U.S. Department of Labor Office of Administrative Law Judges
Room 507 John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109 (617) 223-9355
(617) 223-4254 (FAX)
DATE: [mailed 3/4/97]
CASE NO. 96-CAA-11
In the Matter of:
Gregory Takvorian
Complainant
v.
Saybolt, Inc.
Respondent
APPEARANCES:
Thomas M Greene Esq.
Paul D. Hoffman, Esq.
For Complainant
Jed L. Marcus, Esq.
Joseph Maddaloni Jr., Esq.
For Respondent
BEFORE: David W. Di Nardi
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
PROCEDURAL HISTORY:
This proceeding arises under the employee
protection provision of the Clean Air Act, 42 U.S.C. §7622
(1994) and the implementing regulations at 29 C.F.R. Part 24
[Page 2]
(1996). Complainant, Gregory Takvorian, contacted the
Environmental Protection Agency (hereinafter "EPA") on
July 18 or 19, 1996 as he was concerned that his employer was
engaging in activity in violation of the Clean Air Act (hereinafter
"CAA" or "Act"). Approximately one week later,
on July 26, 1996, he was fired from his position at Saybolt, Inc.
("Employer" or "Respondent" herein) On
September 4, 1996 Complainant filed a complaint with the Department
of Labor, the Wage and Hour Division. A compliance investigation
was conducted by the Wage and Hour Division of the Employment
Standards Administration and a determination letter was issued by
Joseph W. DiJulia, the Assistant District Director, on September
23, 1996. The Assistant District Director found that the
Complainant was a protected employee and that the firing was
motivated by discriminatory intent on the part of Respondent. The
Assistant District Director required the following actions be taken
by Respondent to remedy the violation: reinstatement, payment of
attorneys' fees, purged personnel file, payment of costs incurred,
and appropriate back pay.
On September 26, 1996 Complainant exercised
his appeal rights and requested that his claim be scheduled for
formal hearing before an Administrative Law Judge. On September
27, 1996 Respondent sent a letter to the Assistant District
Director stating that while they did not agree with his findings
and conclusions they were prepared to comply with the remedies as
ordered. On that same day, the Respondent sent a letter directly to
Complainant, with a copy to both the Assistant District Director
and the Complainant's attorney, offering to comply with all
remedies as ordered by the Assistant District Director.
The Office of Administrative Law Judges
received the Assistant District Director's letter of determination
on October 2, 1996. On October 3, 1996 I issued a pre-hearing
order to all parties involved and scheduled this matter for hearing
on October 16, 1996. Hearings were held on October 16 and 17, 1996
in Boston, Massachusetts, at which time, the parties presented
arguments, documentary evidence, and testimony in support of their
respective positions. Post-hearing briefs were filed by Complainant
and Respondent on December 20, 1996 and admitted as CX-21 and RX-9. Respondent also submitted an expert report regarding the
authenticity of the tape recording, in evidence at RX-11.
Complainant's response to Respondent's expert report regarding the
authenticity of the tape recording was received by this office on
January 31, 1997 and admitted as CX-231. At that time
Complainant also filed a Motion to introduce newly-acquired
[Page 3]
1CX-23 is admitted with the
exception of attachment #4, the affidavit of Stephen Paine. This
affidavit was also attached to CX-24, Complainant's motion to
introduce after-acquired evidence. Said motion has been denied and
the reasons for denial have been addressed in the body of the
recommended decision and order.
2Reliance on decisional
law under the Energy Reorganization Act (hereinafter
"ERA") in a Clean Air Act case is appropriate. See
Poulos v. Ambassador Fuel Oil Co., 86-CAA-1(Sec'y Apr. 27,
1987), slip. op. at 8, n.2.
3There are two additional
factors which make this case inapposite to the facts of the case at
bar. Specifically, the party deemed an "agent" in
United States v. Walther was an
individual who was both a known informant for the DEA and who
had received payment of monies for information provided to the DEA
on several occasions in the past. In the instant case Mr.
Takvorian testified that prior to his employment with Respondent he
had never been employed with or provided information to a
government agency. Additionally, there was no evidence elicited at
the hearing showing that he received any prior monies/reward for
providing information to a government agency in the past, or that
he expected reward monies for reporting Saybolt's activities to the
EPA. Complainant testified that he had been told by the EPA Agent
that there would be no reward money for his reporting his concerns
to the EPA. (TR 195; 309)
4See S. Rep. No.
