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USDOL/OALJ Reporter
RECOMMENDED DECISION AND ORDER
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[Page 4]I. ISSUES
II. STATEMENT OF THE CASE
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[Page 16]III. DISCUSSION
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[Page 19]IV. ORDER
[ENDNOTES]
Hightower Martin Gas Sales, Inc., 2001-WPC-2 (ALJ Nov. 7, 2001)
| U.S. Department of Labor | Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 |  |
Issue date: 07Nov2001
CASE NO.: 2001-WPC-00002
IN THE MATTER OF:
KEVIN HIGHTOWER
Complainant
v.
MARTIN GAS SALES, INC.
Respondent
RONALD M. COHEN, ESQ.
For the Complainant
KATHRYN S. VAUGHN, ESQ.
MARK L. FARLEY, ESQ.
For the Respondent
Before: LEE J. ROMERO, JR.
Administrative Law Judge
This claim arises under the employee protection provision of the Federal Water Pollution Control Act, codified at 33 U.S.C. § 1367 (herein the WPC) and the implementing regulations thereunder at 29 C.F.R. Part 24.
On August 18, 2000, Kevin Hightower (Complainant) filed an administrative complaint against Martin Gas Sales, Inc. (Respondent) with the U.S. Department of Labor (DOL) complaining of various alleged violations of the WPC, including his August 9, 2000 termination. On January 5, 2001, Occupational Safety and Health Administration (OSHA), DOL, advised Complainant that the evidence he submitted in support of his complaint under the WPC did not establish the required element of a causal connection between any activity protected by the WPC which he may have engaged in, and Respondent's knowledge of that activity which could prompt Respondent to retaliate against him in violation of the WPC. Therefore, Complainant's complaint was dismissed. Complainant filed an "appeal" and request for a formal hearing.
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This matter was referred to the Office of Administrative Law Judges for a formal hearing. Pursuant thereto, a Notice of Hearing and Pre-Hearing Order was issued scheduling a formal hearing in Houston, Texas, which commenced on August 13, 2001 and closed on August 14, 2001. All parties were afforded a full opportunity to adduce testimony, offer documentary evidence and submit oral arguments and post-hearing briefs. The following exhibits were received into evidence:1
Complainant's Exhibit Numbers: 1-12, 14, 16-24Respondent's Exhibit Numbers: 1-12, 14-25
Administrative Law Judge Exhibit Numbers: 1-3
Post-hearing briefs were received from Complainant and Respondent on October 23, 2001.2
In Complainant's pleadings, he alleges on August 7, 2000 that he was ordered by his supervisor to cast sulphur into the Neches River. The following day,3 he was confronted by his supervisors and requested to sign a reprimand and accept loss of pay, in essence taking full responsibility for the alleged accident. After refusing to sign the reprimand, Complainant contacted the National Spill Response Center (NSRC) to report the illegal dumping of sulphur into the Neches River. Complainant alleges he was terminated by Respondent about one hour after contacting the NSRC and reporting the illegal dumping of sulphur within earshot of another employee. (ALJX-2).
Respondent answered admitting that Complainant was employed by Respondent on August 7, 2000. Respondent further admitted Complainant disposed of sulfur into the Neches River during the spill's clean up. Respondent also admitted Complainant refused to sign a reprimand and he contacted the NSRC to report the spill of sulfur into the Neches River. Respondent further admitted terminating Complainant and requested he leave the property. Respondent denies it violated any statute relied upon by Complainant and further denies that Complainant is entitled to any requested damages or any other damages. Respondent asserted the defense that Complainant has failed to state a claim upon which relief can be granted against Respondent and asserts the defenses of waiver and estoppel. Respondent contended it acted reasonably and in good faith at all times material based on all relevant facts and circumstances known by it at the time it so acted. (ALJX-3).
Section 507(a) of the WPC provides as follows:
No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . by reason of the fact that such employee . . . 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 this chapter.
33 U.S.C. § 1367(a).
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Section 507(b) of the WPC provides that any employee who believes that he has been fired or otherwise discriminated against by any person in violation of the WPC may, within 30 days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or discrimination. "A copy of the application shall be sent to such person who shall be the respondent." 33 U.S.C. § 1367(b).
The Secretary of Labor has repeatedly articulated the legal framework under which parties litigate in retaliation cases. Under the burdens of persuasion and production in environmental "whistleblower" proceedings, the complainant must first present a prima facie case of retaliation by showing:
1) that the respondent is governed by the WPC;2) that the complainant engaged in protected activity as defined by the WPC;
3) that the respondent had actual or constructive knowledge of the protected activity and took some adverse action against the complainant; and
4) that an inference is raised that the protected activity of the complainant was the likely reason for the adverse action.
See Hoffman v. Bossert, Case No. 94-CAA-4 @ 3-4 (Sec'y Sept. 19, 1995); Macktal v. U.S. Dept. of Labor, 171 F.3d 323, 327 (5th Cir. 1999); Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995); Passaic Valley Sewerage Com'rs v. U.S. Dept. of Labor, 992 F.2d 474, 480-81 (3d Cir. 1993); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995).
The respondent may rebut the complainant's prima facie showing by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Lockert v. U.S. Dept. of Labor, 867 F.2d 513 (9th Cir. 1989). The complainant may counter the respondent's evidence by proving that the legitimate reason proffered by the respondent is a pretext. See Yule v. Burns Int'l Security Service, Case No. 93-ERA-12 (Sec'y May 24, 1994) (Slip op. @ 7-8). In any event, the complainant bears the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Dean Darty v. Zack Co. of Chicago, Case No. 82-ERA-2 (Sec'y Apr. 25, 1983) (Slip op. @ 5-9) citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Based upon the evidence introduced and having considered the arguments and positions presented, I make the following Findings of Fact, Conclusions of Law and Recommended Order.
