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Investigators Report: E07-0500

Case # E07-0500

[Complainant]

v.

[Respondent]

       
I.          COMPLAINANT’S CHARGES:

The Complainant alleges that he was terminated from his job as the Respondent’s
warehouse manager in retaliation for the Complainant “blowing the whistle,” after
reporting to Respondent his concern over a number of perceived workplace safety issues.

II.        RESPONDENT’S ANSWER:

The Respondent states that the Complainant’s position was terminated for
performance and safety issues unrelated to any alleged whistleblowing activities.

III.       JURISDICTIONAL DATA:

  1. Date of alleged discrimination: 6/8/07.
  2. Date complaint received by the Maine Human Rights Commission: 10/5/07.
  3. Respondent [ ] (hereinafter “[ ]”) formerly employed approximately 168 individuals and is required to abide by the Maine Human Rights Act, the Whistleblowers’ Protection Act, and state Employment
    Regulations.
  4. The investigation consisted of a thorough review of all written submissions.
  5. The Complainant is represented by Attorney [ ].
  6. The matter was not resolved.

                      
IV.       DEVELOPMENT OF FACTS

  1. (Undisputed) The Complainant was hired as a Job Superintendent for the Respondent in March 2006. In January 2007, the Complainant was transferred to a new position, Warehouse Manager of the Respondent’s Scarborough pallet repair facility, also known as the “Chep depot.” On 6/7/07, the Complainant received a written termination report (Attached hereto as “Exhibit A”), which lists “not a good job fit,” in the section “Reason or Termination or Separation (Details).”
  2. (Complainant, hereinafter “C”) At all times during my period of employment with the Respondent, I believe that I performed my job duties well. After I transferred to the warehouse in January 2007, I noticed and reported to my supervisors about the lack of ventilation in the warehouse and the adverse effect of the air quality on employee health. The Respondent took no steps to address this issue.
  3. (C) During my time as warehouse manager, I also complained to the Respondent about their decision to switch to cloth rather than the leather gloves, resulting in splinters and injuries to the crew I was supervising. The Respondent eventually switched back to leather gloves.
  4. (C) In the weeks preceding my termination, I also complained to the Respondent about having too few employees on the night shift, resulting in workers hurrying, and my concern over potential resulting injuries.
  5. (C) On June 8, 2007, I was terminated, for the only given reason that I was “just not a good fit.” I believe that the reason provided by the Respondent is pretext and that I was actually terminated for reporting safety issues.
  6. (Respondent, hereinafter “R”) The Complainant was terminated for performance reasons, not because he was a “whistleblower.” The Respondent informed the Complainant about concerns centered on both productivity and safety, despite denying any knowledge of performance issues in his MHRC charge.
  7. (R) With respect to the three alleged incidents of whistleblowing, the Respondent responds as follows:

a. Air Quality/Ventilation – The Complainant informed management of concerns over dust and air quality shortly after he began his duties as warehouse manger (1/07).
The Complainant was advised that the Respondent was aware of the issue and had previously conducted testing to ensure that the air presented no safety hazard, and that while the air quality was perhaps unpleasant, it was not unhealthful. The Complainant appeared satisfied with this explanation and he never raised the air quality as a safety issue again. In fact, there was no safety issue. Independent air quality testing was done in 2001 and because forklift emissions were found to be unhealthful, catalytic converters were installed on the forklifts. The company purchased two monitors and took hourly readings in multiple locations and readings were all within OSHA limits.
The Scarborough Fire Department has also taken bi-annual readings (as recently as summer 2006) and found the air quality to be within their limits, which were more stringent than OSHA limits. More recently, the Respondent began using large air mover fans (when work volume necessitated hand sorting) to improve air quality. The Complainant had separate complaints about lack of an office for his use and a break
room for his crew, but these were not presented by him as any type of safety issue.
b. Leather gloves – The Complainant also alleges that he was subjected to retaliation for raising the safety issue of possible splinters after a switch from leather gloves to cloth gloves. However, when the issue was first raised, the Complainant seemed more annoyed that no one had consulted him in advance of the decision to change gloves.

