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USDOL/OALJ Reporter
Clean Harbors
Environmental Services, Inc., v. Herman, 146 F.3d 12
(1st Cir. June 10, 1998) (case below
95-STA-34)
United States Court of Appeals
For the First Circuit
June 10, 1998
I.
For the First Circuit
No. 97-2083
CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.,
Petitioner,
v.
ALEXIS M. HERMAN, SECRETARY,
UNITED STATES DEPARTMENT OF LABOR
Respondent, and
THOMAS DUTKIEWICZ,
Intervenor.
PETITION FOR REVIEW OF THE FINAL DECISION AND ORDER
OF THE ADMINISTRATIVE REVIEW BOARD OF
THE UNITED STATES DEPARTMENT OF LABOR
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Gary S. Matsko, with whom Judith Ashton and Davis, Malm & D'Agostine, P.C. were on brief, for petitioner.
Barbara Werthmann, Counsel for Appellate Litigation, with whom Marvin Krislov, Deputy Solicitor for National Operations, Joseph M. Woodward, Associate Solicitor for Occupational Safety and Health, and Barbara A.W. cConnell, Attorney, U.S. Department of Labor, were on brief, for respondent.
Thomas M. Dutkiewicz, on brief pro se.
LYNCH, Circuit Judge. Thomas Dutkiewicz was fired by his employer, Clean Harbors Environmental Services, Inc., after he repeatedly complained he felt his supervisors were pressuring him to violate Department of Transportation ("DOT") regulations for hauling hazardous materials, and that he would not do that. The company said he was fired because customers complained about his abrasive manner. Dutkiewicz complained to the company that he had been unfairly and unlawfully terminated. The company rehired Dutkiewicz for a different position, kept him on a short leash, and fired him three months later.
Dutkiewicz filed a complaint with the U.S. Department of Labor under the employee protection provisions of the Safety Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. § 31105, claiming both his employment terminations were in retaliation for his safety complaints and his refusal to violate federal regulations. The Administrative Law Judge ("ALJ"), in a recommended decision and order, found in favor of Dutkiewicz and awarded back pay, reinstatement, and compensatory damages. The Administrative Review Board ("ARB") affirmed the ALJ's recommendation and also upheld the damages award. Clean Harbors petitions for review to this court, raising one pure issue of law and arguments that the ARB decision is not supported by substantial evidence.
When an employee has "filed a complaint or begun a proceeding," the STAA, 49 U.S.C. § 31105(a)(1)(A), protects that employee from retaliatory adverse employment actions. The question of law, one of first impression in this court, is whether this section protects an employee who has filed purely intracorporate complaints about alleged violations of federal law. We agree with the ARB's interpretation that it does. We also find that substantial evidence supports the ARB's findings that Dutkiewicz in fact "filed" such internal complaints, and that his employment terminations were causally related to that protected activity.
A. Factual Background
Clean Harbors is an environmental services company based in Braintree, assachusetts. Its services include treating, storing, hauling, and disposing of hazardous waste. Dutkiewicz began working for Clean Harbors as a truck driver in August of 1993, out of the company's service center in New Britain, Connecticut. Dutkiewicz' primary duty was to haul hazardous waste between the customers' facilities and Clean Harbors' treatment plant in Bristol, Connecticut. This job required Dutkiewicz to inspect the waste containers for compliance with the law, to inventory, and to load the waste containers onto his truck before hauling them. All of these activities are governed by DOT and Environmental Protection Agency ("EPA") regulations. If customers do not properly prepare their drums of waste for shipment, the driver must spend time at the customers' facilities bringing the drums into compliance with the regulations.1
When Dutkiewicz began working for Clean Harbors he received training on compliance with DOT regulations. Dutkiewicz also studied the regulations on his own, and had prior work experience in hauling hazardous materials. No one seriously questioned Dutkiewicz' familiarity with the various regulations that governed his work activities.
Thor Cheyne was the general manager of the New Britain service center during Dutkiewicz' initial tenure with Clean Harbors. Dutkiewicz reported to Cheyne, as well as to Dave Mills, who was Dutkiewicz' job coordinator.2 Peter Ferrio and Peter Doyle were customer account managers who dealt with the customers to whom Dutkiewicz was assigned. No single individual at the New Britain facility was specifically assigned the task of ensuring compliance with the environmental and safety regulations;3 instead, each driver was individually responsible for ensuring regulatory compliance on his own jobs.
Soon after Dutkiewicz started working for Clean Harbors, the company began charging customers for "demurrage," or extra time the drivers spent at the customers' facilities filling out paperwork and bringing the shipments into compliance for hauling. Previously the customers were charged by the job, rather than by the amount of time the driver took to complete the job. After this new charge was imposed, several large-account customers began complaining about Dutkiewicz. According to the company, the customers complained that he was taking too much time at their facilities, second-guessing their shipment preparation, and costing them too much money. In turn, several of the New Britain personnel -- Cheyne, Ferrio, and Doyle in particular -- pressured Dutkiewicz to stop "wasting time" on site.
