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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

JAMES R. WETZEL,

ARB CASE NO. 2019-0050

COMPLAINANT,

ALJ CASE NO. 2018-WPC-00001

DATE: November 18, 2020

M & B ENVIRONMENTAL, INC. and

MAB ENVIRONMENTAL, INC.

RESPONDENTS.

Appearances:

For the Complainant:

Scott P. Stedjan, Esq.; Killian & Gephart, LLP; Harrisburg,

Pennsylvania

For the Respondents:

James W. Maza, Esq.; Maza, David & Hoeffel; Lederach, Pennsylvania

BEFORE: James A. Haynes, Thomas H. Burrell, and Randel K. Johnson,

Administrative Appeals Judges

DECISION AND ORDER

This case arises under the Federal Water Pollution Control Act (WPC), 33

U.S.C. § 1367 (1972), and implementing regulations, 29 C.F.R. Part 24 (2017).

James Wetzel (Complainant) filed a complaint with the United States Department

of Labor alleging that his former employer, M & B Environmental (M&B or

Respondents), violated the WPC by terminating his employment. On March 28,

2019, an Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.)

granting relief. Respondents appealed the ALJ’s order to the Administrative Review

Board (ARB). We affirm the ALJ’s Order and deny Respondents’ complaint.

BACKGROUND

Complainant was employed by MAB Environmental Services, Inc. (MAB or

Respondents) from August 4, 2009, to February 22, 2011, at its BC Natural Chicken

Plant (“BC Natural”) in Lebanon, Pennsylvania, to manage BC Natural’s

wastewater treatment facility.1 MAB was the predecessor company to Respondent

M & B Environmental.

On September 15, 2010, Complainant tested a wastewater sample for

ammonia. The result was above the limit.2 Complainant alleges that he then called

Matthew Brozena, the president and sole owner of MAB, who instructed him to

dump the sample and resample later in the week.3 Complainant discarded it and

resampled two days later.4

On January 21, 2011, Pennsylvania Department of Environmental Protection

(“PA DEP”) issued a notice of violation to BC Natural for several permit violations.

On May 20, 2011, BC Natural entered into a consent assessment of civil penalty for

violations that occurred from September 2010 to April 2011.5

On February 22, 2011, MAB fired Complainant due to a loss of work. In 2012,

Mr. Brozena purchased another company and changed the company name from

MAB Environmental to M&B Environmental.6 On June 4, 2012, Mr. Brozena hired

Complainant to work for Respondent M & B Environmental, of which Mr. Brozena

is also a co-owner.7

From 2011 to 2015, Complainant provided evidence to government officials

and testified before a grand jury concerning violations of the Clean Water Act

pursuant to a cooperation agreement with the U.S. Attorney.8

ALJ’s Decision & Order (D. & O.) at 2.

Tr. at 29.

Id., CX 3.

Tr. at 32.

D. & O. at 2.

Id. at 6.

Id. at 2.

Id.

On December 15, 2015, MAB and Mr. Brozena were charged with conspiracy,

violation of permit, tampering with required monitoring method, and false

reporting.9

On February 3, 2016, Complainant pled guilty to violating 33 U.S.C. §

1319(c)(1)(A), a misdemeanor for negligently violating permit conditions. 10 On

February 5, 2016, M&B fired him.11 On February 24, 2016, Complainant filed a

complaint with the Occupational Safety and Health Administration (OSHA).12

On November 2, 2016, MAB pled guilty two counts of violation of permit, two

counts of tampering with required monitoring method, and three counts of false

reporting. Mr. Brozena pled guilty to two counts of violation of permit. On April 6,

2017, Mr. Brozena was sentenced to three years of probation and a $100,000 fine

and MAB was sentenced to five years of probation and a $50,000 fine.13

On January 31, 2018, OSHA dismissed the complaint. On February 26, 2018,

Complainant requested a hearing before the OALJ.14 After a hearing, the ALJ

issued a D. & O. granting relief to Complainant.

On April 10, 2019, Respondents filed a petition for review with the Board.

Both Respondents and Complainant filed briefs.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the ARB authority to issue final

agency decisions under the WPC.15 The ARB reviews the ALJ’s findings of fact

Id. at 3, 6-7.

