Complainant's original claims were referred to the Dallas, Texas office of the Occupational
Safety and Health Administration ("OSHA"). The complaint was dismissed by OSHA after
Complainant allegedly failed to provide enough detailed evidence to pursue an investigation. (See
March 22, 1999 Letter to Complainant from Gerald T. Foster, OSHA Regional Supervisor). Complainant
strongly disputes this characterization of the OSHA investigation.
Complainant appealed this finding by timely requesting a de novo hearing
before the Office of Administrative Law Judges. (See March 27, 1999 Letter to Chief
Administrative Law Judge Vittone). Both Complainant and Respondents have now filed Motions for
Summary Decision, as well as responses to the respective motions.
I. Summary Decisions
In environmental whistleblower cases, the complainant must prove by a
preponderance of the evidence that he or she was retaliated or discriminated against for engaging in activity
protected by the various federal employee protection statutes. This requires proof that the complainant was
engaged in a "protected activity," that the employer knew or had notice of this activity, and that
the employer took some discriminatory or retaliatory action against them, which was motivated (at least
in part) by the "protected activity." In cases involving a possible "dual motive"for
the allegedly adverse employment action, after the complainant proves by a preponderance of the evidence
that an unlawful motive played a part in the employer's decision to act, the employer then has the burden
of proving that the same actions would have been taken for legitimate reasons in any event. (See
Varnadore v. Martin Marietta Energy Systems, DOE, 95-CAA-2, et al.,
(ARB June 14, 1996).
Motions for summary decision in these types of cases are governed by 29 C.F.R.
§§ 18.40 and 18.41. An Administrative Law Judge ("ALJ") may grant a motion
for Summary Decision "if the pleadings, affidavits, material obtained by discovery or otherwise, or
matters officially noticed show that there is no genuine issue as to any material fact and that a party is
entitled to summary decision." 29 C.F.R. § 18.40(d). The non-moving party "may not
rest upon the mere allegations or denials of such pleading. . . . [but] must set forth specific facts showing
that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c); see also
Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986), and Celotex Corp. v.
Catrett, 477 U.S. 317 (1986).
II. Elements of Complainant's Case
Complainant has moved for a partial Summary Decision on several elements
of his prima facie case. Each will be discussed separately below.
1. Protected Activity
Neither party has clearly established the impetus for the original OSHA investigation/
site visit on December 16, 1998. However, Complainant allegedly did complain of violations and unsafe
working conditions to the OSHA inspector who was on the job site December 16, 1998. Employer does
not dispute this; in fact, the affidavit of Respondent Frederick Plaas indicates that on that date, Complainant
and another employee appeared at the office "looking for OSHA." While in the office, the two
men voiced various complaints regarding safety on the job site; later the two were interviewed by the
OSHA investigator. (See Affidavit of Frederick Plaas, para. 10 (attached to Respondents'
Motion for Summary Decision)). In addition, Respondents' own Motion for Summary Decision does not
dispute that Complainant engaged in "protected activity" at some point; Respondents' merely
argue that Complainant can not establish that Respondents' knew about his protected activity, and that he
can not establish any nexus between his layoff (or firing) and his protected activity. (See
Respondents' Motion for Summary Decision, p. 6).
Based on the pleadings and affidavits, the court finds there is no genuine issue as to
whether Mr. Mourfield has engaged in at least one instance of "protected activity." Therefore,
the court will GRANT the motion for Partial Summary Decision on this issue.
2. Awareness of Protected Activity
In his original Motion for Summary Decision, Complainant argued that
Respondents had failed to deny knowledge of any protected activity, and therefore the court should grant
Complainant's motion on this issue. In response, Respondents' pointed out that they denied any such
knowledge in their own Summary Decision motion, and that the allegation that Complainant's concerns
were "mocked" despite the knowledge that the same had been expressed to OSHA
(See Amended Complaint, para. 6) was expressly denied in Respondents' Answer to Amended
Complaint. In addition, Respondents' Summary Decision motion alleged Complainant had failed to show
that Respondents were aware of the "protected activity." (See Respondents' Motion
for Summary Decision, p. 6). However, Respondent Frederick Plaas' own affidavit (attached to
Respondents' Motion for Summary Decision) again indicates that Complainant came to the Plaas, Inc.