Dutkiewicz responded to this pressure saying the customers who complained were the ones who had the most problems with their shipments, and he took the extra time to bring their drums of hazardous waste into compliance before loading them on to his truck. Dutkiewicz stressed that it was his obligation to ensure regulatory compliance, that he personally could be put at risk, and he would not violate the law and endanger himself and others.
As the pressure to perform fast pick-ups continued, Dutkiewicz became increasingly frustrated with what he believed were demands to violate the law, and he decided to document the situation. In early January 1994, Dutkiewicz designed his own drum inspection form. The form listed all of the regulatory requirements and provided space for the driver to document whether the customer had complied with the requirements or whether the driver had to spend time fixing the shipments. Dutkiewicz gave copies to the customer service department and to Cheyne, and subsequently used the forms to document each of his pick-ups. Dutkiewicz hoped the forms would clarify why he was spending time at the customers' facilities and prove that he was not "wasting time."
In early February 1994, Dutkiewicz received a six-month performance appraisal from Cheyne. Dutkiewicz' overall performance was said to "meet expectations" and he was given a raise. In one of the "comments" sections, Cheyne wrote that "Tom's thoroughness has raised several questions with customers as to his productivity. Tom should continue his quality in that it is quality that customers are buying from [Clean Harbors]."
In early March, in response to continued pressure from Cheyne and Ferrio to spend less time preparing drums, Dutkiewicz wrote a letter to Clean Harbors president Alan cKim. The letter stated, inter alia:
-
I would like to address when a bad drum is accepted. Clean Harbors and
everybody else connected with the drum owns all the problems that go with it. Thor
[Cheyne] didn't know if it was a Tom [Dutkiewicz] problem or a customer problem
. . . . So I designed a form for myself to show all concerned what the drums were like
when I arrived on site, were the problems solved, and were any [drums] refused [by
the driver].
- Now when a customer ask [sic] why they were charged for extra time, Thor has documentation on what I did to correct the problem that a customer should have done to make them DOT shippable. I've included a copy of this form for your review.
Sometime in mid-March, Cheyne and Ferrio scolded Dutkiewicz for taking too much time at the facility of one company, a major Clean Harbors account. Dutkiewicz gave his usual response, and invited Cheyne to accompany him on his next run to the company to see for himself that the drums were not in compliance. Cheyne turned down the offer.
-
On April 18, 1994, Cheyne wrote Dutkiewicz this note:
- Tom, I would like you to get in and out of [the customer's premises] w/o demurrage or extra time regardless of condition of drums. Thor
- T. [Talk To] me if you have any questions.
- Tom, I would like you to get in and out of [the customer's premises] w/o demurrage or extra time regardless of condition of drums. Thor
The note was attached to a memorandum from John Shomsky -- a customer service representative -- which stated that the customer had complained about Dutkiewicz wasting time on site. Dutkiewicz understood the note to be a direction from his supervisor to accept and haul drums even if the drums did not comply with DOT regulations.
The Cheyne note became the smoking gun in this dispute. Clean Harbors argues that this note was in fact a direction to leave behind any non-compliant drums, not a direction to haul them. But the ALJ and the ARB rejected that interpretation of the note for several reasons. Cheyne himself did not testify, and a Clean Harbors employee testified that the note could plausibly be read as Dutkiewicz read it. The evidence adequately supports the agency's interpretation of the note.
Dutkiewicz responded to the note by writing a letter to Cheyne and Shomsky, dated April 19, 1994, stating:
-
First I would like to address the last pickup from [the customer]. From the
time I arrived until Irene came down 20 minutes passed. She had visible waste on
three drums, three drums didn't have any poison or corrosive label on them, and two
drums had lid rings up side [sic] down. She has problems making her drums
shippable.
- The DOT is not very forgiving if I get stopped because of [sic] one of my drums is leaking. No driver in this company will accept a drum that is not DOT shippable just to make the customer happy. Not only will I get in trouble, its [sic] against the law.
. . . . - The problems relating to customers complaining didn't start until the customer was charged for time spent on site to correct drums. And the ones that complained were the ones that have trouble making their drums shippable.
- Believe me when I say it, I have a lot of ground to cover in a course of a day. I don't have time to waste on purpose at a customers [sic] just to make more hours. There is no such saying, there is a faster way of making a drums [sic] shippable. And as long as people like Irene . . . have improper drums, I will have to spend time making them right. Irene is not in transportation, what she thinks is shippable may very well be not shippable according to the DOT. That's my job, is to determine what is or what isn't shippable.