Id. at 2-3.

Id. at 3, 5.

Id. at 1.

Id. at 3.

Id. at 1.

29 C.F.R. § 24.110(a), see also Secretary’s Order No. 01-2020 (Delegation of

Authority and Assignment of Responsibility to the Administrative Review Board (Secretary’s

discretionary review of ARB decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

under the substantial evidence standard and conclusions of law de novo.16

DISCUSSION

1. Legal Standard

The WPC’s objective is to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.17 Under the WPC,

[n]o person shall fire, or in any other way discriminate

against, or cause to be fired or discriminated against, any

employee or any authorized representative of employees

by reason of the fact that such employee or representative

has filed, instituted, or caused to be filed or instituted any

proceeding under this chapter, or has testified or is about

to testify in any proceeding under this chapter, or has

testified or is about to testify in any proceeding resulting

from the administration or enforcement of the provisions

of this chapter.18

To prevail on his complaint of unlawful discrimination under the WPC’s

whistleblower protection provisions, Complainant must establish by a

preponderance of the evidence that he engaged in activity the WPC protects, that

Complainant suffered an adverse employment action, and that his protected activity

was a motivating factor for the adverse action.19

2. Protected Activity

29 C.F.R. § 24.110(b), (d); Rooks v. Planet Airways, Inc., ARB No. 2004-0092,

ALJ No. 2003-AIR-00035, slip op. at 4 (ARB June 29, 2006) (citing Mehan v. Delta Air Lines,

ARB No. 2003-0070, ALJ No. 2003-AIR-00004, slip op. at 2 (ARB Feb. 24, 2005)); Negron v.

Vieques Air Links, Inc., ARB No. 2004-0021, ALJ No. 2003-AIR-00010, slip op. at 4 (ARB Dec.

30, 2004)).

33 U.S.C. § 1251(a).

33 U.S.C. § 1367(a).

29 C.F.R. § 24.109(b)(2).

Employers are prohibited from firing or in any other way discriminating

against an employee who has “has testified or is about to testify in any proceeding

resulting from the administration or enforcement of the provisions of this

chapter.”20 “A proceeding includes all phases of a proceeding that relat[e] to public

health or the environment, including the initial internal or external statement or

complaint of an employee that points out a violation.”21

The ALJ found that Complainant engaged in protected activity by providing

information to federal investigators and testifying before a grand jury.22 The ALJ

discredited Mr. Brozena’s testimony and further found that Complainant acted at

Respondents’ direction when he discarded the water sample.23

Respondents argue Complainant did not engage in protected activity.

Respondents first contend that Complainant cannot have engaged in protected

activity because his guilty plea to violating 33 U.S.C. § 1319(c)(1)(A) bars him from

bringing this complaint. Notably, Respondents did not raise this argument before

the ALJ. Therefore, Respondents have waived it.24

However, even if Respondents did not waive this argument, it still fails. The

WPC provides that whistleblower protections:

[S]hall have no application to any employee who, acting without

direction from his employer (or his agent) deliberately violates any

prohibition of effluent limitation or other limitation under section 1311

or 1312 of this title, standards of performance under section 1316 of this

title, effluent standard, prohibition or pretreatment standard under

section 1317 of this title, or any other prohibition or limitation

33 U.S.C. § 1367(a).

Abdur-Rahman v. DeKalb Cnty., ARB Nos. 2008-0003, 2010-0074; ALJ Nos.

2006-WPC-00002, -00003 (ARB May 18, 2010).

D. & O. at 12.

Id. at 16.

See Schlagel v. Dow Corning Corp., ARB No. 2002-0092, ALJ No. 2001-CER00001 (ARB Apr. 30, 2004) (stating that matters not raised to an ALJ are waived on appeal

to the ARB).

established under this chapter.25

Mr. Brozena has acknowledged that he instructed Complainant to

resample.26 Respondents allege this instruction did not require Complainant dump

the sample and that Complainant could have taken a sample every day and

averaged the findings. However, Respondents did not present any evidence to

support this understanding of BC Natural’s permit. Rather, BC Natural’s permit

requires that the ammonia “be measured in a 24-hour composite sample taken once

a week” and that, if additional tests are taken, “all instances of non-compliance be

reported.”27 Thus, even if the samples were averaged, Mr. Brozena’s instruction to

Complainant to resample would still be sufficient to establish a violation. Thus, the

ALJ properly found that Section 1367(d) does not apply as Complainant acted at the

direction from his employer.

