Anchor, a division of International Paper, operates a chemical blending plant that manufactures products for the graphic arts industry. Complainant's Exhibit (CX) 55 at 20. It hired Odom as an environmental coordinator on July 12, 1993, after an interview with Laurie Nichols, the Regulatory Manager who later became his supervisor. Transcript (T.) 502; CX 2. Odom's task was to ensure Anchor's compliance with applicable regulations, which required, among other things, that he conduct "walk-arounds," or visual inspections of the interior and exterior of the facility, and report his findings. T. 502-503. Nichols also expected Odom to be involved in issues related to the removal of Anchor's underground storage tanks, with which Odom had prior experience. T. 123, 494.

   It is undisputed that Odom received three reprimands during his employment. T. 661. In late 1993 or early 1994, both Odom and George King, Anchor's Safety Coordinator with whom Odom jointly conducted walk-arounds, were verbally reprimanded by Nichols and her supervisor, George Calvert. T. 662-63, 821; see Complainant's Proposed Findings of Fact and Conclusions of Law (CPFF) at pages 63-64. On June 29, 1994, Odom received a written reprimand for missing a training deadline. CX 2 at 30; T. 829. On August 8, 1994, Nichols gave Odom a poor performance review, stating that she had not seen an improvement in his performance since the June 29 meeting and that he needed improvement in prioritizing responsibilities, showing initiative, accomplishing tasks in a timely manner, and presenting a professional demeanor. CX 3; T. 831-32.

   On August 10, 1994, Odom wrote a letter to Burley Moss, Anchor's President, complaining that Nichols was unfairly criticizing his performance because of incidents related to environmental compliance issues he had raised. CX 6. As an example, he explained that during his second week of employment he raised environmental safety concerns about Anchor's use of a chemical called Envirowash; that Nichols ignored his concerns; and that she was embarrassed and defensive approximately one year later when a corporate audit revealed these items and requested corrective action plans. He implied that Nichols had given him the June written reprimand simply out of frustration for her own shortcomings. Odom also complained about his August 9, 1994 performance review in which Nichols informed him that he lacked professional demeanor and initiative, and he stated that if his initiative was stifled, it was because of Nichols' refusal to discuss or review information he presented pertaining to many environmental issues.

   Odom was terminated on September 12, 1994, for the stated reason of "poor job performance." CX 2 at 34. Nichols testified at length concerning her reasons for terminating Odom, including his failure to be a "team player." See, e.g., T. 126-28, 140-41, 1312-14. In sum, she explained:

I decided to terminate him because I had sat down with him twice, given him two written warnings. In my opinion, his attitude to me was continuously going downhill.

[T]hings were not getting any better..... [h]is attitude, his performance, the way he -- the way he interacted with me.

   Odom contends that Anchor's explanation is pretextual. or that, at the very least, he presented evidence to establish dual motives for the decision. He alleges that Nichols harassed him for finding too many problems on his walk-arounds and "set [him] up to fail" by imposing unrealistic deadlines, assigning him menial tasks, moving him into her office, and canceling multiple training classes that he was required to teach. Complainant's Post-Hearing Brief at 3. According to Odom, Nichols felt threatened by his competence in raising protected safety issues; imposed reprimands as a pretext for retaliation; and then, in collaboration with other managers, fired him for not being a "team player" when he went over her head and complained to Moss. T. 667-68; see CPFF at 80. Additionally, Odom charges that after he was fired, Anchor engaged in blacklisting when a prospective employer inquired about his work history.

   The ALJ found that Odom made a prima facie showing based on the close temporal proximity between his termination and his August 10 protected letter to Moss. R. D. and O. at 4. He concluded, however, that neither the termination nor any of the other challenged actions were improperly motivated. R. D. and O. at 6-9, 10. In addition, the ALJ rejected Odom's blacklisting claim, noting first that the allegation did not comport with the generally understood and accepted use of the term "blacklisting." R. D. and O. at 9 n. 10. Considering the claim as another allegation of retaliatory action by Anchor, the ALJ found it also without merit. R. D. and O. at 10.

