).
These examples do not exhaust a possible list of testimonial
inconsistencies by
Respondent's witnesses.
43Respondent argues that no
reports
were kept at the individual stores; so any information Complainant could have shown TDEC or
the ORFD would have
been incomplete. However, immediately after Ownby and Harrop received the call from
Chambers, they called
Complainant and requested that he bring all the records from the store to the corporate
office (Tr. 235).
Claimant's wages and health care for the month
in which he was unemployed $2,333.00
Monthly difference between average wages at
City Motor and wages and benefits at Calibur
(April 1996 through June 1997) $734.00
Total loss March 1996 $2,333.00
Total loss for April 1996 through June 1997 $11,010.00
Total Back Pay due $13,343.00
45Interest is to be calculated
pursuant
to 28 U.S.C. 1961 and shall equal, "the coupon issue yield equivalent . . . of the average
accepted auction price for
the last auction of 52 week United States Treasury Bill settled immediately prior to the date of
judgment."