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1. Whether Respondent had actual or constructive knowledge of Complainant's protected activity.
2. If Respondent did have knowledge of Complainant's protected activity, whether Respondent had a legitimate business reason to terminate Complainant.
The Testimonial Evidence
Complainant
Complainant testified that he is a high school graduate and served in the Coast Guard for two years from which he received an honorable discharge. (Tr. 17-18). His prior employment involved work with Laid Law Environmental Services where he was a health and safety officer involved in hazardous waste disposal within Federal Government rules and regulations. He performed that duty for five years. (Tr. 19-20). He also worked as a health and safety officer with Industrial Occupational Health and Safety Company for one year. (Tr. 20). He began employment in July 1998 with Respondent as an operator. (Tr. 21).
As an operator for Respondent, he performed duties of loading and unloading barges and ships as well as trucks. (Tr. 21). The product involved was sulfur initially and then sulfuric acid. (Tr. 22). He testified that he trained as a new employee for four days. (Tr. 21).
Complainant was reprimanded only two times before his discharge. (Tr. 22). On the first occasion he received a reprimand when a sulfuric acid truck pulled off with a hose attached. His punishment was revocation of his safety bonus. (Tr. 22-23). On the second occasion he was reprimanded for hitting a guard shack with a truck. He was then disciplined with a three-day suspension without pay. (Tr. 24). He recalled one other incident where he was informed that he should be wearing his respirator which he had forgotten at home. (Tr. 25). All three occasions involved discipline by the terminal manager, Joel Harrington. (Tr. 22-25).
Complainant testified that as an operator he trained eleven new employees. (Tr. 26-27). Respondent has no training manual and did not teach Complainant how to train new employees. Complainant testified he was not critiqued on his training for new employees. (Tr. 27).
[Page 5]
On August 7, 2000, Curtis Smith, the construction manager for Respondent, told him to train a new employee, John Fore. (Tr. 28). Complainant testified he showed Fore how to make rounds. Fore informed him that he was experienced from other plants. Complainant and Fore then examined the levels of the boilers, tanks, valves and gauges. Complainant testified that Fore had no questions concerning these duties. (Tr. 29-30). Respondent's log sheet, (CX-17; RX-15), reveals that at 7:15 a.m. on August 7, 2000, Complainant and Fore made their rounds. Later they lined up tank A for a discharge of a barge. Complainant testified they also unloaded approximately 26 sulfur trucks, which is not reflected on the log sheet. (Tr. 31-34).
Complainant testified that Brad LeBlanc, Respondent's lead operator, asked him to line up tank A. Complainant stated that the valve to tank A was to be opened and the valve to tank B was to be closed. (Tr. 34). Because of truck traffic, Complainant and Fore did not line up the tanks until about 3:00 p.m. (Tr. 35). Complainant testified that he told Fore to open the valve to tank A. While Fore was opening valve A, Complainant closed valve B. (Tr. 37). Complainant confirmed he saw Fore turning the valve. He explained "lining up" involved only opening a valve to one tank while closing a valve to another tank. (Tr. 38). After the functions were performed, Complainant asked Fore if he had opened value A and Fore confirmed that he had opened valve A. Complainant then called Mr. LeBlanc and informed him that the tanks had been lined up. (Tr. 39).
Complainant left the job site at about 6:00 p.m. He stated he waited an additional five minutes for Johnny Whitaker, his relief, to arrive at the plant. He reported that he radioed or telephoned Whitaker to report to the work site to relieve Complainant. Complainant also stated that he and Whitaker met on the road that led out from the plant at which time Complainant told Whitaker that the tanks had been lined up for a discharge of sulfur from a barge. (Tr. 39-40).
Complainant testified he went home after work and at 7:50 p.m., terminal manager Joel Harrington telephoned him. Harrington was "cussing him" and informed Complainant that a spill had occurred and they needed him to help with the clean-up. (Tr. 40-41). Complainant then returned to work arriving at about 8:00 p.m. He drove to the dock at which time Harrington, Curtis Smith and Brad LeBlanc were present. (Tr. 41). He observed employees chipping and dumping sulfur into the Neches River and he joined them. He affirmed that he received no instructions from Harrington about what to do with the clean-up of the sulfur spill. (Tr. 42). He remained at the clean-up site until approximately 12:20 to 12:25 in the morning at which time he was told to go home as he had to work the following day. (Tr. 43).
On August 8, 2000, Complainant was informed by Harrington to report to the Standolin Cut Facility and continue cleaning up the sulfur spill. (Tr. 43). Complainant acknowledged that there was no notation of the spill in the log sheets for August 7 or August 8, 2000. (Tr. 45-47).
On August 9, 2000, Complainant reported to the Standolin Facility again and worked the clean up of the sulfur spill for a few more hours. Thereafter, he went to the sulfur rack to finish training Employee Fore. (Tr. 47-49). Complainant testified that about 10:00 a.m. Harrington and Smith approached him at the rack and stated that they wanted to talk to him. (Tr. 49). Harrington then presented Complainant with a letter of reprimand revoking his safety bonus for his activity in the sulfur spill. (Tr. 50; CX-8).
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Complainant informed Harrington he would like to seek legal counsel before he signed the reprimand. (Tr. 50). He confirmed that he did not refuse to sign the reprimand. (Tr. 51). He asked Harrington "if he was done" and then exited the meeting and began looking for a phone book for the number of the NSRC. Harrington observed his actions and stated that he was not paying Complainant to look for attorneys in the telephone book. Complainant responded that he was not looking for an attorney. (Tr. 51-52). Complainant emphasized that he did not vocally say anything to Harrington when told he was to be reprimanded except to ask if he could seek counsel before signing the reprimand. (Tr. 86).
