TERMINIX INTERNATIONAL, INC. v. SECRETARY OF LABOR, COMMONWEALTH OF KENTUCKY, AND STEPHEN L. BYERS
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RENDERED: SEPTEMBER 6, 2002; 2:00 p.m.
ORDERED PUBLISHED: DECEMBER 20, 2002; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001783-MR
TERMINIX INTERNATIONAL, INC.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 99-CI-00479
v.
SECRETARY OF LABOR,
COMMONWEALTH OF KENTUCKY,
AND STEPHEN L. BYERS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON, AND JOHNSON, JUDGES.
BUCKINGHAM, JUDGE: Terminix International, Inc., appeals from an
opinion and order of the Franklin Circuit Court affirming a
decision by the Kentucky Occupational Safety and Health Review
Commission (Commission).1
We affirm.
Appellee Stephen L. Byers was employed by Terminix
beginning on or about May 15, 1995, as a termite technician at
the Paducah office of Terminix.
Terminix is a termite and pest
control company that provides services to residential and
1
This appeal was filed pursuant to Kentucky Revised
Statutes (KRS) 338.091(1).
commercial customers.
Byers’s job with Terminix was to spray a
termite control chemical (termiticide) in houses and buildings.
On March 26, 1996, Byers was applying termiticide in
the basement of Lourdes Hospital in Paducah.
After lunch on that
day, he was admitted to the hospital suffering from severe
physical distress.
Byers soon went into a semicomatose state.
He was treated by Dr. Luke Ross and was diagnosed as suffering
from organophosphate poisoning.
Byers’s condition resulted when
the termiticide used by Terminix, Dursban TC, splashed onto Byers
as he sprayed it.
On April 1, 1996, Dr. Ross released Byers to return to
part-time sedentary work.
Claiming that none was available,
Terminix placed Byers on workers’ compensation leave for
approximately thirty days so that he could continue his recovery.
On April 30, 1996, Dr. Ross released Byers to return to work.
However, the release indicated that Byers should avoid exposure
to organophosphates.
Dr. Roger Yeary, vice-president of health, safety, and
environmental stewardship for Terminix’s parent company,
understood the effects of organophosphate poisoning.
On May 1,
1996, he sought a clarification from Dr. Ross asking if the work
restriction would allow for Byers’s future exposure to
organophosphates once his blood level of cholinesterase reached
an acceptable level.
Although Dr. Ross testified that he
answered the inquiry in the affirmative, Dr. Yeary testified that
he never received an answer from Dr. Ross.
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On May 2, 1996, one day after Dr. Yeary’s inquiry,
Byers’s employment was terminated by Gary Moss, Byers’s
supervisor.
The termination of employment by Terminix stated
that Byers was terminated due to the absolute restriction against
exposure to organophosphates.
In the meantime, on April 4, 1996, Byers had filed a
complaint with the Kentucky Secretary of Labor alleging KOSHA
(Kentucky Occupational Safety and Health Act) violations.
The
citations resulting from Byers’s complaint were eventually
dismissed when the Labor Cabinet determined that it had no
jurisdiction to issue the citations initially.
Although Byers’s
complaint was filed prior to the termination of his employment,
Terminix claimed that it was not aware of Byers’s complaint at
the time of his termination.
On July 16, 1996, Byers filed another complaint with
the Labor Cabinet.
This complaint was filed pursuant to KRS
338.121, and it alleged that Terminix terminated his employment
in retaliation for his filing a KOSHA complaint.
The Secretary
of Labor investigated the complaint and issued a citation against
Terminix.
The citation stated that Terminix discriminated
against Byers because he engaged in protected occupational safety
and health activity.
Terminix contested the citation, and a hearing was held
before the Commission hearing officer.
The hearing officer
concluded that Terminix discriminated against Byers for filing
the KOSHA complaint.
The hearing officer set a penalty of $3,000
and ordered Terminix to restore Byers to his position and pay him
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$800 in back pay.
Terminix then filed a petition for
discretionary review with the Commission.
Rather than grant the
petition, the Commission, on its own motion, called the case for
review.
In an order entered on April 1, 1999, the Commission
concluded that the hearing officer correctly disposed of the
dispute in all respects except concerning the penalty.
The
Commission set the penalty at $1.00 rather than accept the $3,000
penalty proposed by the hearing officer.
After the Commission issued its decision and order,
Terminix filed an appeal in the Franklin Circuit Court.
The
circuit court found substantial evidence supporting the facts and
conclusions reached by the Commission and affirmed its decision
and order.
This appeal by Terminix followed.
Terminix’s first argument on appeal is that the Labor
Cabinet had no jurisdiction over Byers’s discrimination complaint
because its jurisdiction was preempted by United Stated
Environmental Protection Agency (EPA) regulations covering
pesticide users’ working conditions.
