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USDOL/OALJ Reporter
Post v. Hensel
Phelps Construction Co., 94-CAA-13 (ALJ Jan. 31, 1995)
CASE NUMBER 94-CAA-13
In the Matter of
ALBERT POST,
Complainant,
v.
HENSEL PHELPS CONSTRUCTION COMPANY,
Respondent.
Appearances:
J. Michael Baggett, Esquire
938 Penn Avenue, Suite 401
Pittsburgh, Pennsylvania 15222
For the Complainant
Robert R. Miller, Esquire
Lawrence Street Center
1380 Lawrence Street, Suite 1000
Denver, Colorado 80204
For the Respondent
Before: Paul A. Mapes
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the "whistleblower" provisions of
four environmental-protection statutes: the Clean Air Act, 42
U.S.C. §7622; the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. §9610;
the Solid Waste Disposal Act, 15 U.S.C. §6971; and the Toxic
Substances Control Act, 15 U.S.C. §2622. In general, these
provisions prohibit employers from retaliating against employees
who have engaged in certain actions in furtherance of the
enforcement of the above-referenced statutes.
A formal hearing was held in Denver, Colorado, on September
[PAGE 2]
29 and 30, 1994. During the hearing testimony was received from
five witnesses and the following exhibits were offered into
evidence: Complainant Exhibits (CX) 1-17 and 19-29; Respondent
Exhibits (RX) 1-43.[1] At the conclusion of the hearing both
parties waived the decisional deadlines so that they could have
sufficient time in which to prepare post-hearing briefs. Tr. at
513. Such briefs were subsequently filed by both the Complainant
and the Respondent.
SUMMARY OF EVIDENCE
The Complainant, Albert Post (hereinafter also referred to
as "Post"), is a resident of Erie, Pennsylvania, who has worked
as a superintendent on various construction projects throughout
the United States since the early 1970's. He specializes in
supervising the sandblasting and painting of large metal storage
tanks. The Respondent, Hensel Phelps Construction Company
(hereinafter referred to as "Hensel Phelps"), is a general
construction contractor based in Greeley, Colorado.
In January of 1992 the City and County of Denver
(hereinafter "the City of Denver") awarded Hensel Phelps a
contract to construct an aircraft fueling facility at Denver
International Airport. RX 2. During the following month Hensel
Phelps entered into a subcontract with JNJ Enterprises, Inc.
(hereinafter "JNJ") under which JNJ was to sandblast and paint
six of the facility's three-million gallon aviation fuel tanks.
Id. JNJ is a small painting company which is owned and
operated by Rudy V. Garcia (hereinafter "Garcia"). Among the
Hensel Phelps employees assigned to oversee JNJ's work on the
contract were Edward Lafferty (hereinafter "Lafferty"), a project
engineer, and Dan Keeley (hereinafter "Keeley"), a project
manager. Tr. at 324.
Under the provisions of its contract with Hensel Phelps, JNJ
was required to comply with various technical specifications that
were set forth in Hensel Phelps' contract with the City of
Denver. One of these specifications required that the paint used
on the tanks be in compliance with the terms of Military
Specification C-4556-D (hereinafter "Mil Spec D"), even though in
1990 the Department of Defense had adopted a superseding
specification known as C-4556-E (hereinafter "Mil Spec E"). RX
40, CX 10. Mil Spec D places no limit on the amount of lead that
a paint can contain; Mil Spec E, in contrast, cannot be
satisfied by any paint that contains more than .06 percent lead.
CX 8, CX 9. The City of Denver's contract specifications also
contained a provision requiring that any paints used on the
[PAGE 3]
project be specifically approved in advance. Tr. at 262. In an
effort to comply with this requirement, sometime in 1992 Garcia
requested permission from the City of Denver to use a brand of
paint known as Tenemec, but that request was denied. Id.
Consequently, Garcia then made a request for permission to use a
brand of paint and primer marketed by a different manufacturer,
Porter International. Tr. at 262-63. That request was
subsequently approved. Id. As permitted under Mil Spec
D, the Porter International paint had a lead content of
approximately 25 percent.[2] CX 4.
JNJ began preliminary work on the subcontract in late
September of 1992. Tr. at 221. Sometime in early February of
1993 Garcia was informed by Hensel Phelps that, in order to avoid
delaying completion of other projects, JNJ's work on tanks Number
One and Number Two, which had not yet begun, had to be finished
by March 12 and 17, respectively. Tr. at 223, 227. Hensel
Phelps apparently recognized that it would be extremely difficult
for JNJ to meet this deadline and therefore Keeley recommended
that JNJ subcontract the work to National Environmental Coatings
(hereinafter "NEC"), a newly-formed company which had recently
employed Post as its General Manager. Tr. at 227. Although
Garcia told Keeley that he doubted that any contractor could meet
the proposed deadlines, during the middle of February Garcia and
Keeley met with Post in Denver. Tr. at 228. At that time Post
assured Garcia and Keeley that by utilizing a special type of
proprietary equipment that would make the use of conventional
scaffolding unnecessary, NEC could complete the work on both
tanks within nine to ten days per tank, i.e., by the deadline
dates. Tr. at 37-41, 227, 229. Post, however, insisted that NEC
be paid a total of $185,000--an amount which was $12,000 more per
tank than Hensel Phelps had agreed to pay JNJ. Tr. at 229-30, CX
1. Therefore, in order to persuade Garcia to enter into the
contract, Keeley assured Garcia that Hensel Phelps would issue a
change order to compensate JNJ for the additional $24,000. Tr.
at 230. Immediately after Garcia received this assurance he and
Post signed a contract which provided that for $185,000 NEC would
sandblast and paint the two tanks on schedule and in accordance
with the City of Denver's specifications. CX 1. The contract
also provided that NEC would provide all materials except for
paints and primers and that NEC would remove all "residual
matter" from the project site. Id. According to Garcia,
during the course of his negotiations with Post concerning this
contract, Post told him that JNJ and NEC "could both make a lot
of money" on the contract by obtaining change orders from Hensel
Phelps. Tr. at 254-55.
[PAGE 4]
On February 24 NEC workers, including Post, began work on
the project and a few days later began spraying the Porter
International primer in tank Number One. RX 1. CX 4. On March
1, however, the spraying was temporarily halted due to
"fingering," i.e., the uneven distribution of the primer on the
surface of the tank. RX 1. The next day a technical
representative from Porter International appeared at the work
site in an unsuccessful attempt to resolve the problem. RX 1.
