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USDOL/OALJ Reporter
Crow v. Noble
Roman's, Inc., 95-CAA-8 (ALJ June 13, 1995)
DATE: June 13, 1995
CASE NO: 95-CAA-00008
In the Matter of:
RONALD CROW
Plaintiff
v.
NOBLE ROMAN'S, INC.
Respondent
APPEARANCES:
Joseph Yocum, Esq.
For the Complainant
Jeffrey R. Gaither, Esq.
For the Respondent
BEFORE:
Richard E. Huddleston
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Clean Air Act, 42 U.S.C. §
7622, and its implementing regulations, found at 29 C.F.R. Part
24. These provisions protect "whistleblowers" from retaliation
by their employers for engaging in protected activity.
Statement of the Case
On May 1, 1993, the Complainant, Ronald Keith Crow, was hired as a
maintenance technician by the Respondent, Noble Roman's, Inc., at a
salaried wage of $34,200 per year (Tr. 152-53, 175).[1] Complainant had
worked in the same position for eight years with the previous owner, a
corporation that owned and operated several Noble Roman's franchises
(Tr. 51). Complainant's job duties included the maintenance and repair of
[PAGE 2]
refrigeration, heating, cooling and ventilation systems (HVAC), ovens,
general building maintenance, and "whatever might come up that needed done"
in any of the nine Noble Roman's stores in the Evansville, Indiana, area,
including one in Owensboro, Kentucky (Tr. 51, 53, 73). Complainant was
also involved in the construction of new stores, including interior work in
carpentry, stainless steel fabricating, and laminate work (Tr. 171). He
worked alone, and had had no direct supervisor in his prior eight years of
employment, but Randy Hiatt, Respondent's Director of Operations, was his
immediate supervisor when he began working for the Respondent (Tr. 52).
Terrance (Terry) Burgett was the Respondent's Director of Maintenance, but
Complainant was unaware of his place in the supervisory hierarchy until
after he was discharged (Tr. 52). Paul Mobley is the president of Noble
Roman's, Inc., and oversaw Mr. Burgett and Mr. Hiatt (Tr. 151).
Alleged Protected Activity:
As of July 1, 1992, the Clean Air Act prohibited the venting of
ozone-depleting compounds used as refrigerants while maintaining,
servicing, repairing, or disposing of air conditioning or refrigeration
equipment. See 42 U.S.C. § 7671g(c) (Supp. 1993). Under § 608
of the Act, the Environmental Protection Agency (EPA) has established
regulations that set certification requirements for the recycling of ozone-
depleting compounds, recovery equipment, and technicians, as well as
restrict the sale of refrigerants to certified technicians. In conjunction
with the requirements of the Act, the EPA has established that technicians
must be certified by November 14, 1994, and the sale of refrigerants will
also be restricted to certified technicians after that date. (EPA
Stratospheric Ozone Protection Final Rule Summary at 5, EPA-430-F-93-
010, June 1993).[2]
Complainant testified that sometime in 1994 he called Terrance Burgett
to inquire about the EPA certification deadline (Tr. 54). Mr. Burgett
responded that he would speak to the owner, Mr. Mobley, and Complainant
assumed that Mr. Burgett would be in touch with him about the EPA rules
(Tr. 54). Complainant also testified that later in the year Mr. Burgett
had not contacted him so he called Mr. Burgett again and asked if he had
found out anything about the EPA rules. Mr. Burgett responded that Rick
athis, an employee from Indianapolis, had been certified, and that
Complainant could buy refrigerant and work under Mr. Mathis' certification,
which would be faxed to suppliers (Tr. 56-57).
Robert L. Horseman, a former maintenance employee of the Respondent,
testified that he heard Terry Burgett tell the Complainant that he could
work under Rick Mathis' certification, and that if the Complainant would
sign up for classes to get certified, the Respondent would pay for it
(Tr. 32-33). Mr. Horseman testified that a week or two later, he was in
the middle of doing some refrigeration work and was told to stop because
the Respondent had determined that he could not do work under Rick Mathis'
[PAGE 3]
certification. However, he also testified that he did do subsequent
refrigeration work at the direction of Rick Mathis and Terry Burgett (Tr.