On August 9, 2000, at about 2:00 p.m., Complainant called the NSRC. (Tr. 52). He reported being on the phone with the NSRC for approximately five minutes. He testified Employee Fore was approximately eight to ten feet away when he made the call and was present when he informed the NSRC of the spill, when it occurred, and the amount of the spill. Before calling the NSRC, he informed Fore that he did not like the way the spill was handled and that he intended to report the spill. He stated that Fore responded, "yes, it needs to be reported." He stated thereafter Fore went to the docks, but had no reason to leave the sulfur rack. (Tr. 53-55).
After he reported the spill to the NSRC, Harrington approached him in the sulfur rack area and told him that his services were no longer needed by Respondent and that he was to leave the property. (Tr. 56). Complainant emphasized Harrington did not proffer a reason for firing him and he did not ask Harrington why he was being fired. (Tr. 87).
In addition to training eleven employees, on August 4, 2000, Complainant also prepared a "hazard assessment"4 for Respondent at the instruction of Harrington. Complainant testified he prepared the assessment on his own time and was not paid any additional salary or wages for his work on the "hazard assessment." (Tr. 57-58; CX-12; RX-10).
On cross-examination, Complainant acknowledged that after closing the valve to tank B, he did not check the valve to tank A which Employee Fore had been told to open. (Tr. 58-59). He stated that by not doing so he had not committed a mistake and that he was not responsible for the sulfur spill. He confirmed that after reviewing the reprimand which had been proposed by Harrington, he felt he was being held 100% accountable for the sulfur spill. Complainant also confirmed at the meeting where Harrington presented the reprimand to him he was not informed by Harrington that others would be reprimanded as well. (Tr. 59).
Complainant acknowledged that he prepared a "sequence of events" but was not asked by the OSHA investigator (Clack) to prepare such a sequence. Complainant acknowledged that in his May 30, 2001 deposition, at page 25, he was asked if anyone had asked him to prepare such a sequence of events and stated that Mr. Clack had asked for such a sequence. He then clarified that he had already prepared the sequence of events when asked to do so by Clack. (Tr. 61-63). He further acknowledged in the sequence of events he had documented that Harrington told him others would be dealt with concerning their actions in the sulfur spill. (Tr. 63; RX-9, p. 3).
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Complainant testified that his discipline for the sulfur spill was a revocation of his safety bonus which he did not consider to be a minor discipline. (Tr. 64). He stated that he was very careful in his responsibilities as an operator, but acknowledged that he did not double-check the valve opening of a new employee-trainee. (Tr. 66).
When Complainant initially telephoned the NSRC in Washington, D.C., he spoke to a Ms. Pinkney who assigned a confirmation number to his report of the sulfur spill. (Tr. 68-69). The confirmation report of the NSRC indicates that the telephone call was received at 16:12 military time in Washington, D.C. (which would have been 3:12 p.m. in the State of Texas). (Tr. 72; RX-7, p. 4). Complainant acknowledged that Ms. Pinkney informed him to call back at 4:00 p.m. Texas time and talk to Dan McReynolds of the Texas National Resource Conservation Center. (Tr. 72). At 4:00 p.m., Complainant stated he called the Texas National Resource Conservation Center. (Tr. 73).
In contrast to his hearing testimony, Complainant acknowledged in his May 30, 2001 deposition, at page 69, he stated that before being fired he did not tell anyone about his plan to report or his report of the sulfur spill. He testified at the hearing that he informed Employee Fore before being fired that he had planned to make such a report. (Tr. 73-74).
Complainant acknowledged that after he made the telephone call to the NSRC he did not tell anyone with Respondent that he had done so before he was fired. (Tr. 74). He further acknowledged Employee Fore did not inform him that he was going to tell anyone with Respondent that Complainant was going to report the sulfur spill. (Tr. 75).
Complainant reported the spill after he was informed he would be reprimanded for his actions in the sulfur spill. (Tr. 77, 79). He confirmed his report of the sulfur spill was totally unrelated to the Respondent's effort to reprimand him for his actions. (Tr. 77). He refused to acknowledge that the termination of his employment was not related to his report of the sulfur spill. He stated he was never informed of the reasons for his discharge. (Tr. 79). He was terminated at about 3:50 p.m. on August 9, 2000. (Tr. 80).
After his termination, Complainant denied he ever telephoned Employee Fore and told him to tell "a white lie" and if he received any monies as a result of his complaint, then he would help out Fore. (Tr. 81-82).
Complainant testified he did not know what Employee Fore was instructed to do on August 8 or 9, 2000, and he was never told he was still training Employee Fore on those days. (Tr. 83). Although Complainant reported he continued working on the barge through August 8, 2000, and also for a few hours on August 9, 2000, his sequence of events indicates that the barge was to leave at 1:00 p.m. on August 8, 2000. (Tr. 90; RX-9, p. 3). Complainant testified that the barge did not leave as planned on August 8, 2000, but left on August 9, 2000. (Tr. 90).
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Johnny Whitaker
Employee Whitaker testified he has worked for Respondent as an operator since October 12, 1999, and was trained in his position by several people, including Complainant. (Tr. 92-93).
Employee Whitaker confirmed he arrived for work at the Marlbeau terminal on August 7, 2000, "a little before six." (Tr. 93-95). He testified he received a call from Complainant, who was at the Standolin terminal, and was told to report to the Standolin terminal to relieve him. (Tr. 95). He emphasized on August 7, 2000, he only spoke with Complainant on the phone and did not pass him or meet him on the way to the terminal. (Tr. 95-96).
When he arrived at the Standolin terminal, Whitaker began unloading a truck. He then received a call from LeBlanc and was told to check the valve on dock A. Whitaker testified he incorrectly went to the valve on dock C, but entered in his log book that he went to dock A and found that the valve was open and the alignment was correct. After "about one minute, two minutes, at the most" when he realized he had gone to the wrong valve, he returned to the valve on dock A and upon finding a closed valve, he opened the valve and he radioed LeBlanc. (Tr. 97-103).