office on the job site "looking for OSHA," complained about conditions, threatened to have
the job "shut down," and was interviewed by the OSHA inspector. (See Plaas
Affidavit, paras. 10, 11). In addition, this same affidavit describes a telephone conference call Mr. Plaas
himself participated in, in which the events of that day were discussed (particularly Complainant's alleged
firing by a Plaas foreman. (See Plaas Affidavit, para. 13; Complainant's Exhibit 6-A (transcript
of the call).
Thus, the court finds that Respondents' were aware of Complainant's
"protected activity" on December 16, 1998, and will GRANT the motion for Summary
Decision.
3. Adverse Action
Complainant also alleges that he was terminated or laid off on December 23,
1998 (one week after his complaints to the OSHA inspector), and that this constitutes an adverse
employment action in retaliation for his "protected activity." (See Complainant's
Motion for Summary Decision, pp. 6-10). Respondents do not deny that Complainant was laid off at that
time; however, they allege that the lay-off was part of a pre-planned reduction in the work force.
(See Answer to Amended Complaint, paras. 7 and 9). Respondents Motion for Summary
Decision was also based in part on the allegation that Complainant had failed to prove the required nexus
between the alleged adverse employment action and his "protected activity."
(See Respondents' Motion for Summary Decision, p. 6).
This is the central issue in this matter. Both parties have provided an abundance of
discovery documents and affidavits which each party claims supports its position. Without going into the
exhaustive detail and analysis that this issue will eventually require, after a review of the available
documents, the court finds there is clearly a genuine issue of material fact making summary judgment
inappropriate on this issue; therefore the respective motions for Summary Decision are DENIED.
4. Other Issues
a. Employer/Employee
Complainant also seeks a partial Summary Decision on the
Employer/Employee relationship of Complainant and Respondent. As Respondents have admitted in their
Answer to Amended Complaint that "Complainant was employed as a welder for Plaas from
November 9, 1998 through December 23, 1998" (Respondents' Answer to Amended Complaint,
para. 3), there is no genuine issue of material fact. Thus, Complainant's motion for Summary Decision on
this issue is GRANTED.
b. Timeliness
Complainant also seeks a partial Summary Decision on the issue of timeliness
of his complaint; by failing to raise the affirmative defense that the Complaint was untimely, Complainant
argues Respondents have therefore waived that defense. As the court finds no attempt has been made by
Respondents to raise this defense (See Answer to Amended Complaint, p. 4 (Affirmative
Defenses)), and no response has been made to Complainant's motion on this particular issue, the court
again finds no genuine issue of material fact and will GRANT the motion for Summary Decision on the issue
of timeliness.
5. Issues Not Addressed by this Order
As the parties have raised a multitude of issues of all types before the court,
it has been difficult for the court to address them all. Therefore, this Order is limited only to those issues
it has specifically addressed. The parties may raise any other issues before the court, including (but not
limited to) "protected activity" on other dates, and Respondents' knowledge of such activity
on other dates.
Further, a variety of motions for disqualification, sanctions, and admonishment, are
still pending in this file. To the extent these motions have not been addressed by this or an earlier Order,
they are hereby DENIED.
ORDER
For the reasons cited above, Partial Summary Decision is entered for
Complainant on the following issues:
1. That an employer/employee relationship existed between Respondents and
Complainant through at least December 23, 1998;
2. That Complainant engaged in "protected activity" on December
16, 1998, by requesting to speak with the OSHA investigator and later being interviewed by him;
3. Respondents' had knowledge of such "protected activity" on
December 16, 1998, by virtue of Complainant's request to see the OSHA investigator, his comments to
other Plaas employees regarding work site safety (including Mr. Rogers, a Plaas, Inc. foreman), and
Complainant's conference call with Frederick Plaas and other Plaas, Inc. employees later that day.
So ORDERED.
RICHARD D.
MILLS
RDM/bc
[ENDNOTES]
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