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11. Hawaii Air Ambulance (James Stone)
(Available in pdf on request to the site manager)
12. Amazon, Inc. (Jason Stolarik)
Witness Jason Stolarik (OSC 12)
OSHA Case: Amazon/Stolarik/5-3100-16-06
Senators: Dick Durban (D), Tammy Duckworth (D); Congressional District Il-10: Bradley Schneider; Il-10
Title: Fulfillment Center Problem Solver, Amazon, Inc.
Summary of Case: On 26 October 2015, Jason Stolarik filed whistleblower complaint (5-3100-16-06) with Kenneth Nishiyama Atha Occupational Safety and Health (OSHA) Region 5 Regional Administrator, Chicago, Illinois against Amazon, Inc. under Occupational Safety and Health Act, Sec. 11(c) (OSHA 11(c)) and the Toxic Substance Control Act (TSCA). In his complaint, Stolarik alleged he was terminated after reporting to OSHA and Amazon responsible management officials specific and substantial threats to employee and public safety and health arising from the improper storage, handling and shipping of toxic materials and the mismanagement of equipment at the Amazon, Inc., Wisconsin Fulfillment Center.
On 14 August 2015 and 29 September 2015, Stolarik made confidential reports to OSHA’s Milwaukee, Wisconsin office about specific and serious Amazon violations of safety and health regulations. OSHA then contacted Amazon asking for a response to Stolarik’s reports, compromising Stolarik’s confidentiality and exposing him to retaliation, which Amazon did by terminating Stolarik on 16 October 2015.
On 26 October 2015, Stolarik contacted Tamara Simpson, an investigator in OSHA’s Milwaukee, Wisconsin, Region 5 office to file a whistleblower complaint. However, rather than record Stolarik’s complaint, Simpson wrote a version omitting violations of the TSCA. When Stolarik attempted to correct the complaint, Simpson wrongly told Stolarik he had to sign the complaint she offered1, causing the complaint to be docketed only under OSHA 11(c) and not TSCA, which required a different investigation.
On 09 December 2015, Denise Keller, OSHA Regional Supervisory Investigator (RSI) confirmed Stolarik’s complaint, and on 21 January 2016 Keller received Amazon’s Statement of Position contesting the complaint. However, Keller delayed opening an investigation until 11 April 2016, which by statute was to be completed in 90 days, or by 24 January 2016. This unjustified 168-day delay, and the delays that followed, not only violated the law, but also substantially degraded the evidentiary base depriving Stolarik of his due process right to a timely investigation.
Hilda Aguirre, the OSHA investigator assigned to investigate Stolarik’s complaint, continued to delay the investigation for another 240 days, until 7 December 2016, when Aguirre advised Stolarik his complaint was being dismissed. Additionally, Aguirre’s management of Stolarik’s investigation failed to meet multiple mandates required for the investigation by OSHA’s Whistleblower Investigations Manual (WIM), including:
· Refusing to examine evidence contradicting Amazon’s claim of lawful termination;2
· Failing to conduct an analysis of Stolarik’s termination as directed by the WIM, which would have qualified it as retaliatory;3
· Failing to provide Stolarik critical documentation provided by Amazon for him to examine and contest;4
· Refusing to give Stolarik copies of documents used to dismiss his complaint, which is required by the WIM as a non-public disclosure (NPD, instead directing Stolarik to request the documents through the Freedom of Information Act (FOIA)5; and
· During her closing conference with Stolarik, Aguirre failed to advise Stolarik of his appeal rights.6
1 WIM, Ch. 3. (VI)(B)(ii) states: “It is OSHA’s policy to permit the liberal amendment of complaints . . .”
2 On 02 May 2016, Stolarik informed Aguirre of a 27 January 2016, “Finding and Determination” by the State of Wisconsin’s Department of Workforce Development – Unemployment Insurance Division, which Aguirre refused to consider, in violation of WIM Ch. 3. (II). The report reflected a hearing which found: a) Stolarik was not terminated for “misconduct or substantial fault connected with employment”; b) Stolarik did not know “or should have known his actions would result in termination,” and c) Stolarik’s “actions did not demonstrate a willful and substantial disregard for the employer’s interests.”
On 04 January 2017, 435 days after Stolarik filed his OSHA complaint, Denise Keller confirmed the complaint was dismissed, but failed to provide Stolarik a statutorily required Secretary’s Findings, which foreclosed Stolarik’s ability to appeal the dismissal.7
On 17 January 2017, Stolarik appealed the dismissal of his OSHA complaint to MaryAnn Garrahan, Director of OSHA’s DWPP, and in early February 2017, offered the DWPP additional supporting documents. But, on 21 March 2017, in spite of overwhelming evidence his complaint had been mismanaged, MaryAnn Garrahan dismissed Stolarik’s appeal.
