Marshall v. Commonwealth Aquarium, 79-1276

• Decision Date: 13 December 1979
• Docket Number: No. 79-1276,79-1276
• Citation: 611 F.2d 1
• Parties: 5 Fed. R. Evid. Serv. 565, 7 O.S.H. Cas.(BNA) 1970, 1979 O.S.H.D. (CCH) P 24,095 Ray MARSHALL, Secretary of Labor, Plaintiff, Appellee, v. COMMONWEALTH AQUARIUM, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

611 F.2d 1

5 Fed. R. Evid. Serv. 565, 7 O.S.H. Cas.(BNA) 1970,

1979 O.S.H.D. (CCH) P 24,095

Ray MARSHALL, Secretary of Labor, Plaintiff, Appellee, v. COMMONWEALTH AQUARIUM, Defendant, Appellant.

No. 79-1276.

United States Court of Appeals First Circuit.

Argued Oct. 4, 1979.

Decided Dec. 13, 1979.

Roy D. Toulan, Jr., Boston, Mass., with whom Brown, Rudnick, Freed & Gesmer, Boston, Mass., was on brief, for defendant, appellant.

Ann D. Nachbar, Atty., U. S. Dept. of Labor, Washington, D. C., with whom Albert H. Ross, Regional Sol., Boston, Mass., Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for Litigation and Charles I. Hadden, Acting Asst. Counsel for Appellate Litigation, of Washington, D. C., were on brief, for plaintiff, appellee.

Before ALDRICH and CAMPBELL, Circuit Judges, and BONSAL, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Commonwealth Aquarium (Aquarium), a pet store, appeals a decision of the United States District Court for the District of Massachusetts finding it in violation of Section 11(c)(1) of the Occupational Safety and Health Act of 1970, (OSHA), 29 U.S.C. § 660(c)(1). That section provides:

"No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter."

This case arises from the discharge of Jeffrey Boxer as manager of Aquarium on May 15, 1976. The complaint filed by the Secretary of Labor alleged that Aquarium, acting through one of its owners, Richard Lerner, discharged Boxer because he had engaged in activity protected by OSHA by reporting a potential health hazard at the store to health and labor authorities. ¹ The hazard was created by the likelihood that several birds in Aquarium's inventory had contracted psittacosis or "parrot fever," a respiratory ailment which may be fatal to humans.

In determining that Aquarium had violated Section 11(c), the district court followed the format laid out in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The court found Boxer's notification of health and labor authorities to be "a significant and substantial proximate causative factor for (Aquarium's) decision to discharge him," and next determined that Aquarium had "failed to prove by a preponderance of the evidence that (it) would have discharged Boxer even in the absence of the protected activity." Aquarium now complains that "(w)hile Boxer's complaints to health and labor authorities may have been the 'last straw' leading to the termination of his employment, which is not conceded," the evidence did not sufficiently demonstrate that Boxer's engaging in protected activity was a substantial factor precipitating his discharge. According to Aquarium, Boxer's discharge was the culmination of five months of employer dissatisfaction with his job performance.

Even, however, if we were so inclined, we would not be free to redetermine these matters. The district court's findings must stand unless clearly erroneous. Cf. Sweeney v. Board of Trustees of Keene State College, 604 F.2d 106 (1st Cir. 1979). Examination of the record indicates that the court's findings as to Aquarium's motivation in discharging Boxer are amply founded and not clearly erroneous.

Aquarium's next contention is that the district court altogether ignored certain evidence of purported legitimate business reasons for Boxer's discharge. In support of this, Aquarium isolates the following passage from the court's opinion:

"Apart from Lerner's testimony as to the deterioration of his relationship with Boxer prior to May 1976 which has been discussed and disbelieved above there is nothing in the record upon which the Court could base a finding that Lerner would have reached the same decision even in the absence of Boxer's complaints regarding the safety of his working conditions."

This passage is said to demonstrate a failure to consider, 1) the testimony of Martha Parks, an employee of Boston Pet, one of Aquarium's "sister" stores, which revealed that she had encountered some problems with Boxer concerning the joint ordering of birds and that she had related those problems to Lerner; and 2) a so-called list of grievances which, according to Lerner, he drew up some four months prior to Boxer's discharge, itemizing employer complaints with Boxer's performance.

The court's comment does not, however, compel the conclusion that it totally overlooked this evidence. Nothing else in the record or opinion suggests such an extraordinary oversight. All the court seems to have meant to say is that the other evidence of employer dissatisfaction was too weak to constitute the basis for a finding of legitimate discharge. This was a reasonable conclusion, given the court's express discrediting of Lerner. Martha Parks' testimony by itself scarcely indicated conduct serious enough to lead to discharge; and the undated grievance list was not only of questionable weight and significance, but depended largely on Lerner's rejected credibility. We do not, therefore, regard the court's statement as indicating more than a warranted, if imperfectly phrased, discrediting of defendant's evidence.

Aquarium's final points concern the district court's exclusion of evidence allegedly relevant on the issue of Lerner's true motivation in firing Boxer. On direct examination Boxer had testified that after learning of the potential health hazard in the store he informed Lerner and suggested the taking of various precautions. Lerner, according to Boxer, responded by stating "Either conduct, just conduct business as usual or I will find somebody else who will conduct business as usual." Boxer further testified that Lerner similarly warned him on two subsequent occasions. Lerner, on taking the stand, denied threatening Boxer with discharge if he failed to conduct business as usual. ² Lerner, however, did admit to having a discussion with Boxer concerning the feeding of birds. Lerner testified that "In the beginning of the psittacosis situation (Boxer) refused to water and feed the birds and I told him that I would get someone from Boston Pet to water and feed them, if he didn't do it." Lerner was questioned by Aquarium's counsel as to his intent in making that remark. The district court sustained an objection to this question despite counsel's insistence that intent was "one of the primary issues in this case." We would agree that in general, where a defendant's intent is in issue, he should be given latitude to testify concerning his intent, however much the court may think such testimony " 'rationalization.' " Whiting v. United States, 296 F.2d 512, 519 (1st Cir. 1961); United States v. Hayes, 477 F.2d 868, 873 (10th Cir. 1973); Wigmore, Evidence § 581 (3d ed. 1940). In the present case, however, Lerner testified at other times on the subject of his intent and, especially in the absence of an offer of proof, See Fed.R.Evid. 103(a)(2), we have no reason to believe that the excluded testimony would have been more than cumulative on the subject. See Fed.R.Evid. 403. We can discern no prejudice in any event.

Also on the subject of its intent, Aquarium argues that the district court erred in refusing to allow Linwood Murray, a social acquaintance of Mr. Lerner and an employee of Aquarium's "sister" store, to relay Lerner's version of a telephone conversation with Boxer. Boxer had testified that during this conversation he asked Lerner whether he was going to be laid off or fired. Lerner, on the other hand, testified that Boxer requested that he be laid off in order that he might "do some fishing" over the summer. Both versions of the conversation had Lerner postponing any decision on the matter until later. Lerner further testified that at the end of the conversation he immediately related the entire contents verbatim to his wife and Linwood Murray, who had been present throughout the incident. During Murray's testimony, the following ensued:

"Q Could you tell us what happened after that telephone conversation terminated?

A (Mr...