Respondents next argue that Complainant did not engage in activity because

he did not “work positively” with the government. Rather, Respondents state that

Complainant was contacted by the PA DEP and the Environmental Protection

Agency and testified because it offered him a lesser sentence.

The WPC states that testifying in any proceeding is protected activity.28

Further, a whistleblower’s self-interest is only considered when assessing the

credibility of the whistleblower’s testimony.29 Here, the ALJ found that

Complainant’s testimony was credible as he provided a “generally consistent

theme,” while the ALJ found that Respondents were less credible.30 We have

reviewed the record and find that substantial evidence supports the ALJ’s

credibility determinations.31 Further, the record demonstrates that Complainant

provided substantial assistance to the government in testifying against

33 U.S.C. § 1367(d), see also Lawrence v. City of Bethlehem, No. 1997-CV-1824,

1997 WL 793012, at *5 (E.D. Pa. Dec. 4, 1997); Lawrence v. City of Bethlehem, No. 1997-CV1824, 1999 WL 124471, at *7 (E.D. Pa. Mar. 1, 1999).

CX 22 at 35, 37; Tr. at 110-112.

JX 3.

33 U.S.C. § 1367(a).

See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 911 (Fed. Cir. 2008).

D. & O. at 9-10.

Complainant’s testimony, phone call record, logbook, and

demonstrate a consistent narrative. CX 2 – CX 6; Tr. at 32-33, 58-59, 71-72.

pleading

Respondents as well as on his own conduct in the offense.32 Thus, we find that

substantial evidence supports the ALJ’s finding that Complainant engaged in

protected activity.

3. Motivating Factor

Complainant must next prove by a preponderance of the evidence that his

protected activity was a “motivating factor” in the adverse action.33 A “motivating

factor” is conduct that is “a substantial factor in causing an adverse action.”34

The ALJ determined that Complainant’s protected activity was a motivating

factor in his termination for several reasons. First, the ALJ found circumstantial

evidence of retaliation due to the temporal proximity between when Mr. Brozena

received Complainant’s grand jury testimony and when M&B fired him. The ALJ

opined there was no question that Respondents knew of Complainant’s cooperation

at the time of his termination and found this provided strong circumstantial

evidence of retaliation.35 The ALJ also found that Respondents’ explanation “rings

particularly hollow” in light of Respondents’ disparate treatment of a similarly

situated employee.36 The ALJ further found that Respondents’ rationales for

terminating Complainant lacked credibility.37

Substantial evidence supports the ALJ’s finding of circumstantial evidence of

retaliation based on temporal proximity. Mr. Brozena testified on December 15,

2015, that he suspected Complainant told investigators he directed Complainant to

JX 4, JX 5, CX 4 – CX 6.

29 C.F.R. § 24.109(b)(2); Morriss v. LG&E Power Servs., LLC, ARB No. 20050047, slip op. at 31.

Onysko v. State of Utah, Dep’t of Interior, Bureau of Land Mgmt., ARB Nos.

2006-0147, -0160; ALJ No. 2005-SDW-00008, slip op. at 8 (ARB Aug. 28, 2008).

Specifically, the ALJ referenced Mr. Brozena’s testimony on December 15,

2015, in which he stated that he suspected that Complainant told investigators that he

directed Complainant to discard the samples; he knew Complainant provided grand jury

testimony against him; and that he obtained information about Complainant’s grand jury

testimony a week or two following his own initial appearance after his indictment. D. & O.

at 13.

D. & O. at 13-14.

Id. at 15-17.

discard the sample and that he knew Complainant testified against him.38 Within a

couple weeks, Respondents obtained Complainant’s grand jury testimony.39 On

February 3, 2016, Complainant entered his plea.40 On February 5, 2016, he was

fired.41

Substantial evidence also supports the ALJ’s finding of disparate treatment.