According to a chronology of events prepared by Lafferty in April
of 1993, on this same day Post questioned Hensel Phelps' quality
control manager, Marty Tittes, about the legality of using a
lead-based primer. RX 1, Tr. at 415. At the same time, however,
Post reportedly assured Tittes that he was familiar with the
safety requirements for applying such a primer. Id.
During the following days representatives of JNJ, NEC, and
Hensel Phelps held a series of meetings about methods for dealing
with the fingering problem. As a result of these meetings it was
determined that various measures would be taken to mitigate the
problem, including the use of a paint thinner and the application
of extra coats of primer to ensure that a minimum thickness was
achieved on all surfaces. RX 1. Thereafter, NEC's workers
resumed application of the primer. RX 1. However, on March 12
Post sent a letter to Garcia in which he asserted that the Porter
International primer was not "an acceptable product" and
indicated that even though NEC would continue applying the primer
as best it could, it would also pursue its request that Porter
International provide information that might reveal the possible
causes of the fingering. CX 3.
By the middle of March it apparently became clear to Hensel
Phelps that NEC would not be able to meet the deadlines for
completing the work on Tanks One and Two. As a consequence,
someone at Hensel Phelps told Garcia that in view of NEC's
failure to meet the deadlines, Hensel Phelps would refuse to
honor its prior agreement to pay the extra $24,000 that JNJ had
been promised when it entered into the subcontract with NEC. Tr.
at 255-56, 280-81. In turn, on March 17 Garcia told Post that if
Hensel Phelps withheld the $24,000, JNJ would make a
corresponding reduction in the amount to be paid to NEC. Tr. at
154-55, 255-56. Garcia testified that Post reacted to this news
by threatening to "contact the newspapers" and "go to OSHA." Tr.
at 255.
According to Post, on March 19, he noticed that two of his
employees were coughing and that one had lost his voice. Tr. at
61. Consequently, Post testified, he called Garcia and insisted
[PAGE 5]
that Garcia provide him with the Material Safety Data Sheet
(hereinafter "MSDS") for the primer so that he could determine if
there was any relationship between the primer and his workers'
symptoms. Tr. at 61. Garcia responded to this request by
bringing the appropriate MSDS to Post's hotel room. Id.
After reviewing the MSDS, Post called the Occupational Safety and
Health Administration (hereinafter "OSHA") and the Environmental
Protection Agency (hereinafter "EPA"), apparently for the purpose
of obtaining information about safety precautions for using paint
with a high lead content.[3] Tr. at 67, 71. On the same day,
Post also talked with someone at the Colorado Department of
Health in an effort to find out what regulations Colorado had
adopted regarding the VOC content of paints.[4] Tr. at 66-67.
Three days later the Colorado Department of Health faxed Post a
copy of a regulation which indicated that Colorado prohibits
firms working on large industrial projects from using any paints
that have a VOC level in excess of 3.5 pounds per gallon. CX 6.
On March 22 there was a meeting in which Post informed
Garcia and Keeley that since the product literature on the Porter
International primer indicated that it had a VOC content of 4.0
pounds per gallon, its continued use would apparently violate
Colorado's VOC regulations. Tr. at 71-72. It is undisputed that
as soon as Keeley received this information, he informed Garcia
and Post that all use of the primer should cease immediately.
Id., RX 1, Tr. at 280. According to Garcia, on this same
occasion Post told him that, despite the Colorado VOC
regulations, he would continue applying the Porter International
primer if Hensel Phelps would honor its earlier commitment to pay
the additional $24,000. Tr. at 280-81. Post, however, denies
having made any such statement. Tr. at 157.
At Post's request, on March 24 several of the painters
employed by NEC had their blood tested for lead poisoning. The
results showed that the lead content of the blood of one of the
painters was 39.9 MCG/DL, a figure that is only slightly below
the 40 MCG/DL "OSHA Action Limit." CX 20. On the same day, Post
also arranged to have samples of the primer chemically analyzed
by Hauser Laboratories, Inc. (hereinafter "Hauser"), a commercial
laboratory in Boulder, Colorado. CX 10. On March 26 Hauser
submitted a written report to Post which concluded that the
viscosity of the primer was somewhat greater than the level of
viscosity permitted under Mil Spec E and that the VOC content of
the primer was only 1.5 pounds per gallon rather than the 4.0
pounds per gallon claimed by Porter International in its product
literature. Id. The report also suggested that the
primer's high viscosity might be the result of the primer's
unexpectedly
[PAGE 6]
low VOC content. Id. As well, the report indicated that
the lead content of the primer was only 19.9 percent, rather than
25 percent. Id. In subsequent weeks Hauser prepared some
additional reports, including one that indicated that the first
report was in error in concluding that the paint's VOC content
was only 1.5 pounds per gallon and that in actuality the VOC
content was in fact much closer to the 4.0 pounds per gallon
claimed by the manufacturer. CX 14, CX 15. In addition, Hauser
also prepared a report which concluded that the specific VOC's
listed in the primer's product literature did not fully
correspond to the VOC's found by means of chemical analysis. CX
11.
On the same day that Post had the blood samples taken from
his employees, Hensel Phelps was informed that unnamed NEC
employees had made a formal complaint to OSHA about the use of
the lead-based primer. RX 1. As a result, Hensel Phelps had to
prepare a written report for the airport's resident engineer.
Id. The report, which was signed by Keeley and drafted by
Lafferty, recited Hensel Phelps' efforts to comply with the
relevant safety requirements and noted that "due to the
productivity problems that National Environmental Coatings has
encountered with the placement of this primer, we believe that
National Environmental Coatings could be looking to outside
agencies for relief in using this product." RX 13, Tr. at 339.
On March 26 Porter International sent a letter to Hensel
Phelps which represented that there are no laws prohibiting the
use of lead-based paint in industrial construction projects. RX
14. A copy of this letter was also provided to Garcia.
Id. As a result, on the same day Garcia sent a letter to
Post directing him to resume painting operations. RX 15. Within
hours, however, this directive was retracted by Garcia, who
informed Post that Hensel Phelps had told him not to proceed with
any further painting until the problem with the Colorado VOC
regulations had been resolved. Tr. at 282, RX 16.
On March 29 there was a meeting at which Garcia, Post, and
various Hensel Phelps personnel discussed the results of the
first Hauser report on the chemical composition of the Porter
International primer. RX 1. During the meeting, Post contended
that only paint which complies with the requirements of Mil Spec
E should have been used on the project. Id. As well,
Post also contended that NEC should be compensated for the extra
costs that it incurred as a result of the problems it encountered
in applying the Porter International primer. Id. The
following day Post submitted a letter to JNJ in which he alleged
that the
[PAGE 7]
Porter International primer was defective and out of compliance
with both the contract specifications and environmental
regulations. RX 42. The letter also demanded payment of
$167,392 in "additional costs" within 15 days. Id.