In an email dated 4/24/07, the Complainant wrote:

Gloves??? Were any of you fine gentlemen involved in eliminating leather gloves at Chep & using only the cotton type like AWS uses? If so I would have certainly appreciated an opportunity to have some input. From a safety and productivity (splinters and handling) standpoint I certainly prefer the leather type for repairers. But either way, it would have been nice to discuss/review alternatives, maybe set a limit per week & come to a consensus.

The Respondent (Owner Mr. PN) responded in an email the following morning:

Hi [Complainant], we have tried various gloves and equipment for the purposes of safety and performance not for trying to find the least expensive...The problem is how people use whatever we provide. Employees should be required, regardless of what glove we use, to show the old pair when asking for a new pair; What I don’t want to be doing is handing out gloves because we are not holding people accountable to bring them to work everyday...Looking at some history, our glove use has tripled in the last 3 months – I know some of that is more staff, but not all of it. We have been going through 36 pairs per week. So the key is control. In advance of getting a locked crib, I would put the gloves in some kind of locked cabinet in the office and only allow a supervisor or manager to disburse. Thanks, (Mr. PN).

On 4/24/07, the Complainant also emailed a manager (Mr. KS) about the gloves:
           
[Mr. KS], I certainly prefer the use of leather gloves for both safety and productivity...I am told there has been a lot of concerns by staff at Chep with safety and performance including trying every type of glove out there available. But I really do not want to revisit that, other than learn from the past & do the best for the future...Need to control use of issues better – we will –and have a plan to issue from locked office area & monitor via a sign out sheet. Same with blades and grinding wheels. Part of better control of consumables. I too want to control cost but at the same time, feel as a company, we should provide the right tool to do the job...whether it is a sawzall or a glove. Control of these costs is management, or in this case, “my teams” responsibility, & the steps noted above will be applied... [Complainant].

Warehouse Director, Mr. KS, responded that same day and wrote:

[Complainant], in the past we never had an issue with the types of gloves we were using, nor any safety related issues. We are spending over a thousand dollars per quarter on those gloves alone. If you would prefer to use those gloves, we will continue to do so; as long as you bring back the used gloves in exchange. I understand the preference between the leather and the old style leather palm; given the choice I too would take the leather! We provide PPE for our associates as you know, if they want to upgrade at their cost that is fine too. Let me know what direction you want to take and we can discuss later. [Mr. KS]     

In sum, although the Complainant raised safety and productivity issues regarding the switch in the type of gloves used, he expressed a willingness to go along with whatever senior management decided, which was to defer to his glove preference.

c. Staffing – Senior management had several discussions with the Complainant regarding staffing, but they were not in the context of safety, they instead related to productivity. If every discussion about staffing levels and productivity constituted whistleblowing, virtually any manager would be blowing the whistle everyday. In this case, the Complainant was using too much overtime and not deploying his staff in an efficient manner. Productivity was also not at an acceptable level. This is the reason why management met with the Complainant on several occasions to develop a plan for more efficient use of staff to increase productivity and reduce overtime.

