DATE: September 19, 1995
CASE NO. 94-CAA-0004
IN THE MATTER OF
RICHARD HOFFMAN,
COMPLAINANT,
v.
W. MAX BOSSERT,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
This case arises under the employee protection provisions of
the Clean Air Act (CAA), 42 U.S.C. § 7622 (1988), and the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 U.S.C. § 9610 (1988). Complainant Richard
Hoffman alleges that Respondent, W. Max Bossert, who is the
president and sole stockholder of Boss Insulation and Roofing,
Inc. (Boss Roofing), violated the CAA and CERCLA when he
discharged Hoffman from his position as a laborer because Hoffman
had complained about asbestos in roofing material.
In a Recommended Decision and Order (R. D. and O.), the
Administrative Law Judge (ALJ) dismissed the complaint on the
ground that Hoffman did not establish a prima facie case
of discriminatory discharge. The ALJ's findings of fact, R. D.
and O. at 3-14, are supported by the record and I adopt them,
with the exception of a few minor corrections noted below. I
reject the ALJ's recommendation, however, and find that Hoffman
proved by a preponderance of the evidence that Bossert violated
the employee protection provisions when it laid him off in August
[PAGE 2]
1993. I remand to the ALJ for a recommendation on the amount of
back pay, costs, and attorney's fees to which Hoffman is
entitled.
BACKGROUND
Hoffman, a laborer employed by Boss Roofing, discovered
evidence that the old roof that he was removing at a high school
contained asbestos. T. 180. The job foreman, Steve Bechdel, did
not seem concerned. T. 97-98, 110, 138, 191. Hoffman's co-
worker, Dave Lenig, asked a third party to inform the authorities
about the asbestos. T. 96.
The following day, Hoffman informed Bechdel about labels
that clearly indicated the presence of asbestos in the roof and
complained that the job was unsafe to the public. T. 184-185.
Bechdel agreed to allow Hoffman to notify the school. T. 121,
185. Hoffman was rude to two school district employees when he
went to tell them about the asbestos. T. 61, 232; RX 8. Both
Bechdel and the school district left a message about the asbestos
at Boss Roofing's office, T. 122, 147, and Boss promptly notified
the state authorities. T. 147-148, 260-261.
At the school site later that day, Bossert chastised Hoffman
for his poor manners when speaking with the school officials.
T. 190. Bossert also said that Hoffman should have notified him
about the asbestos prior to informing the school district.
Id.; T. 301.
Bossert told Hoffman that he could not return to work at the
school because he had upset school officials. T. 101, 191-192.
When Hoffman protested that he wanted to work, Bossert said he
could work on another job. T. 192. When Hoffman reported the
next day, Bossert said there was no work for him and advised him
to go on unemployment. T. 194. Hoffman stated that only workers
with asbestos certification or training in applying rubber were
needed at the school site, and Hoffman lacked either type of
certification. T. 313-314. All of the other members of the crew
remained on the job. RX 7.
Upon returning home, Hoffman telephoned the Occupational
Safety and Health Administration (OSHA), described the events of
the last two days, and stated that he suspected he had been
fired. T. 194. The OSHA representative advised Hoffman to
report to work on Monday anyway. Id.
When Hoffman reported the next Monday, Bossert repeated that
he had no work for him and again suggested he file for
unemployment. T. 197, 315. Both parties agree that Hoffman
asked whether he was fired. T. 198. Hoffman claims that Bossert
said yes, id., but Bossert asserts that he told Hoffman he
was laid off. T. 316. In a telephone conversation later that
day, the OSHA representative suggested that Bossert assign
Hoffman to a different roofing job, but Bossert said no such job
was
[PAGE 3]
available. T. 352; CX 1 at 2. At the time, Boss Roofing had
another job underway. T. 345-346.
The school roofing job was halted for a short time when Boss
Roofing did not have enough employees with asbestos
certifications. T. 305. At its expense, Boss Roofing sent four
employees to asbestos training school, but did not offer the
training to Hoffman. T. 124,125, 48-149, 201.
Hoffman provided information about the asbestos at the high
school to local newspapers. The resulting news stories created
hysteria about asbestos among the students and teachers at the
school. T. 306, 317-318. Consequently, the school district
decided to have the roofing work done only during weekends and
school vacations. T. 325. Bossert testified that if Hoffman had
not gone to the newspaper, Boss Roofing probably would have been
able to continue full time on the school roofing job. Id.
After the news stories broke, Bossert said that he could not have
Hoffman back because he "destroyed that job." Id.