848, 95th Cong., 2d sess. 30 (1978) reprinted in 1978
U.S.C.C.A.N. 7303 (noting the similarity between the ERA provision
42 U.S.C §5851(g) and the Clean Air Act provision 42 U.S.C.
§7622 (g) dealing with employees deliberate violations of an
Act and the preclusive result such violations have on an employees
abilities to receive protection under an Act. See Also,
Jackson and Roskam v. Ketchikan Pulp Co., 93-WPC-7 and 8
(ALJ, March 10, 1994); Hadden v. Georgia Power Co., 89-ERA-21 (ALJ, May 22, 1990) (discussing 42 U.S.C. §5851(g) as an
affirmative defense; case dismissed on timeliness grounds by
Secretary on February 9, 1994)
542 U.S.C §7622 (g)
states that the provision of the Code entitled Discharge or
discrimination prohibited is inapplicable "with respect to
any employee who, acting without direction from his employer (or
the employer's agent), deliberately causes a violation of any
requirement of this chapter." 42 U.S.C.A. §7622(g) (West
1995).
6Atchinson v. Brown &
Root was appealed and ultimately vacated by the 5th Circuit.
However, the reversal was based on the 5th Circuit's view that
purely internal complaints were not protected activity within the
meaning of the Energy Reorganization Act. The proposition for
which the Secretary's decision is cited for remains good law.
See Brown & Root v. Donovan, 747 F.2d 1029(1984)
7See TR 442; Respondent
stipulated to both the authenticity and admissibility of Claimant's
personnel file, in evidence as CX-20.
8In Smith v. Esicorp,
Inc., the Secretary found the admission of a Complainant's
exhibit along with Respondent's cross-examination of the
Complainant sufficient evidence for the Respondent to have met its
burden of production, i.e., proffer of a non discriminatory reason
for the adverse action. The Complainant was then required to go
forward and ultimately show that the Respondent's reason was
pretextual. Smith v. Esicorp, Inc., 93-ERA-16(Sec'y March
13, 1996), slip op. at 14, n.13. See Lieberman v. Gant, 630
F.2d 60,65 n.8 (2nd Cir. 1980)
9It should be noted that
although the Complainant was a probationary employee and thus was
subject to discharge for any reason he could not lawfully be
subject to a probationary discharge specifically for a
discriminatory reason. Fishcher v. Town of Steilacoom, 83-WPC-2 (ALJ May 2, 1983) (settled before Secretary: Sec'y Dec. 1,
1983)
10In Hoffman v.
Bossert, 94-CAA-4 (Sec'y Sept. 19, 1995) the Secretary found
that a shift in the reasons for the adverse action proffered by a
Respondent was indicative of pretext. In the instant case a shift
of proffered reasons occurred from what the Respondent's alleged as
a rational basis for discharge at the time of hearing, unexcused
absences, to what the termination notice reports as the reason for
discharge, that he was a probationary employee. Added to the other
evidence presented in this case I find the shifting of reasons for
discharge strongly indicative of pretext.
11This figure was
calculated by taking Claimant's yearly salary of $32,000 and
dividing it by 52 weeks arriving at a weekly salary of $615.38.
The weekly salary of $615.38 was divided by 5 to obtain a daily
salary rate of $123.076. Claimant was awarded back pay benefits
from his date of termination, July 26, 1996, through the date of
October 3, 1996. October 23, 1996 was the date that Respondent
required Claimant to contact them accepting their offer of
reinstatement. This was a total of 50 days; weekends were not
included but holidays were. Also included in this calculation were
a day for July 22, 1996, a 1/2 day for July 24, 1994, and a full
day for July 25, 1996; days Claimant was marked for unexcused
absences. The total back pay award as calculated equals 52 days.
If the Respondent has already paid the Claimant wages for any days
included in this calculation then those wages may be deducted from
the back pay award.
12Although this case
does not involve the issue of termination as the result of
whistleblowing activity and a subsequent order of reinstatement it
does involve comparable circumstances, wrongful discharge from
employment and subsequent damages owed. As a First Circuit case,
the jurisdiction having appellate review of the case at bar, its
propositions on the issue of reinstatement are relevant.
13See, footnote
10 for explanation of how back pay award was calculated.