  1. (R) The Complainant denies he was aware of any of the Respondent’s performance concerns yet he referred to them directly in one of the above emails when he acknowledged, “...I am told there has been a lot of concerns by staff at Chep with safety and performance including trying every type of glove out there available...” On May 8, 2007, Warehouse Director KS met with the Complainant to discuss the fact that there had been a number of safety issues during the four months he had been at the warehouse. The Complainant was told he needed to take the lead on the issue and ensure the message got out that safety was the Respondent’s number one concern.
    Productivity was also a problem that required closer supervision by senior management and joint development of staffing plans. Poor attendance was also a factor in the staffing problem. The Respondent had enough people on the roster but some were not showing up for work. Management responded by providing support and direction to impact attendance and worked aggressively at getting to the right staffing level based upon feedback from the Complainant and other staff at the facility. It is important to note that a manager is accountable for staffing the operation and working hand-in-hand with HR to address staffing needs, hiring, performance...
  2. (R) Finally, in late May 2007, the Complainant’s two direct reports asked to meet with senior management to discuss the situation at the Chep warehouse. The observed that the Complainant was frequently missing from the building and had even instructed these subordinates to contact him at his lake house if they needed him. Based on this report and the observed productivity and safety problems, the Respondent decided to eliminate his position and terminate the Complainant’s employment, a decision fully supported by the record. Subsequent to the Complainant’s termination, injuries are down and productivity is up. During the Complainant six months at the warehouse there were seven injuries, compared to only one in the same period the prior year, and two in the six months after he left. Further, productivity is up and the company has been able to eliminate repair work on the second shift, and this all occurred without refilling the Complainant’s position and instead just reassigning his past duties to his direct reports. In sum, the decision to discharge the Complainant had everything to do with performance and nothing to do with any alleged safety complaints he claims to have ledged.
  3. (R) The Complainant received a $100 per week raise in June 2006 after his 90 day review and in April 2007 he received a pay adjustment of $160 ‘to make up for the company vehicle.” On 4/26/07, he received “back pay for four weeks, amounting to $640. On 6/8/07, he was terminated for performance.
  4. (Investigator) In response to the MHRC’s document request, the Respondent provided a list of all employees terminated in the prior two years. 44 individuals are listed, with a total of three other employees terminated for the same asserted reason as the Complainant, “Not a good job fit.”
  5. (Complainant) In addition to the $100 per week raise the Complainant received in 2006, he also received two weeks vacation from Owner Mr. PN. The manager who preceded the Complainant at the Chep warehouse had significant difficulties with staff, organization, cleanliness and safety issues. The changes the Complainant later initiated led to increased productivity and the Complainant received frequent praise from his managers, Mr. PN, Mr. EL, and Mr. KS. Until March 2007, the Respondent provided the Complainant with a company vehicle but the decision was then made to have the Complainant instead use his won vehicle and submit mileage sheets for reimbursement. In April 2007, the Respondent gave the Complainant a check (separate from his paycheck) for his mileage for the prior four weeks. From April 2007 through the time of his termination, the Complainant submitted mileage sheets and was reimbursed on checks separate from his paycheck. At the end of April 2007, the Complainant gave the Complainant a $160 per week raise in recognition of his good performance. Although the Respondent has suggested that this $160 payment was to cover “vehicle reimbursement,” this is not correct.
  6. (C) Further, the Complainant also had discussions with management about his interest in a Regional Manager of all pallet warehouse position and he was told that he was right on track with the Respondent’s goals and that his goal made sense. The Complainant was never disciplined, reprimanded, nor told by the Respondent that they had any concerns about his performance, nor have they provided any documentation that supports their claim that they had.
  7. (C) There was a significant amount of dust, dirt and soot in the air during pallet repairs at the warehouse. By the end of the day, the staff looked like they had worked in a coal mine. The Complainant raised the air quality issue soon after he began and continued to do so until his termination. Although no steps were taken at the time. it appears the Respondent has begun using air movers as the Complainant suggested. The issue had nothing to do with forklift exhaust fumes nor was the Complainant ever informed of any air quality readings that may have been taken. The issues about the lack of any office or a break room were also separate issues that had nothing to do with the Complainant’s reports regarding air quality.
  8. (C) The Complainant’s primary concern about the switch from leather to cloth gloves was that the latter did not adequately protect his workers from splinters. This was clear even in the limited portions of emails that the Respondent has provided. These emails also make clear that the Respondent was pushing back on the Complainant in response to his request for leather gloves because of the cost.