34).
The Complainant contacted Rick Mathis, who told him he would provide a
list of suppliers where he could buy freon, and that he would send these
suppliers his certification number (Tr. 56).
The record contains a copy of a December 29, 1994, fax to the Pamico
Corporation from Terry Burgett stating:
Ron Crow will be our designate technician to purchase refrigerant in
your area.
He will be working under Rick Mathis certification. A copy of Mr.
Mathis certification card will also be sent with this letter.
Mr. Mathis is our certified representative for Noble Roman's.
(CX 5).
The Complainant testified that he went to the Pamico Corporation to
procure an air conditioner in late December 1994 and asked the Sales
Representative, Thomas B. Eagleson, if he had received a fax from the
company regarding refrigerant (Tr. 57). Mr. Eagleson testified that in the
latter part of 1994 the Respondent had sent Rick Mathis' certification to
allow Complainant to buy refrigerant (Tr. 27-28). Mr. Eagleson also
testified that he informed the Complainant that he could purchase freon
that way, but he could not work on HVAC units without his own certification
(Tr. 28-29). Gordon Holder, a manager for Pamico Corporation, testified
that his company received a fax from the Respondent with the certification
of another employee and a letter indicating that they could sell
refrigerant material to the Complainant (Tr. 40-41). He also testified
that he gave the Complainant the requirements as he understood them, and
written materials with the regulations and the EPA's 1-800 phone number.
r. Holder testified that he told the Complainant that the Respondent could
have him purchase material, but that he could not open up a system without
certification (Tr. 41). The Complainant testified that after his
conversation with Mr. Eagleson and Mr. Holder, he began to question the
legality of Mr. Burgett's statements about working under another person's
certification (Tr. 57).
Terrance Burgett (Noble Roman's Director of Maintenance) testified
that when he wrote the letter on December 29, 1994, that was faxed to a
number of HVAC suppliers, he was misinformed and it was his understanding
at that time that "it was okay for Ron [the Complainant] to work under Rick
athis' certification." He indicated that when he wrote the letter it was
his intention that the Complainant should actually perform refrigeration
work without a certification (Tr. 143).
[PAGE 4]
On the morning of January 3, 1995, the Complainant went to the
Respondent's West Side Store and discovered a freon leak in the "pie board"
(Tr. 58). He told the manager that he did not feel he should work on it
because he did not have the proper certification. The Complainant then
placed a phone call to Randy Hiatt (Noble Roman's Director of Operations).
When Mr. Hiatt returned the call, the Complainant informed him of the
situation, and told him that it wasn't right, and probably against the law
for him to work on the refrigeration equipment without certification, but
that he had other things to work on in the store. The Complainant
testified that Mr. Hiatt told him if he wouldn't work on the refrigeration
equipment he should just go home. The Complainant stated that there was
other work to do in the store, but Mr. Hiatt reiterated that he should go
home and wait for Mr. Hiatt to get in touch with him (Tr. 58-59).
Sharon Helmerich, shift manager at Respondent's West Side store,
testified that the Complainant came to the store in the early part of
January 1995, to fix the pie board, the refrigerated area where the pizza
topping ingredients are kept (Tr. 43). She stated that the Complainant
made a phone call from the store, and then told her that he couldn't do
that type of work because it was illegal (Tr. 44).
The Complainant testified that he remained at the West Side store for
a couple of hours waiting for Mr. Hiatt to call back. When Mr. Hiatt did
not call back, the Complainant started to drive home; on the way he was
beeped (by pager) by Mr. Hiatt and he stopped at the Ross Connor store to
call him back. Mr. Hiatt asked the Complainant if he was at home, and when
the Complainant told him he was not, Mr. Hiatt repeated that he should go
home. The Complainant testified that he asked Mr. Hiatt what was going on,
whether he was being fired, and if he could speak to the owner, Mr. Mobley.
r. Hiatt responded that he would not discuss the incident any further, Mr.
obley did not wish to speak to him, and that the Complainant should meet
him at the Ross Connor store the next morning at 9:00 a.m.(Tr. 59-60).
