The United States Department of Labor (“DOL”) found in favor of Theresa Ely, a custodian with the Dearborn Heights Public School District No. 7, after she was disciplined, reprimanded, and treated less favorable than other employees for raising numerous concerns about possible asbestos exposure in the District’s schools. The DOL found that the District’s conduct violated the Clean Air Act (“CAA”) and awarded her $8,139.04 in economic damages and $185,000 in compensatory damages for emotional stress, past and future medical expenses, and loss of reputation and humiliation.
In the summer of 2012, Ms. Ely was instructed to sand tiles she had been told contained asbestos the previous summer. Despite her protests, Ms. Ely was told that sanding the tiles would be fine. She was provided no safety equipment and was made to use a leaf blower to blow the dust from the sanding out a window. During that time, students were in summer school on the first floor while they were sanding the asbestos tiles on the second floor. Students were even writing messages in the dust near the stairwell while they were sanding the asbestos tiles. Many other employees were in the building at the time. Also, parents and children of the community were present at the building throughout the summer to participate in the federally funded lunch program.
After continued objections, the District asked one of the custodians to collect a sample of the dust for testing. In September 2012, Ms. Ely was informed that the testing was negative for asbestos. In April 2013, after continued requests, the District gave the custodians a copy of the report on the sampling of the asbestos. On its face, this report was suspicious. The report was not signed by the Asbestos Inspector and was not dated. Also, the reports discussed the difficulty in collecting a sample because the building was “unsafe due to the fire damage during the inspection.” There was no fire damage at the school at this time. And the report often refers to the inspection in the “home.” Amazingly, the Asbestos Inspector named in the report denies performing any such report.
As a result, Ms. Ely continued making reports to parents, her co-workers, and even the media. She also encouraged her co-workers to get tested for mesothelioma. After she made a complaint with the Michigan Occupational Safety and Health Administration, the Agency found the District in non-compliance with safety regulations.
Because of Ms. Ely’s protected activity, she was targeted for layoff, suspended, and twice reprimanded. The DOL found these actions to violate the CAA.
The CAA protects workers who engage in certain activity, including, filing a report of dangerous substances being released into the air. This report can be to the employer internally or to a government body.
This decision is important not only to Ms. Ely but also sets a strong precedent supporting the intent of the CAA, which is to protect the safety and welfare of the general public. The District is appealing the decision.
Workers need to know their rights in regard to performing their job in a manner that promotes their safety and the safety of the general public. If you think your rights may have been violated, contact a Miller Cohen attorney at our office or visit our website at /Employment-Law/Whistleblower-Claims/.
Further information about Ms. Ely’s case can be found at http://www.freep.com/story/news/local/michigan/2016/06/30/dearborn-heights-janitor-says-shes-vindicated-osha/86549872/.