   The burdens of production and persuasion in whistleblower cases are based on the framework applied under Title VII of the Civil Rights Act of 1964. See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 9-10, aff'd, 78 F.3d 352, 356 (8th Cir. 1996); see also Bechtel Const. Co. v. Secretary of Labor, 50 F.3d 926, 933-34 (11th Cir. 1995). The ultimate question to be decided is whether the employee has shown by a preponderance of the evidence that the employer retaliated against him because of protected activity. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); White v. Osage Tribal Council, Case No. 95-SDW-1, ARB No. 96-137, Aug. 8, 1997, slip op. at 4. If the employee proves that a retaliatory motive contributed at least in part to the employer's decision, i.e., that "dual motives" existed, then the employer must prove by a preponderance of the evidence that it would have taken the action for the legitimate reasons alone. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Dodd v. Polysar Latex, Case No. 88-SWD-4, Sec. Dec., Sept. 22, 1994, slip op. at 3.

   In arguing that he met his burden of proof, Odom points out that the ALJ

aware of his August 10 letter to Moss.

C. Odom's Letter and Other Protected Activity Played No Part

   The ALJ credited Nichols' testimony that the letter did not impact her decision to fire Odom, and also concluded that Odom's environmental concerns essentially were too insignificant or remote to have threatened or intimidated Nichols into firing or otherwise retaliating against him. R. D. and O. at 8-9. He further found support in the record for Nichols' criticisms of excessive socializing, missed deadlines, and disrespectful behavior. R. D. and O. at 6. Odom contends that the ALJ erred in crediting Anchor's evidence, failed to properly consider the totality of his protected activities over a sixteen month period, and applied improper legal standards.

   As explained below, while we do not agree with every aspect of the ALJ's decision, we fully agree with his conclusion. We have carefully considered Odom's numerous arguments attacking the veracity of Anchor's testimony, but they do not convince us that the ALJ was wrong. Anchor's testimony is consistent with other evidence, and we find no reason to disturb the ALJ's credibility determinations. See Seater v. Southern California Edison Co., ARB Case No. 96-013, Sept. 27, 1996, slip op. at 18; Bartlik v. TVA, Case No. 88-ERA-15, Sec. Dec., Apr. 7, 1993, slip op. at 4-5 n.2, citing Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951).

449-50. Rhodes also described Nichols as "focused" and "fussy" about safety issues, even before Odom was hired. T. 457-59, 465; see also T. 948-49. This portrayal is not consistent with the picture Odom paints.

   The Envirowash issue was not a source of conflict between Odom and Nichols until a year later in August 1994. Odom only raised the issue several times in 1993. See T. 215, 544, 548-51. King, who conducted walk-arounds and meetings with Odom, remembered their raising the issue with Nichols once, within a short period after Odom was hired. T. 1140. Nichols investigated and conveyed to Odom her findings that Envirowash was permitted to be discharged. T. 544, 551. She relied on previous testing conducted before Odom was hired, T. 723-24, 1272-74, in combination with waste water plans and permits written by independent consulting engineers. T. 1267-73, Respondent's Exhibit (RX) 34. There is no evidence of hostility, disputes or confrontations over the issue that would support an inference that Nichols felt threatened or intimidated by Odom's questions.

   The ALJ noted that Masters, one of the consulting engineers who formerly had worked at Anchor, testified that he would not have been concerned about a runoff of Envirowash. R. D. and O. at 7; T. 931. Odom contends that the ALJ erred in crediting Masters as a disinterested expert witness, and we agree. Masters was not called as an expert but as a fact witness, T. 972, and was not appointed as an expert by the ALJ as provided in the regulation at 29 C.F.R. §18.706 (1996). The ALJ improperly designated Masters as an expert without Masters' consent and without proper opportunity for the parties to participate.

   The error, however, is harmless in this case. The essential difference is that a qualified expert may answer hypothetical questions, Teen-Ed, Inc. v. Kimball Intern., Inc., 620 F.2d 399, 404 (3d Cir. 1980), and it is unnecessary to rely on Masters' responses to hypotheticals to determine the issues here. There is ample evidence that until May 1994, Nichols "viewed" the Envirowash issue as settled, without looking to Masters' opinion on the merits of Odom's concern. R. D. and O. at 8.

Odom" in getting the Reid Vapor Pressure (RVP) Analyzer apparatus operational. CX 2 at 27. This approval and praise indicate the absence not the presence of retaliatory motives. See Bonanno v. Stone & Webster Eng'g Corp., ARB Case No. 96-1 10, Dec. 12, 1996, slip op. at 2-3 n.2.