Hoffman filed this complaint on September 8, 1993. About a
month later, the Wage and Hour Administration found that the
complaint had merit, and Bossert sought a hearing.
At the end of the summer, Boss Roofing lost several other
employees through resignation or layoff. T. 268-270. Other
employees, however, worked steadily in the Autumn of 1993.
T. 127. Hoffman was not called back to work by Boss Roofing
until October 21, 1993. CX 12.
Hoffman had surgery on September 15, 1993 for an arm injury
that occurred while he was working for Boss Roofing. T. 199-200,
231. Hoffman received workers' compensation payments beginning
that day. RX 6. At the request of its workers compensation
insurance carrier, Boss Roofing inquired whether Hoffman could
return to light duty work, and Hoffman's doctor agreed. T. 271-
272; RX 9; RX 10. Hoffman did light duty work for Boss Roofing
from October 21 until November 27, 1993, when he was laid off for
lack of work. T. 199-201; CX 23.
DISCUSSION
Liability
The ALJ found that Hoffman did not raise an inference that
Bossert laid him off because he engaged in activities protected
under the CAA[1] or CERCLA[2] . Consequently, the ALJ found
that Hoffman did not establish a prima facie case of a
violation and recommended dismissal.
In a case such as this, in which Bossert introduced evidence
to rebut a prima facie case of a violation of the employee
protection provisions, it is unnecessary to examine the question
of whether Hoffman established a prima facie case.[3]
See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and
[PAGE 4]
Order, Feb. 15, 1995, slip op. at 11 and n. 9, petition for
review docketed, No. 95-1729 (8th Cir. Mar. 27, 1995). The
basic question to be examined is whether Hoffman carried his
ultimate burden to prove by a preponderance of the evidence that
he was discriminated against for engaging in protected activity.
See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742
(1993); Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Dec., Apr. 25, 1983, slip op. at 7-8. To carry that burden,
Hoffman must prove that Bossert's stated reasons for his layoff -
- lack of work and low seniority -- are pretextual.
Carroll, slip op. at 10.
Hoffman contends that the evidence contradicts the ALJ's
finding that his layoff was justified by lack of work and low
seniority. Claimant's Initial Brief at 5-8. I find that,
contrary to the ALJ's finding, R. D. and O. at 8, Hoffman was not
the least senior employee. Lenig had lower seniority and stayed
on the high school job after Hoffman's layoff. T. 277; see
also T. 93, 169. If seniority alone were the determining
factor in layoffs, Lenig's remaining on the job undermines the
stated reason for Hoffman's layoff.
Even if an employee's certifications in removing asbestos
and applying rubber were the basis for deciding layoffs, the
record still does not support selecting Hoffman. Bossert kept
laborer Chad Smith on the high school job, although he admitted
that he did not know if Smith was certified either in asbestos or
rubber. T. 344.
Moreover, when Lenig, who voluntarily quit, went to pick up
his last paycheck on August 21, Bossert told him that there were
two other high paying jobs available should he wish to return to
Boss Roofing. T. 103. Bossert did not allege that the other
jobs required asbestos certification, nor did he offer the other
jobs to Hoffman. Finally, Bossert could have sent Hoffman to
asbestos school along with three other employees who received the
training in August, 1993.[4] Bossert did not offer Hoffman that
opportunity, however.
In August of 1993, Bossert told a Wage and Hour Investigator
that business was good, he was short handed, and could use more
roofers for current jobs. CX 10 p. 4. When asked why he did not
call Hoffman back to work, Bossert said, "How could I have him
back? He destroyed that [high school] job." Id. Bossert
conceded that he made the statement. T. 325. If Bossert made
the statement because Hoffman identified asbestos in the high
school roof, the discriminatory motive is clear. Even if
Bossert's statement about destroying the job related only to
Hoffman's contact with the press, it is still evidence of
discriminatory motive. An employer may not take adverse action
against an employee whose protected reports to the news media
cause negative publicity. See Carter v. Electrical Dist. No.
2
[PAGE 5]
of Pinal County, Case No. 92-TSC-11, Dec. and Rem. Order,
July 26, 1995, slip op. at 21 and cases there cited (contact with
the press is protected activity under whistleblower statutes).
Bossert repeatedly complained that Hoffman's contact with a
newspaper caused "hysteria" that effectively shut down the high
school job. T. 306, 316-317, 325; CX 3. The ALJ explained that
"it was not the reporting of the asbestos prior to his lay off
that caused the [high school] job to close, but rather it was the
effect of the reporting to the newspaper after his lay off."