  9. (C) Approximately two weeks prior to the Complainant’s termination, the Complainant eliminated four positions due to a reduction in the number of pallet repairs that were being allocated to the warehouse. But after a few weeks, the Complainant concluded that he had released one employee too many. The Complainant was concerned because the remaining employees were scrambling, hurrying, and jumping off of forklifts in order to complete the night’s work with fewer employees. The Complainant approached management and asked them to rehire an employee, Mr. NN, who had been reassigned to a different division of the Respondent. The Complainant explained that without this additional employee on the second shift, employees and their supervisor were scrambling too much and might hurt themselves. Although management resisted, the Complainant persisted due to his safety concerns. The same day the Complainant was terminated, he was told that Mr. NN would be reassigned to the second shift, as the Complainant had suggested. The only reason given to the Complainant at the time of his termination was that he was “not a good fit,” nothing was said at this time about alleged performance issues.
  10. (C) Throughout his employment, the Complainant worked with management staffing issues. For instance, Chep would set the number of pallet repairs the warehouse would perform in a given week, and this allocation would be adjusted over time. When the Complainant began in the warehouse, the weekly allocation was increased to 12,500 repairs per week, a significant increase over previous allocations. The warehouse was designed to repair 9,000 per week. As a result of this increase, the Complainant and his managers (including Mr. PN and Mr. KS) worked to hire sufficient staff. The Complainant was praised for his work and received a substantial raise in April 2007. Shortly before the Complainant was terminated, the allocation was reduced to 10,000 pallet repairs per week, which was amore manageable load for the facility. As a result of the decrease, the focus changed to decreasing staff and re-aligning responsibilities.
  11. (C) The Respondent’s claim that the Complainant was somehow responsible for an increase in employee injuries is also without merit, as is their insinuation that the Complainant was not working when he should have been. The Complainant worked all of the hours he was supposed to work and more, such as coming in to supervise overtime staff on Saturdays. The Complainant also had to travel to customer sites across central and southern Maine, as well as travel to the Respondent’s main office for meetings, in addition to occasional trips to Home Depot for supplies. This job based travel would be reflected in the Complainant’s mileage reimbursement records. Although the Respondent also raises the issue about the Complainant sharing his camp telephone number with his subordinates, this was done so that the Complainant could be reached 24/7, including times when he was not scheduled to be working.
  12. (C) The fact that the Complainant received a performance based raise in late April 2007, that he subsequently made the majority of his safety based complaints in the following weeks, and that he was fired on 6/8/07 for alleged performance issues, suggests that the complaints he made in the weeks before his termination, were in fact the reason for that decision. The Respondent also reflected discriminatory animus by ignoring and even acting annoyed at the Complainant’s reported concerns about air quality. The emails herein also reflect that the Respondent was also not to happy about the Complainant’s request for a return to leather gloves (to protect against splinters) and his managers (Mr. PN and Mr. KS) both pushed back and raised their concern over the cost of the safer gloves. Similarly, in the weeks before he was fired, the Complainant expressed the need to bring back another employee on the second shift to eliminate a serious risk of accidents, Respondent’s management refused.
  13. (C) Finally, the Respondent’s asserted reason for the Complainant termination is pretext. The Respondent’s MHRC submission claims that the decision was based on: safety issues since the Complainant became warehouse manager; lack of productivity due to the Complainant’s failure to follow an agreed upon staffing plan; poor attendance at the Chep depot, and; the fact that the Complainant was frequently out of the building and had instructed his subordinates to contact him at his lake house if needed. However, none of these issues were ever mentioned to the Complainant. Rather, he received positive feedback from his managers. Further, none of the above so-called performance issues were raised at the time of the Complainant’s termination (or to unemployment). The only reason ever offered was that he was “not a good fit.” Notably, the termination report provided the Respondent with a box in which to indicate whether the termination was for “safety” or “performance,” and neither is checked; Instead, the Respondent checked “other.” The fact that the Respondent is now attempting to characterize the Complainant’s April 2007 raise of $160 per week as a vehicle allowance is further evidence of pretext. One of the direct reports who supposedly complained about the Complainant being away from the building is the brother of Owner PN. Another one of Owner PN’s brothers was who the Complainant replaced as warehouse manger in 1/07. The Respondent does not suggest, nor could it support, a claim that the Complainant was at camp when he should’ve been working.
  14. (Investigator) A notice of a proposed Fact Finding Conference was sent to both parties in January 2009 for a proposed hearing in March 2009. By letter dated 2/17/09, the Respondent’s listed attorney indicated that the Respondent “...has ceased operations, has no employees and will not be participating in the Fact Finding Conference scheduled for March 26, 2009.”  Shortly thereafter, the Respondent’s attorney sent in a letter indicating he was withdrawing his appearance in the case.
    For this reason, certain factual allegations raised by the Complainant in its response to the Respondent’s Answer are considered uncontroverted for purposes of this report.