In support of its argument,
Terminix cites KRS 338.021 which states that:
This chapter applies to all employers,
employees, and places of employment
throughout the Commonwealth except the
following:
. . . .
Employers, employees and places of employment
over which federal agencies other than the
Occupational Safety and Health Administration
of the United States Department of Labor
exercise statutory authority to prescribe or
enforce standards or regulations affecting
occupational safety and health.
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KRS 338.021(1)(b).
Further, Terminix asserts that the EPA has
adopted a regulation prohibiting employers who utilize pesticides
from taking retaliatory action against employees who complain
about unsafe working conditions related to the application of
pesticides.
See 40 C.F.R. §170.7(b).
That regulation states as
follows:
Prohibited actions. The agricultural
employer or the handler employer shall not
take any retaliatory action for attempts to
comply with this part or any action having
the effect of preventing or discouraging any
worker or handler from complying or
attempting to comply with any requirement of
this part.
Thus, Terminix maintains that the Labor Cabinet is precluded from
asserting jurisdiction over Byers’s claims for discrimination
since the EPA has a regulation covering situations where
retaliatory action is alleged by a handler of pesticides.
The Commission held that “since the EPA regulations are
silent on occupational safety and health discrimination, Kentucky
OSHA has jurisdiction under KRS 338.121 to protect pesticide
workers who engage in a protected activity.”
Likewise, the
Franklin Circuit Court determined that “Kentucky OSHA has
jurisdiction under KRS 338.121 to protect pesticide workers who
engage in protected activity.”
It is apparent from a review of the federal regulation
prohibiting retaliatory action by an employer that it applies
only to an agricultural employer or employer for whom pesticides
are applied to an agricultural establishment.
Although Terminix
maintains that the aforementioned federal regulation, 40 C.F.R.
§170.7(b), does not relate exclusively to agricultural
-5-
situations, we disagree.
The regulation prohibits retaliatory
action taken by “[t]he agricultural employer or the handler
employer.”
Terminix maintains it is apparent from the regulation
that, by the use of the term “the handler employer,” the
regulation does not apply exclusively to agricultural situations.
“Handler employer” means “any person who is selfemployed as a handler or who employs any handler, for any type of
compensation.”
40 C.F.R. §170.3(2).
The regulations define
“handler” to include a self-employed person “who is employed for
any type of compensation by an agricultural establishment or
commercial pesticide handling establishment.”
§170.3(1).
40 C.F.R.
Finally, “commercial pesticide handling
establishment” means “any establishment, other than an
agricultural establishment, that: (1) Employs any person,
including a self-employed person, to apply on an agricultural
establishment, pesticides used in the production of agricultural
plants; (2) Employs any person, including a self-employed person,
to perform on an agricultural establishment, tasks as a crop
advisor.”
Based on these regulations, we believe it is clear
that the federal regulation prohibiting retaliatory employer’s
actions applies only to agricultural situations.
It is true that the EPA comprehensively occupies the
field of regulation concerning the labeling and packaging of
pesticides.
See 40 C.F.R. §156 and 7 U.S.C.S. §136v(b).
However, these regulations do not govern the working conditions
of those employed to use pesticides.
Only the working conditions
of those employed to use pesticides in an agricultural
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environment are regulated.
In short, we agree with the
Commission that the EPA regulations are silent on occupational
safety and health discrimination and that Kentucky OSHA thus has
jurisdiction to protect pesticide workers who engage in a
protected activity.
See Chao v. Mallard Bay Drilling, Inc., 534
U.S. 235, 122 S.Ct. 738, 151 L.Ed 2d 659 (2002), for a similar
situation.
Terminix’s next argument is that the circuit court
erred in determining that the Commission’s decision was supported
by substantial evidence on the record as a whole.
If substantial
evidence from the record supported the Commission’s conclusion,
the circuit court was required to affirm it.
Jones v. Cabinet
for Human Resources, Ky. App., 710 S.W.2d 862, 866 (1986).
Substantial evidence has been described as evidence that “when
taken alone or in light of all the evidence, has sufficient
probative value to induce conviction in the mind of a reasonable
person.”
Secretary, Labor Cabinet v. Boston Gear, Inc., Ky., 25
S.W.3d 130, 134 (2000), quoting Bowling v. Natural Resources and
Envtl. Protection Cabinet, Ky. App., 891 S.W.2d 406, 409 (1994).
The existence of evidence supporting a contrary conclusion does
not require that the conclusion reached by the Commission be
reversed.
Boston Gear, 25 S.W.3d 134.
Terminix first argues
that the Secretary of Labor failed to present a prima facie case
of employment discrimination, and it asserts that Byers would
have been terminated at any rate because of a slow down in
business.
-7-
Mt. Healthy City Sch. Dist. Bd. Of Edu. v. Doyle, 429
U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), provides the
procedure for determining whether a violation of an antiretaliation statute, such as KRS 338.121, occurred.