. . . . - In conclusion, . . . I refused [sic] to be blamed for this or other shippers [who are unable] to properly label, mark, and secure drums. Yes, the customer is always right, up to a point. No one should be abused by customers or be put at risk because of a customer. There are a lot of clients out there who really don't care.
- . . . If you think I'm wrong in my whole assessment, please feel free to call Tony Cellucci or Kent Bongarzone [compliance department supervisors] and we can discuss this matter in further detail.
- The DOT is not very forgiving if I get stopped because of [sic] one of my drums is leaking. No driver in this company will accept a drum that is not DOT shippable just to make the customer happy. Not only will I get in trouble, its [sic] against the law.
The record reveals no effort on the part of Cheyne or Ferrio to contact the compliance department, or to determine whether or not Dutkiewicz was correct that the customers were not properly preparing their hazardous materials for shipment.
Dutkiewicz also showed the Cheyne note to Dave Cyr, the Clean Harbors
operations manager at the Bristol, Connecticut facility,4 and to Brian Peterson, the general manager of the Bristol facility. Dutkiewicz
testified that he "told Dave Cyr [he] was concerned about protecting [him]self in the
future," and that he "also wanted to alert them that Thor Cheyne was instructing Clean
Harbors' personnel to engage in practices contrary to EPA and DOT regulations."
On September 1, 1994, Cheyne gave Dutkiewicz his second performance
review. He rated Dutkiewicz' overall performance as "meets expectations," and gave
Dutkiewicz a raise.
Two weeks later, Ferrio sent a memorandum to Cheyne stating that Ferrio
had received more complaints about Dutkiewicz. Ferrio suggested that Cheyne either replace
Dutkiewicz or find another job for him in which there was no customer contact. Later that same day
Ferrio wrote another note to Cheyne indicating that if Cheyne failed to take proper action Ferrio
would "go over [Cheyne's] head." Three days later, September 19, 1994, Cheyne did
as Ferrio asked and fired Dutkiewicz. He told Dutkiewicz that customers were upset because he was
wasting too much time fixing drums.
Dutkiewicz immediately phoned and wrote Steven Pozner, the company
vice president for compliance, health and safety. Dutkiewicz complained that his discharge resulted
from Cheyne's lack of understanding of the DOT regulations, Cheyne's immediate impulse to side
with the customers and customer service managers, and Dutkiewicz' refusal to cut corners.
Dutkiewicz requested that the corporate office investigate his discharge and reinstate him.
The company initially upheld the termination. When Dutkiewicz' wife
phoned Tony Celluci, director of transportation compliance, and threatened to report the termination
to the federal government and the media, the company offered Dutkiewicz three weeks of paid leave
and agreed to investigate the termination further. Clean Harbors hired a consultant, who ultimately
suggested that Dutkiewicz could be reinstated, albeit with strict supervision and under a rigid chain
of command.
In late October, 1994, Clean Harbors reinstated Dutkiewicz as a driver
based at the Bristol facility. His new job was to haul waste between the company's own facilities,
rather than from customers' facilities. The new job offer was conditioned on Dutkiewicz' acceptance
of a strict chain of command: Dutkiewicz was to direct any questions or comments only to John
Caron, the Bristol Transportation Coordinator, or to Brian Monahan, the Bristol Director of
Logistics. When Dutkiewicz started work, he met with Caron and Monahan who informed
Dutkiewicz that he was "on a short leash."
Dutkiewicz testified that over the next few months he noticed a number
of DOT regulations violations, and reported them to his supervisors and corporate compliance
personnel. Monahan terminated Dutkiewicz on January 16, 1995, stating simply that things were
not working out and Dutkiewicz and Clean Harbors were a bad match.
B. Procedural Background
After he was fired the second time, Dutkiewicz filed a timely complaint
with the Department of Labor ("DOL"), claiming Clean Harbors terminated him (twice)
in violation of the employee protection provision of the STAA. That provision reads: 49 U.S.C. § 31105(a). After investigation, the OSHA Regional Administrator (acting
pursuant to DOL regulations) found that Dutkiewicz' claim was unsupported, and dismissed the
complaint. Dutkiewicz objected to the findings and had a hearing before an ALJ.
The ALJ, who credited Dutkiewicz' testimony, found that Dutkiewicz had
engaged in protected activity under both §§ 31105 (a)(1)(A) and (B), and that both of
his employment terminations were related to these protected activities. As for § (a)(1)(A), the
ALJ found that, before the first of his employment terminations, Dutkiewicz continuously
complained to Cheyne that he was pressured by the customer service personnel and by Cheyne to
violate DOT regulations. The ALJ also found that, "with respect to refusal to operate a vehicle
[§ (a)(1)(B)], complainant has presented evidence by his own testimony, supported by his
contemporaneously prepared drum inspection forms, that he continuously refused to drive Clean
Harbors vehicles containing hazardous materials that he believed violated DOT regulations."
