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Clendenny v. The Architect of Capitol

United States District Court, District of Columbia

February 15, 2017

CHARLES CLENDENNY, et al ., Plaintiffs,
v.
THE ARCHITECT OF THE CAPITOL, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         I. BACKGROUND

         For the 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).

         Clendenny 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.”).

         As 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 Dep. 23-25).

         At the 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 it up.”).

         From 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.”).

         In 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).

         At the 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. 97).

         The 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).

         On 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).

         Plaintiffs 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.[1] The AOC's motion for summary judgment is now before the Court. Dkt. 19.

         II. LEGAL STANDARD

         Under 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. ...


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