According to Lafferty, shortly after making this claim Post told
Keeley that he knew "some people in Washington" who could help
him collect it. Tr. at 414. At approximately this same time,
Hensel Phelps and JNJ began taking the steps necessary to obtain
the City of Denver's approval to use some other type of paint. RX
1. On April 7, NEC asked JNJ to be released from its contract
and on April 8 Garcia sent a letter to Post which granted NEC's
request. RX 1, CX 16.
According to Post, on the same day that JNJ released NEC
from the contract, he "happened" to encounter a reporter for the
Denver Post at his hotel. Tr. at 98-99. As a result of
Post's conversation with the reporter, on April 9 the Denver
Post published an article that quoted Post as saying that
NEC would be suing "everybody and their brother." RX 20. The
article also quoted Post as asserting that NEC had spent between
$360,000 and $407,000 out-of-pocket on the job because of
problems with the primer and that, as a result, NEC's cash
reserves were so depleted that it had become financially unable
to bid for other work. Id. Post then drove back to
Pennsylvania, where he was informed that he was being laid off by
NEC. Tr. at 177. Shortly thereafter Jeffrey Lewis, NEC's
secretary-treasurer made a second claim for damages against JNJ.
RX 22. This claim demanded payment of $522,197.55, a figure
which included the $185,000 original contract price, $161,056 in
profits that would have allegedly been made on other NEC
contracts, and $139,575 in additional costs allegedly incurred as
a result of the defective primer. Id. JNJ subsequently
rejected this demand and asserted a counterclaim for $126,034.
During the summer of 1993 Post found new employment as the
head of the Environmental Coatings Division of the John J. Doyle
Company, a construction company which was at that time based in
ontgomery County, Maryland. CX 22 at 9-10, 43-44. According to
the deposition testimony of the president of the company, John J.
Doyle, III (hereinafter "Doyle"), Post's first assignment was to
supervise the sandblasting and painting of some tanks and related
equipment in New Jersey for Bristol-Myers Squibb. Id.
Doyle also testified that at the time he hired Post it was
mutually agreed that as soon as Post finished the job in New
Jersey, he would be sent to Denver to supervise the completion of
a subcontract under which Doyle's company was to paint various
below-ground fuel tanks and related facilities at Denver
[PAGE 8]
International Airport. CX 22 at 14-15. The subcontract had been
awarded to Doyle's company by Hensel Phelps in 1992 and was being
supervised by some of the same Hensel Phelps managers who
supervised the JNJ subcontract, including Lafferty. Doyle's
testimony about his plans to have Post take over supervision of
the subcontract is corroborated by Post, who testified that he
had as many as nine discussions with Doyle about the plan and had
understood that he would "definitely" be going to go to Denver as
soon as he completed his work on the Bristol-Myers Squibb
contract. Tr. at 184-85.
On October 15, 1993, OSHA issued a series of 13 citations
against Hensel Phelps for various alleged safety violations
arising out of the work that NEC had done on the two aviation
fuel tanks. CX 27. All of the citations except one were for
Hensel Phelps' failure as the "controlling contractor" to have
prevented JNJ and NEC from violating various workplace safety
standards, most of which concerned precautions that have to be
followed when working with lead-based paint. Id. The
remaining citation was for Hensel Phelps' alleged failure to post
a sign saying, "Warning, Lead Work Area, Poison, No Smoking or
Eating."[5] Id. The record indicates that both JNJ and
NEC also received similar citations from OSHA. Tr. at 105, 447;
RX 32.
During the same month that OSHA issued the safety citations
to Hensel Phelps there was, according to Doyle, a telephone
conversation between himself and Lafferty in which Doyle proposed
to send Post to Denver to supervise the completion of Doyle's
subcontract.[6] CX 22 at 15. Initially, Doyle testified,
Lafferty was "lukewarm" to the proposal but later rejected it
outright on the grounds that Post is "a snake" and "not to be
trusted." CX 22 at 15-16. Doyle added that Lafferty said that
his animosity toward Post was based on Post's "history with some
other contractor." Id. Because there was no other work
for Post at the time, Doyle indicated, he had no choice but to
terminate Post's employment. CX 22 at 17. In informing Post
that he was being laid off, Doyle testified, he did not tell Post
all the details of his conversation with Lafferty. CX 22 at 24.
Rather, Doyle asserts, he didn't want to "further disappoint"
Post, so he told him only that "Hensel Phelps is going to find
someone else to run the job." CX 22 at 24, 52-57.
Post's account of his termination from Doyle's employment is
very similar to Doyle's. In particular, Post testified that
Doyle told him that Hensel Phelps had "some other people" that it
wanted Doyle to hire to finish the job at the Denver airport, but
did not tell him that Lafferty had accused him of being
[PAGE 9]
untrustworthy. Tr. at 186-87, 190. According to Post's
testimony, he did not push Doyle for any further explanation for
this decision, even though it meant that Post was going to lose
several month's income as well as a chance to share in the
possible profits of the Environmental Coatings Division. Tr. at
190-95. Post also testified that despite the fact that people in
Denver "were upset because I told the truth" about the problems
with the primer, he did not suspect at the time that there was
any connection between the problems he encountered with the NEC
subcontract and Hensel Phelps' decision to have someone else
supervise Doyle's subcontract. Tr. at 191-94.
Lafferty does not dispute Doyle's accusation that he refused
to allow Doyle to send Post to supervise the completion of the
work on Doyle's subcontract. Tr. at 359, 412. As well, Lafferty
also acknowledges that he told Doyle that Post is untrustworthy.
Id. However, Lafferty denies that he referred to Post as
a "snake" and asserts that the conversation actually occurred in
January of 1994 rather than in October of 1993. Tr. at 359, 365.
According to Lafferty, he rejected Doyle's plan to send Post to
Denver because of a long list of problems with Post's performance
in supervising the NEC subcontract. In particular, Lafferty
asserts that Post failed to meet the production schedule, falsely
claimed that his rigging device was proprietary, filed an
exaggerated cost-overrun claim against JNJ,[7] violated safety
procedures, left the bills of at least one supplier unpaid,
defaulted on NEC's obligation to prepare certified payrolls, and
failed to fulfill NEC's obligation to remove lead-contaminated
silica from the job site. Tr. at 347-48, 405. Lafferty denies
being disturbed by Post's contacts with OSHA, EPA, and the
Colorado Department of Health, but did remark that in his opinion
Post "seemed more intent on finding additional regulations than
he did in actually making his men real safe." Tr. at 348, 405.