   Nor is it believable that Odom's concerns about the RVP Analyzer experiment in January or February, 1994, played a role in his discipline. See RX 14. Odom alleges that he questioned Nichols about erroneous numbers being generated by Anchor's technique of "icing the bath." T. 635. However, she had placed Odom and another employee in charge of the experiment and there is no reason why she would then be unreceptive to his concerns. See T. 1300. Odom's post hoc allegation that Anchor actually was attempting to report low numbers so that they could have an edge on competition is rejected as wholly unsupported. T. 842, 850. Moreover, the machine was not working properly, and Nichols stopped using it. T. 272 (Bourne), 843-44 (Odom), 1303, 1338-39 (Nichols).

   2. The Written Reprimand and Performance Evaluation

   Odom contends that the June reprimand for missing a training deadline was retaliatory and a pretext for his termination because he completed volumes of paperwork in a timely fashion and never missed another deadline after the June reprimand. See CX 24-46, 50, 54-107. He elaborates that Nichols knew he was having trouble meeting the June training deadline, that she reassured him, and then purposefully postponed the rescheduled class and manufactured a crisis over which she imposed the reprimand. See T. 816-17. As proof, Odom states that Calvert admitted in a "Freudian slip" at the hearing that there were "some training problems that didn't occur." T. 354; CPFF at 24.

   The argument that a crisis was manufactured, implying that no corporate deadline for the training existed, is disingenuous. At the hearing Odom did not dispute that the training was in fact required under the Corrective Action Plan that was developed following the May internal audit by International Paper, and he acknowledged that International Paper was controlling the training class. T. 629-30; cf T. 816-17. Also, Calvert's testimony taken in its proper context substantiates that Nichols told him that Odom's meeting the training deadline "didn't occur." T. 353-54. Odom is correct that Nichols canceled the rescheduled class herself several times, but only after Odom already had missed his initial deadline. In any event, it is undisputed that Odom missed his deadline for conducting hazardous waste training. T. 628, 631.

   By the time of Odom's June reprimand and August performance evaluation, Nichols had developed disdain for Odom's work ethic and lack of initiative, as illustrated by the following examples. The "April Things to Do" list, dated April 1, 1994, contains the following notation:

Environmental Self-Audit - WFO [Odom]; your version of final draft; this should have been submitted to me by 3/31(!); due no later than 4/8/94 . . .

RX 8. In her May 1, 1994 list addressed to Odom and King jointly, Nichols wrote:

Please understand that I am under time restraints from both the Imaging Products Division and Corporate I.P. When I give you completion dates for certain projects, these dates are based on deadlines given to me. I do not like to be called by either divisional or corporate personnel looking for information which I should have already submitted to them.

   Nichols' criticism in Odom's August 8 performance review is consistent with the record as a whole. She stated that she found it necessary continuously to remind him of projects or tasks, that he engaged in lengthy chats unrelated to work, and that he failed to keep her apprised of his projects and to follow-up or motivate others to respond when needed. CX 3.

sticking also do not afford any basis to find retaliatory motives. Quite the opposite, they demonstrate that Nichols was conscientious in addressing and trying to remedy Odom's concerns. Odom himself confirmed that Nichols took corrective action by writing a memorandum and repeatedly cautioning the responsible department. T. 811-12, 557. Nichols even requested that the department document its improprieties. While that department may have failed to heed Nichols' warning and follow proper procedure, there is no showing that Nichols condoned the improprieties.

   Odom alleges that he spoke to Nichols, as well as Calvert, "about the possible need to file" reports with the Florida DEP because of "unexplained" water in UST 13. T. 809, 558-59, 563, 569. However, it is undisputed that Nichols investigated, discussed the issue with a number of Anchor managers and employees, and reached the firm conclusion that reporting was unnecessary. T. 217-21, 559-60, 809-10. A mere difference of professional opinion, without more, does not prove retaliatory motives.

   Similarly, there is evidence that Nichols disagreed not only with Odom but also with an internal auditor who raised a question about whether Anchor was using an incorrect SIC code. T.603. The evidence shows only that she was blunt, not vindictive.

   Nichols thought it was possible she threatened to fire Odom on August 11, because she was angry at the time. T. 1325-26. She had discovered yet another instance of Odom's failure to follow through on an assignment. Masters had just informed her that Odom

had not begun the waste water bench testing. T. 944-46. Odom admits that performing the bench tests was part of his job duties, T. 655, 939, and his records corroborate that he did not start the testing until August 15. CX 121.

