United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
Charles Clendenny and Mark Ingram bring this action against
their employer, the Architect of the Capitol
(“AOC”), for an alleged violation of the
Congressional Accountability Act, 2 U.S.C. § 1301 et
seq. (“CAA”). Plaintiffs are employed as
insulators at the AOC, and their responsibilities include
performing “asbestos abatement” procedures in the
buildings used by the United States House of Representatives.
They allege that, after refusing to use a vacuum they
believed to be unsafe to perform an abatement procedure,
their supervisors unlawfully retaliated against them by
transferring them to a lower-paying shift and by depriving
them of overtime work opportunities. Dkt. 1 at 8 (Compl.
¶ 38). The AOC moves for summary judgment, Dkt. 19,
arguing that their retaliation claims fails for two reasons:
first, because Plaintiffs “never made a valid safety
complaint nor opposed any unlawful practice, ”
id. at 3, 15- 19, and, second, because the AOC, in
any event, had legitimate, non-retaliatory reasons for
altering Plaintiffs' work schedules and continued to
offer Plaintiffs opportunities to work overtime, id.
at 3, 20-23. For the reasons explained below, the Court
concludes that genuine disputes of material fact preclude the
entry of summary judgment. The Court will, accordingly, deny
the AOC's motion.
purpose of considering the AOC's motion for summary
judgment, the Court will construe the evidence in the light
most favorable to Plaintiffs, who are the nonmoving parties.
See Arrington v. United States, 473 F.3d 329, 333
(D.C. Cir. 2006).
began work as an insulator at the AOC in 1997, and received
his asbestos “supervisor's card” shortly
thereafter. Dkt. 20-9 at 1; Dkt. 20-4 at 17-22 (Clendenny
Dep. 17- 22). Because he held this certification, Clendenny
was permitted to serve as the “competent person”
on asbestos abatement procedures, and he was
“responsible” for ensuring that the procedures
were conducted safely. Dkt. 20-4 at 18 (Clendenny Dep. 18);
see also 29 C.F.R. § 1926.1101(o) (requiring
employers to “designate a competent person” that
possesses “the qualifications and authorities for
ensuring worker safety and health” for each asbestos
worksite). Ingram worked as a contractor at the AOC from 1999
to 2003, and became a full-time employee in 2003. Dkt. 20-1
at 16-17, 25-27 (Ingram Dep. 16-17, 25-27). Although he held
a “worker's card” allowing him to perform
asbestos abatement procedures, Ingram was required to work on
an abatement team with a “competent person, ”
like Clendenny. Id. at 23-24 (Ingram Dep. 23- 24).
As a result, Plaintiffs were generally paired together to
complete assignments. Dkt. 20-38 at 6-7, 10 (Pls.' SMF
¶¶ 20-22, 40); Dkt. 20-6 at 20 (Follin Dep. 20)
(“Chuck and Mark . . . were a team.”).
insulators, Plaintiffs' “major duties”
included the “application, repair and/or removal of
insulation, ” the “containment of asbestos[, ]
and asbestos removal.” Dkt. 19-1 at 1 (AOC's SUMF
¶ 3). Asbestos-related procedures occupied roughly
eighty percent of their time. Dkt. 20-10 at 49 (Williams Dep.
49). Prior to August of 2013, Plaintiffs were assigned to the
night shift, which ran from 3:30 a.m. to 12:00 p.m., Monday
to Friday. Dkt. 20-23 at 1; Dkt. 19-10 at 1. This work
schedule entitled Plaintiffs to a “nighttime
differential” pay increase of ten percent. Dkt. 20-1 at
113-14 (Ingram Dep. 113-14); Dkt. 20-11 at 24-26 (Clayborne
time they were constructed, the House office buildings used
asbestos “as an insulation material” for their
plumbing systems. Dkt. 20-2 at 34 (Murphy Dep. 34). Because
it is now understood that “[a]ll forms of asbestos are
known to cause diseases, ” Dkt. 20-3 at 3, the AOC
insulators must safely remove, or “abate, ” the
insulation that covers the buildings' pipes before
completing any repairs, Dkt. 20-2 at 34 (Murphy Dep. 34). To
do so, Plaintiffs generally use the “glove bag
method” of asbestos abatement, which entails wrapping
the portion of an asbestos-insulated pipe that must be
replaced or removed with an “impervious plastic
bag-like enclosure, ” wetting the asbestos fibers to
keep them from becoming friable, sealing the bag with a
vacuum cleaner, cutting away the pipe with the appropriate
tools from inside the vacuum-sealed bag, and then disposing
of the bag and its contents. Dkt. 20-4 at 23-35 (Clendenny
Dep. 23-35); Dkt. 20-1 at 44-50 (Ingram Dep. 44-50); see
generally 29 C.F.R. § 1926.1101(b), (g)(5).
