ST. LOUIS, Mo. – The U.S. Department of Labor has filed a lawsuit against the U.S. Postal Service on behalf of a maintenance employee at the St. Louis Network Distribution Center in Hazelwood, Mo., who reported unsafe working conditions and suffered reprisals, including false charges of making a terrorist threat.
The lawsuit seeks exemplary damages to deter such conduct by the Postal Service in the future, compensatory damages for emotional distress, restoration of lost pay and benefits and compensation for attorney and other fees. The 35-year employee was suspended and given a termination notice, but has since been reinstated.
“The Postal Service not only disciplined this long-term employee for reporting unsafe working conditions, but also pursued a baseless criminal complaint against him resulting in his detention by law enforcement and the disparagement of his reputation,” said Marcia Drumm, acting regional administrator for the Occupational Safety and Health Administration. “No American worker should be subject to such treatment. The department will do everything in its power to prevent this type of unlawful retaliation against workers who report unsafe working conditions.”
The department’s lawsuit alleges that the employee, who was responsible for heating, ventilation and air conditioning equipment, including the boilers at the distribution center, alerted supervisors on Dec. 2, 2009, that he suspected a carbon monoxide leak and fuel oil spill as well as an accumulation of fuel oil soaked rags in the boiler room, creating a safety hazard.
On Dec. 4, 2009, the maintenance worker attempted to contact a fire marshal about the alleged carbon monoxide leak and after failing to reach anyone called 911. When emergency responders arrived, Postal Service supervisors allegedly characterized the complainant as “disgruntled” and alleged that he was “attempting to sabotage the facility.” The next day, the maintenance worker, who had no history of disciplinary action, was suspended.
In September 2010, he was notified that he was being dismissed from employment for reasons that included reporting safety concerns. His dismissal from service was effective Nov. 6, 2010. On May 5, 2011, the Postal Service rescinded its notice of removal and provided back pay and restored benefits to the employee for the period of Nov. 6, 2010, through May 5, 2011. However, the Postal Service did not compensate the complainant for the first 15 days of the suspension in December 2009 or for consequential damages and other appropriate relief to which he is entitled. The lawsuit seeks to restore this compensation and damages.
The suit, filed in the U.S. District Court for the Eastern District of Missouri, alleges the Postal Service violated the whistleblower provisions of the Occupational Safety and Health Act of 1970. The department’s Regional Office of the Solicitor in Kansas City is litigating the case.
The Maintenance employee has been employed by USPS for more than 35 years. The Maintenance employee has most recently been employed at the NDC in a Building and Equipment Maintenance (“BEM”) role. The Maintenance employee is one of fewer than five BEM employees at the NDC who had completed specialized Heating Ventilation and Air Conditioning (“HVAC”) training at the time of his Complaint. The Maintenance employee duties at the NDC include ensuring the safe and continuous operation of the HVAC system for the entire facility, including the safe operation of the boilers. Prior to the incidents giving rise to this Complaint, TME had no negative employment history and no criminal history.
Between December 2 and December 4, 2009, The Maintenance employee repeatedly complained to his supervisors, and to the OSHA, about an unsafe workplace. The Maintenance employee complained specifically about a suspected carbon monoxide leak and about a fuel oil leak and an accumulation of fuel oil soaked rags associated with the leak. Despite TME’s complaints, USPS neither provided a tool to measure carbon monoxide levels nor properly disposed of the fuel oil soaked rags.
On December 3, 2009, an OSHA inspector arrived at the NDC to conduct an inspection pursuant to The Maintenance employee’s safety complaint to OSHA. When OSHA arrived, postal managers escorted him to the boiler room up the back stairs, avoiding the room adjacent to the boiler in which fuel oil soaked rags were being improperly stored. OSHA did not have a carbon monoxide detector or monitor with him, so no carbon monoxide test of the boiler room was conducted.