   Nichols also criticized Odom for concentrating on efforts that would bring him "fame and fortune" at the expense of his paperwork or more tedious tasks. T. 156. This criticism, consistent with all the evidence showing Nichols' repeated reminders, was based on Odom's failure to prioritize his work properly, not the protected aspects of his job. Any resentment by Nichols concerning Odom's August 10 letter to Moss and his reference to the Envirowash issue was justified and lawful because it indicated to her that he may have downplayed or concealed his concerns and test results from her. See RX 5; cf. Pooler v. Snohomish County Airport, Case No. 87-TSC-1, Sec. Dec., Feb. 14, 1994, slip op. at 8-12 (employer lawfully disciplined employee not because he reported a violation but because he failed to take proper corrective action).

   Several witnesses testified that Odom considered Nichols inferior and unqualified for her job because she did not have a college education. T. 942-43 (Masters), 1172 (King). Nichols was aware that Odom made these remarks and criticized her "behind her back." T. 148, 145. Consequently, it is not surprising that she detested his attitude and suspected that he tried to "make a lot of trouble" for her. T. 145. She disapproved of Odom's complaints about management and thought it was odd that he made references to International Paper as "tree killer." T. at 144-47. These complaints centered around the purchasing department, not environmental concerns. T. 128, 142. Odom also contends that Nichols' criticism of him for not being a "team player" has special meaning under whistleblower law, but we find that her basis for using the expression -- that Odom was uncooperative and disrespectful -- was reasonable and nondiscriminatory. See Erb v. Schofield Mgmt, Inc., ARB Case No. 96-056, Sept. 12, 1996, slip op. at 2-3 (Board rejected employee's claim that he was unlawfully fired for failing to be "team player" where record showed employee's continuing negative attitude toward the supervisor, lack of cooperation, and failure to improve work habits).

absence of the letter. Odom knew or sensed that "documentation . . . [was] in place" and that his termination was imminent at the time he wrote the letter. CX 2 at 33; see T. 176. Nichols was angry enough to fire Odom upon hearing of his failure to begin the waste water bench testing on August 11, before she was aware of the letter. She had given repeated warnings about his failures to show initiative, follow through with his assignments, and prioritize his work, but he showed no improvement. CX 2, 3. Odom's poor performance and attitude problems, wholly independent of any protected activity, would have induced Nichols to fire him even if he had not written the letter. See Price Waterhouse, 490 U.S. at 252.

II. Alleged Blacklisting

   It is undisputed that in response to an inquiry from a prospective employer, Nichols stated that she had fired Odom because he was not living up to the day-to-day expectations of a manufacturing facility and that Odom was not geared to their type of work. Odom contends that Nichols' statement, made with knowledge that Odom had filed this complaint with the Department of Labor, was a blacklisting communication remediable in this proceeding. He also contends that a subsequent statement given by the Human Resources Director, Judy Barr, that Odom was not eligible for rehire was unlawful blacklisting.

   Although the ALJ failed to recognize that the term "blacklisting" can be interpreted to include "marking an employee for avoidance" through negative employment references, he properly found the record insufficient to establish the allegation. See Leveille v. New York Air Nat'l Guard, Case No. 94-TSC-3, Dec. 11, 1995. Odom incorrectly implied in his post-hearing pleadings that the decision in Gaballa v. Atlantic Group, Inc., Case No. 94-ERA-9, Sec. Dec., Jan. 18, 1996, prohibits an employer from providing a negative reference once the employee has filed a retaliation claim. In Gaballa, unlike here, the employer explicitly mentioned the employee's protected complaint of retaliation. Odom now incorrectly claims that under Leveille, any communication that has a tendency to impede or interfere with employment opportunities is prohibited. But to be discriminatory such a communication must be motivated at least in part by protected activity. Odom's allegation is without merit because he did not prove that either Nichols' criticisms of his work performance or Barr's statement of his ineligibility for rehire was based on or motivated even in part by any of his protected activity, including this complaint. Events that Odom alleges occurred at Anchor after these employment references were given, CPFF at 110-13, have no bearing on the disposition that Odom failed to establish blacklisting under the Acts.

   Accordingly, this case IS DISMISSED.

   SO ORDERED

      DAVID A. O'BRIEN
      Chair

      KARL J. SANDSTROM
      Member

      JOYCE D. MILLER
      Alternate Member