Randy Hiatt testified that the Complainant paged him on January 3,
1995, and told him that he could not work on the pie board because he was
not certified to do that type of work (Tr. 49). He stated that he told the
Complainant to go home after the Complainant told him there was no other
work to do at the West Side store. Mr. Hiatt testified that the
Complainant stated he was working and wanted to be paid for it, and that he
(Mr. Hiatt) assured him he would be paid, to go home, that he would discuss
the matter with Mr. Mobley, and that they would discuss the matter the next
day (Tr. 48-49).
The Complainant's Dismissal on January 4, 1995:
The Complainant testified that he went to the Ross Connor store on the
morning of January 4, 1995, and replaced a gear on the top deck oven while
[PAGE 5]
he was waiting for Mr. Hiatt. When Mr. Hiatt arrived he stated that the
Complainant was being terminated. The Complainant asked if he could take
the van home to load the Company's ladder (which was at Mr. Crow's home)
back on top of the van and remove his own personal tools. Mr. Hiatt
responded that he could not move the van and to turn in all his keys
immediately. The Complainant testified that despite his questioning, he
was never given a reason for his termination (Tr. 60-61).
Randy Hiatt testified that he discharged the Complainant on January 4,
1995 (Tr. 49). He stated that when he informed Paul Mobley (President of
Noble Roman's) of the Complainant's refusal to work on the pie board on
January 3, 1995, Mr. Mobley said to "Let him go." (Tr. 126). Mr. Hiatt
testified that when he asked Mr. Mobley what to say to the Complainant as
to why he was being terminated, Mr. Mobley didn't give an answer. Mr.
Hiatt also admitted that he gave a contrary statement to a representative
of the U.S. Department of Labor, Wage and Hour Division, which was "I
didn't ask Paul why. He just said let him go, and I did" (Tr. 127).
Paul Mobley testified that Randy Hiatt called him in early January
1995, and told him that the Complainant had not shown up for work on
December 26, 1994, was not turning in his paperwork on time, and refused to
work on a compressor for a pie board (Tr. 164). He also testified that he
had learned only a day or two before the January 3, 1995, incident that it
was not legal to have an uncertified maintenance technician working on HVAC
systems under another Tech's certification, and that he told Randy Hiatt
that the Complainant was right about refusing to work on the pie board
without being certified (Tr. 164, 166). However, Mr. Mobley testified that
the decision to fire the Complainant had been made in July 1994 due to the
Complainant's poor work performance, but that he waited to fire him until
seven new stores were opened, the last of which was coincidentally opened
on January 2nd or 3rd, 1995 (Tr. 163).
The record also contains a Determination of Eligibility statement for
unemployment compensation from Indiana Workforce Development which states:
The employer did not provide any separation information after two attempts
to get the information. An employer has the burden of proof in a discharge
case, without further information it is determined that the claimant is
discharged without just cause (PX 3).[3]
Complainant's Job Performance:
Terrance Burgett testified that Randy Hiatt told him of problems with
the Complainant's job performance sometime before May 1994 (Tr. 134). He
stated that Randy Hiatt told him that the Complainant wasn't attending
weekly meetings, even after he had been told to attend them (Tr. 134). Mr.
Burgett testified that he personally had told the Complainant to turn his
paperwork in on a weekly basis, which he was not doing (Tr. 134-35). Mr.
[PAGE 6]
Burgett stated that he and Randy Hiatt had a meeting with the Complainant
in May 1994, where they expressed to him that he must attend the weekly
meetings, and that he must properly fill out and regularly turn in his
paperwork, and that the Complainant followed their instructions for a brief
period, but not week-in and week-out (Tr. 136). Mr. Burgett testified that
he had several meetings in June and July with Randy Hiatt and Paul Mobley
about the possibility of firing the Complainant, and the decision was made
in August to fire him after the new stores were open (Tr. 136-37). None of
these meetings, conversations, or disciplinary actions were documented (Tr.
142).
Randy Hiatt testified that he occasionally had problems with the
Complainant failing to regularly attend weekly meetings (Tr. 113). Mr.
Hiatt stated that there were no disagreements with the Complainant as to
when or what he should be doing, but there was a discussion about not
following Mr. Hiatt's orders (Tr. 116). He stated that the Complainant
took payout for his gasoline expenses from the individual stores at least
twice after he received written notification to stop this practice (Tr.