Although the vacuum is used to seal the bag rather than to
remove its contents, water used to wet the asbestos fibers
regularly “get[s] . . . in[to] th[e] vacuum
cleaner.” Dkt. 20-4 at 85 (Clendenny Dep. 85). In
addition, if the bag tears during the glove bag procedure,
the vacuum is used to “clean . . . up” any
spilled asbestos materials. Dkt. 20-1 at 96 (Ingram Dep. 96);
see also Dkt. 20-10 at 139 (Williams Dep. 139)
(“What if a bag splits open and drops? Then you vacuum
start to finish, an asbestos abatement procedure performed by
a pair of insulators takes approximately three hours to
complete. Dkt. 20-1 at 46 (Ingram Dep. 46). Moreover, because
most asbestos abatement projects are performed “in
areas where either the public or [C]ongress or their staff is
in circulation, ” Dkt. 20-10 at 32 (Williams Dep. 32),
unless there is an emergency, glove bag procedures are
ordinarily performed overnight when the buildings are empty,
typically wrapping up between 6:00 a.m. and 7:00 a.m., Dkt.
20-13 at 17 (Green Dep. 63-64); see also Dkt. 20-7
at 23-24 (McGinnis Dep. 23-24) (“No way you can
[perform an abatement procedure] in the hallways or, you
know, congressmen's offices [during the day.] . . .
7:00's about the limit.”).
mid-2013, the vacuum Plaintiffs had been using to perform
abatement procedures for the past several years was
“thrown away, ” Dkt. 20-1 at 89 (Ingram Dep. 89);
Dkt. 20-4 at 83 (Clendenny Dep. 83), and Plaintiffs were
provided a Nikro-brand replacement vacuum, Dkt. 20-17 at 1;
Dkt. 20-38 at 19 (Pls.' SMF ¶¶ 73-74). By
August 6, 2013, however, they concluded that the replacement
vacuum was not suitable for “wet” pickups because
the label affixed to the vacuum read: “USE FOR TOXIC
DUST RECOVERY ONLY[.] WET PICK-UP WILL CAUSE SERIOUS DAMAGE
TO FILTERS.” Dkt. 20-17 at 2; see also Dkt.
20-19 at 2; Dkt. 20-1 at 87-90 (Ingram Dep. 87-90); Dkt. 20-4
at 82-85 (Clendenny Dep. 82-85). Clendenny informed Daryl
Williams, the AOC insulation team leader, about
Plaintiffs' concerns with the replacement vacuum, Dkt.
20-1 at 90 (Ingram Dep. 90), and on August 8, 2013,
Plaintiffs were asked to attend a meeting to address the
issue, Dkt. 20-19 at 2. That meeting was attended by a number
of their supervisors, including Assistant Superintendent Dan
Murphy, General Supervisor Greg Green, and, Assistant
Supervisor Brian Bradley. Id. at 2-3; Dkt. 20-38 at
20 (Pls.' SMF ¶ 78).
meeting, Plaintiffs informed their supervisors that they
“absolutely” could not “use [the Nikro]
vacuum cleaner” for glove bag abatement procedures
because it was “not a wet vac.” Dkt. 20-4 at
84-87 (Clendenny Dep. 84-87); see also Dkt. 20-8 at
173 (Bradley Dep. 173) (“They said the vacuum that they
had was not the correct vacuum, and if they used it, it would
be destroyed.”); Dkt. 20-19 at 2. Because an
“abatement . . . had to happen that night” in a
congressman's office, Murphy informed Plaintiffs that
“the vacuum [wa]s expendable, ” and, if it had to
be discarded after the abatement was completed,
“that's what [Plaintiffs] needed to do.” Dkt.
20-8 at 173 (Bradley Dep. 173). Ingram remembers Green
repeatedly requesting that Plaintiffs use the Nikro vacuum
for the procedure, despite both Plaintiffs' protests.
Dkt. 20-19 at 2-3; Dkt. 20-1 at 93-94 (Ingram Dep. 93-94).
After some back and forth, Ingram acquiesced and agreed to do
the abatement with the Nikro vacuum, but Clendenny objected
vehemently and eventually left the meeting. Dkt. 20-4 at 88
(Clendenny Dep. 88). A few moments later, Clendenny spoke
with Ingram in the parking lot and reaffirmed that he
“w[ould] not do the job with [the Nikro] vac.”
