Department of Labor: 05 004

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U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 THOMAS SAPORITO, COMPLAINANT, v. ARB No. 05-004 ALJ No. 2001-CAA-00013 DATE: February 28, 2006 CENTRAL LOCATING SERVICES, LTD and ASPLUNDH TREE EXPERT COMPANY, RESPONDENTS. BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearances: For the Complainant, Thomas Saporito, pro se, North Palm Beach, Florida For the Respondents: Steven R. Semler, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, N.W.Washington, D.C. 20210 USDOL/OALJR EPORTER P AGE 1 THOMAS SAPORITO,ARB No. 05-004COMPLAINANT,ALJ No. 2001-CAA-00013v.DATE: February 28, 2006CENTRAL LOCATING SERVICES, LTD andASPLUNDH TREE EXPERT COMPANY,RESPONDENTS.BEFORE:THE ADMINISTRATIVE REVIEW BOARDAppearances:  For the Complainant, Thomas Saporito,  pro se, North Palm Beach, Florida For the Respondents: Steven R. Semler, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, D.C. FINAL DECISION AND ORDER Thomas Saporito filed a complaint with theUnited States Department of Laboralleging that when his employer, Central Locating Service, Ltd. (CLS), demoted and laterfired him, it violated the employee protection provisions of six environmental protectionstatutes. 1 A Department of Labor Administrative Law Judge granted summary judgment 1 The Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i)(1)(A) (SDWA) (West 2003);the Clean Air Act, 42 U.S.C.A. § 7622(a) (CAA) (West 2003); the ComprehensiveEnvironmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610(a)(CERCLA) (West 2005); the Toxic Substances Control Act, 15 U.S.C.A. § 622(a) (TSCA)  USDOL/OALJR EPORTER P AGE 2 to CLS because Saporito did not show that a genuine issue of fact exists as to whether heengaged in activity that the statutes protect, an essential element of his case. We, too,find that Saporito did not make this showing and therefore affirm summary judgment forCLS. B ACKGROUND CLS serves utility companies in southern Florida by identifying the location of underground utility lines and marking their positions at ground level so that constructionwork can be accomplished in the vicinity without interfering with the lines. SometimesCLS crews must remove manhole covers to carry out this work. Saporito began workingfor CLS as a general foreman in July 2003.During the period August 2003 through January 2004, Saporito repeatedlyinformed CLS managers that he believed company crews were not taking adequateprecautions when working in or near manholes. Specifically, Saporito told CLSmanagers that he thought flammable or combustible gases could have accumulated inthree manholes that his crew had opened and if ignited, could have caused air and waterpollution in the area. 2 Saporito also told the managers that the company was violating theCAA, TSCA, and the Occupational Safety and Health Act and that therefore he wouldreport it to federal safety agencies. Furthermore, he wrote to CLS managers to object thathis supervisors were retaliating against him for having raised the issue of manhole firesand explosions. This retaliation included, among other things, denying him overtime,falsely charging him with recordkeeping errors, and issuing unwarranted writtencriticisms of his work.In October 2003, CLS demoted Saporito and reduced his pay, claiming that hiswork performance was unsatisfactory. On December 14, 2003, and January 5, 2004,Saporito filed whistleblower complaints with the Occupational Safety and HealthAdministration (OSHA) pursuant to CAA, TSCA, CERCLA, and SWDA. 3 He (West 1998); the Federal Water Pollution Prevention and Control Act, 33 U.S.C.A. § 1367(a)(FWPPCA) (West 2001); the Solid Waste DisposalAct, 42 U.S.C.A. § 6971(a) (SWDA)(West 2001). 2 Saporito also raised occupational safety and health issues, but our jurisdiction islimited to his environmental pollution concerns. See Evans v. Baby-Tenda , ARB No. 03-001,ALJ No. 01-CAA-4, slip op. 4-5 (ARB July 30, 2004). 3 The Environmental Protection Agency (EPA) enforces the safety requirements of theCAA, CWA, etc., but the Department of Labor (OSHA) enforces those statutes ’  whistleblower protections. When OSHA receives an environmental whistleblowercomplaint, it investigates the merits of the employee ’ s claim and forwards a copy of thecomplaint to EPA so that EPA may determine whether to investigate the underlyingenvironmental safety issues. See OSHA CPL 02-03-002, Whistleblower Investigation  USDOL/OALJR EPORTER P AGE 3 complained that CLS demoted him and otherwise harassed him because of his complaintsabout possible manhole explosions expelling pollutants into the air or water. On January8, 2004, CLS fired him, again citing poor work performance. The next day, Saporitoamended his whistleblower complaints to include the fact that CLS had fired him. 4 After investigating, OSHA dismissed Saporito ’ s environmental whistleblowercomplaints. OSHA determined that CLS would have disciplined and fired Saporito forpoor work performance even if he had not told CLS managers that company work practices around manholes could lead to air and water pollution. Saporito invoked hisright to a hearing, and the case was assigned to a Labor Department ALJ foradjudication. 