The ALJ agreed that customer complaints could be a valid reason for discharging an employee, but
found that Clean Harbors fired Dutkiewicz because he refused to compromise his fastidious
compliance with the regulations, thereby angering customers and jeopardizing accounts. The ALJ
also found that the second firing was inextricably linked to the first unlawful dismissal. The ALJ
concluded that Clean Harbors had violated the STAA, and ordered damages and reinstatement for
Dutkiewicz.
The ARB found that the ALJ's "findings of fact . . . are supported
by substantial evidence on the record as a whole and therefore are conclusive." See
29 C.F.R. § 1978.109(c)(3). It also adopted the ALJ's assessments of witness credibility. The
ARB then affirmed the ALJ's decision to order damages and reinstatement, but it did so based solely
on the fact that Dutkiewicz' termination was related to his protected activity of "fil[ing] a
complaint."5
We review the ARB's final decision in accordance with the dictates of the
Administrative Procedure Act, 5 U.S.C. § 701 et seq. The ARB's decision must be
affirmed unless its legal conclusions are arbitrary, capricious, or otherwise not in accordance with
law, or its factual conclusions are unsupported by substantial evidence. See 5 U.S.C.
§ 706(2); Castle Coal & Oil Co. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995).
A. Statutory Interpretation
Dutkiewicz filed no complaints with a court or government agency before
his first employment termination. Thus, the ARB's determination that Dutkiewicz engaged in
protected activity depends entirely upon a reading of § 31105(a)(1)(A) to cover complaints which are purely internal to the employer.6
This interpretation of "filed a complaint or begun a proceeding" raises an issue of law.
Citing its own precedent, the ARB found that "[a]n employee's
internal complaint to superiors conveying his reasonable belief that the company was engaging in
a violation of a motor vehicle safety regulation is a protected activity under [§
31105(a)(1)(A)]." Dutkiewicz v. Clean Harbors Envtl. Servs., Case No.
97-STA-090, Sec. Dec. and Ord., Aug. 8, 1997, slip op. at 3-4 ("ARB Dec.") (citing
Stiles v. J.B. Hunt Transp., Inc., Case No. 92-STA-34, Sec. Dec. and Ord., Sept
24, 1993, slip op. at 3-4).
Clean Harbors argues that the ARB's interpretation of the STAA is in
contravention of that statute's plain meaning, and that "this ['filed a complaint or begun a
proceeding'] language clearly connotes the initiation of a formal administrative or court proceeding
and not merely internal complaints." Clean Harbors contrasts this STAA language with the
anti-retaliation provisions of other statutes, most notably, Title VII, which provides: 42 U.S.C. § 2000e-3. According to Clean Harbors, because Congress could have used
this language in the STAA -- language which clearly protects an employee who makes internal
complaints -- it must have intended the narrower language it ultimately did use not to protect an
employee who makes purely internal complaints.
We reject the company's interpretation that the STAA anti-retaliation
protection is available only to employees who file complaints with a government agency or a court.
We do so for four reasons. First, the language is susceptible to more than one reading.7 Second, the Congress hewed to this language
when it reenacted the STAA in 1994, in the face of long-standing administrative interpretation of
the STAA and similar language in other statutes to encompass internal complaints made to an
employer. Third, in the absence of unambiguous statutory language, this strikes us as the sort of
interstitial law making which Congress left to the agency, under Chevron v. Natural
Resources Defense Council, 467 U.S. 837, 843-44 (1984). Fourth, the policy choice made by
the agency is eminently reasonable. It is reasonable in terms of leveraging the government's limited
enforcement resources.
The STAA was originally enacted in 1983. The employee protection
provision, like other whistleblower statutes, was intended to create a climate in which employees
would feel free to voice their health and safety concerns without fear of employer retaliation.
See Brock v. Roadway Express, Inc., 481 U.S. 252, 257 (1987)
("Section [31105] was enacted in 1983 to encourage employee reporting of noncompliance
with safety regulations governing commercial motor vehicles.").
The STAA was recodified and reenacted in 1994, expressly without
substantive change. See Revision of Title 49, Transportation, United States Code, Pub. L.
103-272, § 1, 108 Stat. 745, 990-91 (1994). In the years between 1983 and 1994, the
Secretary of Labor and two courts of appeals interpreted the employee protection language to
encompass purely internal complaints. See Yellow Freight Sys., Inc. v.
Reich, 8 F.3d 980, 986 (4th Cir. 1993) (oral complaints to supervisor "are protected
activity under the STAA"); Moon v. Transport Drivers, Inc, 836 F.2d 226,
227-29 (6th Cir. 1987) (finding that driver had engaged in protected activity under the STAA where
driver had made only oral complaints to supervisors); Stiles, Case No. 92-STA-34, slip op.
at 3-4 (citing cases); see also Yellow Freight Sys., Inc. v. Martin, 983
F.2d 1195, 1198 (2d Cir. 1993) (implying but not specifically stating that employee's internal safety
complaints were covered by § 31105(a)).