On cross-examination, Whitaker acknowledged that if the valve on dock C is open and the valves on docks A and B are closed, then Respondent cannot unload any product into the tanks at A and B. He further acknowledged that if valve A is open, then a product can be loaded into tank A. He stated that when he opened valve A he heard pressure being released at that time, which signified to him that valve A had, in fact, been closed. (Tr. 112-18).
Employee Whitaker reported he participated in the clean-up of the sulphur spill. (Tr. 104). He testified he shoveled the sulphur into the river after witnessing Complainant "and the rest of the guys doing it . . ." (Tr. 104-05). He confirmed he never received any training with regards to cleaning up spills. (Tr. 105). Employee Whitaker testified he subsequently discussed his involvement in the sulphur spill with Harrington as related above. (Tr. 110).
John Fore
Employee Fore began employment with Respondent on August 7, 2000. He had previously worked at a waste disposal company for one year and had worked at Valspar Paint Manufacturing Company for 20 years from 1977 until 1997 when it closed down. (Tr. 122-23). He testified that Complainant was assigned to train him. He did not receive any training manuals or employee manuals from Respondent when first hired. His first job duties involved working at the sulfur racks unloading sulfur trucks. (Tr. 125-26). He observed Complainant opening and closing the valves to the trucks, picking-up that process, and then began performing the process. He went on rounds with the Complainant as well. (Tr. 126).
[Page 9]
Employee Fore stated he did not receive any instructions from Respondent concerning the opening of valves for the discharge of barges; however, he was present when Complainant received such instructions from LeBlanc. (Tr. 127-28). Complainant told him to go up and open the valve to tank A. He stated that he asked Complainant which way to turn the valve. He reported Complainant told him to turn the valve to the right. In his mind, Fore believed that he had opened the valve to tank A. (Tr. 128). He stated that he left work at about 6:00 p.m. on August 7, 2000, and was not recalled to work that day for the spill clean up. (Tr. 129).
Fore testified no one from the Respondent asked him if he knew anything about the spill. (Tr. 131). He continued to help with the clean-up of the sulfur spill and was directed by Jerry Bando, a lead operator, to push the sulfur into the river. (Tr. 132-33). Fore reported the barge was scheduled to leave the facility at noon on August 8, 2000. (Tr. 133).
On August 9, 2000, Fore reported to the Standolin terminal and Complainant again trained him. (Tr. 133). They worked at the sulfur shack in the morning and after lunch he was informed by Brad LeBlanc to report to the dock. (Tr. 134). Fore testified LeBlanc called him on the radio to work at the dock and Complainant should have known of such an assignment because everyone who had a radio could hear the instruction. (Tr. 134, 145-46). He did not tell Complainant that LeBlanc called him to the dock. He worked on cleaning hoses on the dock for the remainder of the day. He reported to the dock sometime around lunchtime that day. Lunchtime is normally around noon. (Tr. 137).
Fore testified Complainant told him that he did not like the way the sulfur spill was going and he knew who to contact about the sulfur spill. (Tr. 135, 139-40). He stated he saw Complainant looking at the phone book but at about that time he had to unload a truck and left the sulfur shack. (Tr. 138-40). He emphasized Complainant did not call anyone about the sulfur spill while he was present. (Tr. 140). He further testified that he did not tell anyone with Respondent about what Complainant had informed him. (Tr. 138).
On cross-examination, Fore affirmed he did not tell anyone with Respondent that Complainant had planned to report the sulfur spill or that he had reported the sulfur spill. He acknowledged that Complainant claims Fore overheard such a telephone report of the sulfur spill, but stated such a claim was not true. (Tr. 143-44). Fore also testified that Complainant telephoned him at home and asked him to tell "a white lie" a few days after the sulfur spill. No further explanation was offered by Fore or the Complainant with regard to this alleged "white lie." He testified Complainant did not inform him that if he received money from his case, he would help out Fore. (Tr. 144).
[Page 10]
Brad LeBlanc
On August 7, 2000, LeBlanc was working overtime because barges were due to arrive at the facility. He called the operator on shore, Complainant, to line up the tank for discharge of molten sulfur. Complainant called him back about an hour later, informing that the tanks had been lined up. It was confirmed between LeBlanc and Complainant that tank A had been opened. (Tr. 152-53).
LeBlanc reported he signed-off on a "DOI" or a Declaration of Inspection. (Tr. 153; RX-3). He testified he completed all of the check marks noted on the document. Under Section "D", entitled "transfer system is properly lined up," he stated that he did not personally inspect the transfer system, but "took it for granted" that Complainant had lined up tank A as instructed. He signed the DOI at 17:45 hours or 5:45 p.m. LeBlanc testified further that he checked-off all other items on the inspection checklist except "J" and the item relating to fires in the galley. (Tr. 154-57). He reported the Dock Operations Manual, (RX-20, p. 26), contains procedures for handling molten sulfur transfers. The PIC verifies the tank in which the sulfur is to be received and does so by checking gauges for inventory. (Tr. 159-60).
LeBlanc testified that CX-7, which relates to procedures for discharging sulfur, appeared to be instructions for the tankerman of the vessel. (Tr. 160-61).
Approximately 40 minutes after the discharge of molten sulfur began, LeBlanc stated that sulfur began oozing out of the hatches on the barges. He then contacted the operator, Whitaker, when the barge began to run over. He estimated that approximately four barrels of sulfur had overflowed. Because of the use of two motors, one tank had began filling before the overflow occurred. (Tr. 161-63). Whitaker was asked to check the valves of tank A and reported that initially he went to the wrong platform, C Platform, but shortly thereafter returned to A Platform and confirmed that the valve to tank A had been closed. Whitaker then opened the valve hearing "a lot of pressure" upon its release and opening. (Tr. 163-64).