25 S.W.3d at 134.
Boston Gear,
First, a prima facie case of discrimination
must be established.
Id.
To establish a prima facie case, the
Secretary of Labor must prove that the employee engaged in
protected activity that was a motivating factor to the employer
in a subsequent adverse employment decision against the employee.
Mt. Healthy City Sch. Dist. Bd. Of Edu., 429 U.S. at 287.
In
First Property Management Corp. v. Zarebidaki, Ky., 867 S.W.2d
185 (1993), the court indicated that the motivating factor must
be “substantial,” but it noted that “substantial motivating
factor” does not mean “primary” or “sole” motivating factor.
at 186, 188-89.
Id.
After the prima facie case is established, if
the employer seeks to overcome the presumption that arises, it
must show that the same action would have been taken even had the
employee not engaged in protected activity.
Boston Gear, 25
S.W.3d at 134.
Terminix argues that the Secretary of Labor did not
establish that Byers engaged in a protected activity that was a
motivating factor to Terminix in its subsequent termination of
Byers’s employment.
The protected activity, as found by the
Commission and the circuit court, was the statement made by
Brenda Byers, Stephen Byers’s mother, to Gary Moss when she
allegedly told him she was going to call OSHA.
Terminix argues
that the statement by Brenda Byers was not protected activity
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within the meaning of KRS 338.121(3)(a) because it was not an
action by an “employee.”
At the time Brenda Byers made her statement, Stephen
Byers was still in the hospital suffering from a reaction to
organophosphate poisoning.
Moss denied that he had ever seen
Brenda Byers or spoken with her at any time prior to June 17,
1998.
However, the Commission accepted Brenda Byers’s testimony
as credible and determined that the protected activity was the
phone call placed by Brenda Byers while Stephen Byers was being
treated in the hospital.
Citing Kennard v. Louis Zimmer
Communications, Inc., 632 F.Supp. 635 (E.D.Pa. 1986), and Donovan
v. Freeway Construction Co., 551 F.Supp. 896 (D. R.I. 1982), the
Commission correctly concluded that Brenda Byers’s phone call to
OSHA on her son’s behalf was a protected activity.2
The next question is whether Byers’s engaging in the
protected activity was a motivating factor to Terminix in its
subsequent action terminating Byers’s employment.
Again, we note
that the hearing officer accepted the testimony of Brenda Byers
that she told Gary Moss, Stephen Byers’s supervisor, that she was
going to call OSHA for her son.
Thus, Terminix had notice that
an OSHA complaint was going to be filed.
As the Commission noted, rarely will direct evidence of
such motivation be available.
evidence must be made.
Thus, resort to circumstantial
Reich v. Hoy Shoe Co., Inc., 32 F.3d 361,
2
In the Kennard case the court found that a telephone call
to OSHA by an employee’s husband was a protected activity.
Similarly, in the Donovan case the court found that a call to
OSHA by an employee’s mother was a protected activity.
-9-
365 (8th Cir. 1994).
In the case sub judice, although no direct
evidence suggested that Terminix was motivated by the action of
Brenda Byers, circumstantial evidence supported the conclusion
that her action was a substantial motivating factor in Terminix’s
action against Stephen Byers.
In addition to Brenda Byers confronting Gary Moss about
the working conditions and notifying him that she was going to
call OSHA, the situation with Dr. Yeary supports the Commission’s
decision.
Dr. Yeary understood that blood levels of
cholinesterase return to normal after exposure to organophosphate
ends, and he contacted Dr. Ross to confirm that Byers’s work
restriction extended only to the extent his cholinesterase blood
levels deviated too greatly from normal.
Nonetheless, Terminix
terminated Byers a day later without any information concerning
Dr. Ross’s response.
Since the inquiry concerning the work restriction was
ongoing and Terminix representative Dr. Yeary believed Byers
would be able to return to work given the nature of
organophosphate poisoning, it was a reasonable conclusion that
Terminix was motivated by Brenda Byers’s complaint to OSHA rather
than the work restriction when it terminated Stephen.
Thus, the
Secretary of Labor presented substantial evidence that Brenda
Byers’s action was a substantial motivating factor in Terminix’s
decision to terminate Stephen.
Since Terminix fired Stephen
because of the actions of his mother, her actions may be
attributed to him.
actions.
Further, those actions were protected
See KRS 338.121.
-10-
Accordingly, the Secretary of Labor successfully
established that Stephen Byers engaged in a protected activity
and that the activity was a substantial motivating factor in
Terminix’s decision to terminate him.
Thus, the Secretary of
Labor met its burden to establish a prima facie case of
prohibitive retaliation by Terminix against Stephen Byers.
The Commission then held that once the Secretary of
Labor had made its prima facie case, the burden of going forward
with the evidence shifted to Terminix to articulate a legitimate,
nondiscriminatory reason for terminating Byers.
