U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 630
111 Veterans Memorial Blvd.
Metairle, LA 70005
(504) 589-6201
CASE NO. 88-WPC-2
In the Matter of
COMPLAINT OF RAYMOND IVORY
AND EVANS COOPERAGE, INC.
APPEARANCES:
DAVID FINE, ESQ.
FRANK REPASS, ESQ.
Fine, Fine, Dieth & Repass
335-337 Decatur Street
New Orleans, LA 70130
E. FREDERICK PREIS, JR., ESQ.
KENNETH LAUTER, ESQ.
McGlinchey, Stafford, Mintz, Cellini
& Lang, P.C.
643 Magazine Street
New Orleans, LA 70130
BEFORE: KENNETH A. JENNINGS
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This matter arises under the Federal Water Pollution Control
Act of 1972, 33 U.S.C. §1367, hereinafter called "the Act." The
Act prohibits any person from discharging or otherwise
discriminating against an employee who has engaged in activity
protected by the Act.
Raymond Ivory, the Complainant in this matter, filed a
complaint with the Wage and Hour Division, United States
Department of Labor, on December 15, 1987, alleging that he was
discharged by Respondent, Evans Cooperage, Inc., on December 1,
1987, because he was engaged in activity protected by the Act.
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The Wage and Hour Division on January 15, 1988 issued its
notification of findings letter finding that Complainant was a
protected employee engaging in a protected activity within the
ambit of the Act, and that discrimination as defined and
prohibited by the statute was a factor in the discharge. On
January 21, 1988, Respondent timely filed a telegraphic request
for a formal hearing.
A formal hearing was held in Metairie, Louisiana and each of
the parties was offered full opportunity to present evidence and
argument at the hearing. Complainant is seeking reinstatement to
his previous position and payment of lost wages. Pursuant to
permission granted at the hearing, post-hearing briefs were filed
by both parties and have been reviewed and considered in reaching
my findings and conclusions. Based upon the entire record,
including my observations of the witnesses and their demeanor, I
make the following decision.
STATEMENT OF THE CASE
On December 1, 1987, Evans Cooperage, Inc., discharged the
Complainant, Raymond Ivory, for allegedly failing to perform his
duties properly, for insubordination towards his supervisor, and
engaging in combative behavior with his fellow workers.
Raymond Ivory had been employed by Evans Cooperage, Inc.,
since May 17, 1982. Claimant was a laborer/production worker
until he was promoted effective September 2, 1987 to acting
leaderman. Claimant's supervisor for both positions was Horace
Williams.
Respondent evaluated Claimant on a yearly basis, and these
evaluations have been submitted into evidence. On May 28, 1987
Ivory was given an overall evaluation of 2.3 which is considered
between good and excellent. On August 27 Complainant was
promoted to the acting leaderman position. Complainant was
evaluated as having "the ability to work with other employees and
infuse in them the incentive to work safely and efficiently."
Horace Williams, Complainant's supervisor, and a
reconditioning plant manager, has worked for Employer for 10
years. (Tr., p. 10). Complainant was one of 100 employees that
Williams supervised. Williams testified at the hearing that
employees supervised by Ivory complained to him about Ivory's
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behavior. Walter Barrios, personnel and insurance manager for
Employer testified that Complainant was a good employee until
several incidents occurred when he took over his new job as
acting leaderman.
The following matters detail in chronological order the
series of events leading up to Claimant's suspension and
subsequent termination. Williams testified that he began
receiving complaints from workers that Complainant was not
properly sharing forklifts with them. Williams testified that
once Complainant assumed the responsibility of leaderman, he
started to change and wanted to control everybody. Williams
stated that he discussed with Ivory on four to five occasions
that this type of behavior wasn't acceptable. Williams stated
that he did not write up an employee warning on those occasions
because he is very "employee oriented" and it's not his style.
