Dale L. Ingram, Esquire
204 West Linwood Blvd.
Kansas City, MO 64111
For the Complainant
S. Ruth Lehr, Esquire
4505 Madison
Kansas City, MO 64111
For the Respondent
BEFORE: ROBERT J. LESNICK
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Clean Air Act (hereinafter the CAA), 42 U.S.C. § 7622(a) (1994). The relevant portions of the CAA provide:
No employer may discharge any employee or otherwise discriminate against such employee with respect to his compensation, terms, conditions or privileges of employment because the employee-
(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan,
(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 matter in such a proceeding or in any other action to carry out the purposes of this chapter.
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PROCEDURAL HISTORY
On April 4, 2000, Christine Evans (Complainant) filed a timely complaint with the U.S. Department of Labor, Occupational Safety and Health Administration alleging that Respondent, Baby-Tenda, through the acts of its management, had engaged in acts of retaliation, harassment, and ultimately, termination from her employment in violation of the CAA, 42 U.S.C. § 7622(a), and the pertinent regulations, 29 C.F.R. Part 24. Complainant worked for Respondent from on or about March 1, 1999, until her termination on March 8, 2000.
The Department of Labor Investigator concluded that Evans was terminated because she engaged in protected activity within the scope of the CAA and recommended remedial action (CX 1, at 24). A Notice of Appeal was timely filed by Respondent on October 24, 2000. Further, Respondent alleged that the DOL had failed to comply with 42 U.S.C. 7622(a). Subsequently, Respondent filed a Motion to Dismiss the Complaint on February 28, 2001. Following a motion by Complainant for an extension of time to respond to Respondent's Motion of Dismissal, the Motion to Dismiss was denied on July 12, 2001.
A Notice of Hearing was sent to all parties on February 8, 2001, setting a hearing date for April 9, 2001. Respondent filed a Motion to Continue the Hearing on February 26, 2001, which was granted on March 8, 2001. Hearing on the matter was then rescheduled for November 5 and 6, 2001. Pre-Hearing submissions were received by Complainant and Respondent.
On November 1, 2001, Respondent filed a Motion in Limine and Suggestions in Support of the Motion. Complainant filed a Response to Respondent's Motion in Limine at the commencement of the hearing on November 5, 2001. At the hearing the following evidence was entered into the record: Respondent's Exhibits 1 through 11, 17 through 19, 21, 24, and 25; Administrative Law Judge's Exhibits 1 & 2; and Complainant's Exhibit 1. The following abbreviations shall be used herein: ALJ EX for an Exhibit offered by the Administrative Law Judge; CX for a Complainant's Exhibit; RX for a Respondent's Exhibit; and TR for transcript followed by the page number.
At the commencement of the hearing, I made three rulings in connection with Respondent's Motion in Limine.
1. This court has no jurisdiction over OSHA matters and thus testimony or reference to or conclusions by Complainant regarding an OSHA investigation that took place at Respondent's business in October 1999 relating to defective equipment is not relevant to these proceedings (TR. 10-15).
2. Investigative reports are self-authenticating.
3. Testimony relating to Respondent's past retaliation for matters involving OSHA is admissible as they go to Respondent's credibility and disposition.
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POST HEARING SUBMISSIONS
1. Respondent's Proposed Findings of Fact, Conclusions of Law 01/10/02
2. Complainant's Post-Hearing Brief 01/14/02
3. Respondent's Motion to Strike Complainant's Post-Hearing Brief 01/17/02
4. Respondent's Reply Brief 01/17/02
5. Complainant's Objection to Respondent's Motion to Strike 01/22/02
6. Complainant's Response to Respondent's Post-Hearing Brief 01/22/02
7. Respondent's Reply To Court's Show Cause Order 04/29/02
In order to establish a case of discrimination under the environmental statutes, a complainant must show: 1) that he or she is an employee of a covered employer; 2) that he or she engaged in protected activity; 3) that thereafter he or she was subjected to adverse action regarding his or her employment; 4) that the respondent knew about the protected activity when it took the adverse action; and 5) that the protected activity was the reason for the adverse action. Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Carroll v. Bechtel Power Corp., 1991-ERA-46 , slip op. at 11 n.9 (Sec'y Feb. 15, 1995), aff'd sub nom., Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).
The findings and conclusions which follow are based upon the observations by this tribunal of the appearance and demeanor of the witnesses who testified at the hearing as it affects their credibility, and upon an analysis of the entire record, including the testimony and documentary evidence, in light of the arguments presented, the statutory law, applicable regulations, and applicable case law.
