Dearborn Heights janitor says she's vindicated by OSHA
Theresa Ely and Rob Smith, both custodians with Dearborn Heights District 7 Schools talk about being exposed to asbestos. Romain Blanquart, Detroit Free Press
Jennifer Dixon, Detroit Free Press 4:56 p.m. EDT June 30, 2016
(Photo: Romain Blanquart Detroit Free Press)
School custodian Theresa Ely says she's been vindicated by the federal Occupational Safety and Health Administration, which found her boss at Dearborn Heights School District No. 7 ordered her to dry-sand floor tiles knowing they contained asbestos, then tried to cover up the exposure with a fraudulent report.
In its findings today, OSHA said the district labeled Ely a troublemaker after she complained about the asbestos exposure to state and federal agencies. OSHA said the district also withheld her pay, denied her a raise, drastically increased her workload and sent her multiple censure letters or reprimands after she spoke up about asbestos, a known carcinogen.
Ely and fellow custodian Rob Smith were featured in a May Free Press investigation that found the Michigan Occupational Safety and Health Administration rarely gets tough with employers who expose their workers to asbestos.
OSHA said the district did not want Ely to raise the issue "because it wanted to avoid loss of student enrollment."
OSHA ordered the district to pay Ely $8,139 in lost wages and $185,000 for emotional stress, medical bills and "loss of reputation and humiliation in her community."
"I feel very good. I feel vindicated," Ely said shortly after receiving the OSHA report four years after she and fellow custodian Rob Smith dry-sanded the floors of Annapolis High School. "The money is great, but it's not what I needed most."
She said she put a copy of the report on the desk of her boss and "then I walked out. That was my best vindication so far."
District Superintendent John Fazer did not immediately return a call and email seeking comment. He wasn't with the district when the dry sanding happened, but told the Free Press earlier this year that he was convinced there wasn't any asbestos exposure.
The district has 30 days to appeal the findings to the U.S. Department of Labor.
OSHA said Ely's boss, John Nicholl, plant operations supervisor, directed her and three other custodians to dry-sand floor tiles that contained asbestos with an industrial sander in June 2012.
"NIcholl directed this activity having knowledge that the floor tiles contained asbestos in each building where the dry-sanding was taking place," OSHA said in its report. "However, Nicholl did not inform his employees of the asbestos or train them in asbestos hazards; nor did he provide the employees personal protective equipment. Furthermore, he was aware that students were in nearby parts of the school while the asbestos work was being performed."
That August, Nicholl told employees that samples of the dust had been tested at a lab and had come back negative for asbestos. In September, he produced an undated asbestos testing report that contained no sampling numbers and referred to the property as a home. According to OSHA's findings, that testing report was "falsified" and "fraudulent."
Ely told the Free Press that the district was behind schedule and asked custodians to dry sand to save time, rather than use water and scrubbers. Smith described how he used a leaf blower to corral the fine white dust that piled up in a second-story classroom after he used a high-powered electric sander to strip the wax from the tiles.
Ely said she scooped the powder into 30 garbage bags and dragged them down the stairs and tossed them into an overflowing Dumpster. Smith said it was so dusty he covered his mouth with wet rags. Ely said she spat out the dust with mouthfuls of Pepsi.
Neither suspected the tiles contained asbestos until months later. According to OSHA, the district stopped training employees in asbestos awareness more than 20 years ago.
MIOSHA investigated Ely's complaint about asbestos at Annapolis and a second school, Madison Elementary, where asbestos-containing floor tiles had also been dry sanded. It found three violations at each building and settled with the district for $3,600 in penalties.
Ely's attorney, Robert Fetter, said he was glad OSHA "did a thorough investigation that cited the cover-up, and the fraud, lies and fraudulent activity of the people in the district. And I’m happy that it outlines the years-long campaign that the district had against Ms. Ely for doing what we expect public employees to do — to be the ears and eyes in the workplace to ensure students, teachers and staff are safe.
"I hope this decision has a deterrent effect not only Dearborn Heights but other districts to ensure they handle dangerous substances like asbestos appropriately, and applaud those that blow the whistle rather than retaliate with a campaign of character assassination and harassment."
Fetter said the OSHA report underscores that MIOSHA's penalties in the case were "a travesty."
Ely said the MIOSHA penalties just added "insult to injury. ... I cannot understand how they sleep at night with their insulting fines. Finding out you might have a potentially deadly disease, it's degrading, it's insulting, it's a joke and if it wasn't such a serious issue, I would say it's laughable."