LeBlanc testified he sprayed water on the molten sulfur which solidifies the sulfur. (Tr. 164). He contacted Joel Harrington, the Terminal Manager, and informed him of the spill. (Tr. 165). LeBlanc stated Harrington told him to clean up the sulfur and to put the sulfur in the water or the Neches River. (Tr. 167-68).
LeBlanc acknowledged that the spill response plan, (RX-18, p. 4), requires that certain individuals be contacted in the event of a spill. He contacted Harrington, who was the first person on the list but did not notify any others listed on pages 4 and 5. (Tr. 168-70).
[Page 11]
LeBlanc testified that in preparation for his testimony he reviewed his notes of the spill which were prepared after his interview by the FBI as well as an affidavit prepared in this matter.5 (Tr. 171-74).
LeBlanc reported on the morning of August 9, 2000, John Fore was working with him washing out hoses. They completed that job before lunch. He did not consider washing out hoses as training for Fore but just manual labor. He stated that to his knowledge Complainant was unloading sulfur trucks at the time. He testified that he was not sure who told Fore to report to the dock to assist in cleaning out hoses. He confirmed Fore did not discuss with him any matters related to the Complainant or the report of the spill. (Tr. 180-82).
On cross-examination, LeBlanc testified that he knew of no reason why the valves would be changed after being set for discharge. Even though there was a two-hour lapse, it would be highly unlikely that the valves would have been changed to a different position although he acknowledged such a possibility. He testified that if he had known Fore had been assigned to change the value, he would have told Complainant to check behind Fore. (Tr. 183-84).
LeBlanc confirmed an investigative report was prepared by a committee of three persons, including Harrington, Dennis Turner and himself. (Tr. 185; RX-1). His input was to devise corrective actions to avoid future spills. (Tr. 186).
LeBlanc emphasized that Complainant did not tell him he planned to report the spill to the NSRC or that he had reported the spill to the NSRC. (Tr. 185). He confirmed Fore did not inform him that Complainant planned to report the spill or that he had reported the spill. Lastly, he testified no one else informed him that Complainant planned to report the spill to the NSRC or that Complainant had reported such a spill on August 9, 2000. (Tr. 186).
Joel Harrington
He testified that on August 7, 2000, LeBlanc called him on his cell phone while he was in his car at about 6:30 or 6:40 p.m., and informed him of the sulfur spill at the barge site. (Tr. 196-97). Harrington arrived at the facility at about 7:30 p.m. whereupon he found five individuals present, who included LeBlanc, Johnny Duke, two tankermen from the vessel and the captain of the vessel. He stated those individuals were then cleaning the spill and sulfur was being swept overboard into the Neches River. (Tr. 197-98).
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At about 8:00 p.m. that night, Harrington phoned Complainant and asked him whether or not he was assigned to line up the tanks. Complainant confirmed he was, and that he had lined up the tanks. Harrington testified he spoke to Employee Fore the next day about the tank assignment. (Tr. 198). Fore informed him that he was told to open the valve to tank A and he thought he had opened the valve. Harrington did not specifically ask Fore if he had opened the valve. (Tr. 199).
After being contacted by Harrington, Complainant showed up at the dock to help in the recovery from the spill. Harrington testified he did not speak to Complainant because he did not want to talk to him although he stated "I don't know if anger would be the right word" when asked if he were angry at Complainant. (Tr. 202). He further acknowledged that although sulfur was being swept into the Neches River, he did not stop the clean-up procedure or the disposal of sulfur into the Neches River. (Tr. 203). He reported he did not order anyone to spray water on the sulfur or to sweep the sulfur into the Neches River. (Tr. 205).
Harrington confirmed that the spill response plan (RX-18) was not followed precisely in all activities of the plant. He stated that he did not put the plan together and did not notify anyone else at the corporate level listed on page 4 of the response plan. Harrington further confirmed he did not call any contract companies who specialize in spill recovery because the sulfur spill was small and he did not see the need to call a contracting company. (Tr. 205-09).
Harrington was questioned about his intent to report the spill to corporate headquarters and confirmed he did not inform anyone listed in the spill response plan of the spill. He thereafter called Michael Murley, Respondent's Risk Manager, on August 9, 2000 about a "problem employee," Complainant, at which time Mr. Abla was present in Murley's office. He reported they discussed the spill "very briefly" at that time. (Tr. 213-16).
Harrington acknowledged that Complainant has trained many employees and he was confident in Complainant's ability to train other employees. He further acknowledged that Complainant had performed a "hazardous assessment" at his request, which was done on Complainant's own time. (Tr. 220, 228). He had anticipated that Complainant would present the "hazardous assessment" at a safety meeting to be held in September 2000. (Tr. 228).
On August 9, 2000, Harrington decided to present Complainant with a reprimand for his actions in the sulfur spill. At about 1:30 p.m., after he and Curtis Smith, the Construction Manager, had lunch, Smith accompanied Harrington to the sulfur shack where they found Complainant. Harrington asked Complainant if they could speak to him and they then went to Smith's office. Harrington testified that he read the reprimand verbatim to Complainant and Complainant got upset and asked if he could "seek legal counsel" before signing the reprimand. Harrington confirmed that Complainant did not refuse to sign the reprimand. After Complainant left the office he saw Complainant looking in a phone book and commented that Respondent was not paying Complainant to look for an attorney. Harrington reported Complainant did not respond that he was not looking for an attorney. (Tr. 221-23).