ISSUES
1. Whether Complainant engaged in protected activity under the Act;
2. Whether the Respondent knew or had knowledge that the Complainant engaged in protected activity;
3. Whether Respondent committed adverse action against Complainant;
4. Whether the actions taken against the Complainant were motivated, at least in part, by Complainant's engagement in protected activity; and
5. What damages, if any, the Complainant is entitled to as a result of the retaliatory actions taken by the Respondent.
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TESTIMONIAL EVIDENCE
Christine Evans
In March of 1999, Complainant was hired by Respondent to put creases in the legs of chairs (TR 227). Shortly thereafter, Complainant was transferred to another area of the plant and trained as a sander (TR 227). Complainant described the work environment as friendly and having a good atmosphere where everyone talked to each other (TR 229).
1 The parties stipulated that the first two areas of concern deal strictly with employee safety and fall under OSHA and not CAA; therefore, this tribunal has no jurisdiction over those matters and they are not presently before this court.
2Ms. Hedrick's testimony at the unemployment compensation hearing was referred to by counsel for the Respondent at the hearing (TR 215). I issued an order to show cause why the decision in that matter should not be included in the record on April 17, 2001. Respondent's objections are unpersuasive. Ms. Hedrick's unemployment compensation hearing was adversarial and a matter of public record, and I include the decision in the record as ALJ EX 3. The findings of fact of that decision corroborate Ms. Hedrick's testimony here and present a picture of Respondent's President, who, having just learned that he was to be inspected again, was determined to find out what the employees were "looking for" and to put a stop to it. The Complainant was terminated the next morning a few hours after complaining to Respondent's maintenance foreman about asbestos dust at her work station.
3Respondent was required to provide this court with a copy of the video taped meeting. However, by a letter dated November 20, 2001, Respondent advised this court that the video taped meeting had been taped over.
4There is some discrepancy as to whether this occurred on March 2 or 7, but, in any event, it occurred prior to the Complainant's termination.
5 This alleged tape recording was the subject of a Show Cause Order by this court dated April 17, 2002. This same tape was entered into evidence in another court proceeding Case No. WD 59050. Respondent, by reply dated April 27, 2002, argued that the tape used in a subsequent proceeding was not the above mentioned tape.
9 Respondent's Reply Brief at 3 (quoting Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan. 25, 1995). (Note: Respondent miscites Minard as the Secretary's Decision and Remand Order on January 25, 1995. For reference, this decision was actually issued on January 25, 1994. The Secretary's Final Decision and Order was issued on July 25, 1995).
10Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan. 25, 1994).
11Id. In Minard, the Complainant believed oil and antifreeze were hazardous waste under the EPA statutes. The fact that neither was included on the EPA's hazardous waste list did not deprive the court of jurisdiction; the Secretary remanded the matter to the ALJ to determine if the complainant's belief was reasonable. Id.
12Scerbo v. Consolidated Edison Co. of N.Y., Inc., 1989-CAA-2 (Sec'y Nov. 13, 1992)(internal citations omitted).
19See, e.g., Tyndall v. U.S. EPA, 1993-CAA-6 (ARB June 14, 1996), which dealt with the issue of proximity in time. The adverse actions alleged by Tyndall took place between two and eleven months after the complainant's protected activity. Id. The court ruled that "the temporal proximity alleged here is sufficient to raise an inference of causation and therefore establish a prima facia case." Id.
20Reich v. Cambridgeport Air Systems, Inc., 26 F.3d 1187, 1188-1189 (1st Cir. 1994).
24 Pickett v. Tennessee Valley Authority, 2001-CAA-18 (ALJ Feb. 7, 2002).
25Id. at44 (citing Blackburn v. Metric Constructors, Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991), slip op. at 11). See also Pillow v. Bechtel, Inc., 1987-ERA-35 (Sec'y July 19, 1993).
26Pickett v. Tennessee Valley Authority, 2001-CAA-18 (ALJ Feb. 7, 2002)(citing Crabtree v. Baptist Hosp. of Gadsden, Inc., 749 F.2d 1501 (11th Cir. 1985)).
27See, e.g., Nolan v. AC Express, 1992-STA-37 (Sec'y Jan.17, 1995).
28Leveille v. New York Air Nat'l Guard, 1994-TSC-3 & 4 (ARB Oct. 25, 1999).
29Smith v. Esicorp, Inc., 1993-ERA-16 (ALJ Feb. 26, 1997)(citing Blackburn v. Martin, 982 F.2d 125, 131 (4th Cir. 1992)).
30Pickett v. Tennessee Valley Authority, 2001-CAA-18 (ALJ Feb.7, 2002). See Deford v. Secretary of Labor, 700 F.2d 281 (1983) (analogous provision of the ERA); Nolan v. AC Express, 1992-STA-37 (Sec'y Jan. 17, 1995)(analogous provision of the STA).
47Varnadore v. Oak Ridge Nat'l Laboratory, 1992-CAA-2 (ALJ June 7, 1993).
48 In Sayre, the ALJ noted that the complainant was eventually rehired by the Respondent. That action was a mitigating factor on the exemplary damages award.