R. D. and O. at 24. The ALJ found that the news reports occurred
after August 16 and therefore could not have been a reason for
Hoffman's August 13 layoff.
The temporal sequence outlined by the ALJ does not complete
the analysis, however. Despite admitting to an investigator that
he was shorthanded and needed additional workers, Bossert did not
recall Hoffman to work prior to October, 1993. See CX 10 at 4.
I find it more likely than not that Bossert's failure to recall
Hoffman was motivated by the reaction to the news stories that
resulted from Hoffman's protected contact with the newspaper.
In this case, the ALJ identified a crucial switch in the
theories Respondent propounded for laying off Hoffman. Although
Bossert claimed that the only reasons for the layoff were lack of
work and low seniority, his counsel introduced evidence from
three other witnesses who testified that Hoffman was rude on
occasion. See R. D. and O. at 20. The ALJ found the
testimony about Hoffman's rude behavior so confusing that he
questioned counsel at length about Respondent's theory of the
case. T. 332-339.
I disagree with the ALJ's finding that the testimony about
Hoffman's demeanor was "inappropriate and irrelevant." R. D. and
O. at 20. To the contrary, the changing theory of Respondent's
case is very relevant because it strongly indicates that lack of
work and low seniority were a pretext.
A respondent's shifting explanations about the reason for
taking an adverse action often reveal that the real motive was
unlawful retaliation. See, e.g., Hobby v. Georgia Power
Co., Case No. 90-ERA-30, Dec. and Remand Ord., Aug. 4,
1995, slip op. at 21 (finding no legitimate, nondiscriminatory reason
for a supervisor's rating the complainant's performance as "excellent"
and "commendable," but testifying later that he never had a high
opinion of the complainant's skills). See also, Edwards v.
United States Postal Service, 909 F.2d 320, 324 (8th Cir.
1990) ("[i]n light of this record, filled with changing and
inconsistent explanations, we can find no legitimate, non-
discriminatory basis for the challenged action that is not mere
pretension.").
Other evidence also undermines the validity of the lack of
[PAGE 6]
work/low seniority explanation. Hoffman did not receive a
written layoff notice in August. Yet after filing this complaint
and being recalled to post-surgery light duty work, Hoffman
received a written notice citing lack of work when he was laid
off again in November, 1993. CX 23. The absence of a written
notice citing lack of work in August undermines the validity of
that reason.
Several other incidents lead me to question Bossert's
veracity in general. According to two witnesses, Bossert told
Hoffman that he would not permit Hoffman to work on the school
job on Friday, August 13, because Hoffman had upset school
district personnel. T. 101 (Lenig), 190-192 (Hoffman); see
also CX 5 (written statement of Boss Roofing employee to Wage
and Hour Investigator). Yet, Bossert testified at the hearing
that Hoffman's contact with the school personnel played no part
in the decision to lay him off. T. 312. I find Bossert's
statement not credible in light of his criticism of Hoffman's
rough demeanor and his admission at the hearing that he believed
Hoffman "shouldn't have approached the school district the way he [did]."
T. 310-312.
Further, there is no explanation in the record for Bossert
misstating, in an August 25 letter to an OSHA inspector, CX 3,
that Hoffman did not report for work on Monday, August 16.
Bossert conceded at the hearing that Hoffman did report that day.
T. 315.
Bossert also complained repeatedly about Hoffman's informing
the school district about the asbestos prior to informing him.
T. 122-123, 190, 310; CX 1 at 2. In a case under the analogous
employee protection provision of the ERA, the Secretary found
that an employee who bypassed the company's chain of command to
speak directly with the Nuclear Regulatory Commission about a
safety concern engaged in protected activity. Saporito v.
Florida Power & Light Co., Case Nos. 89-ERA-7 and 89-ERA-17,
Dec. and Rem. Order, June 3, 1994, slip op. at 1. Here,
Hoffman's informing the school district about the asbestos prior
to informing Bossert was protected under the CAA and CERCLA.
See Studer v. Flowers Baking Co. of Tennessee, Inc., Case
No. 93-CAA-00011, Dec. and Rem. Order, June 19, 1995, slip op. at
7 (bypassing chain of command with complaint about violation of
environmental law protected under CAA). Bossert admitted being
upset about Hoffman's bypassing him.
Upon a thorough review of the record, as outlined above, I
disagree with the ALJ's assessment that the "lack of work" basis
for the August layoff is credible. R. D. and O. at 22. I find
that Hoffman established by a preponderance of the evidence that
the reasons Bossert articulated for the layoff were a pretext.
