Donovan v. Commercial Sewing, Inc.

• Citation: 562 F. Supp. 548
• Decision Date: 05 October 1982
• Docket Number: Civ. No. H-81-397.
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. COMMERCIAL SEWING, INC.
• Court: U.S. District Court — District of Connecticut

562 F. Supp. 548

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. COMMERCIAL SEWING, INC.

Civ. No. H-81-397.

United States District Court, D. Connecticut.

October 5, 1982.

Albert Ross, Regional Sol., David L. Baskin, U.S. Dept. of Labor, Boston, Mass., for plaintiff.

Thomas F. McDermott, Jr., Feeley, Nichols & McDermott, Waterbury, Conn., for defendant.

MEMORANDUM OF DECISION

BLUMENFELD, Senior District Judge.

This is a suit brought by the Secretary of Labor on behalf of Nancy Perez, who was employed by the defendant, Commercial Sewing, Inc. (Commercial Sewing), alleging that Perez was unlawfully discharged in retaliation for her complaints about safety and health conditions at her place of employment in violation of section 11(c) of the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 660(c). The plaintiff seeks an award of back pay and an injunction (1) enjoining the defendant from violating section 11(c) of OSHA; (2) enjoining the defendant and its agents, Samuel and Michael Mazzarelli, from making any attempts to hinder Nancy Perez from obtaining other employment; (3) requiring the defendant to post a notice at its employee time clock for 60 days; and (4) requiring the defendant to purge Nancy Perez's records of all references to her illegal firing. The case was tried to the court.

Facts

Commercial Sewing is a small company, jointly owned by Samuel and Michael Mazzarelli, which manufactures sewing products, particularly recreational products. Nancy Perez began working for Commercial Sewing on February 13, 1980 as a sewer in the production department. On March 1, 1980 she informed Samuel Mazzarelli, the president as well as co-owner, that she intended to quit. He asked her to stay on and offered her a part-time job in the research and development department which he heads. She worked in research and development until her discharge on October 31, 1980.

The parties disagree as to the precise terms of her employment in the research and development department. When she first began work in that department she came in approximately three days a week because she also had a part-time job in a restaurant. Samuel Mazzarelli testified that because of her part-time employment elsewhere he initially accepted her on a part-time basis but expected her to become a full-time employee at a later date. She began working approximately five days a week on a somewhat regular basis in June 1980. The defendant's position is that for some time prior to her discharge Perez was a full-time employee expected to work from 8:00 a.m. until 3:00 p.m. five days a week, and that her discharge was the result of her undependability and absenteeism. Perez insists that she was employed on a part-time basis and was not required to work regular hours. She testified that she always let the company know when she was not coming to work or when she was leaving early. She also stressed that she worked extra hours when needed in order to complete rush jobs. She was an hourly employee who was paid only for hours actually worked. Her time cards reveal that during her tenure at Commercial Sewing she worked 35 hours or more eight weeks out of a total of 37 weeks, that her hours fluctuated widely, and that her average work week was 28 hours. Plaintiff's Exhibit 1.

Perez's job in research and development was crucial to the operation of the entire company. She produced sample products which were needed by the sales, shipping and production departments. Samuel Mazzarelli described the quality of her work as excellent and stated that when present she worked hard. Her lack of dependability and absenteeism, however, were adversely affecting the company, according to the testimony of three top executives. Mazzarelli conceded, however, that at the time of her discharge no steps had been taken to obtain a replacement for her.

In May of 1980 Perez became pregnant and informed Samuel Mazzarelli, her supervisor, of this fact. At a later date she told him that she would stop work on January 15, 1981 due to the fact that her baby's due date was estimated to be February 10, 1981. They discussed the question of her return to work after the baby's birth. Perez's understanding was that she probably would come back to work in some capacity although the details had not yet been worked out. The fact that this was also Mazzarelli's understanding is confirmed by his reference, on her work evaluation report dated October 15, 1980, to the possibility of her return following her pregnancy. Plaintiff's Exhibit 2.