On 25 March 2017, Stolarik contacted OSHA Region 5 Assistant Regional Administrator Mary Ann Howe and Deputy Regional Administrator Nancy Hauter objecting to the dismissal and asking for the investigation to be reopened. Rather than reviewing Stolarik’s appeal and the clear evidence of mismanagement, Howe and Hauter rejected Stolarik’s request by citing Aguirre’s Report of Investigation (ROI), which OSHA Region 5 and the DWPP had repeatedly refused to give to Stolarik for his review, and which, if it had conformed to the record-keeping requirement of the WIM, would have confirmed the mismanagement.8
3OSHA’s WIM, Ch. 3. (VI)(A)(IV), requires an investigator to establish, “A causal link between the protected activityand the adverse action” which can be shown by “animus (exhibited ill will) toward the protected activity, timing(proximity in time between the protected activity and the adverse action), [or] disparate treatment of thecomplainant incomparison toother similarlysituated employees.. .”
4 OSHA’s WIM, Ch. 23. (II)(A)(3), requires, “During an investigation, OSHA will provide to the complainant . . . the substance of the respondent’s response . . . by providing the complainant with a copy of the respondent’s response and any additional information provided by the respondent that is related to the complaint. In this case, at the end of her investigation on 07 December 2016, Aguirre advised Stolarik she had received additional documents from Amazon contesting his complaint, which she had used to dismiss the complaint but had not shared with Stolarik.
5 OSHA’s WIM, Ch. 23. (II)(A)(3).
6 OSHA’s WIM, Ch. 3. (VI)(K)(3), mandates “During the closing conference, the investigator must inform the complainant of his/her rights to appeal or objection under the appropriate statute.”
7 OSHA’s WIM, Ch. 3. (VI)(B)(II), and Ch. 3. (V)(A), require, “For recommendations to dismiss, the RA or his or her designee must issue Secretary’s Findings to the complainant . . . [which] must include the rationale for the decision . . .”
8 The systematic gross mismanagement by OSHA Region 5 not only violated Stolarik’s Constitutional due process rights, but was ratified by senior DWPP responsible management officials, including: MaryAnn Garrahan, Anthony Rosa, DWPP Deputy Director, and William T. White, DWPP OPS Division Chief.
13. Galindo Construction, U.S. National Park Service, OSHA (Matthew Zugsberger)
Affidavit
My name is Mathew Zugsberger. I am submitting this affidavit freely and voluntarily to Mr. Thomas Devine, who has identified himself as counsel for Darrell Whitman. I am aware that Mr. Whitman charged misconduct by Region 9 of the Occupational Safety and Health Administration's (OSHA) Directorate ofWhistleblower Protection Programs. (DWPP) I am submitting this statement, because Mr. Devine has explained it is significant to demonstrate that the misconduct Mr. Whitman challenged has continued since 2015 when the agency fired him.
I filed a retaliation complaint with Region 9 in 2016. Based on my experience, the Region acted like an adversary of the whistleblower laws it is responsible to enforce. My concerns are listed below, along with references to supporting documents.
As background, I was a Commercial Journeyman Mixed Gas Diver who in August 2016 was hired by a federal contractor as a diver for work on a National Park Service contract at Drake's Estero at Point Reyes National Seashore in California. I suffered retaliation culminating in my being fired after blowing the whistle on, among other things, workplace safety and environmental violations, including for example, illegal dives. My whistleblowing led to, among other things, four occupational safety citations. (Exhibits 1-4), I sought justice by filing a retaliation complaint with Region 9. I did not receive it.
Among my frustrations were the following:
*Region 9 did not allow me to amend my complaint to allege retaliation in violation of the Seaman's Protection Act, insisting on limiting the claim to section 11(c) of the Occupational Safety and Health Act, under which I had no due process appeal rights. (Exhibit 5)
*At a certain point, the Region 9 investigator refused to discuss evidence with me, or even to acknowledge receipt. In fact, he told me not to call.
*The Region 9 investigator did not speak with witnesses I recommended.
*Pursuant to settlement agreements, Region 9 withdrew two of the occupational safety citations it had issued based on my disclosures. Region 9 withdrew these citations without informing me until afterwards.
Due to Region 9's handling of my administrative complaint, I have had to file in federal cou1t under anti-retaliation provisions in the False Claims Act and other federal and California laws to defend myself. Based on my experience, Region 9's DWPP is not a credible option for whistleblowers to challenge retaliation.
I have read the above two-page affidavit, and it is true and accurate to the best of my knowledge and belief.
