U.S. Department of Labor
Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
DATE: OCT 10 1991
CASE NO. 90-TSC-2
In the Matter of:
ROBERT DELANEY
nbsp; Complainant
v.
MASSACHUSETTS CORRECTIONAL INDUSTRIES
Respondent
RECOMMENDED DECISION AND ORDER DISMISSING
COMPLAINT
Jurisdictional History
This is an action brought by Robert Delaney (hereinafter "the
Complainant") under the Toxic Substances Control Act, 15 U. S. C.
§ 2622 (hereinafter "the Act") and the implementing Regulations
found in 29 C.F.R. Part 24, whereby employees of employers subject
to the Act and Regulations may file complaints and receive certain
redress upon a showing of being subjected to discriminatory action
resulting from certain protected activity. After an initial
finding by the U.S. Department of Labor (hereinafter "DOL") that
the employer (hereinafter "Respondent") was in violation of the
Act, the Respondent appealed and requested a hearing. A hearing
was held in Boston, Massachusetts on May 15, 1991 at which time the
parties appeared and were given the opportunity to present evidence
and argument. The record was then left open post-hearing for the
submission of briefs. Post-hearing briefs were received from both
parties and the record is now closed. This decision is being
rendered after giving full consideration for he entire record.
Issues in Controversy
The parties have stipulated that the sole issue in this case
is whether the Complainant was discriminated against by Respondent
because of his alleged "whistle blowing activity" and other
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activity protected by the Act.
Applicable Provisions of Act
The applicable provisions of the Act are as follows:
§2622. Employee Protection
(a) In general - No employer may discharge any
employee or otherwise discriminate against any employee
with respect to the employee's compensation, terms,
conditions, or privileges of employment because the
employee (or any person acting pursuant to a request of
the employee) has --
(1) commenced, 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.
Abbreviations
The following abbreviations will be used herein:
"TR" for the transcript of the May 15, 1991 hearing.
"CX" for the Complainant's exhibits.
"RX" for the Respondent's exhibits.
"JX" for joint exhibits.
Summary of Evidence
The parties stipulated and the record confirms that the
Complainant started work as a correctional maintenance worker
(mainly working as a truckdriver) at the Walpole facility of
Respondent on December 29, 1985 and continued work in that position
until May 3, 1987; that on May 3, 1987 he became an Industrial
Instructor I in the License Plate Shop of Respondent at Walpole and
continued work in that position until August 14, 1990 when he
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received a letter from Respondent, transferring him "until further
notice" to another position "within Norfolk Industries" another
nearby facility of Respondent. (CX 3) The Complainant did not
report for work at the new position and has not worked for
Respondent, or any other employer, since that time.
In October 1986, the Complainant was hospitalized for a
serious kidney ailment and has suffered from that condition
continuously until the present time. He testified that in early
1988, with the help of his physician, Dr. Chow, he determined that
his kidney condition was caused by exposure to Oakite and other
cleaning agents which he came in contact with regularly on the job
at the License Plate Shop. The Complainant testified further that
from early 1988 until April 13, 1990, when he filed a formal
grievance with the Respondent, he complained many times to his
supervisor and other employees of Respondent about this problem,
but that nothing was done to remedy the situation and no corrective
action taken. The Respondent denies these allegations and states
that it was unaware of any such complaints until a formal grievance
was filed by Complainant in April 1990.
Following the filing of the grievance in April 1990 (which was
denied at 2 levels by Respondent), Complainant then filed
complaints with the federal Environmental Protection Agency (EPA),
the Massachusetts Department of Environment Protection (DEP) and
the Town of Walpole Board of Health. On site inspection and
investigations by State and Federal agencies then took place, one
by the State health authorities occurring on May 30, 1990. As a
result of these inspections, recommendations were made to improve
and enclose the venting hood over the chemicals and to fix a
ventilating fan which wasn't working. These two recommendations
were carried out by Respondent within a few weeks after they were
notified thereof. Changes were also made in the procedures for
disposing of the used chemical cleansers. As far as can be
determined from the record, all of the suggestions and
recommendations made by State and Federal agencies after these
inspections were carried out several weeks prior to August 14,
1991.
During the period from April 3, 1990 to August 14, 1990,
Complainant continued to work for Respondent in the same job as a
level I Instructor in the License Plate Shop at Walpole. Back in
December 1989, an Instructor Level II position had become vacant
and Complainant applied for the higher paying, higher classified
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job; however, the position was filled by another Level I Instructor
who had less seniority than the Complainant. This refusal to
promote the Complainant is also alleged to be a discriminatory act
by the Respondent for which relief is sought.
Mr. Hutch Aghjayan, the Director of Correctional Industries
for Respondent testified in some detail about Respondent's
operations. He stated that Respondent operated several different
work shops in prisons around the state, two of which were the
License Plate Shop in Walpole and the clothing and furniture shop
in Norfolk (the latter being on the same grounds as and very close
to the Walpole facility). He testified further that at that time
(i.e. 1989-1990), there was increasingly less demand for number
plates and increasingly much more demand for the items produced at
the Norfolk Clothing and Furniture facility. As a result, the
License Plate operation was overstaffed and the Norfolk shop was
understaffed. As a further result, at least two efforts were made
during that period to persuade Complainant to transfer to the
Norfolk facility next door. However, on each occasion, Complainant
declined the offer and remained in his job in the License Plate
Shop at Walpole.
