TOSHA Safety complaint of Summer 2016 lead to 2nd complaint of retaliation against former city employee

After initially refusing to release documents connected to two Tennessee Occupational Safety and Health Administration (TOSHA) complaints filed against the Crossville Water Resources Department following action last week by the city council to approve a settlement on one complaint, some of the documents have now been provided.

The complaints, from the summer of 2016 were made to TOSHA by a then-employee of the Crossville Water Resources Department. The employee was fired shortly after making the complaints about safety concerns, first to the water department supervisors and then to TOSHA and then the question of whether the firing could be considered retaliation for the safety complaint is the second more serious complaint that is now under consideration by the city council for a settlement. The identity of the employee is being protected and has been redacted from the documents released by the city.

As city attorney Will Ridley wrote in his letter releasing the complaint copies but not the letter to the city from the Tennessee Attorney General, “As you are aware, the City of Crossville has been threatened with a potential lawsuit to which we maintain we have no liability. I am currently working to settle this matter without the unnecessary expense of a trial.”

It is unclear what the timeline of a possible settlement with the former employee might be.

The TOSHA complaints in question filed by the employee lead to the city's notification by letter dated August 24, 2016, about water leaking inside a 480-volt cabinet of the Miox equipment used to treat water without chlorine gas. The second complaint was about a caustic soda and sodium hypochlorite line leaking. The letter states the city should investigate and make any necessary corrections within 5 days.

Dried brine indicating leak in Miox equipment

The following day another TOSHA letter was sent by certified mail to Jerry Kerley about the second complaint and investigation into possible discriminatory employment practices in violation of the TOSHA Act alleging that the employee was terminated after filing safety concerns.

A letter of response to the more serious charge of discriminatory practice was sent by attorney Ridley September 8, 2016, stating that the first notice about the safety complaint was not received until after the employee was terminated. In addition, Ridley's letter states in a separation meeting with Crossville Human Resources Director Leah Crockett on July 26, 2016, Crockett said the employee stated she had complained to OSHA but had not notified anyone at the city of the safety situation. Ridley's also wrote that the employee told Crockett that a discrimination complaint had been filed with TOSHA and an attorney had been hired.

In response to the safety complaint, Crossville safety director Kevin Dean said in a letter to TOSHA that in the first complaint no hazard existed as the cabinet was designed with a drain and the electrical equipment in the cabinet was in a sealed compartment. The letter further states that the former employee had informed the supervisor about the issue and a call was made to a certified Miox technician leading to a part being replaced.

Dried salt from brine in the

Miox cabinet

Dried brine on wires in the

Miox electrical cabinet

The second part of the safety complaint on leaking pipes took several days to locate an intermittent overhead leak in a bleach line that occurred every three hours or so leading to a repair. The repair was reportedly made prior to the TOSHA notification. A repair was also made to a caustic soda (lye) line from an “internal notification” where a “crusting” was found at a coupling connection and repairs were made.

Caustic soda (lye) leak

Shortly after the letter concerning the safety complaints was received by TOSHA, a notification that TOSHA would close the file on the safety complaint was received however, the discrimination complaint remains open and is what the city is hoping to settle.

That second investigation was done by TOSHA compliance officer John Houghton and a letter dated October 12, 2016, that said he was classifying the case as a merit case saying, “Which means I will forward the case to the Attorney General's office.” Houghton continued, “This does not mean the City is guilty of anything, just that I believe more than likely it was an act of discrimination and the AG's office would investigate further.”

The letter also offers the settlement the city is back to considering with an agreement from both sides agreeing not to talk about the case and neither side admitting guilt. In addition, the agreement would pay the former employee for 11 weeks of work at the $7170.24.  This is the same settlement the city council approved in a special called meeting in November 2017.

Also attached to the documents are interviews with water department Maintenance supervisor Brian Lowe and lab manager Joe Kerley. Lowe's statement says that he had talked to the employee two or three times about wearing flip-flops and shorts to work, a violation of the dress code. Lowe also said he did not feel the employee put other employees in danger nor was she the type to sabotage anything at the facility.

An interview with Joe Kerley notes that the employee did not notify him about safety issues but did text maintenance supervisor Brian Lowe. Kerley said he had talked to the employee several times about dress code violations and did not remember taking corrective action against other employees for the same thing.

Kerley also stated that the employee was putting other employees in danger by not reporting safety hazards and he said his fear of possible sabotage was to take photos of problems and send them to the attorney.