ALJDEC decisions subject to certification as final

09A-080219-03-PAS-AGR · Department of Agriculture · 2009-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 2, 2009 APPEARANCES: Attorney James Clark for Pasquinelli Produce; Assistant Attorney General Casey Cullings for the Department of Agriculture ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ Mr. Lomberto Valenzuela, an irrigator employed by Pasquinelli Produce Company, was exposed to pesticide. Pasquinelli accepted responsibility for failing to properly warn Mr. Valenzuela that pesticide would be applied, but the Department of Agriculture alleges that Pasquinelli took steps to discourage Mr. Valenzuela and Mr. Martin Rodriquez from reporting that Mr. Valenzuela had been exposed. FINDINGS OF FACT Pasquinelli Produce Company (“Pasquinelli”) conducts farming operations near Yuma, Arizona. In the evening on February 18, 2008, Mr. Jeffrey Kottenbrook, who is employed by Morris Ag Air & Sons (“Morris”), made an aerial application of pesticides to a field in the vicinity of Avenue D and County 12th Street. Mr. Kottenbrook did not appear or testify at the instant hearing. At the time the aerial application was made, two of Pasquinelli’s irrigators, Mr. Lomberto Valenzuela and Mr. Martin Rodriquez, were in the field and Mr. Valenzuela was exposed to the pesticide.

Pasquinelli accepted responsibility for its failure to properly warn Mr. Valenzuela and Mr. Rodriguez that the pesticide application would occur and was assessed a civil penalty for that failure. The Arizona Department of Agriculture alleges that Pasquinelli took acts to discourage Mr. Valenzuela and Mr. Rodriquez from reporting to the Department that Mr. Valenzuela was exposed to the pesticide. On February 18 or 19, 2008, Mr. Rodriquez called the Department to find out what pesticide was being sprayed. The Department considered that call to be a complaint and opened an investigation despite the fact that Mr. Rodriquez told them that he did not want to file a complaint. Department Investigator Olga L. Lomeli conducted an investigation. Ms. Lomeli did not ask anyone at Pasquinelli or Morris if anyone had been exposed to pesticide and the Department did not learn that Mr. Valenzuela had been exposed until April 11, 2008, when Mr. Rodriquez told Ms. Lomeli.

