At the end of the school year, Dierkes requested a transfer to another school, which was granted. She testified that she had been exposed to a hostile work environment throughout the year 1999-2000 by her colleagues and Gelbrich, and was "emotionally exhausted." TR at 776-80, 891. At the new school, Cedaroak Park, Goal Three was initially removed from Dierkes' performance standards so that Dierkes could "start over." CX 102, TR at 925-27. Subsequently, however, Dierkes asked that Goal Three be reinstated "to [honor] the evaluation document as it was written" and informed her new principal that her actions in the goal-setting process were "discriminatory." RX 45, TR at 925-27. The evaluation made by the principal at Cedaroak was favorable. CX102.

   Dierkes filed a complaint (initially submitted on December 15, 1999, and subsequently amended on December 27) with the Occupational Safety and Health Administration (OSHA) alleging that Respondent had discriminated against her and had created a hostile work environment because she had expressed concerns over the health and safety of herself and others and had contacted state and federal agencies regarding environmental hazards in the workplace. CX 1.

   Following its investigation, OSHA found on May 16, 2000, that the Respondent had violated TSCA and ordered it to pay damages to Dierkes. CX 3. Both parties appealed, and a hearing was held on February 27-March 1, 2001. R. D. & O. at 2.

   In his recommended decision dated September 21, 2001, the ALJ found that Dierkes had failed to establish that "verbal admonitions and warnings" from Gelbrich and from Woehl, the superintendent, constituted adverse actions. The ALJ noted that Woehl denied he had told Dierkes to "sit down" at the August 5, 1999 meeting held to discuss the PCB situation, and two other witnesses corroborated his statement. R. D. & O. at 25.

   Further, the ALJ determined that three statements from Gelbrich to Dierkes (he told her to report her environmental concerns internally before going outside the district, noted her "continued accusations and characterizations of my integrity" in an e-mail, and informed her of the need to include the communications goal in her evaluation) were not adverse actions because they had no tangible job consequences. R. D. & O. at 25.

   While the communications goal was not part of any disciplinary process, the ALJ found that imposition of this goal had tangible job consequences for Dierkes and was, therefore, an adverse action. R. D. & O. at 26. He further found that Dierkes' spring 2000 performance evaluation was highly complimentary and could not be considered an adverse action. Id. Finally, the ALJ concluded that Dierkes had not established a hostile work environment because no intentionally discriminatory acts took place. Rather, Dierkes' co-workers disagreed with her environmental actions and expressed their opinions in e-mails, at a meeting, and in a letter to the editor. R. D. & O. at 28. The ALJ also found that these activities were insufficient to establish pervasive and regular discrimination severe enough to cause a reasonable person distress. R. D. & O. at 28.

   Having found that Dierkes had established an adverse action and that the school was well aware of her protected activities, the ALJ reviewed the history of Dierkes' interactions with her colleagues and supervisors to see if her protected activity motivated Respondent, in whole or in part, to take the adverse action. The ALJ found that Dierkes had had recurring problems with her professional interpersonal communications. R. D. & O. at 29. He discussed the plethora of e-mails from her concerning school issues, including those attacking former and current co-workers and supervisors.

   The ALJ observed that, with the exception of her first teaching year, Dierkes engaged in disputes with Gelbrich or fellow teachers regarding instructional aides every year of her tenure at Wilsonville Primary. On several occasions she attacked her colleagues' character and integrity and questioned their interest in "the good of the children" when she disagreed with their actions or positions. In the fall of 1999, she informed her principal that he demonstrated no integrity or honesty in his division of instructional aide time. The ALJ pointed out that Gelbrich had noted Dierkes' unprofessional communications starting in 1998, more than a year before she participated in environmental activism at Wilsonville Primary. R. D. & O. at 29-30.

   The ALJ concluded that Respondent had established that it would have taken the same action in imposing Goal Three even if Dierkes had not engaged in protected activity. R. D. & O. at 32. Therefore, Dierkes had failed to establish a violation of the TSCA.

   The environmental whistleblower statutes authorize the Secretary of Labor to hear complaints of alleged discrimination in response to protected activity and, upon finding a violation, to order abatement and other remedies. Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 9 (ARB Feb. 28, 2003). The Secretary has delegated authority for review of an ALJ's recommended decision to the Administrative Review Board (ARB). 29 C.F.R. § 24.8 (2002). See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).