Hoffman further established that the real reason for laying him
[PAGE 7]
off and not recalling him to work prior to October, 1993, was
retaliation for engaging in protected activities.
The Remedy
Hoffman seeks reinstatement with no loss of seniority or
other privileges, the same training that was provided to other
employees, back pay plus interest, and costs and attorney's fees.
Claimant's Initial Br. at 16. The CAA mandates, and CERCLA
permits, reinstatement as a remedy for violation of their
respective employee protection provisions. 42 U.S.C.
§§ 7622(b)(2)(B) and 9610(b). Accordingly, I will
order Boss Roofing to reinstate Hoffman to the employment status
he occupied on August 12, 1993, with no loss of seniority or
other status and privileges of his employment.[5]
Hoffman also is entitled to back pay and prejudgment
interest on back pay at the rate specified in 26 U.S.C. §
6621 (1988). See Sprague v. American Nuclear Resources,
Inc., Case No. 92-ERA-37, Sec. Dec., Dec. 1, 1994, slip op.
at 12. The number of workers employed by Boss Roofing varied
with the season and the amount of work. After restoration of
Hoffman's status to reflect that he should not have been laid off
on August 13, 1993, Boss Roofing still may have legitimately laid
off Hoffman at some time since that date. On remand, if the
parties do not agree on the amount of back pay owed, the ALJ
shall take evidence and make findings on any such legitimate
periods of lay off and the resulting amount of back pay to which
Hoffman is entitled. The back pay award is not to be offset by
any unemployment compensation Hoffman may have received,
Sprague, slip op. at 12, nor by any workers' compensation
payments for permanent partial disability. Smith v.
Littenberg, Case No. 92-ERA-52, Sec. Dec. and Limited Remand
Order, Sept. 6, 1995, slip op. at 5 n.3.[6]
The employee protection provisions also entitle the
successful complainant to payment of the costs and reasonable
attorney's fees incurred in bringing the complaint. The ALJ
noted his displeasure with the amount of attorney's fees Hoffman
claimed. R. D. and O. at 15 n.9. See also Feb. 18, 1994
Affidavit of Scott Schwarz attached to Claimant's Closing
Argument. Since that time, Complainant's counsel has submitted
two briefs before me and Complainant is entitled payment of the
costs and attorney's fees incurred in filing those briefs.
On remand, the ALJ shall afford Complainant's counsel the
opportunity to submit an updated petition for costs and
attorney's fees incurred through the submission of the final fee
petition. Complainant's Counsel shall have the opportunity to
justify entitlement to the claimed attorney's fees and costs and
shall answer the objections the ALJ raised in the R. D. and O.
Respondent shall have the opportunity to respond to the fee
petition and accompanying justification.
[PAGE 8]
CONCLUSION
Hoffman demonstrated by a preponderance of the evidence that
Bossert violated the CAA and CERCLA when it laid him off in
August, 1993. This case is REMANDED to the ALJ for determination
of the remedy, consistent with this decision.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The CAA provides in relevant part, 42 U.S.C. § 7622(a):
No employer may discharge any employee or
otherwise discriminate against any employee
with respect to his compensation, terms,
conditions, or privileges of employment
because the employee . . .
(1)commenced, [or] caused to be commenced
. . . a proceeding under this chapter or a
proceeding for the administration or
enforcement of any requirement imposed under
this chapter. . . .
[2]
The CERCLA's employee protection provision provides,
42 U.S.C. § 9610(a):
No person shall fire or in any other way
discriminate against . . . any employee . . .
by reason of the fact that such employee
. . . has provided information to a State or
to the Federal Government, filed, instituted,
or caused to be filed or instituted any
proceeding under this chapter. . . .
[3]
I note, however, that the layoff occurred immediately after
Hoffman discussed the presence of asbestos with his supervisor,
the school district, and government authorities. Such temporal
proximity in and of itself raises the inference of causation
sufficient to establish a prima facie case. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).
[4] The ALJ found that Hoffman "was not sent to the school
because he did not contact the [Boss Roofing] office after August
16th." R. D. and O. at 25. Boss Roofing could have notified
Hoffman about the training, since a few months later it was able
to reach Hoffman about returning to light duty work. See
CX 12.
[5] At the time the record was closed, Hoffman had not been
called back to work by Boss Roofing following his second layoff
in November 1993.
[6] The question of set off for workers' compensation temporary
disability payments is reserved for the ALJ on remand. See
Smith, slip op. at 6.