V. CONCLUSIONS AND ANALYSIS

  1. The Maine Human Rights Act requires the Commission in this investigation to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.”  5 M.R.S.A. § 4612(1)(B).  The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.  More particularly, “reasonable grounds” exists when there is enough admissible evidence, or there is reason to believe that formal litigation discovery will lead to enough admissible evidence, so that there is at least an even chance of Complainant proving in court that unlawful discrimination occurred.  Complainant must prove unlawful discrimination in a civil action by a “fair preponderance of the evidence.”  5 M.R.S.A. § 4631.
  2. 5 M.R.S.A. § 4572 (1) (A) makes it unlawful for an employer to discharge or to discriminate against employees in the terms and conditions of their employment because of their previous whistleblower activity.
  3. The Whistleblowers’ Protection Act, 26 M.R.S.A. § 833(1)(A), makes it unlawful for an employer to discriminate against an employee because:  “…the employee acting in good faith or a person acting on behalf of the employee, reports…in writing to the employer…what the employee has reasonable cause to believe is a condition or practice that would put at risk the health or safety of that employee or any other individual.”
  4. The Complainant alleges that he was unlawfully discriminated against and terminated because of his whistleblower activity, raising safety issues to management about workplace air quality, type of work gloves, and staff having to rush and risk injury due to understaffing.
  5. The Respondent denies that any whistleblowing or retaliation ever occurred, and states that the Complainant was terminated for his performance, safety issues, and a report from his subordinates that he was frequently away from the building.
  6. In order to establish a prima-facie case of retaliation under the Whistleblowers’ Protection Act, a Complainant must show that he engaged in activity protected by the WPA, that he was the subjects of adverse employment action, and that there was a causal link between the protected activity and the adverse employment action. See DiCentes v. Michaud, 1998 ME 227, ¶ 16, 719 A.2d 509, 514; Bard v. Bath Iron Works, 590 A.2d 152, 154 (Me. 1991).

    a. One method of proving the causal link is if the adverse job action happens in “close proximity” to the protected conduct. See DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 514-515;

    b. Establishment of a prima-facie case creates a rebuttable presumption that Respondent retaliated against the Complainant for engaging in WPA protected activity. See Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 172 (1st Cir. 1995). Respondent must then “produce some probative evidence to demonstrate nondiscriminatory reasons for the adverse employment action.” DiCentes, 1998 ME 227, ¶ 16, 719 A.2d at 515.

    c. If Respondent makes that showing, the Complainants must carry his overall burden of proving that “there was, in fact, a causal connection between the protected activity and the adverse employment action." Id.

 

  1. In arriving at recommendations with regard to the allegations of whistleblower retaliation, it is noted that:

a. The whistleblower statute does not state what level of risk or danger to one’s health or
safety a perceived rise must rise to in order for it to qualify as a sufficiently dangerous
condition for an employee to report and thereby receive the protection afforded under the act.