117). Mr. Hiatt stated that he and the Complainant had a "not overall good
working relationship," and that the Complainant liked to do things on his
own and didn't like taking orders or instructions (Tr. 118). Mr. Hiatt
stated that there were at least three prior occasions where the
Complainant's termination was discussed, the first in January 1994, the
next in May 1994, and the issue of his termination was an "ongoing thing"
for the next six or seven months (Tr. 122-23). Mr. Hiatt testified that
the Complainant was never told that if he didn't clear up his paperwork he
would not have a job. He testified that the Complainant was not fired
during that period because the Respondent had a lot of new restaurants
opening and the Complainant was needed for the construction because "there
was a lot of work that we needed him to do that he was very good at"
(Tr. 124). Mr. Hiatt testified that if the Complainant had not refused to
do the refrigeration work without a certification, he still would have been
fired at some indefinite date, which could have been "the next day or two
years" (Tr. 131-32).
Paul Mobley testified that he first learned from Tim Pitcock,
Terrance Burgett's predecessor, during the Summer and Fall of 1993, that
the Complainant had problems completing paperwork, not being where he was
supposed to be, and was hard to track down (Tr. 153-54). He stated that he
had numerous discussions all through 1994 with Troy Branson, Respondent's
head of new construction, Terrance Burgett, and Randy Hiatt about
Complainant's performance (Tr. 154). Mr. Mobley testified that Troy
Branson asked that the Complainant be fired in January 1994 because he was
not following instructions and wasn't reliable about when he was supposed
to be there (Tr. 154-55). He stated that in April 1994, he was approached
about the Complainant not turning in his paperwork in a timely manner,
which caused numerous accounting difficulties (TR. 156-57). Mr. Mobley
stated that he told Troy Branson to make sure the Complainant knew how to
[PAGE 7]
properly fill out and turn in his paperwork, and that he began receiving
reports of problems from Randy Hiatt in May 1994 (Tr. 158). He stated that
he told Randy Hiatt, Troy Branson, and Terry Burgett to have a meeting with
the Complainant to explain to him who he is working for and what things
have to be done (Tr. 158-59). Mr. Mobley testified that it was reported to
him that such a meeting was held in Evansville, and that all of the
procedures were explained to the Complainant at that time (Tr. 159).
According to Mr. Mobley, reports about problems with the Complainant's
job performance "picked up severely" again around July 1994, and Mr Mobley
testified that he met with Terrance Burgett, Troy Branson, and Randy Hiatt
and determined that the Complainant should be fired (Tr. 159-60). He
stated that he did not fire the Complainant at that time because Troy
Branson requested that he not be fired until the construction was finished
on the rest of the new stores (Tr. 160). Mr. Mobley stated that he didn't
want to consider having the Complainant certified (as a refrigeration
technician) because he had made the decision in July or August to fire him
because "he was a bad employee that we needed to get rid of" (Tr. 168).
However, on cross-examination, Mr. Mobley admitted that the quality of the
Complainant's work was excellent, that he was competent, and that he was in
fact terminated the day after he refused to do refrigeration work without
being certified (Tr. 170-172).
The Complainant testified that he was never told he would be
discharged if his work was bad, no written warnings were ever given that
his work was unsatisfactory, and he was never given any time off for
failing to perform his work satisfactorily (Tr. 176-77). He stated that
there was never a meeting with three of the Respondent's supervisory
people, and there was never any threat of disciplinary action (Tr. 178).
The Complainant stated that he was told by Randy Hiatt that Troy Branson
wanted to have him fired, but that when he called Troy Branson, he was told
"it wasn't necessarily true," and that Branson was laughing like it was all
a joke (Tr. 177). He stated that they had some problems because "he
[Branson] didn't know nothing about building" (Tr. 179). On cross-
examination, the Complainant testified that he had conversations with
Randy Hiatt about his paperwork in July, but was never told they were
warnings, or that his job was in jeopardy, or that disciplinary action
could result (Tr. 94-95, 182-83).
