UNITED STATES DISTRICT COURT DISTRICT OF IDAHO EASTERN DIVISION

Transcription

1 Case :-cv-000-blw Document Filed 0// Page of JANET M. HEROLD, Regional Solicitor California State Bar No. BRUCE L. BROWN, Associate Regional Solicitor Washington State Bar No. SUSAN BRINKERHOFF, Trial Attorney District of Columbia Bar No. 0 U.S. DEPARTMENT OF LABOR Office of the Solicitor 00 Fifth Avenue, Suite Seattle, WA - Phone: -- Fax: -- Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF IDAHO EASTERN DIVISION THOMAS E. PEREZ, SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR, v. Plaintiff, IDAHO FALLS SCHOOL DISTRICT No., Defendant. Case No. :-cv- COMPLAINT Labor U.S.C.. Plaintiff Thomas E. Perez, Secretary of Labor, U.S. Department of Labor ( Plaintiff or the Secretary ), brings this action for injunctive and other COMPLAINT Page of

2 Case :-cv-000-blw Document Filed 0// Page of relief, pursuant to Section, the whistleblower provision, of the Asbestos Hazard Emergency Response Act of ( U.S.C. et seq.) ( AHERA ), seeking to enforce the provisions of Section of AHERA and the Regulations published at C.F.R. Part.. Section (b) of AHERA, U.S.C. (b), requires the Secretary of Labor to review alleged violations of AHERA s whistleblower provision in accordance with the Occupational Safety and Health Act of 0, U.S.C. et seq. ( OSH Act ), specifically the OSH Act s whistleblower provision, Section (c), U.S.C. 0(c). Pursuant to that statutory directive, jurisdiction of this action is conferred upon the Court by Section (c)() of the OSH Act, U.S.C. 0(c)().. Defendant Idaho Falls School District No. ( District ) has administrative responsibilities for the operation of the public elementary and secondary schools in Idaho Falls, Idaho. Defendant District is now, and was at all relevant times, a local educational agency as defined in U.S.C. ()(A) and U.S.C. 0()(A).. Penny Weymiller was an employee of Defendant District from August, 0, to June,, as defined in U.S.C. () and (). Her position with the District was Environmental Safety and Health Engineer. COMPLAINT Page of

3 Case :-cv-000-blw Document Filed 0// Page of. On March,, during her employment by Defendant, Ms. Weymiller expressed her concerns in an to her supervisor and to the District s superintendent about the removal of asbestos from boiler pipes at one of the District s schools, C.E. Gayle Junior High School. In particular, she expressed concern that, due to the amount of asbestos needed to be removed during the testing of the pipes, the asbestos workers containment procedures would be out of compliance with AHERA. She also expressed a concern that the compressed timeline for removal of asbestos before spring break could heighten the chance of an accidental release, thereby jeopardizing the health of employees and violating environmental, safety, and health regulations.. On March, Ms. Weymiller s supervisor rejected Weymiller s request for flex-time credit for time spent traveling to a March,, training.. On April,, Ms. Weymiller s supervisor increased Weymiller s number of work days per year.. On April,, Ms. Weymiller s supervisor refused to provide Weymiller with a professional work experience reference.. On May,, Ms. Weymiller was placed on administrative leave.. On May,, Ms. Weymiller timely filed a complaint with Occupational Safety and Health Administration ( OSHA ) alleging that she was COMPLAINT Page of

4 Case :-cv-000-blw Document Filed 0// Page of subjected to a hostile work environment in retaliation for her exercising rights protected under the Act.. On June,, Ms. Weymiller was informed that her employment had been terminated as of June,.. On July,, Ms. Weymiller timely filed a supplemental complaint with OSHA, alleging her termination was in retaliation for her taking actions protected under the Act.. Plaintiff investigated Weymiller s whistleblower complaints in accordance with (c)() of the Act and determined that Defendant violated Section (a) of AHERA, U.S.C. (a).. OSHA determined that by the acts described above, and by each of said acts, Defendant discriminated and/or retaliated against Ms. Weymiller because of Defendant s belief that Ms. Weymiller exercised her rights under or related to AHERA, and thereby Defendant engaged in conduct in violation of Section (a) of AHERA ( U.S.C. (a)). WHEREFORE, cause having been shown, the Secretary of Labor requests Judgment against Defendant as follows: () For an Order permanently enjoining Defendant, their officers, agents, servants, employees and all persons acting or claiming to act in their behalf COMPLAINT Page of

5 Case :-cv-000-blw Document Filed 0// Page of and interest from violating the provisions of Section (a) of AHERA, U.S.C. (a); and () For all appropriate relief as follows: a. Payment to Ms. Weymiller for lost wages and benefits including interest thereon; and compensatory and exemplary damages plus preand post-judgment interest accruing thereon; and b. For an Order directing Defendant District to reinstate Ms. Weymiller in her former position as Safety and Health Engineer with all of her former duties and benefits as if her employment with the District had never been terminated; and c. For an Order directing Defendant District and its officers, supervisors, and lead employees to be trained in the whistleblower provisions of the AHERA and the OSH Act; and d. For an Order requiring posting, in a prominent place at Defendant District for 0 (ninety) days, a Notice stating Defendant will not in any manner discriminate against employees because of engagement, whether real, perceived, or suspected, in activities protected by the whistleblower provisions of the AHERA and the OSH Act; and COMPLAINT Page of

6 Case :-cv-000-blw Document Filed 0// Page of e. For an Order granting such other and further relief as may be necessary and appropriate in this action, including costs and attorneys fees. Respectfully submitted this th day of January. JANET M. HEROLD Regional Solicitor BRUCE L. BROWN Associate Regional Solicitor By: /s/ Susan Brinkerhoff SUSAN BRINKERHOFF Trial Attorney Attorneys for the U.S. Department of Labor COMPLAINT Page of