Williams testified that on November 13, 1987, Complainant
got into a physical fight with a fellow employee, Benjamin
Preston. Preston testified that he and Complainant argued at
work over the use of a forklift. Later, as Preston was ready to
leave work for home in his car, Complainant opened his car door,
pulled him out and the two began to wrestle. Preston then got
back in his car, drove off and was followed for a while by
Complainant in his truck.
Horace Williams testified that he called both Complainant
and Mr. Preston into his office. Williams told Complainant that
there was no way that a man in Complainant's position of
responsibility could jump on another employee like that.
Williams told Complainant at that point that he was going to put
him on a 2 weeks probationary period and he would be watching his
actions closely. Williams stated that Complainant's behavior did
not improve after this period. (Tr. p. 90).
Several days later, on November 16, 1987 Complainant
allegedly argued with another employee, Rex Williams, over the
use of a forklift. Rex Williams testified at the hearing,
however, that he did not have a fight over the forklift with
Complainant. Complainant testified that he was never reprimanded
for any incident with Rex Williams. (Tr., p. 51).
Horace Williams testified that on November 18, 1987
Complainant had left a job incomplete without notifying anyone.
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Williams called Complainant into his office the next day to
discuss the situation and Complainant was unresponsive and walked
out of his office. Williams followed Complainant who in turn
used profanity about the job and walked off. Williams stated
that he considered this a major act of insubordination and he
told Complainant to "punch out." Williams said he suspended
Ivory on an indefinite basis.
Apparently within 1 hour of being suspended, Complainant
called 911 and made a complaint to the Jefferson Parish Sheriff's
Office, alleging that Employer was pumping acid into a barge
which was going to be released into the Harvey Canal.
Complainant testified that he had been wanting to file a
complaint for a long time and since he was suspended at the time,
he figured there was nothing Employer could do to him as long as
he was suspended. (Tr., p. 69). Complainant stated that he did
not know he was on an indefinite suspension. Complainant was
terminated within 2 weeks.
DISCUSSION AND CONCLUSIONS OF LAW
The Water Pollution Control Act, 33 U.S.C. §1367 provides:
"No person shall fire, or in any other way
discriminate against, or cause to be fired or
discriminated against, any employee or any authorized
representative of employees by reason of the fact that
such employee or representative has filed,
instituted, or caused to be filed or instituted any
proceeding under this chapter, or has testified or is
about to testify in any proceeding resulting from the
administration or enforcement of the provisions of
this chapter."
Under this statute, the general rule is that the burden of
proof placed on the parties is identical to the burden placed in
employment discrimination cases brought under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §200e. Rousseau v. Teledyne
Mobile Offshore, Inc., 619 F.Supp. 1513, 1521 (W.D. La. 1985).
Under Title VII, a complainant must first prove a prima facie
case of discrimination. Once this prima facie case has been
demonstrated, the burden shifts to the respondent to articulate a
legitimate, nondiscriminatory reason for their action in
terminating the Complainant. If the Respondent meets that
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burden, the Complainant then must prove by a preponderance of the
evidence that the reasons offered by Respondent are not the true
reasons but instead are a pretext for discrimination. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In the instant case, for Complainant to prove a prima facie
case he must demonstrate that the supervisor who made the
decision to discharge him was aware of his complaint to the
authorities, that Prior to the complaint, his work was
satisfactory, and that he had been discharged shortly after
making his complaint.
For the first prong of this prima facie case, i.e., whether
the supervisor was aware of Complainant's complaint, the
testimony reveals in this case that Horace Williams,
Complainant's supervisor had knowledge of his complaint within
several hours after suspending Complainant.
The second thing Complainant must demonstrate for a prima
facie case is that prior to his complaint, his work was
satisfactory. The evidence and testimony reveals that prior to
Complainant's promotion to acting leaderman, he was a very good
employee, getting high employee evaluations. Once Complainant
assumed his new position, his attitude and work deteriorated.
Horace Williams, Complainant's supervisor has adequately
testified about Complainant's problems with fellow employees, his
insubordination, and leaving a job incomplete. It is apparent
that Complainant would not have been suspended if his job
performance was satisfactory. As Complainant did not make his
complaint to authorities until after his suspension, one can only
conclude the reason for Complainant's suspension was
unsatisfactory job performance.