Dkt. 20-19 at 3. He added, “Mark, you know we can't
use that. It's illegal to do that. You can't do
that.” Dkt. 20-4 at 88 (Clendenny Dep. 88). Ingram
shared Clendenny's concern that they would be
“breaking the law” if they used the Nikro vacuum,
but, given how “hard” his supervisors had
“pushed, ” he was also worried “about
[their] job[s].” Dkt. 20-19 at 3. After thinking
further about it, Ingram called Bradley to let him know that
he too would not use the vacuum because he felt that it was
“unsafe” to do so. Dkt. 20-1 at 97 (Ingram Dep.
next day, Williams located a “junkie wet vac, ”
and Plaintiffs completed an abatement procedure. Dkt. 20-19
at 4; Dkt. 20-4 at 93 (Clendenny Dep. 93). On August 13,
2013, new vacuum cleaners were delivered, and, once again,
Plaintiffs refused to use them for asbestos abatement
procedures because of further safety concerns. Dkt. 20-19 at
6; Dkt. 20-4 at 90 (Clendenny Dep. 90). Plaintiffs allege
that, as they unpacked the new Dayton-brand vacuums,
Clendenny noticed that the “Operating Instructions
& Parts Manual” warned, “Do not use this unit
to pickup endangering dusts or substances.” Dkt. 20-22
at 1. Plaintiffs informed Williams about their concerns, Dkt.
20-4 at 90 (Clendenny Dep. 90), and after Williams discussed
the issue with Green, the AOC acquired an “asbestos wet
pickup” vacuum roughly “a week later, ”
which Plaintiffs felt comfortable using, id. at
90-91 (Clendenny Dep. 90-91).
August 9, 2013-the day after Plaintiffs' meeting with
their supervisors-Green sent Murphy an email
“requesting th[at] two of our insulators, Mark Ingram
and Chuck Clendenny, have their shift changed from Monday to
Friday, 3:30 a.m.-12 noon to Sunday through Thursday 6
a.m.-2:30 p.m.” Dkt. 20-23 at 1. The move, Green
suggested, would “save money” and would allow the
AOC “to accomplish more abatement and insulation in
areas that c[ould] only be worked during off hours.”
Id. Although Williams, Plaintiffs' direct
supervisor, had not yet been alerted to the change, Dkt.
20-10 at 107-08 (Williams Dep. 107-08), on August 19, 2013,
Green and Bradley informed Plaintiffs that the AOC had
decided to transfer them to the day shift, effective
September 22, 2013, Dkt. 20-4 at 62-64 (Clendenny Dep.
62-64); see also Dkt. 20-24 at 1 (August 14, 2013
memo). Plaintiffs' newly assigned shift was not eligible
for the nighttime pay differential, Dkt. 20-8 at 69-70
(Bradley Dep. 69-70); see also Dkt. 20-13 at 16
(Green Dep. 57) (“We were aware that they would lose
their differential, yes.”), and Plaintiffs also allege
that, since their shifts were changed, the AOC has offered
them fewer overtime work opportunities than it has offered to
its other insulators, see Dkt. 20-25 at 1 (chart
showing Plaintiffs working 150 to 200 fewer hours of overtime
than other AOC insulators); see also Dkt. 20-1 at
114 (Ingram Dep. 114); Dkt. 20-4 at 95 (Clendenny Dep. 95).
filed a timely Request for Counseling and participated in a
series of mediation sessions as required by the CAA.
See Dkt. 1 at 2-3 (Compl. ¶ 9); see
also 2 U.S.C. § 1401. After the mediation period
ended, Dkt. 1 at 3 (Compl. ¶ 9); 28 U.S.C. §§
1404(2), 1408, Plaintiffs filed this suit under the CAA,
alleging that the AOC deprived them of opportunities to earn
the “nighttime pay differential” and overtime
compensation in retaliation for opposing unsafe working
conditions at the AOC. The AOC's motion for summary judgment
is now before the Court. Dkt. 19.
Federal Rule of Civil Procedure 56, the moving party is
entitled to summary judgment if it can “show that there
is no genuine dispute as to any material fact and [that it]
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When, as here, the plaintiff bears the
ultimate burden of proof but the defendant has moved for
summary judgment, the defendant “bears the initial
responsibility” of “identifying those
portions” of the record that “demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is “material” if it could affect the
substantive outcome of the litigation. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a
dispute is “genuine” if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party. See Scott v. ...