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After Complainant's actions of refusing to sign the reprimand, asking for an opportunity to speak with an attorney and storming out of the office, Harrington decided to seek advice and call Murley at corporate headquarters about Complainant's actions. (Tr. 224, 254). Murley instructed Harrington to review Complainant's personnel file to see if he had engaged in any previous conduct or behavior similar to his conduct of August 9, 2000. (Tr. 237-38).
Harrington indicated he reviewed Complainant's personnel file and noted in September 1999, Complainant had received a reprimand when a truck drove off with sulfur hoses still attached. When he presented Complainant with the reprimand, Complainant became very upset, and left the office mad, spinning out in his vehicle. (Tr. 226). He also noted on October 4, 1999, Complainant was driving a company vehicle and struck a guard shack. He testified that Complainant was issued a reprimand, but did not become upset about the reprimand because Complainant felt that it was his fault for hitting the guard shack. (Tr. 227).
Harrington testified it was not "fair" to say that Complainant only got upset when he felt that he being "wronged" by receiving reprimands for something he did not do. (Tr. 230). Harrington observed three other written notations in Complainant's personnel file. The first notation was dated September 23, 1999, when he approached Complainant in the sulfur shack and observed Complainant was sleeping. Complainant did not acknowledge Harrington for ten to fifteen seconds. On September 26, 1999, Complainant was late arriving to work and had brought his nephew with him to fish, which Harrington considered a liability to Respondent. On September 27, 1999, Harrington observed Complainant with a television at his desk with Monday Night Football being broadcasted. After these events, he issued a memo to all employees that they were not to bring televisions to work or relatives to work to fish at the facility because of Respondent's liability for such persons. After an overall review of his personnel file, Harrington decided to fire Complainant. (Tr. 239, 264-66, 287).
On cross-examination, Harrington confirmed that Fore was assigned to work with Complainant at the sulfur pit on his first day, which is where all new employees start, because Complainant was already assigned to work that day at the pit. He reported if Whitaker had been assigned to work the sulfur pit, then Whitaker would have trained Fore. (Tr. 241-42).
Harrington stated on August 8, 2000, the sulfur barge left the facility at or around noon. He testified that the closed valve to tank A caused the sulfur spill. He reported that molten sulfur is approximately 285 degrees and presents a dangerous situation in the event of a spill or if a hose bursts. (Tr. 242-44).
In reviewing the investigative report (RX-1) at number 23, which is a description of the spill, Harrington stated the discharge of sulfur began at approximately 17:50 (5:50 p.m.) and the spill occurred at about 18:30 (6:30 p.m.). (Tr. 245-46). He did not blame Complainant entirely for the sulfur spill. He testified the Spill Incident Report (RX-2) was
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completed on August 9, 2000 before he presented Complainant with his reprimand. Harrington testified he was not trying to cover up the spill and was not afraid to report the sulfur spill to his superiors at corporate headquarters. He further testified that he planned to discipline others, including Brad LeBlanc, Johnny Duke, Johnny Whitaker and John Fore. The following day, August 10, 2000, the Coast Guard arrived to investigate the sulfur spill and because of the involvement of the Coast Guard, Harrington stated he was unable to discipline other employees at that time. (Tr. 247-48). Harrington considered Complainant the most at fault among those employees to be disciplined. (Tr. 250).
On August 8, 2000, before Harrington decided to reprimand Complainant, Complainant was among other employees and asked "what's my punishment going to be?" Harrington informed Complainant it was not the right place or time to discuss it, but that he would talk to Complainant later. (Tr. 252). When he presented the reprimand to Complainant, (RX-22, p. 8), he informed Complainant that other employees were to be disciplined as well. He acknowledged that Complainant stormed out of the office and slammed the door. (Tr. 253-55).
He confirmed when he then called Murley he was contemplating firing Complainant at that time. (Tr. 256). He telephoned the corporate headquarters on the toll-free phone number. Harrington verified that his cell phone bill (RX-24) reflects his initial call to the company headquarters as well as a return call to his cell phone by corporate headquarters at 1:58 p.m. (RX-25). (Tr. 257-58). He stated Murley informed him that in view of Complainant's actions, he did not need an employee like that around. Before he called Murley, Harrington thought that Complainant's actions warranted discharge. (Tr. 260-62). He also noted within the personnel file of Complainant an incident which occurred on July 25, 2000, where Complainant was not wearing a respirator, which was a requirement. Complainant was not presented with a reprimand for this occurrence. (RX-22, p. 10). Complainant was, however, reprimanded and had his safety bonus revoked when a truck pulled away with an acid hose still attached. (Tr. 263-64).
After reviewing the personnel file, Harrington made a return call to Murley at about 2:50 p.m. (RX-25). Murley, Abla and Wes Skelton were placed on a speaker phone with him. After he reviewed Complainant's personnel file with them, all individuals concurred in his decision to fire Complainant. Harrington testified he had no knowledge that Complainant planned or had reported the sulfur spill prior to deciding to terminate Complainant. (Tr. 266-67). At or about 3:45 to 3:50 p.m., Harrington again spoke with Complainant and informed him that his services were no longer needed and he was to leave Respondent's facility. Harrington testified Complainant gets angry every time he is disciplined, which is one of the reasons he decided to terminate the Complainant. (Tr. 268).
Harrington acknowledged that he also was disciplined by corporate headquarters because of the sulfur spill, being placed on two-year probation and having his salary frozen for two years. He reported that Fore, LeBlanc, Whitaker and Duke were also punished with similar disciplinary measures. (Tr. 270-71).
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On re-direct examination, Harrington acknowledged that Complainant was initially assigned to the Marlbeau Facility on the morning of August 7, 2000, but reassigned to the Standolin Facility where Fore was to begin his training. Harrington could not remember if Complainant was specifically called to that facility to train Fore. (Tr. 272-74).