The Complainant also testified that he might have said to others that
he didn't see why he had to report to Randy Hiatt, but that he "didn't mind
reporting to him if I could ever find him or if he would ever answer his
beeper" (Tr. 88). He also testified that he never took gas money from a
store without Randy Hiatt's okay, that the letter (RX 1) was incorrect and
false, and that he never had any conversations with Mr. Mobley about the
letter (Tr. 91-92). He stated that he was never warned or had
conversations about not being at the jobsites he was assigned to, that he
[PAGE 8]
always responded to his beeper as best he could, and had no warnings or
discussions about not doing a good job answering his pager, and never was
warned or had discussions about working too slow (Tr. 97-99). The
Complainant testified that he did have a conversation about taking December
26th off, but that the previous owner had always given him the day after
Christmas off and the Respondent had never advised him otherwise (Tr. 99-
100).
The record contains no written documentation of any disciplinary
action against the Complainant during the period he worked for the
Respondent. Troy Branson did not testify or offer any statements as
evidence in this matter.
The record does contain an unsigned memo, dated October 11, 1994, to
the Complainant from the owner, Paul Mobley, stating that the Complainant
should not ask the stores to "do paid-outs reimbursing you for our truck
expenses" (RX 1). The memo states that the procedure had been previously
discussed with the Complainant, but does not state whether the memo is a
warning or part of any other disciplinary action. The record also contains
a copy of a "Paid-Out Voucher" dated September 8, 1994, and a copy of two
gas receipts (RX 2).
Applicable Law:
In an alleged retaliatory adverse action case such as this, the
employee bears the ultimate burden of proof that intentional discrimination
has occurred. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981); United States Postal Service Bd. of Governors v.
Aikens, 460 U.S. 711 (1979); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 803 (1972); Dartey v. Zack Co. of Chicago, 82-ERA-2
(Sec'y of Labor, Apr. 23, 1983) (adopting the McDonnell
Douglas/Burdine/Aikens approach to employee-protection provisions
adjudicated by the Department of Labor). In such cases, the employee must
initially present a prima facie case showing that: (1) she or he
engaged in protected activity; (2) the employer was aware of such activity;
and, (3) the employer took adverse action against the employee. Dartey,
supra; Burdine, supra; et al.
If the employee establishes a prima facie case, the employer
can rebut the presumption of retaliatory action by articulating a
legitimate, nondiscriminatory reason for the adverse action.
Aikens, 460 U.S. at 714; Burdine, 450 U.S. at 254. The mere
production of evidence of nondiscriminatory reasons for the adverse action,
whether believed or not, rebuts the presumption of intentional
discrimination. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742
(1993). Upon articulation of a nondiscriminatory reason, the McDonnell
Douglas/Burdine/Aikens framework then becomes irrelevant, and the
trier-of-fact must then decide the ultimate question of fact. Id.
at 2750.
[PAGE 9]
Once the employer successfully rebuts the employee's prima
facie case, the employee has the ultimate burden of persuading that the
articulated reasons were a pretext, and that the real reason for the
adverse action was discriminatory. St. Mary's Honor Center, 113
S.Ct at 2750-51. In order for the employee to meet this burden, the
employee must prove by a preponderance of the evidence that a retaliatory
reason more likely than not motivated the employer or that the employer's
proffered explanation is not credible. Id.; Burdine, 450 U.S. at
256.
If the evidence shows that the employer's adverse action was motivated
by both prohibited and legitimate reasons, the dual motive doctrine
applies. Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977); Pogue v. United States Dept. of
Labor, 940 F.2d 1287 (9th Cir. 1991); Dartey, supra. In such a
case, the employer has the burden to show by a preponderance of the
evidence that it would have taken the same action concerning the employee
even in the absence of the protected conduct. Mt. Healthy, 429 U.S.
at 287; Price Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989)
(plurality opinion); Mackowiak v. University Nuclear Systems, 735
F.2d 1159, 1163-64 (9th Cir. 1984). The employer bears the risk that the
influence of legal and illegal motives cannot be separated.
Mackowiak, 735 F.2d at 1164; Passaic Valley Sewerage Comm'rs v.
