Reference no: EM131709108

Case Scenario: WOOD V. DEPARTMENT OF LABOR 275 F.3d 107 (D.C. Cir. 2001)

Facts: Wood was employed as a senior electrician by United Engineers and Constructors (UE&C) at the Johnston Atoll Chemical Agent Disposal System (JACADS). JACADS is a facility consisting of several chemical weapons incinerators located on the Johnston Atoll in the Pacific Ocean. The facility is operated by UE&C pursuant to a U.S. Army contract to dismantle and destroy the lethal chemical weapons stockpile stored on the island. Due to the type of weapons handled at JACADS, the working conditions at the facility are probably as dangerous as any undertaken in the world. According to his complaint, before working at JACADS, Wood was employed at the Pine Bluff Arsenal in Arkansas, where he gained extensive experience in the field of chemical weapons destruction, making over 1,000 "toxic entries" with various levels of protective clothing and respirators. Upon his arrival at JACADS in 1990, Wood discovered that management and many of his co-employees failed to appreciate the dangers associated with the destruction of chemical weapons.

In particular, he found basic safety equipment and training, the norm at Pine Bluff, inadequate at JACADS. As a result, Wood began making a number of safety complaints about conditions at the facility. In November 1990, Wood's concerns were confirmed when an investigation conducted by the Occupational Safety and Health Administration resulted in the issuance of a "serious" citation for two violations. Subsequently, Wood and his supervisors had a number of clashes regarding safety issues at JACADS. The supervisors saw many of Wood's allegations as scare tactics, intended to frighten his co-workers. The disputes culminated in Wood's refusal to work in a toxic area because UE&C had not provided him with new corrective lenses for the face piece of his protective mask. Because he had already received a final reprimand for refusal to work, Wood was discharged for insubordination on February 4, 1991. Wood filed a complaint with OSHA, which investigated and found that under the particular circumstances that day, Wood was not entitled to refuse to work. Wood appealed OSHA's decision in federal court.

Issue: Was Wood's termination a retaliatory discharge, which the Department of Labor was required to rectify?

ecision: Only the Secretary of Labor is authorized to "determine" whether the "subsection has been violated." The Secretary has delegated to the Assistant Secretary for Occupational Safety and Health "the authority and assigned responsibility for administering the safety and health programs and activities of the Department of Labor ... under ... the Occupational Safety and Health Act of 1970." Using this authority, the Assistant Secretary for Occupational Safety and Health determined in this case on May 3, 1996 that Wood's refusal to work was not protected activity under section 11(c)(2) and therefore UE&C did not violate the Act by discharging him. The threshold requirement of section 11(c)(2) not having been met, Wood as a matter of law was unable to make out a retaliatory discharge claim.