After being laid off by Doyle in October of 1993 Post
returned to Pennsylvania, where he collected unemployment
insurance benefits and worked briefly in a sales job. Tr. at
114-15. According to the testimony of both Doyle and Post, on
either March 11 or 12 of 1994 Post called Doyle on the telephone
and was told by Doyle that Lafferty had refused to allow Post
take over supervision of Doyle's subcontract because he regarded
Post as someone who was not to be trusted. There is, however, a
substantial difference between Post's version of how this
statement came to be made and Doyle's version. According to
Post, he called Doyle in order to find out if there might be
another job for him in the Environmental Coatings Division of
Doyle's company and was told only incidentally what Lafferty had
[PAGE 10]
said. Tr. at 116. Post specifically denies any suggestion that
he made any reference to whistleblower litigation during the
course of this conversation. Tr. at 180-81. In contrast, Doyle
testified that during the call Post told him that "he was going
to begin litigation over, he called it whistle-blower or
something," and said that he might need Doyle "to testify that
after Bristol-Myers was done ... I had to end my ... job with you
because Hensel Phelps found someone else to finish the job." CX
22 at 59; see also CX 22 at 60. In response to
this statement, Doyle testified, he told Post "there was more to
it than that" and for the first time recounted to Post exactly
what Lafferty had said. Id.
Post's formal complaint under the previously-cited
whistleblower provisions was received by the Denver Office of the
Department of Labor's Wage and Hour Division on April 11, 1994,
apparently by mail. CX 24, CX 25. Thereafter the Wage and Hour
Division conducted an investigation and concluded that Hensel
Phelps had engaged in illegal blacklisting against Post. CX 26.
It therefore ordered Hensel Phelps to cease any such blacklisting
and to pay Post $42,884.24 plus attorney's fees. Id.
Hensel Phelps subsequently filed a timely request for an
administrative hearing.
ANALYSIS
In its post-hearing brief Hensel Phelps has raised two
primary defenses to this claim. First, it contends, this claim
is time-barred under all four of the governing statutes. Second,
it asserts that the claim lacks merit because Lafferty's refusal
to allow Doyle to send Post to Denver was not motivated by
unlawful purposes.[8] Post disputes both contentions.
A. Statute of Limitations
All four of the statutes that furnish the basis for this
claim specifically provide that any request for relief must be
filed with the Department of Labor within 30 days after the
occurrence of the alleged act of illegal discrimination.
However, it is well settled that such limitations periods may be
suspended through the application of one or more "tolling
doctrines." See generally, Cada v. Baxter
Healthcare Corp, 920 F.2d 446, 450-51 (7th Cir. 1990);
Rhodes v. Guiberson Oil Tools Division, 927 F.2d 876, 878-
79 (5th Cir. 1991); Cocke v. Merrill Lynch & Co, Inc.,
817 F.2d 1559 (11th Cir. 1987). Of the various tolling
doctrines, the only one which is potentially applicable in this
case is the doctrine of equitable tolling.[9] Under this
[PAGE 11]
doctrine, the running of a statute of limitations is suspended
"until the facts which would support a cause of action are
apparent or should be apparent to a person with a reasonably
prudent regard for his rights." Cocke, supra at
1561. See also, In Re Kent, Case No. 84-
WPC-2, Remand Decision and Order, April 6, 1987, slip opinion at
11.
In applying the doctrine of equitable tolling to cases
involving allegations of illegal discrimination, the courts and
the Secretary of Labor have generally held that a potential
plaintiff has obtained enough information to start the running of
the statute of limitations whenever he or she has learned facts
that would give a reasonable person justifiable cause to suspect
that unlawful discrimination has occurred. See, e.g.,
Cada, supra at 452-53 (statute of limitations on an
age-discrimination claim began to run when the plaintiff learned
that he had been replaced by a young and inexperienced employee);
Rose v. Dole, 945 F.2d 1331, 1336 (6th Cir. 1991) (statute
of limitations in a whistleblower case began to run when the
complainant first suspected that he had been fired for
whistleblowing activity); Cox v. Radiology Consulting
Associates, 86-ERA-17, Decision and Order, November 6, 1986
(affirming an administrative law judge's finding that the statute
of limitations began to run on a whistleblower claim when the
complainant obtained information that gave rise to a "reasonable
suspicion" than he had been fired for whistleblowing activities);
McKinney v. Tennessee Valley Authority, 92-ERA-22, Final
Decision and Order, November 16, 1993 (dismissing a claim as
untimely because the complainant failed to file his claim within
30 days after he first suspected that his termination was
associated with his whistleblowing, even though at the time he
lacked supportive evidence). See also McGough
v. United States Navy, ROIC, 86-ERA-18, Remand
Decision and Order, June 30, 1988; Billings v. Tennessee
Valley Authority, 86-ERA-38, Final Decision and Order of
Dismissal, June 28, 1990; Gabbrielli v. Enertech, 92-ERA-
51, Final Decision and Order, July 13, 1993.
In this case it is clear that Post had sufficient
information to reasonably suspect that he had been the victim of
unlawful discrimination when Doyle first informed him that he was
not going to be sent to Denver to supervise the completion of
Doyle's subcontract. According to Post's own testimony, prior to
this time it had been "definitely" decided by Doyle that Post was
to be given that job as soon as he completed his work on the
Bristol-Myers Squibb contract. Hence, Post must have known that
the change in plans was almost certainly attributable to Hensel
Phelps. Indeed, according to Doyle's testimony, Post was
[PAGE 12]
explicitly told that Hensel Phelps was "going to find someone
else to run the job," i.e., that Hensel Phelps had in effect told
Doyle that he could not have Post supervise performance of the
subcontract. Moreover, it would have been naive and illogical
for Post not to have realized at this same time that there was a
probable relationship between this event and the events that
occurred when Post was supervising NEC's subcontract with JNJ.
As the record clearly shows, Post's prior encounter with Hensel
Phelps had ended acrimoniously, with Post publicly announcing in
a Denver newspaper that NEC would be suing "everybody and their
brother," including presumably Hensel Phelps.