5 CLS moved for summary judgment, arguing that Saporito ’ s concerns thatmanholes could contain combustible or flammable substances which could be ignited andexplode, and thereby expel pollutants into the air or water, were not grounded inreasonably perceived violations of the environmental acts. CLS asserted that Saporito ’ sevidence would not support a finding of a reasonable likelihood that fire or explosioncould occur or cause environmental pollution. Therefore, CLS contended, Saporito ’ s oraland written complaints to CLS managers about possible environmental pollution did notconstitute protected activity, a necessary element of Saporito ’ s whistleblower complaint.Saporito countered that his environmental pollution concerns were reasonable.OSHA safety standards and his own experience and training indicated that confinedspaces like manholes generally present a fire and explosion risk and that CLS was nottaking adequate precautions. Saporito also argued that his threats to CLS that he wouldreport the company for environmental violations constituted protected activity in its ownright, independent of his efforts to convince CLS managers they were not taking adequateprecautions with manholes. Manual; Saporito ’ s Opposition to Respondent ’ s Motion for Summary Judgment below atAttachment 14. (Hereafter, we refer to attachments to Saporito ’ s Opposition to Respondent ’ sMotion for Summary Judgment as “ Attach. ” ) 4 Saporito also filed an occupational safety complaint with OSHA in February 2004.He claimed, inter alia, that CLS failed to provide its crews with personal protectiveequipment such as hardhats and did not comply with OSHA ’ s confined space entry standardswhen its employees entered manholes. Saporito Deposition Attach. 8, pp. 29  –  32. OSHAcorresponded with CLS about these allegations. In February 2004, CLS reported to OSHAthat it had committed one violation of OSHA standards but that it had taken action to assurethe violation would not recur. CLS also told OSHA that it was operating in compliance withOSHA standards in all other respects and that it had given its employees refresher training onOSHA standards for work in confined spaces. Attach. 13. Based on CLS ’ s response, OSHAconcluded that no on-site inspection was necessary and closed the occupational safety case.Attach. 13. 5 See 29 C.F.R. § 24.4(d)(2) and (3)(2005).  USDOL/OALJR EPORTER P AGE 4 The ALJ recommended that CLS ’ s motion for summary judgment be grantedbecause he found that Saporito did not make a sufficient showing that he engaged inprotected activity. The ALJ found that undisputed evidence showed that the likelihood of explosion and pollution was “ remote ” and “ tangential ” and therefore could not support afinding that Saporito reasonably perceived environmental violations. RecommendedDecision and Order (R. D. & O.) at 10. Saporito petitioned us to review therecommended decision. 6 J URISDICTIONAND S TANDARD OF R EVIEW The Secretary of Labor has delegated authority to the ARB to review an ALJ ’ srecommended decision in cases arising under the environmental whistleblower statutes. See 29 C.F.R. § 24.8. See also Secretary ’ s Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct.17, 2002) (delegating to the ARB the Secretary ’ s authority to review cases arising under,inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).We review a recommended decision granting summary decision de novo. That is,the standard the ALJ applies also governs our review. 29 C.F.R. § 18.40 (2005). Thestandard for granting summary decision is essentially the same as that found in Fed. R.Civ. P. 56, which governs summary judgment in the federal courts.  Moldauer v.Canandaigua Wine Co. , ARB No. 04-022, ALJ No. 03-SOX-026, slip op. at 3 (ARBDec. 30, 2005).Thus, summary judgment is appropriate for either party “ if thepleadings, affidavits, material obtained by discovery or otherwise . . . show that there isno genuine issue as to any material fact and that a party is entitled to summary decision. ”  29 C.F.R. § 18.40(d); Fed. R. Civ. P. 56(c).The determination whether facts are material is based on the substantive law uponwhich each claim is based.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).A material fact is one that might affect the outcome of the suit under the governing law,and a dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.  Moldauer  , slip op. at 4;  Anderson ,477 U.S. at 248.The burden falls on the movant to demonstrate an absence of evidence to supportthe nonmoving party ’ s case. Summary decision is appropriate if the nonmovant fails tomake a showing sufficient to establish the existence of an element essential to that party ’ scase and on which that party will bear the burden of proof at trial. Celotex Corp. v.Catrett  , 477 U.S. 317, 322 (1986). The nonmoving party may not rest upon the mereallegations or denials of its pleadings but must set forth specific facts which couldsupport a finding in its favor. 29 C.F.R. § 18.40(c). In considering the motion, wereview the evidence in the light most favorable to the nonmovant. Friday v. Northwest  Airlines, Inc., ARB No. 03-132, ALJ Nos. 03-AIR-19, 03-AIR-20, slip op. at 3 (ARB 6 29 C.F.R. § 24.8(a).
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