United States Dep't of Labor, 992 F.2d 474 (3d Cir. 1993). That an
employee was engaged in protected activity does not immunize the employee
from an employer taking adverse employment action for a legitimate
management reason. Ashcraft v. University of Cincinnati, 83-ERA-7
(Sec'y Nov. 1, 1988).
Discussion
The threshold issue in this case is whether Complainant engaged in
protected activity under the Act. Respondent argues that Complainant's
refusal to repair the freon-based pie board because he was not certified,
was an internal complaint, and is not protected activity under the Act.
The Respondent bases his argument on Brown & Root v. Donovan, 747
F.2d 1029 (5th Cir. 1984), which, in a case arising under the Energy
Reorganization Act ("ERA"), held that internal complaints are not protected
activity. The Secretary of Labor, however, has specifically rejected this
view, and has upheld internal complaints as protected activity, even in the
Fifth Circuit. See Carson v. Tyler Pipe Co. 93-WPC-11 (Sec'y Mar.
24, 1995); Willy v. Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987)
(Decision & Order of Remand). The Secretary has also specifically found
that the employee protection provisions of the environmental acts covered
by 29 C.F.R. Part 24 protect from discrimination employees who threaten to
enforce the acts. Crosby v. Hughes Aircraft Co., 85-TSC-2 (Sec'y
Aug. 1, 1993).
Moreover, an employee's refusal to violate the Act is defined as a
protected activity under 42 U.S.C. § 7622(a)(3). In addition, there
is significant case law which holds that protected activity is not limited
to reporting suspected violations to governmental agencies. Willy v.
Coastal Corp., supra; Mackowiak, supra; Passaic Valley
Sewerage Comm'rs, supra;
[PAGE 10]
Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985)
.
Upon consideration of the evidence presented here, I find that the
Complainant did engage in protected activities under the Clean Air Act, by
his refusal to perform refrigeration work without proper certification in
violation of the Act. Further, I find that it is undisputed that the
Employer was aware of Complainant's refusal to perform such work in
violation of the Act.
It must then be determined whether the Employer took adverse action
against the Complainant as a result of his protected activity.
The evidence establishes that the Respondent instructed the
Complainant to go home when he refused to repair the pie board, and
terminated him the next day, but did not give him any reason for the
termination. The proximity in time of the Complainant's protected activity
to his termination is sufficient to establish a prima facie claim of
retaliatory discharge. See Couty v. Dole, 886 F.2d 147 (8th Cir.
1989).
However, the evidence also establishes that the Respondent has at
least articulated a legitimate, nondiscriminatory reason for discharge by
testimony that, while the Complainant's work product was excellent, he was
a problem employee in that he would not timely complete paperwork or accept
supervision. Therefore, the burden of persuasion, that the articulated
reasons were a pretext, and that the real reason for the adverse action was
discriminatory now falls to the Complainant. See St. Mary's Honor
Center, supra. Thus, it must be determined whether Mr. Crow
has established, by a preponderance of the evidence, that a retaliatory
reason (his refusal to perform refrigeration work without certification)
more likely than not motivated the Employer to terminate him, or that the
Employer's proffered explanation is not credible.
The Respondent argues that the decision to terminate the Complainant
had been made in July or August 1994, and that regardless of his refusal to
engage in protected activity, he would have been fired as soon as the new
stores were opened. Yet, there is absolutely no documentation of this
decision in the record, and no documentation that the Complainant was ever
disciplined or reprimanded in any manner. Considering the undisputed
temporal proximity of the Complainant's refusal to perform illegal
refrigeration work to his termination, I find that the preponderance of the
evidence establishes that Complainant's refusal to perform refrigeration
work without certification more likely than not motivated the Employer to
terminate him. Further, I find that due to the total absence of any
documentation of Employer's purported decision in July 1994 to terminate
Complainant at some undetermined later date, which just coincidentally was
at exactly the same time as the last new store opened on January 2nd or 3rd
of 1995 and coincidentally, exactly at the same time that the Complainant
refused to perform illegal refrigeration work, Employer's proffered
[PAGE 11]
explanation is just not credible.
Even accepting the Employer's argument that the decision to terminate
was made in July 1994, the facts present at least a dual motive situation,
and the Employer would have the burden to show by a preponderance of the
evidence that it would have taken the same adverse action concerning the
employee even in the absence of the protected conduct. See Mt.