It is recognized, of course, that Post has denied having any
suspicion that there was a connection between the problems that
occurred during the JNJ subcontract and the news that he would
not be going to Denver to supervise Doyle's subcontract. For two
reasons, however, this testimony is not controlling. First, this
testimony is simply not credible. Indeed, it is in direct
conflict with Doyle's testimony that Post was in fact aware that
there were grounds for filing a whistleblower complaint against
Hensel Phelps even before Doyle told Post the full details of his
conversation with Lafferty.[10] Second, even if Post's
testimony on this issue were credible, the equitable tolling
doctrine would still be inapplicable because, as previously
noted, the information available to Post at the time he was first
told that he would not be supervising Doyle's Denver subcontract
was sufficient to give a reasonably prudent person adequate
grounds to justifiably suspect that unlawful discrimination had
occurred, regardless of whether or not such suspicions actually
occurred to Post.
The weight of the evidence indicates that it was sometime in
October of 1993 when Doyle told Post that he would not be sent to
Denver to supervise the completion of Doyle's subcontract.[11]
Hence, the various 30-day statutes of limitations that are
applicable to this claim all expired at the end of November,
1993, if not sooner. Accordingly, since Post did not file his
claim with the Department of Labor until April of 1994, his claim
is now time-barred.
B. Respondent's Motives
In addition to contending that Post did not file his claim
within the statutorily-prescribed periods, Hensel Phelps also
contends that this claim should be denied because Lafferty's
refusal to allow Post to take over supervision of Doyle's
subcontract was prompted solely by lawful motives. Since it has
[PAGE 13]
already been determined that this claim is time-barred, it is not
necessary to resolve this contention. However, recommended
findings on this issue may eliminate any need for a remand, if
the Secretary of Labor or reviewing courts disagree with the
recommended findings on the statute of limitations issue.
Accordingly, an analysis of Hensel Phelps' lawful motives defense
is being set forth below.
The legal standard for determining if there has been a
violation of a whistleblower statute is well established. In
particular, a complainant must initially present a prima facie
case consisting of a showing that he or she engaged in protected
conduct, that the employer was aware of that conduct, and that
the employer took some adverse action against the complainant.
In addition, as part of the prima facie case the complainant must
present evidence sufficient to raise an inference that the
complainant's protected activity was the likely reason for the
adverse action. If the complainant establishes a prima facie
case, the employer then has the burden of producing evidence to
rebut the presumption of disparate treatment by presenting
evidence that the alleged disparate treatment was motivated by
legitimate, non-discriminatory reasons. At this point, however,
the employer bears only a burden of producing evidence, and the
ultimate burden of persuasion of the existence of intentional
discrimination rests with the employee. If the respondent
successfully rebuts the employee's prima facie case, the employee
still has the opportunity to demonstrate that the proffered
reason was not the true reason for the employment decision. This
may be accomplished either directly, by persuading the factfinder
that a discriminatory reason more likely motivated the employer,
or indirectly, by showing that the employer's proffered
explanation is unworthy of credence. In either case, the
factfinder may then conclude that the employer's proffered reason
is a pretext and rule that the complainant has proved actionable
retaliation for the protected activity. Conversely, the trier of
fact may conclude that the respondent was not motivated in whole
or in part by the employee's protected activity and rule that the
employee has failed to establish his or her case by a
preponderance of the evidence. Finally, the factfinder may
decide that the employer was motivated by both prohibited and
legitimate reasons, i.e., that the employer had dual or mixed
motives. In such a case, the burden of proof then shifts to the
respondent to show by a preponderance of the evidence that it
would have taken the same action with respect to the complainant
even in the absence of the employee's protected conduct.
Guttman v. Passaic Valley Sewerage Commission, 88-WPC-2,
Decision and Order, March 13, 1992, aff'd sub
nom. Passaic Valley Sewerage
[PAGE 14]
Commissioners v. U.S. Dep't of Labor, 992 F.2d 474 (3rd Cir.
1993); Darty v. Zack Company, 80-ERA-2, Decision and
Order, April 25, 1983. See also Mt. Healthy
City Board of Education v. Doyle, 429 U.S. 274 (1977);
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
1. Post's Prima Facie Case
As noted above, in order to establish a prima facie case a
complainant must show: (1) that he engaged in a protected
activity, (2) that the respondent knew of the protected activity,
(3) that the respondent took adverse action against him, and (4)
that the protected activity was the likely reason for the adverse
action. In this case it is clear that Post has proven the first
three elements of a prima facie case. His "internal" complaints
to Hensel Phelps and his contacts with OSHA, EPA, and the
Colorado Department of Health were clearly protected
activities,[12] most if not all of these protected activities
were known to Hensel Phelps, and there was an adverse action
against Post in the form of Hensel Phelps' refusal to allow Post
to supervise the completion of Doyle's subcontract. Hence, if
there is also enough evidence to warrant at least an inference
that Post's protected activities were a likely reason for the
adverse action, Post will have established a prima facie case.
The motives for adverse actions are necessarily subjective
and for this reason it is rare that there is direct evidence of a
connection between a worker's protected activities and an adverse
action. However, it is well established that such a connection
can be proven by circumstantial evidence. See, e.g.,
Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d
563, 566 (8th Cir. 1980); Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). Thus,
for example, it has been held that the proximate timing of a
protected activity and an adverse action can be sufficient in
itself to raise an inference of causation. Jim Causley
Pontiac v. NLRB, 620 F.2d 122 (6th Cir. 1980). See
also Donovan v. Stafford Construction Co., 732 F.2d
954, 960 (D.C. Cir. 1984); Burrus v. United Telephone Co. of
Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982).
In this case, Post lacks direct evidence of any causal
relationship between his protected activities and the adverse
action, but nonetheless contends that there is sufficient
circumstantial evidence to warrant an inference of such a
relationship. There is, in fact, a substantial amount
circumstantial evidence to support Post's argument. For example,
Post's protected activities made it necessary to suspend work for
a prolonged period and indirectly resulted in the issuance of the
[PAGE 15]
OSHA citations against Hensel Phelps.[13] Likewise, Lafferty's
expressions of skepticism concerning the motives for Post's
protected activities also constitute further circumstantial
evidence of a causal relationship. These expressions are found
both in Lafferty's testimony and in the report to the airport
manager that he wrote for Keeley in March of 1993. See RX
13, Tr. at 339, 348, 405. Garcia's testimony also suggests the
existence of such skepticism.[14] In addition, Lafferty's
characterization of Post as untrustworthy might also be
interpreted as an expression of dissatisfaction with Post's
protected activities. Accordingly, I find that there is enough
evidence to warrant an initial inference that there was a causal
connection between Post's protected activities and Lafferty's
refusal to allow him to take over supervision of Doyle's
subcontract.