In addition, a large body of judicial case law developed, consistently
interpreting language either identical or very similar to the language in § 31105(a)(1)(A) to
encompass internal employee complaints. See, e.g., Passaic Valley Sewerage
Comm'rs v. United States Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 1993)
(interpreting § 507 of the Clean Water Act, which prohibits retaliation against an employee
because the employee has "filed [or] instituted . . . any proceeding under this chapter,"
to include the filing of intracorporate complaints); EEOC v. Romeo Community Sch.
Dist, 976 F.2d 985, 989-90 (6th Cir. 1992) (interpreting Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 215(a)(3), which prohibits retaliation against an employee
"because such employee has filed any complaint or instituted . . . any proceeding under or
related to [the FLSA]," to protect employees who make unofficial complaints to their
supervisors); Rayner v. Smirl, 873 F.2d 60, 63-64 (4th Cir. 1989) (interpreting
Federal Railway Safety Act ("FRSA"), 45 U.S.C. § 441, which prohibits
retaliation because an employee has "filed any complaint or instituted or caused to be instituted
any proceeding" under the FRSA or related safety laws, to protect employees who make purely
internal complaints); EEOC v. White and Son Enters., 881 F.2d 1006, 1011 (11th
Cir. 1989) (interpreting FLSA language, 29 U.S.C. § 215(a)(3), to include "unofficial
complaints expressed by the women to their employer"); Love v. Re/Max of
America, Inc., 738 F.2d 383, 387 (10th Cir. 1984) (same). But see
Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993) (interpreting FLSA not
to encompass complaints made to a supervisor).
Congress was surely aware of these administrative and judicial
interpretations when it reenacted the STAA without substantive change. See
Lorillard v. Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed to be
aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when
it reenacts a statute without change."). If Congress wanted to restrict the protected activity in
§ 31105(a)(1)(A) to filing complaints with the courts or agencies, it would have done so when
it recodified the law.
We also find persuasive the Secretary of Labor's argument that
interpreting "filed a complaint" to encompass only filings with a court or government
agency would create a redundancy in the statute. The STAA protects employees who have
"filed a complaint" or "begun a proceeding." 49 U.S.C. §
31105(a)(1)(A). A court or agency filing itself "beg[ins] a proceeding," and the
"file a complaint" language would thus be superfluous on Clean Harbors' reading of the
statute. See Bailey v. United States, 516 U.S. 137, 146 (1995)
("We assume that Congress used two terms because it intended each term to have a particular,
nonsuperfluous meaning.").
Moreover, the ARB's interpretation is reasonable. First, it is supported
by the obvious policy of encouraging corporate compliance with such laws by casting a broad net
in the anti-retaliation provisions. As the Supreme Court has noted in interpreting an analogous
whistleblower statute, "it needs no argument to show that fear of economic retaliation might
often operate to induce aggrieved employees to accept substandard conditions."
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960) (interpreting
employee protection provision in FLSA). A construction of the STAA that covers only complaints
filed with courts or government agencies would narrow the mechanisms to achieve these policy
goals, leaving unprotected employees who in good faith assert safety concerns to their employers,
or who indicate an unwillingness to engage in such violations. See Passaic
Valley, 992 F.2d at 478 ("Section 507(a)'s protection would be largely hollow if it were
restricted to the point of filing a formal complaint with the appropriate external law enforcement
agency.").
Interpreting § 31105(a)(1)(A) to protect only employees who file
external complaints would result in an anomalous and inefficient system. The effect of the system
urged by Clean Harbors would be to force employees with safety concerns to go straight to the
government. A company's opportunity to remedy its own problems voluntarily and quietly would
be lost. Cf. id. at 478-79. Thus, the DOL's interpretation in many ways helps
companies. There is the contrary argument that companies will benefit economically by reducing
the number of employee complaints by making employees go to greater efforts to file a complaint
with the government. That some employees (unhappy with company practices) may choose silence
over going directly to the government may indeed permit a company to skate by the requirements
of the law for a period, and (perhaps) temporarily benefit economically. But the penalties for
noncompliance are high, and unhappy employees are likely to help the government make its case
once the government does become involved. It is reasonable to conclude that the ARB's position
is fairer and less wasteful of resources for both the corporate community and the government than
the position offered by Clean Harbors.
Clean Harbors does make one very telling argument: that its interpretation
of the statute provides clean and simple guidance on what a "complaint" is and the
agency's interpretation unhelpfully leaves employers in the dark. What sort of internal complaint
is "filing a complaint" for purposes of the Act? We think the problem, while real, is not
sufficient to invalidate the agency's interpretation, and may be dealt with as a matter of factual
analysis.