Healthy, supra. The Respondent has not even met that burden in
this case. Randy Hiatt admitted on cross-examination that, but for the
Complainant's refusal to work on the pie board, he would not have been
fired when he was. Testimony that the Complainant was a problem
employee is not supported by evidence or documentation of any prior
disciplinary action. No documentation has been presented that the new
stores, which supposedly Employer was waiting on to fire the Complainant,
had been opened. Therefore, I find that, even if the Employer had
established that he had made to the decision to terminate Complainant in
July 1994, it was the Complainant's protected activity that triggered the
effective date of his termination, and not the opening of any particular
store or stores. Thus, but for the refusal to perform the refrigerant
repair in violation of the Act, the Complainant would not have been
terminated on the day he was terminated.
Therefore, I find that the Complainant has established that he was
terminated from employment by the Respondent as a result of his protected
activity in violation of the Clean Air Act, and the Complainant is entitled
to damages.
Damages
The regulations provide that if it is concluded that the party charged
has violated the law, the Final Order shall order the party charged to take
appropriate affirmative action to abate the violation, including
reinstatement (if desired) of the Complainant to his former, or a
substantially equivalent position, compensation including backpay, terms,
conditions, and privileges of that employment. Further, where appropriate,
the Employer may be ordered to provide compensatory damages to the
Complainant, along with all costs including attorney fees and expert
witness fees reasonably incurred by the Complainant in connection with the
bringing of this complaint. See 29 C.F.R. § 24.6(2), (3).
In this case, the Respondent challenges reinstatement, and there is
some conflict regarding the appropriate rate of pay for calculating back
wages.
Reinstatement:
[PAGE 12]
The Respondent argues that the Complainant is no longer qualified to
perform his required job duties because he is not certified to perform
refrigeration work (Tr. 9). Paul Mobley testified that at the time of the
Complainant's termination, he told Terry Burgett and Rick Mathis that
uncertified technicians could not work on any kind of freon equipment and
"we needed to replace them with certified people" (166-167). He stated
that in a very brief period the Respondent hired more certified
technicians, and "we now have nothing but certified technicians" (Tr. 167).
He also testified that he knew the Complainant was not certified and thus
not qualified to perform his job when he was terminated, and considered
having the Complainant obtain certification but decided not to do that
because he had already made the decision to fire him (Tr. 167-68).
r. Mobley testified that the Respondent would be opening new stores in
1995, that "openings for 1995 will pick up in late May or early June and
then go through the balance of the year" (Tr. 161).
Randy Hiatt testified that 70 to 80 percent of the Complainant's work
involved refrigeration and freon-based equipment (Tr. 125). Terrance
Burgett testified that 60 to 70 percent of the Complainant's work involved
refrigeration and freon-based equipment, and that the Respondent now
requires their maintenance technicians to be EPA certified (Tr. 137).
r. Burgett stated that he told the Complainant in May 1994 that if he
passed his certification, "I will make sure that we [the Respondent would]
pay for it" (Tr. 138). He stated that the Respondent plans to open other
stores in 1995 (Tr. 145), that the market served by the Complainant is the
only market where the work is being contracted for and not handled by the
Respondent's maintenance technicians (Tr. 149), and that they intend to
hire another employee for that market (Tr. 150).
The Complainant testified that Terrance Burgett told him that the
Respondent would reimburse him to get an EPA certification, but in their
second conversation about certification which was after the EPA deadline,
was later than in May 1994 (Tr. 76, 102-03). He further testified that Mr.
Burgett never got back with him, and "obviously they didn't want me to get
certified" (Tr. 102). The Complainant testified that only 10 percent of
his work involved freon-based equipment (Tr. 184).
The testimony of Mr. Mobley and Mr. Burgett indicates that additional
construction of new stores will begin in the Spring of 1995 and continue
through the year. Mr. Mobley and Mr. Hiatt have testified that the
Complainant's work in store construction was considered to be of high
quality. Regardless of whether he is certified, the Complainant would be
qualified for the store construction type of employment that his employer
so highly regarded. There is also testimony that all the Respondent's
maintenance technicians are now certified, and the only market of the
Respondent's not being served by one of the Respondent's technicians is the
market formerly worked by the Complainant. An employer who is claiming
[PAGE 13]
that a wrongly discharged employee is no longer qualified for reinstatement
can be required to provide that employee with the same training and
certification that it provided to other similar employees. See Blake v.