2. Hensel Phelps' Evidence of Lawful Motives
Since Post has established a prima facie case, it must next
be determined whether Hensel Phelps has produced countervailing
evidence to show that the alleged disparate treatment of Post was
actually motivated by legitimate reasons that were unrelated to
Post's protected activities. However, as previously noted, at
this point the overall burden of persuasion still remains on the
Complainant.
In order to counter Post's prima facie case, Hensel Phelps
relies on two distinct categories of evidence. First, Hensel
Phelps relies on Lafferty's explicit denial of any
dissatisfaction with Post's efforts to contact OSHA, EPA or the
Colorado Department of Health. See Tr. at 348. Second,
Hensel Phelps relies on various other types of evidence which
purportedly supports Lafferty's assertions about the deficiencies
in Post's performance as the supervisor on the NEC subcontract.
This evidence is extensive.
Most significantly, Hensel Phelps has offered evidence which
allegedly demonstrates that NEC would not have met the March 12
and 17 deadlines even if there had not been any problems with the
Porter International primer. This evidence is principally found
in the testimony of Marty Suchecki (hereinafter "Suchecki"), an
area superintendent for Hensel Phelps who was at the job site on
a daily basis during February and March of 1993. Tr. at 472-73.
According to Suchecki, there were a number of days on which there
was no "real problem" with applying the primer and that even on
those days NEC's production pace was not sufficient to meet the
deadlines. Tr. at 491. Thus, Suchecki concluded, even if the
[PAGE 16]
Porter International primer had performed as expected, Post's
failure to put enough manpower and equipment on the job would
have still prevented him from meeting the agreed-upon deadlines.
Tr. at 490. As well, Hensel Phelps also introduced a letter from
Garcia which indicates that substantially less than half of the
necessary work had been done by the time he released NEC from the
subcontract, even though NEC had continued working until March
22--five days past the original deadline for completing the work
on the second storage tank.[15] See RX 28.
In addition, Hensel Phelps has also provided evidence which
allegedly supports Lafferty's assertion that Post misled Hensel
Phelps and JNJ when he claimed that NEC's rigging device was so
unique that it was proprietary to NEC. In particular, Hensel
Phelps elicited testimony from Garcia indicating that NEC's
rigging was in fact nothing more than a commonly used piece of
equipment known as a "flying jenny," which could be easily
obtained from equipment rental agencies. RX 33, Tr. at 269-71.
Hensel Phelps also introduced into evidence a diagram that shows
that the rigging device used by NEC was relatively simple in
design and therefore unlikely to have been of a proprietary
nature. See RX 6.
Further, Hensel Phelps has provided evidence supporting
Lafferty's complaints about the exaggerated nature of Post's
$167,392 claim against JNJ for additional costs. For example,
documents introduced by Hensel Phelps show that Post's list of
NEC's allegedly increased costs included such questionable items
as $7,500 for five weeks of Post's time, $40,000 in unexplained
"damages at risk," $13,391 in unspecified "administrative fees"
and $20,087 in "profit." RX 42.
As well, Hensel Phelps has presented evidence expanding on
Lafferty's allegations that Post failed to ensure that one of
NEC's suppliers was paid for equipment used on the project and
that Post also failed to ensure that NEC's payrolls were
certified in the manner required by the City of Denver. RX 7
(supplier's letter to Hensel Phelps complaining that NEC had
failed to pay more than $5,000 in rental expenses), Tr. at 346-47
(testimony regarding NEC's alleged failure to file certified
payrolls). Similarly, Hensel Phelps has provided evidence
indicating that despite the express provisions of the contract
between NEC and JNJ, NEC failed to remove from the job site a
sandblasting silica that had become contaminated by the lead-
based primer, thereby making it necessary for JNJ to spend
thousands of dollars to have the contaminated material removed.
See, e.g., CX 1, RX 23, RX 28, RX 33, RX 34.
[PAGE 17]
Finally, Hensel Phelps has also provided evidence supporting
Lafferty's allegation that Post failed to follow the proper
safety precautions for applying lead-based paint. This evidence
is primarily found in the OSHA citations, which set forth
allegations of numerous different safety violations by NEC.
See CX 27. The evidence also indicates that Hensel Phelps
eventually paid a $2,250 civil penalty for one of these alleged
violations, i.e., NEC's failure to ensure that its workers wore
approved respirators. See CX 27, RX 43.
In short, there is substantial evidence to support Hensel
Phelps' assertion that it had legitimate reasons for not wanting
Post to take over supervision of Doyle's subcontract. Hensel
Phelps has thus made a showing that is sufficient to meet its
burden of coming forth with evidence of lawful motives for the
adverse action. See St. Mary's Honor Center v.
Hicks, ___ U.S. ___, 113 S. Ct. 2742 (1993). Accordingly, it
is now necessary to weigh all of the relevant evidence in order
to determine if Hensel Phelps unlawfully discriminated against
Post.
3. Conclusions Concerning Hensel Phelps' Motives
At this stage of the analysis, Post can prevail if the
preponderance of the evidence shows either that the reasons given
by Hensel Phelps for the adverse action were a mere pretext or
that his protected activities were the more likely reason for the
adverse action. Alternatively, Post can prevail if he has shown
that his protected activities were at least one of the motivating
factors for the adverse action and if Hensel Phelps has failed to
show by a preponderance of the evidence that it would have taken
the same action even in the absence of the protected activities.
After considering all of the relevant evidence concerning
the adverse action against Post, I conclude that the reasons
given by Hensel Phelps for the adverse action against Post are
not a mere pretext and that Post's protected activities were not
the more likely reason for the adverse action. The possibility
that Hensel Phelps' reasons for the adverse action are a mere
pretext has to be ruled out for two reasons. First, the evidence
strongly supports the conclusion that Lafferty sincerely believed
that there had been many deficiencies in Post's performance on
the NEC contract. Second, many of the individual deficiencies
cited by Hensel Phelps were quite serious and in combination
would have easily been sufficient to explain Lafferty's refusal
to accept Post as the supervisor of Doyle's subcontract.
Likewise, it does not appear that Post's protected activities
[PAGE 18]
were the more likely reason for the adverse action. Although
Post's protected activities did in fact provide Lafferty with a
possible motive for refusing to allow Post to take over the
supervision of Doyle's subcontract, there is no convincing reason
to find that the perceived deficiencies in Post's performance on
the NEC subcontract did not provide Lafferty with lawful motives
that were just as strong or even stronger than any unlawful
motives.
