ARB CASE NO. 00-055
00-056
ALJ CASE NO. 99-CAA-13
DATE: December 6, 2002
In the Matter of:
B. DAVID MOURFIELD, II,
COMPLAINANT,
v.
FREDERICK PLAAS & PLAAS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Edward A. Slavin, Jr., Esq., St. Augustine, Florida
For the Respondent:
Alec J. Beck, Esq., David A. Davenport, Esq., Edina, Minnesota
FINAL DECISION AND ORDER
When Respondent Plaas, Inc. (Plaas) laid off Complainant Bruce David Mourfield, II, in a seniority-based scheduled reduction in force as the construction project he was working on neared completion, Mourfield filed a complaint of discrimination under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9610 (West 1995), the Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2622 (West 1998), the Solid Waste Disposal Act (SWDA), 42 U.S.C.A. § 6971 (West 1995), and the Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 1995). After a full hearing on the merits, the ALJ dismissed the complaint on the grounds that Complainant failed to show that Respondent's proffered reasons for the lay-off were pretextual. Recommended Decision and Order (R. D. & O.) at 83.
The record in this case has been reviewed and we agree with the ALJ that the Complainant did not carry his burden of proving that discrimination was a motivating factor in the adverse actions taken against him.1
1 For the reasons discussed below, we also have serious doubt as to whether any of Mourfield's asserted protected activities were even covered by the statutes he invoked.
2 The ALJ found that Plaas had no knowledge of the protected activities revealed in the private meeting and therefore those complaints could not have been the basis of retaliatory action. R. D. & O. at 73-74.
3 Mourfield and a supervisor argued on December 16 about Mourfield's right to leave his duty station and search the work site for an OSHA investigator. The parties strenuously disagreed on whether Mourfield was "fired" at that time. There seems to be no dispute, however, that Mourfield continued to work for Plaas at the Bimbo Cereal site until December 23, 1998.
4 The ALJ assumed "for the purposes of this case and the sake of argument, that Respondents' ending of negotiations was an adverse employment activity." R. D. & O. at 77.
5 See discussion below at 5 of prima facie case and proof of discrimination by a preponderance of the evidence analyses.
6 The termination form noted "at times disrupted job site (union organizer)." Complainant's Exhibit 2 A and B.
7 "Legitimate nondiscriminatory reasons" in this context refers to reasons which would allow the trier of fact to conclude the actions did not occur because of discrimination under the cited statutes. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257 (1981) ("We have stated consistently that the employee's prima facie case of discrimination will be rebutted if the employee articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus.").
8 Although we find that Mourfield has not carried his burden of proof, assuming retaliation had been shown to be a motivating factor in the adverse actions, for the reasons discussed in the text, we would find that Plaas would have met its burden of showing the same result under a dual motive analysis. See Korolev v. Rocor International, ARB No. 00-006, ALJ No. 98-STA-27, slip op. at 4-5 (ARB Nov. 26, 2002).
10 We reject Mourfield's contention that any concern raised about a hazardous chemical for which a material safety data sheet is required under the Occupational Safety and Health Act gains automatic protection under the CERCLA. See 42 U.S.C.A § 11022(c) (West 1995). Among other things, this would require us to assume that Congress intended that there be two employee protection procedures applicable to the same complaint, namely the CERCLA whistleblower provision and the OSHA 11(c) protection, regardless of the inconsistencies between them.
Similarly, we do not accept Mourfield's interpretation of the CERCLA provision protecting any employee who "has provided information to a State or to the Federal government," 42 U.S.C.A § 9610(a), as protecting under CERCLA complaints to OSHA concerning only occupational safety or health hazards. Here again, this would require an assumption that Congress intended the employee protection provision of CERCLA to be a comprehensive whistleblower statute protecting any and all disclosures to government, not even limited to safety and health concerns. This we are unprepared to do.
11 Plaas' protective petition for review, docketed as ARB No. 00-055, is denied as moot.