Terminix noted
that it gave such reason when it stated that it terminated Byers
because it was following the work restriction by Dr. Ross that
Byers not be subjected to organophosphates.
In fact, the
Commission determined that Terminix did articulate a legitimate
reason for terminating Byers.
Terminix argues that the Secretary of Labor failed to
successfully prove that Terminix’s explanation for the
termination was a mere pretext.
The Commission first focused
upon Terminix’s understanding of organophosphate poisoning.
Dr.
Yeary knew that blood levels of cholinesterase may be monitored
to protect workers from poisoning associated with organophosphate
exposure.
Furthermore, he sought a clarification from Dr. Ross
to determine if the work restriction allowed exposure to
organophosphate as long as Byers’s blood was closely monitored.
These actions revealed that Dr. Yeary believed Byers could return
to work and that he wanted to be certain about the restrictions’
-11-
breadth before concluding that the restriction prohibited Byers
from working as a termite technician.
The Commission then considered the actions of Gary
Moss.
Within a day of Dr. Yeary’s fax to Dr. Ross, and before
being notified of any response from Dr. Ross, Moss fired Byers.
Although Moss claimed that the work restriction motivated the
termination, Dr. Yeary’s knowledge and actions counter that
assertion.
The Commission relied upon Dr. Yeary’s understanding
of organophosphate poisoning and the closeness in time of Byers’s
termination to Dr. Yeary’s fax to Dr. Ross in concluding that
Moss’s explanation was merely a pretext.
Since the Commission
based its decision upon substantial evidence in the record, its
decision was not erroneous.
Next, relying on the Mt. Healthy case, Terminix argues
that it could avoid liability if it proved that its employment
decision would have been taken regardless of the employee’s
participation in a protected activity.
According to Terminix, it
successfully established that Byers would have been terminated
regardless of his protected activity.
It claims that business
slows in the summer to the point where work would not have been
available for Byers.
Thus, Terminix argues that Byers’s
termination was inevitable.
However, the Commission was not
persuaded by this explanation.
The Commission and the circuit court relied upon
Byers’s employment history with Terminix.
Byers began working
for Terminix in May 1995, and he worked through the summer of
that year without being terminated or laid-off for a lack of
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work.
Terminix asserts that Byers was retained through the
summer of 1995 because of a special compliance program that
generated more summer work than is typical.
However, having
completed the compliance program, Terminix maintains that the
summer work of 1996 was expected to be significantly lower than
in 1995.
While this evidence may contradict or counter the
conclusion reached by the Commission, its decision is not
rendered erroneous simply because this contradictory evidence
exists.
Boston Gear, 25 S.W.3d at 134, citing Kentucky Comm’n on
Human Rights v. Fraser, Ky., 625 S.W.2d 852, 856 (1981).
The
Commission, as the ultimate fact-finder involving disputes such
as this, may believe certain evidence and disbelieve other
evidence and accord more weight to one piece of evidence than
another.
Cole v. Gilvin, Ky. App., 59 S.W.3d 468, 473 (2001),
citing Uninsured Employers’ Fund v. Garland, Ky., 805 S.W.2d 116,
117 (1991).
Byers was employed from May 1995 until one month after
the poisoning incident.
In addition, he had not been reprimanded
or otherwise disciplined for inferior work, tardiness, or some
other negative employment attribute.
According to the evidence,
it appeared that Byers was a valued worker.
In addition, there
was no evidence besides Moss’s testimony that Byers would have
been the employee discharged even if the discharge of an employee
was inevitable.
Since Byers presented substantial evidence upon
which the Commission reasonably found that he would not have been
-13-
discharged absent improper motivation, the circuit court properly
affirmed the decision of the Commission.
Finally, Terminix claims that the circuit court failed
to consider the record.
It claims that the court did not have
the entire record when it made its decision and that the court
could not have found substantial evidence in the record to
support the Commission’s decision if it did not have the record
to review.
The circuit court’s opinion contains several
references to the record.
While it is not clear whether the circuit court
possessed all, none, or a portion of the Commission’s record, the
court’s reference to the record in its opinion illustrates that
it did review the record.
Also, Terminix does not claim that the
court relied upon evidence that does not exist.
Indeed, the
evidence relied upon by the court is found in the record.
Finally, Terminix did not allow the circuit court to address this
allegation, did not move the court to amend or modify its order,
and did not allege that it was prejudiced by a failure of the
court to consider the whole record.
Accordingly, we reject this
argument.
The opinion and order of the Franklin Circuit Court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, SECRETARY OF LABOR:
James H. Stock, Jr.
Memphis, Tennessee
Gordon R. Slone
Frankfort, Kentucky
Sam E. Isaacs, II
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
James H. Stock, Jr.
Memphis, Tennessee
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