Stephen Fritz, another former employee of MAB and M&B, pled guilty to crimes on

two separate occasions. In 2012, he pled guilty to a tampering with public records, a

felony in the third degree. Mr. Brozena sent Mr. Fritz a letter instructing him to go

to training and meet each week to discuss his performance, and stating that he

looked forward to working with him in the days ahead.42 Mr. Fritz testified he never

received the training.43 Mr. Fritz also testified that he neither signed a cooperation

agreement nor testified against Respondents for this incident.44 Mr. Brozena later

hired Mr. Fritz to work for M&B despite the 2012 guilty plea, which resulted in the

loss of a contract.45 When Mr. Fritz was charged again in 2015, he testified before a

grand jury that either Mr. Brozena or his site’s operator instructed him to commit a

wrongdoing. A few days after he entered his guilty plea, Respondents fired him.46

This treatment demonstrates that employees who testified against Respondents

were treated more severely for misconduct than employees who did not.

Substantial evidence also supports the ALJ’s finding that Respondents’

explanations lacked credibility as they were either meritless or conflicted with other

conduct and shifted from one reason to another.47 Complainant’s termination letter

states that he was fired because of his illegal action for which he pled guilty.48

CX 22 at 35, 37; JX 2; Tr. at 103-04.

JX 2, Tr. at 104.

JX 5, Tr. at 44-45.

JX 1, Tr. at 44-45.

CX-7.

Tr. at 77:13-17, 81-82, 87-88.

Id. Specifically, when the PA DEP asked Mr. Fritz if he acted at the direction

of his employer, he responded “no.”

CX 13, TR at 75.

Tr. at 84-86, 88-89.

D. & O. at 13-17.

CX 23.

However, Mr. Brozena testified that he “had no choice” but to fire Complainant

because Complainant damaged his business and no longer had the necessary

certifications.49

Specifically, Respondents contend they had to terminate Complainant’s

employment because Complainant was no longer certified and was debarred from

working on federal government contracts. However, Complainant previously worked

for M&B without a certification.50 Additionally, Respondents state that

Complainant was no longer eligible to obtain a license due to his guilty plea.

However, Pennsylvania law states that it “may suspend, revoke, or modify” an

operator’s certificate for “negligence in the operation of the water or wastewater

system” not that it must.51 Further, Complainant was not debarred from working on

federal contracts until April 2018, over two years after Complainant was fired.52

Respondents do not explain why Complainant could not have worked on nongovernment contracts, constituting seventy-to-eighty percent of total business.

Respondents also argue they had to fire Complainant because his actions

damaged their business to the sum of a million dollars’ worth of work. However,

Respondents have not submitted evidence of this. Further, as noted above,

substantial evidence supports the ALJ’s finding that Mr. Brozena directed

Complainant to dump the sample. Thus, Mr. Brozena’s direction to Complainant is

the basis of the action that he alleges damaged his business.

For these reasons, substantial evidence supports the ALJ’s finding that

Complainant’s protected activity was a motivating factor in his termination.

4. Respondents’ Affirmative Defense

An employer may avoid liability by demonstrating by a preponderance of the

evidence that it would have discharged the Complainant even if he had not engaged

in protected activity.53 However, as discussed supra, substantial evidence supports

Tr. at 92, 96, and 112.

Id. at 112-13.

D. & O. at 14, quoting 25 Pa. Code § 302.308(b)(1) (emphasis added).

Id. at 3, 5; Tr. at 54-55.

29 C.F.R. § 24.109(b)(2); Tomlinson v. EG&G Defense Materials, ARB

Nos. 2011-0024, 2011-0027, ALJ No. 2009-CAA-00008, slip op. at 8 (ARB Jan.

the ALJ’s finding that Respondents’ rationales for terminating Complainant lacked

credibility. Thus, the ALJ properly found that Respondents’ affirmative defense is

inapplicable.

Respondents argue that the government “cannot have it both ways” by

punishing them for failing to supervise their employees and then punishing them

for terminating Complainant’s employment. However, the ALJ correctly opined that

Respondents’ conduct resulted in criminal as well as civil liability because

Respondents violated environmental laws and because Complainant established

that engaging in a protected activity was a motivating factor in his termination in

violation of WPC’s employee protection.

CONCLUSION

For the reasons stated above, the ALJ’s D. & O. is AFFIRMED.

SO ORDERED.

31, 2013).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.