As previously explained, even though the evidence fails to
show that Hensel Phelps' reasons for the adverse action against
Post were a mere pretext or that Post's protected activities were
the more likely reason for the adverse action, Post can still
prevail in this case if: (1) the evidence shows that his
protected activities were one of the reasons for the adverse
action, and (2) Hensel Phelps fails to demonstrate that the
adverse action would have occurred even if Post has not engaged
in the protected activities.
In this regard, Hensel Phelps contends that Post's protected
activities did not play any role whatsoever in the adverse action
against Post. As previously noted, the principal evidence in
support of this contention is Lafferty's testimony that he was
not in any way displeased by Post's contacts with OSHA, EPA, and
the Colorado Department of Health. This evidence, however, is
not convincing. Rather, it is clear that Post's contacts with
these agencies caused substantial problems for Lafferty and
Hensel Phelps. Among other things, Post's inquiries about
Colorado's VOC standards made it necessary for Hensel Phelps to
suspend all activity on the NEC subcontract, thus causing even
longer delays than those which had already occurred. Moreover,
Post's contact with OSHA made it necessary for Lafferty to
prepare a report defending Hensel Phelps' safety practices and
ultimately resulted in OSHA's issuance of a series of safety
citations against Hensel Phelps. It is inconceivable that
Lafferty would not have had these considerations in mind when
Doyle proposed to have Post take over the supervision of his
subcontract. Hence, I find that Post's protected activities
provided at least part of the motivation for the adverse action
against Post.
Since the evidence indicates that the adverse action against
Post was at least partially motivated by Post's protected
activities, the burden of persuasion is now on Hensel Phelps to
demonstrate that the same adverse action would have been taken
even if Post had not engaged in protected activities. In this
regard, I find that Hensel Phelps has met this burden and that in
[PAGE 19]
fact the adverse action against Post would have occurred even in
the absence of his protected activities. There are a number of
reasons for this conclusion.
First, and most notably, the record fully supports the
contention that at the time of the adverse action against Post
Lafferty had a bona fide belief that Post had misled Keeley and
Garcia when he had claimed that NEC could meet the March 12 and
17 deadlines. For example, although there is evidence that the
fingering problems with the Porter International primer did in
fact cause some unexpected delays, there is also credible
evidence which indicates that the Hensel Phelps and JNJ employees
most directly involved in the project had concluded that NEC
would not have been able to meet the agreed-upon deadlines even
if the fingering problems had not occurred. This evidence is
found in Suchecki's testimony about his job-site observations and
in Garcia's representation that substantially less than half the
total job had been completed when work was suspended on March 22.
Indeed, the record indicates that well before the end of March of
1993 Hensel Phelps had become so dissatisfied with NEC's
productivity that it was threatening to refuse to pay the extra
$24,000 that Keeley had promised JNJ at the time JNJ entered into
the subcontract with NEC. Lafferty's knowledge of this
dissatisfaction is clearly reflected in the report he wrote for
the airport's resident engineer in March of 1993. Likewise, the
record also shows that well before Lafferty's conversation with
Doyle, Garcia had given Lafferty good reason to believe that
Post's representations about NEC's "proprietary" rigging device
were an exaggeration, if not completely false. See Tr.
at 334.
Second, the record also supports Lafferty's contention that
he was disturbed by Post's actions in connection with NEC's
$167,392 claim for additional costs. For example, although the
claim purported to cover only "additional costs," it demanded
payment for services that were clearly within the scope of the
initial contract, e.g., the demand for $7,500 for five weeks of
Post's time. Likewise, Lafferty had justifiable grounds for
being irked by Post's demand for payment of such highly
questionable "additional" costs as $40,000 in "damages at risk,"
$13,391 in "administrative fees," and $20,087 in "profit."[16]
It is also reasonable to conclude that Lafferty was further
disturbed by Post's obvious attempt to compel payment of the
claim by telling his story to a local newspaper and threatening
to enlist the aid of "people in Washington." Indeed, the record
indicates that as a result of the Denver Post article
Lafferty's supervisors required him to interrupt his normal work
routine and prepare a detailed chronology of events concerning
the problems
[PAGE 20]
with the NEC subcontract. Tr. at 415-18.
Third, Hensel Phelps has made a convincing showing that
Lafferty's decision to refuse to allow Post to take over
supervision of Doyle's subcontract was in part motivated by
concerns over Post's failure to ensure the timely payment of
NEC's suppliers and the proper certification of its payrolls.
Although Post contends that these functions were the
responsibility of other NEC employees, Post represented himself
to Hensel Phelps as NEC's general manager, and it is therefore
logical that Lafferty would have held him personally responsible
for these problems, regardless of any internal division of
responsibilities within NEC. Similarly, Post's failure to have
removed the lead-contaminated silica from the job site also
provided a credible reason for Lafferty to have been wary of
again doing business with Post. Although it is arguable that NEC
was relieved of this obligation when it was released from the
contract with JNJ, it is just as reasonable to assume, as
Lafferty apparently did, that the release did not entitle NEC to
leave the silica at the job site.
Finally, the evidence also supports Hensel Phelps'
contention that Lafferty was motivated by legitimate concerns
about Post's safety practices. As previously explained, many if
not most of the OSHA citations against Hensel Phelps were based
on allegations that NEC had failed to follow proper safety
procedures. Although Hensel Phelps was indirectly responsible
for insuring that such procedures were followed, it is
indisputable that the primary responsibility for following these
procedures rested with Post. The OSHA citations provided a
strong indication that Post had neglected this responsibility and
therefore also provided Lafferty with another legitimate reason
for rejecting Doyle's plan to have Post take over supervision of
Doyle's Denver subcontract.[17]
Although if viewed individually some of the foregoing
problems with Post's performance on the NEC subcontract might not
have been sufficient to motivate Lafferty's refusal to allow Post
to take over supervision of Doyle's subcontract, in combination
the problems were so serious and extensive that Lafferty had more
than adequate reason for such a refusal. Accordingly, I find by
a preponderance of the evidence that Lafferty would have refused
to allow Post to take over supervision of Doyle's subcontract
even if Post had not engaged in protected activities. It
therefore follows that Post would not be entitled to any relief
under any of the applicable whistleblower statutes even if his
claim were not time-barred.
ORDER
It is recommended that the complaint of Albert Post under
the Clean Air Act, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Solid Waste Disposal
Act, and the Toxic Substances Control Act be dismissed.