The ARB's construction of the STAA is plainly a reasonable and
permissible one.
B. Substantial Evidence
Clean Harbors protests that there is not substantial evidence that what
Dutkiewicz did amounted to filing a complaint or that this activity is why Clean Harbors terminated
his employment. Substantial evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389, 401 (1971) (citation and quotation marks omitted).
A prima facie case of unlawful termination under the STAA requires a
showing that the employee engaged in protected activity, that the employee was subjected to adverse
employment action, and that there was a causal connection between the protected activity and the
adverse action. See Moon, 836 F.2d at 229. Clean Harbors took adverse
employment action against Dutkiewicz, but contests that Dutkiewicz engaged in any protected
activity, and that there was a causal link between any protected activity and the adverse employment
action.
The familiar burden-shifting analysis employed under Title VII has also
been employed under the STAA. Where a complainant has made out a prima facie case of
retaliatory discharge, the employer may rebut that showing with evidence of a legitimate, non-retaliatory reason for the discharge. The burden then shifts back to the complainant to prove that the
proffered reason is pretext for unlawful retaliation. See id. (adapting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to a STAA
claim). Where evidence of a dual motive exists, i.e., where there are legitimate reasons for a
discharge in addition to the unlawful reasons, the employer bears the burden of establishing by a
preponderance of the evidence that it would have taken the adverse employment action in the
absence of the employee's protected activity. Cf. Price Waterhouse v.
Hopkins, 490 U.S. 228, 242 (1989). Both parties have accepted this as the standard and
we do not reexamine it.
1. "Filing" a Complaint
The facts of record support the ARB's determination that the activity in
which Dutkiewicz engaged met the requirements for "filing a complaint." There is no
problem of lack of fair notice on this record and we affirm that there was substantial evidence that
Dutkiewicz "filed a complaint."
We recognize Clean Harbors' legitimate due process concerns that the
internal communications to the employer must be sufficient to give notice that a complaint is being
filed and thus that the activity is protected. In the absence of such notice, the beneficial purposes
of the act cannot be accomplished. Clearly there is a point at which an employee's concerns and
comments are too generalized and informal to constitute "complaints" that are
"filed" with an employer within the meaning of the STAA. The risk of inadequate notice
to an employer that the employee has engaged in protected activity is greater when the alleged
protected complaints are purely oral. Here, however, we have no trouble concluding that
Dutkiewicz' oral and written complaints were sufficiently definite to put Clean Harbors on notice
that he was engaging in protected activity. The record makes it clear that Dutkiewicz' superiors were
well-aware of his fastidious compliance with safety regulations and his oral and written refusals to
accommodate this practice for the sake of customer satisfaction.
The agency accepted Dutkiewicz' testimony that when Cheyne and Ferrio
repeatedly urged him to perform quicker pick-ups, he complained to them that such action would
result in regulatory violations, and that he was obligated by law to make sure the customers' drums
were DOT-shippable before he hauled them. He continued to say this to Cheyne throughout the
remainder of his initial tenure at Clean Harbors. Because Cheyne did not testify, Dutkiewicz'
testimony that he repeatedly complained to Cheyne was unrefuted. The ALJ credited Dutkiewicz'
testimony, and found that Dutkiewicz did have a genuine, reasonable belief on many occasions that
drums tendered to him for shipment did not comply with DOT regulations. The ARB accepted the
ALJ's credibility determinations, and agreed with this finding. Dutkiewicz' testimony is further
supported by the drum inspection forms which he contemporaneously created and filled out to
protect himself from accusations of wasting time.
Aside from the oral complaints and the drum inspection forms, Dutkiewicz
wrote two letters to his superiors complaining that he felt pressured to engage in regulatory
violations. The first such letter was written on March 5, 1994, to the president of Clean Harbors,
Alan McKim. In the letter Dutkiewicz asserts that when a "bad drum" is accepted,
"Clean Harbors and everybody else connected with the drum owns all the problems that go
with it. Thor didn't know if it was a [Dutkiewicz] problem or a customer problem. . . . So I designed
a form for myself to show all concered what the drums were like when I arrived on site, were the
problems solved, and were any [drums] refused."
The second letter was written the day after Dutkiewicz received Cheyne's
demand that Dutkiewicz "get in and out of [the customer's premises] . . . regardless of the
condition of the drums." Dutkiewicz responded with a letter to Cheyne and Ferrio, in which
he specifically complained that on his last trip the drums were not prepared for shipment: there was
"visible waste on three drums, three drums didn't have any poison control labels on them, and
two drums had lid rings upside down." The letter reminded Cheyne and Ferrio that: The facts here show Clean Harbors was put on notice and Dutkiewicz
"filed" a complaint.