Complainant has demonstrated that he was discharged shortly
after making his complaint, as his complaint was filed on
November 19, 1987 and he was discharged on December 1, 1987, less
than 2 weeks later.
Because Complainant has not demonstrated that his work was
satisfactory prior to his complaint, this Judge find that
Complainant has not presented a prima facie case and therefore
his claim under the Act must fail.
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Nevertheless, assuming arguendo that Complainant has
presented a prima facie case, Respondent has articulated a strong
legitimate, non-discriminatory reason for terminating
Complainant.
Walter Barrios, Personnel Manager for Respondent, testified
that the offenses set forth in Complainant's Separation Notice
are sufficient to terminate Complainant and employees have been
terminated in the past for less,
Mr. Robert Evans, chairman of the board for Respondent,
testified that he based his decision to terminate Complainant on
his inability to direct people, because of his incident with
Benjamin Preston, and because of his insubordination towards his
supervisor, Horace Williams.
Complainant argues that the reasons articulated by
Respondent are not legitimate, but rather are pretexts for the
real reason Complainant was terminated, i.e., he made a water
pollution complaint.
In arguing his case, Complainant points to the fact that
standard company procedure was not followed in this case,
specifically there were no written warnings issued to Complainant
for his violations. Complainant introduced evidence showing that
he had been issued written warnings in the past for four "minor"
violations.
Walter Barrios testified that no employee warnings were
written for the incidents of November 13, 16, and 18, 1987.
Barrios asserted, however, that employee warnings are sometimes
written when an incident occurs and sometimes not. Barrios
stated that sometimes a manager will write up a warning
immediately, and sometimes he may wait a week or so before he has
an opportunity to write a warning. Barrios testified that
Respondent terminates approximately 14 to 15 employees a year and
it is not uncommon to terminate somebody when an Employee Warning
Form is not drafted. Furthermore, Barrios stated that it was
not unusual that no warnings were filed in this case since the
first incident occurred on November 13, 1987 and the suspension
was November 19, 1987.
Barrios testified that he advised Mr. Evans that a complaint
had been made by Complainant and under no circumstance should a
person be terminated because of any complaint made against the
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company. (Tr., p. 37). Barrios stated he was particularly
careful to make sure there was just cause to fire Complainant
because of the water pollution laws. Horace Williams testified
that he is aware of the rules considering the Water Pollution
Act and he did not take into account Complainant's complaint when
recommending his termination. Williams stated that in fact if he
had written up Complainant's fight, he would have been terminated
at that point in time. (November 13, 1987).
Complainant argues that this Judge can conclude that his
termination was for impermissible reasons by comparing the
separation notices of other discharged employees with his. These
documents have been submitted by Respondent. Complainant argues
that his offenses are minor in comparison to previously
terminated employees.
I do not find that argument persuasive. An examination of
the separation notices reveals that many past discharged
employees were in similar situations as Complainant. For
example one was discharged for insubordination, refusal to work,
and abusive language to his leaderman. Another was discharged
for foul language and striking another employee. Another was
discharged for confrontations with employees, a bad temper and
cursing out a leaderman and supervisor.
Therefore, I find that Respondent did not take into account
Complainant's complaint of water pollution in discharging him.
CONCLUSION
I reverse the findings of the Wage and Hour Division, United
States Department of Labor, that Respondent, Evans Cooperage,
Inc., discharged Raymond Ivory on December 1, 1987 because he was
engaged in a protected activity, namely his complaint to the
Jefferson Parish Sheriff's Office about the discharge of acid
into the Harvey Canal.
RECOMMENDED ORDER
For the foregoing reasons it is hereby recommended that
the Secretary issue an ORDER that the January 15, 1988 decision
of the Administrator of the Wage and Hour Division, Employment
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Standards Administration, United States Department of Labor,
be REVERSED and that the complaint of Raymond Ivory be
DISMISSED.