On December 4, 2009, The Maintenance employee attempted to contact the local Fire Marshall via a non-emergency telephone number to request a carbon monoxide test of the boiler room and to report the fuel oil soaked rags adjacent to the boiler room. After repeated attempts to reach the Fire Marshall over several hours failed, The Maintenance employee called 9-1-1 and requested that someone come to the NDC to test for carbon monoxide in the boiler room. At no time during his conversation with the 9-1-1 operator did The Maintenance employee claim that there was an active emergency at the NDC. When the 9-1-1-dispatched response arrived at the NDC, USPS managers immediately characterized The Maintenance employee to the responders as a “disgruntled employee,” said that they suspected The Maintenance employee of making a false report, and that they suspected The Maintenance employee of being a threat to sabotage the NDC building, despite the lack of any factual basis for the allegation that The Maintenance employee was a threat in any way. In so doing, USPS managers discriminated against The Maintenance employee in violation of Section 11(c) of the Act, for engaging in the protected activity of reporting his safety concerns to the fire department. USPS further discriminated against The Maintenance employee on December 5, 2009, when it notified The Maintenance employee that he was suspended from work without pay for 15 days. The Maintenance employee suspension was to continue indefinitely thereafter, though he would be paid during the suspension beyond 15 days.
From December 4, 2009 through March 15, 2010 and at times thereafter, USPS’s managers engaged in a concerted effort to pressure the county prosecutor’s office to criminally prosecute The Maintenance employee because he had reported safety concerns. NDC managers referred to The Maintenance employee variously as a drug user, dangerous, unstable, and “a terrorist,” all without any factual basis. On March 30, 2010, with the indefinite suspension continuing, The Maintenance employee filed a complaint with OSHA alleging harassment by USPS in violation of The Maintenance employee rights under Section 11(c) of the Act. On April 3, 2010, The Maintenance employee was arrested by Hazelwood Police on charges of making a terrorist threat and making a false report. The Maintenance employee was held in jail for approximately 18 hours before his attorney could arrange his release. All criminal charges against The Maintenance employee were ultimately dismissed.
By April 15, 2010, The Maintenance employee was cleared of sabotage allegations by the Postal Service Office of the Inspector General (“OIG”). The OIG determined that a different employee was responsible for a destructive act of which The Maintenance employee had been accused. However, USPS continued to refuse to reinstate The Maintenance employee from his indefinite suspension.
On September 23, 2010, Defendant served The Maintenance employee with a “Notice of Removal,” stating that USPS intended to terminate The Maintenance employee for reasons that included calling 9-1-1 to report safety concerns; being arrested on charges of making a terrorist threat and filing a false report; and alleging that The Maintenance employee should have disposed of the fuel oil soaked rags about which he had complained. OSHA standards and Postal Service rules state that The Maintenance employee was not qualified to dispose of the volume of hazardous waste comprised by the fuel oil soaked rags.
On September 29, 2010, The Maintenance employee amended his OSHA 11(c) complaint to include the Proposed Notice of Removal as another adverse action taken in retaliation for The Maintenance employee safety complaints. OSHA investigated the amended complaint in accordance with Section 11(c)(2) of the Act.
On March 17, 2011, the criminal charges filed against The Maintenance employee in April, 2010 were dismissed by the St. Louis County prosecutor.
Nearly two months later, on May 5, 2011, USPS rescinded the Notice of Proposed Removal. USPS provided back pay and restored benefits to The Maintenance employee, covering the period from November 6, 2010 through May 5, 2011. However, USPS’s unilateral resolution did not compensate The Maintenance employee for lost wages during his 15-day suspension in December, 2009 nor did it compensate him for consequential damages and other appropriate relief to which The Maintenance employee is entitled under Section 11(c)(2) of the Act .
The lawsuit is seeking:
payment for lost wages and benefits, including interest thereon; compensatory damages, including damages for emotional distress; consequential damages, including attorney’s fees incurred to defend against USPS’s criminal allegations; and exemplary damages to deter such conduct by USPS in the future ; and For an Order requiring posting in a prominent place for 60 (sixty) consecutive days and compliance with a Notice stating USPS will not in any manner discriminate against employees because of engagement, whether real or perceived, in activities protected by §11(c) of the Act.