Harrington acknowledged he was aware that Fore had testified he did not speak to Harrington at any time after the sulfur spill. He emphasized he was telling the truth and he had spoken to Fore on the morning of August 8, 2000. (Tr. 278). He confirmed that in order to close a valve it had to be turned to the right. (Tr. 279).
Curtis Smith
Smith is the Construction Manager for Respondent at the Beaumont facilities. He has worked with Respondent for the last 16 years. He testified that he was present when Complainant was disciplined. (Tr. 299-300).
On August 9, 2000, Smith accompanied Harrington to a meeting with Complainant at about 1:30 p.m. Smith testified that Harrington read the reprimand to Complainant. (Tr. 300). In his opinion, Harrington was very professional in his presentation. The reprimand indicated that Complainant would be disciplined by a revocation of his safety bonus in the amount of $100. (Tr. 301). He reported Complainant refused to acknowledge the reprimand and indicated that he wanted to speak to an attorney. (Tr. 302). In his opinion, Complainant was also insubordinate by asking Harrington toward the end of the meeting, "are you done with me?" He stated Complainant then left the room, slamming the door on his way out. (Tr. 303).
At about 3:20 p.m., Harrington phoned Smith to accompany him to another meeting with Complainant. Harrington informed Smith that he was tired of being threatened, such as about wanting to see a lawyer. At about 3:40 p.m., Harrington informed Complainant that due to his attitude and past performance, his services were no longer needed. (Tr. 304). Complainant's response was, "that's fine." Smith testified he was not told anything by Complainant about the sulfur spill or reports of the spill. (Tr. 305).
On cross-examination, Smith acknowledged that he was terminal manager at the Beaumont facilities from 1992 to 1999. After reviewing RX-22, Complainant's personnel file, he acknowledged he had not meted out any discipline to Complainant while he was terminal manager. (Tr. 306-07). Smith testified he did not assign Fore to be trained by Complainant. (Tr. 307). He also stated that he played no part in the investigation of the sulfur spill, however, he helped in the clean-up of the spill by washing the sheen off the water where sulfur had spilled over into the Neches River. (Tr. 308-09).
Michael Murley
Murley is the Risk Manager for Respondent with offices in Kilgore, Texas. He has been employed by the company for nine years. (Tr. 310).
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Murley testified he received two phone calls from Harrington on August 9, 2000. On the first phone call, Harrington informed Murley that he was having problems with personnel and he was seeking advice on how to handle the matter. After a discussion, Murley's advice was for Harrington to review the personnel files of Complainant to determine if he had had any previous problems. Murley acknowledged that Jack Abla, the Safety Manager, was also present during this telephone conference. He confirmed that Harrington mentioned the sulfur spill which had occurred two days earlier. Murley testified that since the product spill was not oil or gas, the spill did not require an emergency response. (Tr. 311-13).
He testified Harrington informed him that Complainant stated he was going to contact an attorney because of the reprimand. He indicated that Harrington was not upset by Complainant's remark. At the time of his advice to Harrington, a spill report to the NSRC had not occurred to him. (Tr. 313-14).
Later in the day, Harrington called back, at which time a telephone conference was conducted between Murley, Abla and Wes Skelton, the Human Resources Manager. Upon review of Complainant's personnel file, Harrington informed the corporate managers of his findings and his recommendation that Complainant be terminated. Murley and the other managers present concurred with the decision to terminate Complainant. Murley testified that the sulfur spill was not discussed during this conversation. (Tr. 314).
On cross-examination, Murley acknowledged his concurrence in Harrington's decision to terminate Complainant was based solely on Harrington's reported information. Harrington did not tell the corporate managers that Complainant had prepared a "hazardous assessment" on his own time and he had trained eleven other employees. Murley testified that had he been informed of the Complainant's preparation of the "hazardous assessment" and his employee training, it would not have made a difference in his concurrence to terminate Complainant. (Tr. 317-18).
Prefatory to a full discussion of the issues presented for resolution, it must be noted that I have thoughtfully considered and evaluated the rationality and consistency of the testimony of all witnesses and the manner in which the testimony supports or detracts from the other record evidence. In doing so, I have taken into account all relevant, probative and available evidence and attempted to analyze and assess its cumulative impact on the record contentions. See Frady v. Tennessee Valley Authority, Case No. 92-ERA-19 (Sec'y Oct. 23, 1995) (Slip op. @ 4).
Credibility of witnesses is "that quality in a witness which renders his evidence worthy of belief." Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). As the Court further observed:
Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe . . . Credible testimony is that which meets the test of plausibility.
442 F.2d at 52.
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It is well-settled that an administrative law judge is not bound to believe or disbelieve the entirety of a witness's testimony, but may choose to believe only certain portions of the testimony. Altemose Construction Co. v. NLRB, 514 F.2d 8, 16, n. 5 (3d Cir. 1975).
Moreover, based on the unique advantage of having heard the testimony firsthand, I have observed the behavior, bearing, manner and appearance of witnesses from which impressions were garnered of the demeanor of those testifying which also forms part of the record evidence. In short, to the extent credibility determinations must be weighed for the resolution of issues, I have based my credibility findings on a review of the entire testimonial record and exhibits with due regard for the logic of probability and the demeanor of witnesses.
Based on the pleadings, I find and conclude that Respondent is governed by the WPC. Furthermore, the pleadings establish that Complainant engaged in protected activity as defined by the WPC by reporting the August 7, 2000 sulfur spill to the NSRC. The record also confirms that Respondent took adverse action against Complainant by terminating his employment on August 9, 2000. The pivotal issue is whether there is a nexus between Complainant's protected activity and Respondent's adverse action against Complainant.
A. Respondent's Knowledge of Complainant's Protected Activity
As noted above in "whistleblower" proceedings, Complainant must prove all elements of his prima facie case of retaliation, including that Respondent had actual or constructive knowledge of Complainant's protected activity.