On or before October 30, 1980, Commercial Sewing began using a commercial glue for a particular project. The odor of the glue was very strong and bothered a number of employees. Nancy Perez was approximately six months pregnant at the time and experienced headaches and nausea because of the glue's strong smell. On October 30, 1980, she asked Michael Mazzarelli if he knew the contents of the glue and, according to her testimony, received his permission to leave early because the glue's fumes had given her a headache. She complained to Joanne Bielawski, the purchasing agent, about the glue and asked her to find out what its contents were. She then left for the day.

When she returned to work the next morning at 8:00 a.m. Samuel Mazzarelli, who had not been at work the previous day, told her that he had heard that she had left early the day before. She told him Michael had given permission and asked him about the contents of the glue. Samuel Mazzarelli could not recall whether or not Nancy Perez had told him at this time that the odor of the glue was the reason for her early departure the previous day. Perez testified that they had discussed the matter of the glue during the course of this early morning conversation. The glue was clearly in the forefront of her mind that morning. She subsequently inspected the glue containers in an attempt to determine the glue's ingredients and again asked Joanne Bielawski whether she had ascertained its contents. I find, therefore, that Perez did express her concerns about the glue to Samuel Mazzarelli during the course of their discussion which took place prior to the time Mazzarelli discharged her and that Mazzarelli, therefore, knew of her safety and health complaints about the glue prior to her discharge.

At some point that morning Samuel Mazzarelli told the bookkeeper, Mary Audet, to make out a pink slip terminating Nancy Perez for absenteeism. He also told Joanne Bielawski to stop attempting to ascertain the contents of the glue because Perez had been terminated. Later that day, at about 2:15 p.m., he told Perez that she was fired for absenteeism and that she was not eligible for unemployment insurance benefits.¹

Within a few days Commercial Sewing stopped using that particular glue and later finished the project with another glue which did not have an offensive odor.

On November 3, 1980, Nancy Perez made a complaint to the Occupational Safety and Health Administration (OSHA) charging that she had been fired in retaliation for her complaints about possible health and safety problems associated with the use of the glue. On December 8, 1980, Samuel Mazzarelli posted a notice on the premises of Commercial Sewing informing all employees that:

Because of a written complaint made by Mrs. Nancy Perez, Osha conducted an inspection of CSI for possible violation of safety laws.

As a result of the investigation the below listed citations and fines were made against us.

We are confering sic with Osha and contesting most of these citations.

We will keep you informed as to our progress in changing these ridiculous fines and citations.

Plaintiff's Exhibit 7.

OSHA subsequently investigated Perez's complaint that she had been discharged because of her safety and health complaints. Vincent Antelmi, an investigator employed by OSHA to investigate allegations of discrimination, interviewed Samuel Mazzarelli. Mazzarelli insisted that he discharged Perez for absenteeism but admitted that he had been upset about Perez and the OSHA complaints. The defendant has also admitted that Samuel Mazzarelli told Perez's sister that he would make it hard for Perez to get another job. Defendant's Response to Plaintiff's First Request for Admissions, Request # 15.

After her discharge, Nancy Perez looked for other work until the birth of her baby on February 11, 1981. A few days after her son was born she received a letter from Samuel Mazzarelli dated February 12, 1981 offering her her "former job ... provided you are available for full time work of 40 hours per week." Plaintiff's Exhibit 3.² Perez felt that this offer was not made in good faith because (1) it was made a day after the birth of her child when she was clearly not available for full time employment; (2) it required her to commit herself to a full 40-hour week which was not the basis on which she was previously employed by the defendant; and (3) it appeared to be motivated solely by a desire to cut off the defendant's potential liability for back pay. After conferring with OSHA, Perez responded by a letter dated March 3, 1981 and informed Samuel Mazzarelli that she would let him know whether she would accept his offer at the conclusion of the six-week rest period to which she was entitled under state law after the birth of her child. In a letter dated July 1, 1981 and June 26, 1981,³ Samuel Mazzarelli requested "a written response to my offer for full time employment doing your former job at your former pay with your former benefits included." Plaintiff's Exhibit 5. Perez responded, in a letter dated July 9, 1981, by rejecting this offer. Perez sought other employment until July 1981 when she decided to remain at home with her baby.

This case presents the court with primarily two issues. First, did Samuel Mazzarelli fire Nancy Perez in retaliation for her safety and health complaints in violation of section 11(c) of the Occupational Safety and Health ...