Mr. Aghjayan further testified that in August 1990 he and
other officials of Respondent were getting reports that Complainant
was making open complaints which were heard and overheard by the
inmates, in which he blamed his poor health condition on exposure
to improperly handled toxic and hazardous chemicals in Respondent's
shop. As a result, there was growing concern that the inmate
"climate" was seriously and dangerously worsening and the security
of the prison was threatened by possible work stoppage and/or
rebellions. He further testified that on August 14, 1990 he
received a letter from Ronald Duval, the Acting Superintendent and
his superior, expressing these fears and concerns and recommending
that Complaint be transferred to another facility. (See RX6) On
that same day, Mr. Aghjayan dispatched a letter to Complainant (CX
3) notifying him that effective August 15, 1990 --- [and] until
further notice, "he be transferred to Norfolk Industries for
assignment." The letter of transfer goes on to state:
Climate reports indicate that you are a source of
information to inmates through indiscretion in your
conversations with staff and while on the telephone, in
the presence of inmates, discussed matters of a sensitive
nature which could be overheard.
[Page 5]
Complainant never reported for duty at Norfolk and has not
worked for any employer since that date (i.e. August 15, 1990).
Shortly after that date, he filed a claim with the Massachusetts
Industrial Accident Board, alleging that he was disabled as a
result of his exposure to toxic and hazardous substances while in
the employ of Respondent. Also, shortly thereafter, complainant
filed a complaint with the U.S. Department of Labor which is the
subject matter of this litigation. After a finding by DOL in favor
of Complaintant an appeal was requested by Respondent. Efforts to
settle the dispute have not been successful (see various
correspondence and testimony about events after August 15, 1990).
The Complainant seeks reinstatement to his former position and
damages. The Respondent has taken the position that it will
rehire the Complainant in his former job only on condition (1) that
he provide medical evidence that he is fit and able to do that job
and (2) that he gave assurance (by accepting a warning letter) that
he will refrain from activities that will adversely affect the
inmate "climate" in the prison.
Discussion and Conclusions
The two relevant issues are:
1. Did Complainant assist or participate in a proceeding or
action to carry out the purposes of the Act?
2. If so, did Respondent discharge or discriminate against
complainant with respect to his compensation, terms, conditions or
privileges of employment because of the proceeding or action
described in issue No. 1?
After careful review of the record, there is no doubt in my
mind that Complainant was engaged in a proceeding or action to
carry out the purposes of the Act. His complaints to the various
Federal and State Agencies were clearly "protected activity" under
the Act and he is entitled to relief if he can show that
discrimination occurred because of that activity.
Complainant has the burden of proving the correctness of his
complaint. Once he shows some element of illegal motive in the
alleged discriminatory conduct the Respondent Employer must show
that it would have engaged in such conduct, even if Complainant had
not engaged in the protected activity. This is the so-called "but
for" test and is the accepted law in most jurisdictions. See
Mackowiak v. Univ. Nuclear Systems, 735 F.2d 1159; Consolidated
Edison Co. v. Donovan 673 F.2d 61, 62.
[Page 6]
After careful review of the record, I can only conclude that
Respondent had other and more compelling reasons for the actions it
took in ordering Complaint's transfer on August 15, 1990. Because
of its serious concern for security and inmate "climate" (which I
believe to have been genuine and the paramount reason for its
action), I find and conclude that Respondent would have undertaken
such action even if Complainant had not engaged in the protected
activity of filing complaints with the Federal and State regulatory
bodies. Moreover, I find and conclude that the Complainant did, in
fact, engage in statements and conversations, which were heard and
overheard by inmates, and that Respondent's overriding concern was
to head off this potentially dangerous situation. Further, I find
and conclude that these statements and conversation by Complainant
were not acting to carry out the purposes of the Act and,
therefore, are not protected activity.
After careful review of the record, I further find and
conclude that Respondent was also motivated by other
considerations, outside the Act's protection, when it undertook the
transfer action on August 15, 1990. There is little doubt that it
was concerned about the possibility of an Industrial Accident claim
by Complainant. Moreover, there seems little doubt that it was, in
part perhaps, motivated by staffing considerations (See discussion
above).
I find that Complainant's actions in notifying the State and
Federal authorities played no role in Respondent's decision to
transfer him. Following the complaints, inspections were done,
recommendations were made and very small changes were made fairly
promptly. There is no credible evidence in the record, other than
the bare allegations themselves, to show that these complaints and
activities were a motivating force behind Respondent's actions.
As noted previously, the Complainant has also alleged that he
was discriminated against when he was by-passed for promotion in
late 1989. (See discussion above). Clearly, this action affords
no basis for relief. First, it took place several months before
the grievance was filed and the complaints were made to the Federal
and State Authorities. Therefore, those actions could not have
been the basis for the Respondent's alleged discrimination.
Secondly, it is barred by the statute of limitations, as the claim
for relief was not timely filed under the Act.
Lastly, the Respondent contends that its action in
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transferring the Complainant to its Norfolk facility on August 14,
1990 did not constitute discriminatory action under the Act.
Inasmuch as I have specifically found that this action by
Respondent was not caused or motivated by the Complainant's
protected activity under the Act, the Complainant is not entitled
to relief and there is no need to address this argument. However,
were it crucial to the decision, I would find and conclude that the
transfer of August 14, 1990 was not a discriminatory action since
the Claimant's job title, salary, grade seniority, job duties and
commuting time would have been almost exactly the same on the new
job. Therefore, I am not satisfied that any discriminatory action
has taken place.
Recommended Decision and Order
In view of the above findings and conclusions, it is my
Recommended Decision that the Complainant is not entitled to relief
under the Act and it is my Recommended Order that the complaint be
DENIED and DISMISSED.