2. Causation
Clean Harbors' second major factual argument is that even if Dutkiewicz
did engage in protected activity and "filed" a complaint, he was fired for the legitimate
reason that he was angering customers. The record reveals substantial evidence for the ARB's
finding that Dutkiewicz was terminated at least in part because of his protected activity, and that
Clean Harbors failed to prove that it would have terminated Dutkiewicz had he not engaged in
protected activity.
It was reasonable to conclude the following from the evidence. Cheyne
and Ferrio pressured Dutkiewicz to speed up his customer pick-ups. Dutkiewicz refused orally and
in writing to submit to this pressure -- pressure that he reasonably believed amounted to a demand
to violate the law. As customers continued to complain about Dutkiewicz' on-site delay, the
customer service staff became increasingly frustrated with Dutkiewicz' refusal to expedite his pick-ups. Ferrio pressured Cheyne to replace or transfer Dutkiewicz. Despite the fact that Cheyne had
twice given Dutkiewicz a favorable performance appraisal, Cheyne complied with Ferrio's request
and fired Dutkiewicz. Thus, Clean Harbors initially fired Dutkiewicz at least in part because he
objected on safety grounds to the demands that he perform faster pick-ups.
Clean Harbors failed to prove that it would have fired Dutkiewicz had he
not complained about regulatory violations and refused to expedite his on-site drum preparations.
At the hearing, Clean Harbors failed to call Cheyne as a witness and failed to call any of the
complaining customers as witnesses. Instead, Clean Harbors chose to rely on the testimony of the
customer service manager about the customer complaints. The ARB found that, in the absence of
any customer testimony, there was no basis to conclude that customer complaints unrelated to
Dutkiewicz' enforcement of the STAA would have been sufficient to otherwise justify the
termination of Dutkiewicz' employment. A company may reasonably choose not to impose on its
customers to appear as witnesses at trial about complaints they have made, but it does so at its own
risk where the customer complaints may give the appearance of being based on the employee's
refusal to violate the law.
It may be, as Clean Harbors so vociferously argues now, that Dutkiewicz
was rude to customers and that rudeness, and not Dutkiewicz' obduracy about non-conforming
drums, was what motivated the complaints. But the agency was not required to believe the accounts
of the customer complaints from the customer service manager. This is particularly so where neither
Cheyne nor Ferrio ever accompanied Dutkiewicz on a customer pick-up in order to confirm or dispel
Dutkiewicz' allegations that the customers were not properly preparing their shipments. They were
apparently less concerned with the accuracy of Dutkiewicz' allegations than with the satisfaction of
their customers.
Thus, there is sufficient support for the conclusion that the initial
termination of Dutkiewicz' employment was in violation of the law.
Throughout, the company's brief argues that it was not logical for the
company to do what Dutkiewicz claims it did. This is too simple a view and, in any event, a
misapprehension of the standard of review. People do things which may strike others as illogical;
notions of what is in an actor's self interest may look different to an outside observer than to the
actor. A company may have many actors and their individual perceived interests, e.g. satisfaction
of a complaining customer, may differ from what is ultimately in the company's interest, e.g.
avoidance of a lawsuit for retaliatory discharge. This has been referred to as the theory of
"agency costs," where seemingly irrational behavior on the part of a corporation may
be explained by the divergence of objectives between a corporation and its employees. See
Cambridge Plating Co., Inc. v. Napco, Inc., 85 F.3d 752, 756 (1st Cir. 1996);
AMPAT/Midwest, Inc. v. Illinois Tool Works, Inc., 896 F.2d 1035, 1043 (7th
Cir. 1990). Further, as Justice Holmes famously said, the life of the law has not been logic, but
experience. The standard of review is not whether the findings by the agency comport with a
company acting logically, but whether there is substantial evidence to support the agency's findings.
But Dutkiewicz was reinstated, so we shift our focus to the second
termination. This is a closer issue. Clean Harbors' articulated reasons for terminating Dutkiewicz
the second time were that he had twice bucked the chain of command, and once had made a
complaint about Clean Harbors to the Massachusetts Department of Environmental Protection.
Specifically, Brian Monahan testified that: (1) Dutkiewicz made an unauthorized call to Brian
House, the Vice President of Field Services, and left a lengthy voice mail criticizing a new waste-tracking procedure for use by the company drivers, thereby violating the agreed-upon chain of
command; (2) Dutkiewicz called Joseph Lentini, computer installation manager, to request a cellular
phone for his truck, again violating the chain of command; and (3) Dutkiewicz contacted the
assachusetts Department of Environmental Protection ("DEP") in bad faith to
complain that Clean Harbors was not using proper vehicle identification decals for trucks going to
assachusetts.
The ARB found that the third reason was itself violative of the STAA:
ARB Dec. at 7. As for Dutkiewicz' failure to adhere to the agreed-upon chain of command, the ARB
"agree[d] with the ALJ that the reasons for the first discharge tainted the potentially 'legitimate'
reasons articulated for the second discharge." Id. The ARB then concluded that
"Clean Harbors did not show that it would have discharged Dutkiewicz the second time if he
had never engaged in any protected activities during his employment with the company."