_____________________________
Paul A. Mapes
Administrative Law Judge
Date: January 31, 1995
San Francisco, California
[ENDNOTES]
[1]
To the extent that some of these exhibits were not specifically
admitted into evidence during the hearing, all but Complainant's
Exhibit 7 are being admitted at this time. Complainant's Exhibit
7 is excluded because it is incomplete. See Tr. at 74.
It is also noted that no Complainant's Exhibit 18 was ever marked
or offered into evidence.
[2]
According to Lafferty, throughout this approval process the City
of Denver was fully aware of the fact that the Porter
International paint contained lead and that Mil Spec D had been
superseded, but for its own reasons elected to adhere to its
original specifications rather than use alternative products
which complied with Mil Spec E. Tr. at 335.
[3]
According to Post, he had not been provided with a MSDS on the
primer prior to March 19 and had therefore assumed that the
primer was only .06 percent lead, as required by Mil Spec E. Tr.
at 166, 197-98. This assertion, however, has been disputed by
Garcia, who testified that even before JNJ entered into its
contract with NEC he had twice provided all the relevant MSDS
sheets to Post. Tr. at 265-67. Garcia also testified that on at
least one occasion Post had verbally told him that he was
familiar with the paints that had been selected for the project.
Tr. at 272. Garcia's testimony on this issue is corroborated by
Lafferty, who testified that when NEC began working on the
project Garcia told him that he had provided copies of the MSDS
sheets to Post on two separate occasions. Tr. at 338. Lafferty
further testified that Marty Tittes, the Hensel Phelps quality
control manager who Post reportedly questioned about the use of
lead-based paint, had also told him that he had provided Post
with a set of MSDS sheets. Id. As well, Lafferty
testified, all of the relevant MSDS sheets were continuously
available in his office at the job site for anyone to review.
Tr. at 330.
[4]
"VOC" is an acronym for Volatile Organic Compounds--chemicals
that are subject to environmental regulation due to their
tendency to form ozone by combining with other elements in the
atmosphere. CX 5.
[5]
Hensel Phelps subsequently disputed the citations and in August
of 1994 OSHA and Hensel Phelps entered into an agreement under
which most of the citations were withdrawn. RX 43. As well, at
the same time the penalty was reduced from $9,000 to $2,250.
Id. Among the dismissed citations was one that alleged
that there was no system for providing interested parties with
aterial Safety Data Sheets. Id., Tr. at 447.
[6]
It is Doyle's "guess" that the conversation occurred "near the
middle" of the month. Tr. at 23-24.
[7]
During his testimony Lafferty described Post's cost overrun claim
as "erroneous," but it clear from the context of this testimony
that in fact Lafferty regarded the claim as exaggerated rather
than erroneous. See Tr. at 418.
[8]
Hensel Phelps' post-hearing brief also challenges Post's claim on
two additional grounds which were previously raised in a pre-
hearing motion for summary judgment: (1) that Post is not
entitled to relief under any of the governing statutes because he
never was an employee of Hensel Phelps, and (2) that the
activities which allegedly prompted Hensel Phelps' adverse action
against Post are not protected under the provisions of any of the
statutes upon which this claim is purportedly based. Since both
of these arguments were thoroughly considered and rejected in a
September 22, 1994 order denying the motion for summary judgment,
they will not be discussed further in this decision. It is
further noted that at one time Hensel Phelps had also contended
that even if this claim were otherwise actionable, relief would
still have to be denied because Post himself violated the
provisions of each of the governing statutes. This argument,
however, was not pursued in Hensel Phelps' post-hearing brief and
has apparently been abandoned. In any event, Hensel Phelps has
failed to point out any specific alleged violations of these
statutes by Post.
[9]
Another related tolling doctrine which is sometimes confused with
equitable tolling is the doctrine of equitable estoppel. Under
this doctrine, a statute of limitations may be tolled if a
defendant took active steps to prevent a plaintiff from making a
timely claim, e.g., fraudulently concealed material information.
See Cada, supra at 450-51. Since there is
no evidence that Hensel Phelps in any way misled the Complainant
or otherwise concealed information, this doctrine is clearly
inapplicable to the facts of this case.
[10]
Although Post has disputed Doyle's testimony on this point, Doyle
had no apparent reason to fabricate such testimony and therefore
his version of the conversation is probably more truthful than
Post's.
[11]
It is recognized in this regard that Lafferty testified that his
conversation with Doyle occurred in January of 1994. However,
all of the other relevant evidence indicates that Lafferty is
simply mistaken and that in fact the conversation with Doyle
occurred in October of 1993.
[12]
For a further explanation for this conclusion see the September
22, 1994 order denying Hensel Phelps' motion for summary
judgment.
[13]
In this regard it is noted that although Lafferty did not
explicitly admit that he was aware of the OSHA citations at the
time of his conversation with Doyle, he did acknowledge that the
citations were received by Hensel Phelps "about" or "around" the
time of the conversation. Tr. at 388. Moreover, Lafferty also
testified that "safety problems" were one of the factors that
caused him to reject Doyle's proposal to have Post take over
supervision of Doyle's Denver subcontract. Tr. at 405. Hence, I
find that Lafferty was aware of the OSHA citations at the time of
his conversation with Doyle.
[14]
In particular, Garcia testified that it was his impression based
on various conversations with unnamed Hensel Phelps employees
that they shared his belief that Post's contacts with the
regulatory agencies were at least partly related to the fact that
"the schedule was not going to be met." Tr. at 253-54.
[15]
In particular, the letter represents that at the time NEC was
released from the contract it had completed only 60 percent of
the sandblasting and primer application in Tank Number One, 20
percent of the sandblasting and primer application in Tank Number
Two, and none of the topcoat application in either tank. RX 28.
[16]
It is noted in this regard that Post contends that his claim for
additional costs was prepared at Keeley's request and should
therefore not have been held against him by Lafferty. The
evidence does in fact indicate that Keeley told Post to prepare a
claim for additional costs. However, there is no convincing
reason to believe that Keeley in any way urged Post to exaggerate
those costs, as Post quite clearly did. See CX 29.
[17]
In this regard it is important to distinguish between Post's
inquiry or complaint to OSHA and the alleged violations of OSHA
safety standards by NEC. Post's contacts with OSHA were clearly
protected activities and could not have provided a legitimate
basis for an adverse action against him. In contrast, however,
Post's alleged failure to ensure that NEC's workers complied with
the OSHA safety standards was not a protected activity and
therefore provided Lafferty with a legally permissible reason for
the adverse action against Post.