I find that the weight of the credible testimonial evidence of record indicates Respondent did not have knowledge of Complainant's protected activity at the time Complainant was terminated. Therefore, I find and conclude that Complainant has not established a prima facie case of retaliation. See Macktal, supra.
In the instant matter, Complainant alleges he was discharged in retaliation for informing the NSRC of the August 7, 2000 sulfur spill. He asserts Fore overhead his discussion with the NSRC and informed a supervisor, LeBlanc, of Complainant's conversation, who then forwarded this information to Harrington. Consequently, Harrington allegedly knew of Complainant's protected actions when he took the retaliatory measures of discharging Complainant. Complainant admits that he never told anyone in authority at Respondent's facility that he had reported the sulfur spill to the NSRC. Inconsistently, he stated in his pre-hearing deposition that he did not inform anyone that he intended to report the sulfur spill in contrast to his hearing testimony that he informed Employee Fore.
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Complainant has consistently testified that he merely speculates Fore informed LeBlanc of his conversation with the NSRC. He admits he did not see or hear Fore inform LeBlanc of Complainant's conversation with the NSRC, or even of his intent to inform the NSRC. The weight of the credible evidence establishes that Complainant informed Fore of his intent to report the sulfur spill. However, Fore credibly provided direct contradictory testimony of Complainant's assertion that he was near Complainant when Complainant called the NSRC to report the spill.6 In any event, Fore consistently testified he did not inform anyone at Respondent's facility of Complainant's intent to report the August 7, 2000 sulfur spill, and moreover, he consistently testified he did not inform anyone at Respondent's facility that Complainant did in fact report the sulfur spill to the NSRC.
The testimony of those individuals whom Complainant asserts knew of his protected activity corroborates Fore's testimony as to their lack of knowledge of Complainant's report, or intent to report, to the NSRC. LeBlanc testified he never discussed any matters with Fore relating to Complainant, including Complainant's report of the sulfur spill or his intent to report the sulfur spill. Harrington likewise credibly and consistently testified that before he made the decision to terminate Complainant, he had no knowledge Complainant intended to report the spill or that he had reported the spill.
Harrington invariably reports the decision to terminate Complainant was put in motion after Complainant, in the words of Harrington and Smith, stormed out of the office in the early afternoon hours on August 9, 2000, when he was issued a written reprimand and loss of safety bonus for his part in the August 7, 2000 sulfur spill. The record, as evidenced by Harrington's cell phone register, indicates Harrington called corporate management, specifically Murley, for guidance in handling a problem employee, i.e., Complainant. Murley corroborates Harrington's testimony that the decision to terminate Complainant was based on Complainant's history of negative reactions when faced with discipline and not on any possibility that he would report or had reported the August 7, 2000 sulfur spill.
Accordingly, the weight of the credible evidence indicates none of Respondent's managers had knowledge of Complainant's intent to report the August 7, 2000 sulfur spill to the NSRC, nor did they have knowledge of Complainant's actual report of the spill. Furthermore, the weight of the credible evidence indicates before Harrington terminated Complainant around 3:50 p.m. on August 9, 2000, Fore never informed LeBlanc, nor anyone else at Respondent's facility, of Complainant's intent to report or his actual report of the August 7, 2000 sulfur spill.
Thus, I find that Respondent was not aware Complainant intended to report the spill to the NSRC when the decision was made to terminate Complainant's employment with Respondent based on his negative attitude when faced with discipline. Therefore, I find and conclude that Complainant has not established a prima facie case of discrimination since Respondent had no knowledge of his protected activity. Moreover, since Complainant failed to establish a prima facie case of discrimination, the burden of production does not shift to Respondent to articulate a legitimate, non-discriminatory reason for its adverse employment decision against Complainant.
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Based upon the foregoing Findings of Fact, Conclusions of Law and upon the entire record, Complainant has not established all the necessary elements of a prima facie case of retaliation by Respondent and his complaint is hereby DISMISSED.
ORDERED this 7th day of November 2001, at Metairie, Louisiana.
LEE J. ROMERO, JR.
Administrative Law Judge
NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review is timely filed with the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and/or Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).
1 References to the record are as follows: Transcript: Tr. ; Complainant's Exhibits: CX-___; Respondent's Exhibits: RX- ; and Administrative Law Judge Exhibit: ALJX-___.
2 In its post-hearing brief, Respondent submitted the affidavits of Complainant, Duke, Fore, Herrington and LeBlanc, all of which were not included in the record evidence assembled at the hearing in this matter. Accordingly, these affidavits will not be considered in this Decision and Order.
3 Although Complainant's complaint alleges he was asked to sign the reprimand on August 8, 2001, the testimonial and documentary evidence submitted at the hearing indicate Complainant was asked to sign the reprimand on August 9, 2001.
4 Complainant explained this particular "hazard assessment" is a compliance assessment of the Standolin Cut Terminal to ensure "everything" was in compliance with the rules and regulations set forth by OSHA. (Tr. 57).
5 Counsel for Complainant requested review of the notes since they were used in preparation for his testimony. Respondent objected to the provision of notes based on an attorney-client privilege because LeBlanc was an employee of Respondent. The undersigned conducted an in camera inspection and determined that the first three of five pages comported with Complainant's testimony and allowed Counsel for Complainant to review those pages for purposes of cross-examination. The latter two pages concerned contact with the FBI and other employees, which were deemed privileged, therefore the last two pages were not disclosed to Counsel for Complainant. (Tr. 171-74).
6 Notwithstanding a discrepancy in Fore's whereabouts on the day and time of Complainant's report, Fore's testimony is considered straightforward and credible on the issue of his denial of alleged reports to Respondent concerning Complainant's activity.
