DATE: OCT 10 1991
CASE NO. 90-TSC-2

In the Matter of:

ROBERT DELANEY
nbsp;   Complainant

    v.

MASSACHUSETTS CORRECTIONAL INDUSTRIES
    Respondent

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

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

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

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.

    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.

    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

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.

       GEORGE G. PIERCE
        Administrative Law Judge

Dated: OCT 10 1991
Boston, Massachusetts
GGP:aml