Clean Harbors Environmental Services, Inc. v. Herman
| Citation | 146 F.3d 12 |
| Decision Date | 10 April 1998 |
| Docket Number | No. 97-2083,97-2083 |
| Parties | 14 IER Cases 14, 1998 O.S.H.D. (CCH) P 31,582 CLEAN HARBORS ENVIRONMENTAL SERVICES, INC., Petitioner, v. Alexis M. HERMAN, Secretary, United States Department Of Labor Respondent, and Thomas Dutkiewicz, Intervenor. . Heard |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
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. McConnell, Attorney, U.S. Department of Labor, were on brief, for respondent.
Thomas M. Dutkiewicz, on brief pro se.
Before TORRUELLA, Chief Judge, STAHL and LYNCH, Circuit Judges.
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.
Clean Harbors is an environmental services company based in Braintree, Massachusetts. 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
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 McKim. 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.T. [Talk To] me if you have any questions.
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...
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