   Under the Administrative Procedure Act, the ARB, as the Secretary's designee, acts with all the powers the Secretary would possess in rendering a decision governed by whistleblower statutes. The ARB engages in de novo review of the recommended decision of the ALJ. See 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir. 1997); Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ No. 97-CAA-2, 97 CAA-9, slip op. at 15 (ARB Feb. 29, 2000).

   (1) Whether Dierkes established that the imposition of Goal Three was in retaliation for her protected activities.

   (2) Whether Dierkes established that the school created a hostile work environment in retaliation for her protected activities.

Section 2622 of TSCA provides that:

No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter; testified or is about to testify in any such proceeding; or assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.

15 U.S.C.A. § 2622(a). Subsection (b) provides that:

Any employee who believes that the employee has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within 30 days after such alleged violation occurs, file (or have any person file on the employee's behalf) a complaint with the Secretary of Labor (hereinafter in this section referred to as the "'Secretary") alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint.

15 U.S.C.A. § 2622(b).

   To establish retaliation under the environmental whistleblower statutes, a complainant initially must show that the employer is subject to the statutes, that the complainant engaged in protected activity of which the employer was aware, that she suffered adverse employment action and that a nexus existed between the protected activity and adverse action. Jenkins, slip op. at 18; Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-934 (11th Cir. 1995). See also Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1573 (1997) (retaliation for protected activity need be only a contributing factor in the unfavorable personnel action, construing 42 U.S.C.A. § 5851(b)(3)(C) of the Energy Reorganization Act). The burden then shifts to the employer to produce evidence that it took adverse action for a legitimate, nondiscriminatory reason. At that point, the inference of retaliation disappears, leaving the complainant to prove intentional retaliation by a preponderance of the evidence. Jenkins, slip op. at 18. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

   Where a complainant establishes that an unlawful reason was a motivating factor in the employment decision ("mixed motive"), the employer must prove by a preponderance of the evidence that it would have made the same decision absent the unlawful reason. Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion). See Desert Palace, Inc., dba Caesars Palace Hotel & Casino v. Costa, ___ U.S. ___, No. 02-679, slip. op. at 8 (June 9, 2003), aff'g sub nom. Costa v. Desert Palace, Inc., 299 F.3d 838 (2000) (direct evidence of discrimination is not required in mixed-motive cases under Title VII of the Civil Rights Act). See also Combs v. Lambda Link, ARB No. 96-066, ALJ No. 95-CAA-18 (ARB Oct. 17, 1997).

   In this case, our review of the record convinces us that the ALJ correctly summarized the genesis of the Respondent's actions–Dierkes consistently demonstrated a great deal of difficulty in communicating with her colleagues and supervisors. Although Dierkes testified that she have a problem with communication, nor had she ever had one, TR at 279, the record reveals that at least from the fall of 1997 through November 1999 when Goal Three was imposed, Dierkes' written communications to other teachers and Gelbrich presented a pattern of unprofessional behavior.

   On appeal, Dierkes argues that the ALJ erred as a matter of law in failing to apply the mixed motive analysis because the case is replete with entanglement of motive. Dierkes contends that all the actions the ALJ found not to be adverse should have been found to be just that because they had the effect of "intimidating, threatening, restraining, coercing, and otherwise punishing her." Complainant's Brief at 4; 29 C.F.R. § 24.2(a).

   Dierkes' e-mail to Gelbrich in November 1999 regarding the imposition of Goal Three is equally telling. She asked Gelbrich "what percentage" of her alleged communications difficulties he attributed to her activism regarding the PCB spill and the asbestos problems the previous summer. RX 25. Gelbrich responded in a November 8, 2000 memo that while Dierkes' concerns and questions about environmental issues were important in removing PCBs and asbestos from the school, her "demeanor and tone [had] vacillated between calm inquiry and angry outbursts," and he still would have encouraged her to improve in communicating professionally even if the events of the summer had not occurred. CX 51.

   Thus, we agree with the ALJ that none of these incidents rose to the level of severe harassment. Cf. Williams, slip op. at 56-67 (discussing the level of both direct and second-hand harassment that were experienced by each of six Complainants in establishing a hostile work environment). Therefore, we conclude that Dierkes failed to establish that she suffered intentional discrimination which was severe or pervasive enough to alter her conditions of employment and affect a reasonable person detrimentally. She also failed to demonstrate that the school district should be held accountable for the viewpoints of her co-workers and supervisors concerning the environmental problems at Wilsonville.