The statute does require that the employee act in “good faith” when making the report so it would appear to cover even relatively minor or superficial “dangerous conditions,” such as splinters, so long as the report was made in good faith, as appeared to be the case here. Though the Complainant’s concerns certainly appeared more akin to routine email chatter over ever changing issues that arise in any workplace, rather than as any report of a dire safety concern, it is clear that both the Complainant and the Respondent understood that safety was one of the Complainant’s primary concerns for bringing up the issue. It also appears that the Complainant reported concern over the facilities air quality was probably made in good faith, although the presence of simply a dirty, dusty or sooty workplace (as opposed to chemicals, fumes or some other noxious substance that posed an apparent and immediate threat to workplace air quality) does seem to stretch the limits of whether this reasonably put “at risk the health or safety of that employee or any other individual.”

b. However, it is found that the Complainant alleged expressed concern over under staffing potentially leading to injuries due to rushing, is simply too remote and amorphous that it would seem to encompass and protect any and every employee who expressed a belief that a staff cut could force them to move a little faster. The Complainant’s concern was also pure speculation since he did not claim that anyone was actually injured in any way due to the reduction in staff that he ordered (“...Approximately two weeks prior to his termination, [Complainant] eliminated four positions due to a reduction in the number of pallets being repaired.”)  Not only does this suggest that the Complainant may have been responsible for the “dangerous condition” of understaffing, it also suggests that the reduction in pallet repairs justified the reduction in staff.

c. The primary issue is whether any of the above acts of whistleblowing were the reason for the Complainant’s termination. The Complainant points to the lack of documentation in his file to support the Respondent’s claim of then existing performance issues. The Respondent has argued that the Complainant was nevertheless informed at multiple meetings that staffing plans had to be implemented and that the number of accidents on the job had to go down. Since the Respondent decided not to participate in the Fact Finding Conference to offer additional information to explain why there were no such concerns documented, it will be assumed that no such documents exist. However, the Complainant has also offered little if anything to rebut the Respondent’s claim that workplace accidents were much higher (7) under him that in the six months before (1) or six months after (2) he left. While this would certainly appear to justify a termination if supported by adequate background information, details and/or records from the Respondent’s former managers about the company’s history of injuries, the Respondent has presented insufficient information by which to conclude that the Complainant’s safety record as manger of the warehouse was the likely reason for termination, either standing alone in conjunction with performance concerns, especially since Exhibit A reflects that “safety” is not checked off as a or the reason for termination.

d. It is also disputed whether the Complainant received a performance based raise of $160 in April of 2007 or whether this was an offset for his no longer being allowed the use of a company vehicle. One would assume that if a company was cutting back on the use of company vehicles, presumably for cost cutting measures, it would not simultaneously grant a raise to the Complainant, especially when it was lamenting going through 36 pairs of gloves per week that were costing the Respondent “a thousand dollars a quarter.” Although the Respondent was unwilling to provide further information or documentation on its claim that this was not a raise, but rather “to make up for the company vehicle,” it is found that the nevertheless the Respondent’s explanation is more plausible.

e. Despite the Respondent’s decision not to participate in the Fact Finding Conference in this case, it is a very close call due to both the relatively minor nature of the alleged dangerous condition that precipitated the alleged whistleblowing, as well as the apparent existence of an inordinate number of accidents on the Complainant’s time as warehouse manager, and the fact that the crew was being downsized just prior to the Complainant’s own termination, suggesting that there may also have been legitimate business justifications. The Respondent has also been unwilling to provide information that might determine whether the Complainant was away from work needlessly (as was supposedly reported to management by the Complainant’s subordinates) or whether his travel outside the facility was justified. However, given that the Respondent has declined to offer additional information or participate in a Fact Finding Conference to resolve crucial issues in the case, it is found that the Complainant has met his burden of proving that he stands at least an even chance of prevailing in a civil suit.

VI.    RECOMMENDATIONS

Based upon the information contained herein, the following recommendation is made to the Maine Human Rights Commission:

  1. That there are REASONABLE GROUNDS to believe that the Complainant, [ ] was unlawfully discriminated against in employment on the basis of his whistleblowing activity when he was terminated by the Respondent, CED; and
  2. That conciliation should be attempted in keeping with 5 M.R.S.A. § 4612(3).

 

            Patricia Ryan                                                  Robert D. Beauchesne
            Executive Director                                          Field Investigator  

The Respondent’s (former) attorney has notified the MHRC that the Respondent has now ceased all operations.