Hatfield Electric Co., 87-ERA-04 (Jan. 22, 1992). Here, the record is
unclear whether the Respondent offered any other uncertified maintenance
technicians the opportunity to get certified and continue their employment.
Terry Burgett, however, testified that the Complainant was never informed
that if he did not get his certification he would be terminated, and that
if he got his certification the Respondent would reimburse him for it.
I find that the Complainant is entitled to reinstatement to his
previous position as the Respondent presented testimony that the
Complainant performed a lot of valuable work in the construction of new
stores, and is now in its construction phase of 1995. In addition, I find
that the Complainant should be given a reasonable opportunity to get his
EPA certification, the cost of which shall be reimbursed by the Respondent,
which is the same privilege offered to him prior to his termination.
Back Wages:
Paul Mobley testified that the Complainant was a salaried employee and
he was hired in 1993 at a wage of $34,200.00 per year, and that this wage
remained current until his termination in 1995 (Tr. 152, 175). The
Complainant testified that his gross pay was "six hundred and . . .
thirteen-something" every two weeks, with the employer paying health
insurance, and a dental plan (Tr. 69-70). The Complainant also stated that
he was once paid overtime (Tr. 107). The record contains the Plaintiff's
1993 tax return indicating he made $35,961.00 in wages that year, but he
was not hired by the Respondent until May 1st of that year (PX 7; Tr. 82,
153). The record also contains the Complainant's 1994 W-2 statement from
the Respondent, indicating his wages for 1994 were $34,899.88 (PX 8). The
Complainant testified that he could not afford to continue to carry his own
health insurance, and had to apply for food stamps for a period (Tr. 70,
77). The Complainant also testified and offered evidence that he was able
to find some intermittent work on the construction of a Hooters restaurant
in Evansville, that he was always paid in cash for this work with no taxes
or Social Security taken out, and that the total amount earned was
$6,233.00 for the period through March (PX 6; Tr. 78-80).
I find that the Complainant's yearly wage for 1994 from the Respondent
was $34,899.88, and that he has made wages totaling $6,233.00 through March
1995.
ORDER
It is recommended, to the Secretary of Labor, that the Complainant
be:
[PAGE 14]
(1) Reinstated to his former position or an equivalent position, with
a sufficient opportunity, not to exceed one calendar year from
the date of his reinstatement, to obtain his EPA certification,
the cost of which shall be reimbursed by the Respondent;
(2) Paid back wages based on his salary of $34,899.88 per year, from
January 4, 1995, the date he was discharged; less any wages
earned from other employment during this period, which at the
time of hearing totaled $6,233.00;
(3) Reinstated to all terms, conditions, and privileges of that
employment, including but not limited to vacation pay and health
care benefits;
(4) Paid compensatory damages covering any reasonable medical costs
that normally would have been covered under the Respondent's
health insurance coverage from the time of his discharge until
his reinstatement to Employment and to insurance coverage; and,
(5) Reimbursed for all Attorney's fees and costs reasonably incurred
in the bringing of this Complaint.
Entered this the 13th day of June, 1995, at Cincinnati, Ohio.
______________________________
Richard E. Huddleston
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for review by the Secretary of Labor
to the Office of Administrative Appeals, U.S. Department of Labor, Room
S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington,
D.C., 20210. The Office of Administrative Appeals has the responsibility
to advise and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the regulations at
29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
[1] In this decision, "PX" refers to Plaintiff's or Complainant's
Exhibits; "RX" refers to Respondent's Exhibits; and, "Tr." refers to the
Transcript of the Hearing.
[2]
A copy was also admitted as Plaintiff's Exhibit #5.
[3]
This evidence was admitted for the purpose of supporting the
Complainant's statement that he was not given any reason for his
termination, and that the Respondent gave no response, at least in that
proceeding. See discussion at Tr. 64-67.
