Simon v. Simmons Foods, Inc., No. 94-2421

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtHEANEY
Citation49 F.3d 386
Parties129 Lab.Cas. P 11,284, 10 IER Cases 719 Robert L. SIMON, Petitioner, v. SIMMONS FOODS, INC., formerly known as Simmons Industries, Inc., Intervenor, The Secretary of the United States Department of Labor, Respondent.
Decision Date27 February 1995
Docket NumberNo. 94-2421

Page 386

49 F.3d 386
129 Lab.Cas. P 11,284, 10 IER Cases 719
Robert L. SIMON, Petitioner,
v.
SIMMONS FOODS, INC., formerly known as Simmons Industries,
Inc., Intervenor,
The Secretary of the United States Department of Labor, Respondent.
No. 94-2421.
United States Court of Appeals,
Eighth Circuit.
Submitted Dec. 14, 1994.
Decided Feb. 27, 1995.

Page 387

Thomas Devine, Washington, DC, argued (Thomas Devine and Richard Condit appear on the brief), for petitioner.

Paul L. Friedman, Washington, DC, argued (Thomas S. Williamsson, Jr., Monica Gallagher, William J. Stone and Paul L. Frieden, appear on the brief), for respondents.

Before RICHARD S. ARNOLD, Chief Judge; HEANEY, Senior Circuit Judge; and FAGG, Circuit Judge.

Page 388

HEANEY, Senior Circuit Judge.

Robert L. Simon, a security guard at Simmons Foods, Inc. ("Simmons Foods") was suspended without pay on January 8, 1987, and discharged eleven days later for making "false and malicious statements to a member of the general public" concerning the company's operations. A number of events preceded Simon's discharge, all of which need not be recited here. Suffice it to say that at the time of Simon's discharge, Simmons Foods, which operates a chicken producing and processing plant in Southwest City, Missouri, was being investigated by a U.S. government task force for allegedly feeding heptachlor-contaminated feed to its chickens, and Simon was cooperating with the government in its investigation. Simon was discharged for telling Bob Applegarth, a contractor who collected scrap metal at the Southwest City plant, that the company fed heptachlor-contaminated chicken feed to its chickens, sold the contaminated chickens, and burned and buried a substantial quantity of the tainted feed on its property.

Upon being discharged Simon promptly filed an employee discrimination complaint with the Wage and Hour ("W & H") Division of the United States Department of Labor, claiming that his suspension and discharge were in violation of the whistleblower protection provisions of the Toxic Substances Control Act, 15 U.S.C. Sec. 2622 (1988); the Water Pollution Control Act, 33 U.S.C. Sec. 1367 (1988); the Solid Waste Disposal Act, 42 U.S.C. Sec. 6971 (1988); and the Clean Air Act, 42 U.S.C. Sec. 7622 (1988). The administrator of the W & H Division found that Simon was discharged because of his cooperation with government officials in the heptachlor probe. Accordingly, he held that Simon's cooperation with the government's investigation was protected activity under the relied upon statutes and that Simon was entitled to reinstatement and back pay.

Simmons Foods appealed the W & H administrator's decision, and an administrative law judge (ALJ) found in favor of the company. The ALJ held that, notwithstanding evidence of a partially retaliatory motive on the company's part, Simon would have been discharged even if he had not engaged in protected activity because of the false and potentially damaging statements he made to Applegarth about the company.

Simon appealed the ALJ's decision to the Secretary of Labor, who framed the issue in somewhat different terms. The Secretary focused on whether the statements Simon made to Applegarth were within the realm of activity Congress sought to protect in enacting the whistleblower statutes relied upon here. The statements were not protected activity, he held, because making health and safety complaints to a member of the general public, without demonstrating that the employee "is about to file a complaint or participate or assist in a proceeding," see infra, is too remote from the remedial purposes of the relied upon whistleblower provisions to be a protected activity. 1 Simon v. Simmons Indus., Inc., No. 87-TSC-2, April 4, 1994, slip op. at 6. The Secretary further found that no inference could be drawn that the company had knowledge of Simon's cooperation with the government, and that even assuming that Simmons Foods had knowledge of Simon's cooperation, the company would have terminated Simon for the statements he made to Applegarth about the contaminated feed. Id. at 8. We find that substantial evidence supports the findings of the ALJ and the Secretary that Simmons Foods had a legitimate, nondiscriminatory reason for discharging Simon because of the false and potentially damaging statements he made about the company and, accordingly, we affirm.

I.

The two statutes over which this court has jurisdiction on appeal--the Water

Page 389

Pollution Control Act and the Solid Waste Disposal Act 2--contain virtually identical language. Both read as follows (the bracketed portions indicate where the latter differs from the former):

No person shall fire, or in any way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter [or under any applicable implementation plan], or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter [or of any applicable implementation plan].

33 U.S.C. Sec. 1367(a); 42 U.S.C. Sec. 6971(a). Generally, to establish a prima facie case of retaliatory discharge, a...

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17 practice notes
  • Rhode Island Environmental v. U.S., No. 00-2326.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 2002
    ...See 42 U.S.C. §§ 6971(b), 6976(b); see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th Cir.1998); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 n. 2 (8th B. Factual Background and Proceedings Below 1. Administrative proceedings The State of Rhode Island and the Rhode Island Depart......
  • Schoonover v. Schneider Nat. Carriers, Inc., No. 4:06-cv-00042-JEG.
    • United States
    • U.S. District Court — Southern District of Iowa
    • June 26, 2007
    ...needed to present evidence that Riceland knew that he had engaged in statutorily protected activity"); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995) (requiring a plaintiff to show "the employer had actual or constructive knowledge of the protected conduct" in ......
  • Anderson v. U.S. Dept. of Labor, No. 03-9570.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 2, 2005
    ...and (5) a nexus exists making it likely that the protected activity led to the alleged discrimination. See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995). Applying the parameters set forth by the ARB I panel to the term "authorized representative of employees," the ......
  • Kahn v. U.S. Secretary of Labor, No. 94-3751
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 7, 1995
    ...employee's subsequent discharge; and (4) a nexus exists between the protected activity and the discharge. Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995) (citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir.1989)). "Proximity in time is sufficient to raise an inference of ca......
  • Request a trial to view additional results
17 cases
  • Rhode Island Environmental v. U.S., No. 00-2326.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 2002
    ...See 42 U.S.C. §§ 6971(b), 6976(b); see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th Cir.1998); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 n. 2 (8th B. Factual Background and Proceedings Below 1. Administrative proceedings The State of Rhode Island and the Rhode Island Depart......
  • Schoonover v. Schneider Nat. Carriers, Inc., No. 4:06-cv-00042-JEG.
    • United States
    • U.S. District Court — Southern District of Iowa
    • June 26, 2007
    ...needed to present evidence that Riceland knew that he had engaged in statutorily protected activity"); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995) (requiring a plaintiff to show "the employer had actual or constructive knowledge of the protected conduct" in ......
  • Anderson v. U.S. Dept. of Labor, No. 03-9570.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 2, 2005
    ...and (5) a nexus exists making it likely that the protected activity led to the alleged discrimination. See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995). Applying the parameters set forth by the ARB I panel to the term "authorized representative of employees," the ......
  • Kahn v. U.S. Secretary of Labor, No. 94-3751
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 7, 1995
    ...employee's subsequent discharge; and (4) a nexus exists between the protected activity and the discharge. Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995) (citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir.1989)). "Proximity in time is sufficient to raise an inference of ca......
  • Request a trial to view additional results

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