Id.
Substantial evidence supports the ARB's findings. Under the STAA,
Clean Harbors may not fire Dutkiewicz for raising a reasonable safety-related concern with a
government agency, here the Massachusetts DEP. The evidence supports the ARB's implicit
determination that Dutkiewicz' concern regarding proper vehicle identification was reasonable. And
it is also clear from the record that upon his reinstatement, Dutkiewicz, unlike other employees, was
required to adhere to a rigid chain of command precisely because of Clean Harbors' previous
frustration with Dutkiewicz. That frustration related to Dutkiewicz' protected complaints and strict
adherence to safety regulations. Clean Harbors argues that Monahan, Dutkiewicz' supervisor who
fired Dutkiewicz the second time, was a new Clean Harbors employee and had no knowledge of the
prior relationship between Clean Harbors and Dutkiewicz. Clean Harbors asserts that Monahan had
"no axe to grind" as far as Dutkiewicz was concerned, and wanted Dutkiewicz to
succeed at Clean Harbors. But Monahan himself testified he was aware of some prior history and
had read the consultant's report. That report stated that Dutkiewicz felt his prior termination resulted
from his raising safety concerns.
We also find it significant, as did the agency, that Dutkiewicz received
no oral or written warnings about any of the three incidents which Clean Harbors says justified his
discharge. That is so although Clean Harbors had agreed to document disciplinary violations. The
excuse that Clean Harbors gave for its failure to warn Dutkiewicz is that there was no time to give
warnings. That excuse is weak, given that the "violations" of the chain of command
hardly triggered emergencies. We uphold the ARB's finding that the second termination violated
the STAA as based on substantial evidence.
The facts in this case do not compel a finding that Dutkiewicz'
firing was caused by rudeness and poor manners with customers, as Clean Harbors asserts is true.
Nor do the facts compel a finding that Clean Harbors fired an employee for complaining
about safety issues. This is a close case and Clean Harbors failed to convince the agency that its
motives were unrelated to Dutkiewicz' complaints about safety issues. There is enough evidence to
support the agency's determination and so it is affirmed.
The decision of the ARB is affirmed. Costs awarded to both the
Secretary of Labor and Dutkiewicz.
1Clean Harbors' policy requires drivers
to follow the regulations. Failure to comply with the regulations could result in civil fines for
Dutkiewicz personally and for the company, see 49 C.F.R. § 107, a serious health
hazard for Dutkiewicz and for the workers at the treatment facility who handle the drums, and a
danger to the environment. Drivers may be stopped by federal inspectors for compliance spot-checks. The driver is the one responsible for keeping track of the contents of the truck, making sure
that the contents comply with the regulations, and ensuring that all the paperwork is in order and
accurately describes the contents. See 49 C.F.R. §§ 171.2, 177.801.
Dutkiewicz testified that he personally had been stopped on numerous occasions. If a customer has
inadequately or inaccurately filled out the manifests, it is the driver who must explain the
inadequacies to the inspector. See 49 C.F.R. §§ 177.801, 802.
2The job coordinator is the first
person to whom the drivers report. He sets up and coordinates the drivers' jobs.
3The compliance department was
located at corporate headquarters in Braintree, Massachusetts.
4Much of the material that was hauled
by drivers at the New Britain facility was taken to the Bristol facility for treatment and disposal. The
employees at Bristol had an interest in the state of the drums coming into that facility.
5The ARB did not reach the issue of
whether Dutkiewicz had also engaged in the protected activity of refusing to drive a vehicle. We
review the final agency decision as announced in the decision of the ARB. See
Securities and Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 87 (1943)
(reviewing courts must judge the agency's decision on the grounds upon which the agency stated its
decision was based). Courts have fashioned an exception to the Chenery doctrine, and on
occasion have affirmed an agency decision on a ground not specifically articulated by the agency
where "it is clear that based on the valid findings the agency would have reached the same
ultimate result" on different grounds. Consolidation Coal Co. v. Smith, 837
F.2d 321, 323 n.3 (8th Cir. 1988) (citing Salt River Project Agric. Improvement and Power
Dist. v. United States, 762 F.2d 1053, 1060-61 n.8 (D.C. Cir. 1985)). We need not
consider this exception because we affirm the agency based on its articulated ground.
6This case does not involve the very
different issue of complaints which prove to be a matter of only internal concern to the employer.
Cf. Hinchey v. Nynex Corp., F.3d , 1998 WL
244245, *9 (1st Cir. May 20, 1998).
7For example, the language does not
say where a complaint must be filed. The fact that Congress could have used broader language,
which more clearly encompasses internal complaints, does not mean that the language it did use
necessarily does not encompass such complaints.
