Marshall v. Commonwealth Aquarium

• Decision Date: 10 May 1979
• Docket Number: Civ. A. No. 77-338-C.
• Citation: 469 F. Supp. 690
• Parties: Ray MARSHALL, Secretary of Labor, Plaintiff, v. COMMONWEALTH AQUARIUM, Defendant.
• Court: U.S. District Court — District of Massachusetts

469 F. Supp. 690

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

Civ. A. No. 77-338-C.

United States District Court, D. Massachusetts.

May 10, 1979.

Albert H. Ross, Regional Solicitor, John S. Casler, Atty., U. S. Dept. of Labor, Boston, Mass., for plaintiff.

Roy D. Toulan, Jr., Gerald Pu Tishler, Brown, Rudnick, Freed & Gesmer, Boston, Mass., for defendant.

OPINION

CAFFREY, Chief Judge.

This case arises from the discharge on May 15, 1976 of Jeffrey Boxer from his position as manager of Commonwealth Aquarium, a pet store located in Brookline, Massachusetts. On May 26, 1976 Boxer filed a complaint with the Secretary of Labor alleging that he was terminated by the defendant in retaliation for the exercise of his rights under the Occupational Safety and Health Act, 29 U.S.C.A. § 651 et seq. (OSHA). Boxer's complaint to the Secretary claimed that his employment was terminated because he had reported to the National Institute of Occupational Safety and Health his fear that a potential health hazard existed at Commonwealth Aquarium. The Secretary determined that Boxer had indeed been discharged as a result of exercising his rights under OSHA and brought the instant action against the defendant in 1977. The jurisdiction of this Court is invoked under 29 U.S.C.A. § 660(c)(2).

In August, 1975 Boxer was hired to manage defendant's Brookline store and was trained for that position by Richard Lerner, his immediate supervisor. The parties agree that from August 1975 to December 1975 Lerner and Boxer enjoyed an excellent working relationship. Lerner often expressed his satisfaction with Boxer's performance and Boxer received a substantial pay raise a few months after he had begun to work for the defendant. In fact, Lerner testified that he gave Boxer a silk tie as a Christmas gift.

It is in regard to the period following Christmas 1975 that the testimony becomes widely divergent. Lerner testified that there was a sudden and drastic change in Boxer's performance and that as a result of Boxer's tardiness, absenteeism, and mismanagement, their relationship deteriorated rapidly. However, although Lerner testified that he was seriously dissatisfied with Boxer's performance, he also testified that he kept hoping that Boxer would "return to the Jeffrey that he had once hired." There was no evidence tending to prove that he had ever considered terminating Boxer prior to May 1976.

Boxer testified and I find that the silk tie had been presented to him by Lerner not as a Christmas gift in December of 1975 but at a celebration of Boxer's birthday at Lerner's home on April 18, 1976 at which time, according to Boxer, Lerner told Boxer that he had a good future working for the defendant. Springer, a former employee of defendant, testified and I find that Lerner had continued to express his satisfaction with Boxer's work up to two weeks before the incidents culminating in Boxer's discharge.

I find that as late as mid-April 1976 the working relationship between Lerner and Boxer was good and that Lerner had no grounds for and had not considered discharging Boxer prior to May 1976.

In early May, 1976 Dr. Marjorie McMillan, a veterinarian at Angell Memorial Animal Hospital, performed an autopsy on a bird from Commonwealth Aquarium. The autopsy disclosed lesions which were highly suggestive of psittacosis, although no definite diagnosis could be made for three weeks. Psittacosis is a contagious respiratory ailment which affects birds and which when contracted by humans is potentially fatal.

A second bird acquired from the store about this time died with similar symptoms and four persons who had come in contact with the two birds thereafter contracted respiratory ailments.

Dr. McMillan called Boxer at Commonwealth Aquarium to warn him of the possible presence of psittacosis in his bird population and the doctor also informed him that, although her medical data was highly suggestive of psittacosis, the diagnosis was only tentative and would not be confirmed for several weeks. Boxer immediately checked all the birds in the store and saw no signs of sickness. He testified that he called Lerner to express his concern over the possible health hazard and was told to carry on with business as usual. Springer testified that he overheard a telephone conversation between Boxer and Lerner in which Boxer informed Lerner of a potential health hazard. Lerner refused to admit that such a problem existed.

The next morning, Boxer found the mate of one of the dead birds lying in its cage breathing very rapidly. He killed the bird and delivered it to an avian bacteriologist to be autopsied. Boxer later informed Lerner that there was a good chance that the third bird also had psittacosis. Boxer testified and I find that Lerner became angry and told Boxer that he should either continue to sell birds or he would be fired.

Boxer then began to add tetracycline to the birds drinking water and he contacted Dr. John Lewis, an employee of the National Institute of Occupational Safety and Health, to whom he explained the situation. As a result of that conversation, Dr. Lewis came to inspect the store.

Dr. Lewis recommended to both Lerner and Boxer that tetracycline-impregnated bird food¹ should be purchased and that the birds should be quarantined in a separate area. He suggested that if possible no birds be sold to the public. Lerner admitted that he spoke with Dr. Lewis and that although he had acknowledged Dr. Lewis' recommendations he did nothing to effectuate them. He testified that he examined the birds and believed them to be healthy. Boxer testified and I find that despite Dr. Lewis' advice he was told by Lerner to conduct business as usual. Boxer also testified and I find that no tetracycline-impregnated food was purchased.

Shortly thereafter Mr. Daley of the State Department of Labor told Lerner to buy masks for the employees to wear and the health inspector for the Town of Brookline instructed Lerner...