Prior to April 11th, Ms. Lomeli had not asked Mr. Valenzuela or Mr. Rodriquez if either of them had been exposed to pesticide. Sometime in May, after Mr. Rodriquez had informed Ms. Lomeli that Mr. Valenzuela had been exposed, she did ask Mr. Valenzuela, at which time he confirmed that he had been exposed. Mr. Jack Peterson, an Associate Director with the Department, testified that Ms. Lomeli was not required to ask if anyone had been exposed, and that Pasquinelli was not required to inform the Department that Mr. Valenzuela had been exposed. There is uncertainty as to who at Pasquinelli was aware that Mr. Valenzuela was exposed and when they learned of Mr. Valenzuela’s exposure. In a letter to the Department dated March 5, 2008, Mr. Jeff Havins, Pasquinelli’s entomologist who ordered the pesticide application, wrote that it appeared as though Mr. Kottenbrook had taken the appropriate measures to avoid getting any drift on the two irrigators. According to Mr. Havins’s letter, he based his determination on a meeting that included Mr. Kottenbrook, Mr. Valenzuela and Mr. Rodriguez. See Exhibit 3. Mr. Havins testified that at the meeting described in the March 5th letter, when someone asked Mr. Valenzuela about the incident, Mr. Valenzuela indicated that he had not been exposed and that Mr. Kottenbrook had indicated that he had not hit the workers with any pesticide. Mr. Havins testified that he did not do anything to discourage Mr. Valenzuela or Mr. Rodriquez from reporting to the Department that Mr. Valenzuela had been exposed. Mr. Valenzuela, through an interpreter, testified that: a. He did not understand anything that happened at the meeting that was the basis for Mr. Havins’s March 5th letter, because he does not understand English. b. He thought Ms. Lomeli knew that he had been sprayed as early as the first time he met with her. Mr. Valenzuela was not sure of the date of that first meeting, but he recalled that it was before the meeting with Mr. Kottenbrook, which indicates that the meeting was in late February or early March. c. Mr. Davy Brooks, a harvest supervisor who has been employed by Pasquinelli for 31 years, told Mr. Valenzuela to do what ever Mr. Valenzuela needed to do with respect to the incident. Mr. Brooks testified that he thought that Mr. Valenzuela had not been exposed. According to Mr. Brooks, he had asked Mr. Valenzuela if he had been exposed and Mr. Valenzuela did not tell Mr. Brooks that he had been. Mr. Brooks did not learn that Mr. Valenzuela had been exposed until a meeting with Ms. Lomeli at Pasquinelli’s nursery. Based on Ms. Lomeli’s Report, that meeting occurred on May 5, 2008. See Exhibit 1 (Report). Mr. Brooks testified that he did not do anything to discourage Mr. Valenzuela or Mr. Rodriquez from reporting to the Department that Mr. Valenzuela had been exposed. Mr. Rodriquez, through an interpreter, testified that: a. He would report to the Department any future lapses by Pasquinelli; b. He would report to Pasquinelli’s management any future lapses; c. He was glad that Mr. Pasquinelli was at the hearing so that he could learn what was going on; d. At the early meetings among Pasquinelli, Mr. Rodriquez, Mr. Valenzuela and personnel from Morris, he thought Pasquinelli and Morris were discussing an agreement to change the plan or report that they had already filed with the Department; e. Although he cannot speak English, he does understand some of what he hears. Mr. Gary Pasquinelli is a co-owner of Pasquinelli and has been employed there since 1967. Pasquinelli considers itself to be a leader in the area of labor relations with its employees. Mr. Pasquinelli’s main concerns with respect to the incident were to ensure that it does not happen again and to see that Mr. Valenzuela received any medical attention that was required. Mr. Pasquinelli knows Mr. Brooks to be an advocate for the workers, and his opinion is that Mr. Brooks would not retaliate against a worker for reporting a violation. Pasquinelli’s policy is that if an employee sees a wrongful act and does not report that act, then that employee is also at fault. The Department issued a Citation to Pasquinelli dated August 22, 2008. The Citation provides that Pasquinelli had engaged in “Retaliatory actions having the effect of preventing or discouraging workers from complying or attempting to comply with the Worker Protection Standards [40 CFR § 170.7(b)].” See Exhibit 5. The Department is not alleging that Pasquinelli undertook any retaliation, but rather that Pasquinelli took steps to discourage Mr. Valenzuela and Mr. Rodriquez from reporting that Mr. Valenzuela had been exposed. Mr. Peterson drafted the Citation; his decision to issue the Citation was based on his review of the file and his observations at a meeting on April 10, 2008, that involved Mr. Peterson, Ms. Lomeli, Mr. Brooks, Mr. Valenzuela, Mr. Rodriquez, and others. Mr. Brooks had requested the April 10th meeting because he wanted to show the Department that Pasquinelli had taken steps to ensure that there would not be a repeat occurrence of the failure to warn its workers that pesticide would be applied. Mr. Peterson testified that he thought Mr. Brooks’ demeanor at April 10th meeting indicated that there was something wrong and after the meeting he asked Ms. Lomeli to contact Mr. Valenzuela and Mr. Rodriquez. Ms. Lomeli was going to contact Mr. Rodriquez, but, on April 11, 2008, he called her. Ms. Lomeli testified that at that time Mr. Rodriquez told her that he knew only part of what was going on, but that he did not believe that everything was all right and that Mr. Valenzuela had been exposed. Pasquinelli appealed the Citation and on February 25, 2009, the Department issued a Complainant and Notice of Hearing, resulting in the instant matter being brought before the Office of Administrative Hearings. CONCLUSIONS OF LAW The Department bears the burden of persuasion. See A.R.S. § 41- 1092.07(G)(3). The standard of proof on all issues is that of a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). Neither Mr. Valenzuela nor Mr. Rodriquez provided testimony that indicates Pasquinelli’s employees took steps to discourage them from reporting the exposure. But Mr. Valenzuela provided credible testimony that Mr. Brooks told him to do what ever he needed to do, which is reasonably considered to be a statement that Mr. Valenzuela should do what was right. And Mr. Rodriquez provided credible testimony that he would not be afraid to report future incidents and, in this case, in April, when he had information that he thought the Department should know, he called Ms. Lomeli, which weighs against concluding that he had been discouraged from making reports when required. Mr. Havins and Mr. Brooks each provided credible testimony that they did not try to discourage Mr. Valenzuela or Mr. Rodriquez from reporting that Mr. Valenzuela had been exposed, at least in part, because neither Mr. Havins nor Mr. Brooks was sure that Mr. Valenzuela had been exposed. Mr. Valenzuela provided credible testimony that he thought the Department knew he had been exposed the first time he met with Ms. Lomeli and there was no evidence adduced to show when he learned he was mistaken. Based on Mr. Rodriquez’s testimony, it appears that in early March he also thought that the Department knew that Mr. Valenzuela had been exposed, because he thought Pasquinelli and Morris were trying to change the “plan” or “report” to the Department. The Department’s allegation is based on inferences drawn from Mr. Valenzuela’s and Mr. Rodriquez’s actions. But because Mr. Valenzuela, and most likely, Mr. Rodriquez were mistaken about what the Department knew with respect to the incident, no substantial weight can be given to those inferences. The Department has not met the burden of persuasion because there is no substantial evidence to show that Pasquinelli took steps to discourage either Mr. Valenzuela or Mr. Rodriquez from reporting that Mr. Valenzuela had been exposed. Because the Department has not met the burden of persuasion, the Citation should be dismissed. RECOMMENDED ORDER IT IS RECOMMENDED that the Director of the Arizona Department of Agriculture dismiss the Citation against Pasquinelli Produce. Done this day, April 21, 2009

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Jack Peterson Department of Agriculture 1688 West Adams Phoenix, AZ 85007

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826