This case has been before the Board before. The Administrative Law Judge (ALJ) assigned to the case initially recommended that the complaint be dismissed because Tracanna, who initially appeared pro se, exhibited a "pattern of refusing to cooperate in the discovery process, refusing to comply with any lawful discovery, and refus[ing] to comply with discovery orders of the [ALJ]." Tracanna v. Arctic Slope Inspection Serv., ALJ No. 97-WPC-1, Recommended Order of Dismissal, slip op. at 2 (July 13, 1997). The Board rejected the Recommended Order and remanded the case for further proceedings. Tracanna v. Arctic Slope Inspection Serv., ARB No. 97-123 (Nov. 6, 1997). Tracanna retained counsel, and discovery and a hearing on the merits followed. In September 1998 the ALJ issued a Recommended Decision and Order (R.D. and O.) finding in favor of Tracanna. Tracanna v. Arctic Slope Inspection Serv., ALJ No. 97-WPC-1 (Sept. 18, 1998). ASIS appealed to this Board.

   We find that Tracanna was not subjected to retaliatory adverse action. Therefore, we dismiss this complaint.

   I. Facts.

   ASIS was a contractor of Alyeska Pipeline Service Company (Alyeska) providing inspection services on the Trans Alaska Pipeline System. In December 1993 Joseph Tracanna began work for ASIS as an electrical inspector.

   Tracanna had been involved in whistleblowing activity on the pipeline before he went to work for ASIS. Tracanna's history as a whistleblower was commonly known; in fact, his activities were at least in part responsible for a July 1993 congressional hearing investigating conditions on the pipeline.

   ASIS hired Tracanna to work on Alyeska's National Electric Code (NEC) Compliance Project at the Valdez Marine Terminal (VMT). The purpose of the NEC Project was to detect electrical deficiencies at the terminal, and the work was to be done according to Alyeska's inspection plan and guidelines. On February 25, 1994, Tracanna issued a Non-Conforming Report (NCR) regarding the electrical grounding system at VMT. Tracanna indicated that the problem presented an "imminent threat" because it could create an "unsafe condition which could present a significant hazard to plant personnel." Complainant's Exhibit (CX) 14. Alyeska employees responded negatively to this NCR and to Tracanna for writing it. A meeting was convened regarding the NCR, which included representatives of ASIS (including Tracanna), Alyeska, and an Alyeska consultant; the Alyeska consultant confirmed the substance of the NCR as well as Tracanna's characterization of the problem as an "imminent threat." Tracanna's supervisor subsequently validated the NCR.

   Tracanna issued a second NCR on March 31, 1994, regarding an "imminent threat" to worker safety and property in the event of an earthquake. Tracanna's supervisor validated that NCR the same day.

• In early June 1994, Tracanna was offered a two week on/two week off electrical inspector position at VMT opposite Larry Coffman. Tracanna declined this position because he did not want to commit himself to a part-time position when he anticipated obtaining a full-time position.

• In June 1994 Tracanna was offered a temporary Crane Inspector position on the pipeline. Tracanna accepted this offer and worked for five days.

• Between July 3, 1994, and August 4, 1994, Tracanna filled in for Coffman as an Electrical Inspector at VMT.

• Between September 1994 and April 1995 Tracanna was placed back on layoff status.

• On April 3, 1995, Tracanna was offered a temporary Crane Inspector position, which he accepted and held for four weeks.

• On June 4, 1995, ASIS again placed Tracanna on layoff status.

R.D. and O. at 8-10; RX 66.

   Tracanna submitted his resignation to ASIS on August 1, 1995, and then filed a whistleblower complaint with the Department of Labor's Wage and Hour Division. He alleged that he was placed on layoff, not offered other electrical inspector positions, harassed, and forced to resign because he had engaged in activity protected by the Acts. OSHA determined that his complaint was without merit, and Tracanna sought a hearing before a Departmental Administrative Law Judge. See 29 C.F.R. §24.4.

   There was conflicting testimony about the amount of electrical inspection work that ASIS performed in the period after Tracanna's layoff. Two Alyeska employees and some of the other ASIS electrical inspectors testified that there was a lot of electrical inspection work, but they did not specify whether that work was related to the AKOSH Project or was non-AKOSH work, or whether the work met Tracanna's other conditions for reassignment, such as full-time inspection work located in Anchorage or Valdez. Officials of ASIS testified that there was little non-AKOSH work and that all inspection work declined significantly in late 1994 and into 1995. Although 13 electrical inspectors were hired after Tracanna's layoff on April 2, 1994, they were all hired for work on the AKOSH Project or to do pipeline inspection, work which Tracanna had declined. RX 58.

   II. The ALJ's Recommended Decision and Order.

   In this section, we evaluate in turn each of the alleged adverse actions cited by Tracanna or relied upon by the ALJ. For the reasons discussed below, we find that Tracanna's request to be removed from the AKOSH Project in April 1994 was not a constructive discharge. We find also that ASIS' decision to lay off Tracanna and its failure to reassign him to anything other than temporary positions after he requested removal from the AKOSH Project was not retaliatory. Finally, we find that Tracanna's resignation on August 1, 1995, was not a constructive discharge. Therefore, we reject the ALJ's recommended decision and dismiss the case.

   I. Whether Tracanna's request to be removed from the AKOSH Project was a constructive discharge.

   The ALJ found that Tracanna's request to be removed from the AKOSH Project amounted to a constructive discharge:

Based on the evidence in the record, I find that Mr. Tracanna's working conditions on the AKOSH Project were rendered so unsafe that a reasonable person would have felt compelled to resign. Mr. Coffman, Mr. Adams, and Mr. Tracanna all elected to resign from the AKOSH Project because of safety concerns associated with the decreased AKOSH standards from the NEC standards. There is no evidence to the contrary and the credible testimony of Mr. Coffman and Mr. Tracanna tends to prove that any reasonable person under the same conditions would have felt compelled to resign.

Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 877 (7th Cir. 1999), citations omitted, emphasis added. See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) ("to establish a claim for constructive discharge under Title VII, a plaintiff must prove that his working conditions were so intolerable as a result of unlawful discrimination that a reasonable person would be forced into involuntary resignation." (citation omitted, emphasis supplied)).

R.D. and O. at 14. ASIS argues on review that the ALJ misread the evidence regarding Coffman and Adams, and that a correct reading of the record establishes that Tracanna was not

subjected to disparate treatment. We agree with ASIS that the difference in treatment of Tracanna on the one hand and Coffman and Adams on the other is not of significance in determining whether Tracanna was laid off for retaliatory reasons.

   There are significant differences among Coffman, Adams, and Tracanna regarding their employment with ASIS and their treatment after each of them asked to be removed from the Project:

   In any event, the record evidence shows that Carver and Marvin Swink were responsible for placing Tracanna on layoff, and for making decisions about offering Tracanna other positions, not Richardson. Thus, even if Richardson made the alleged statement about "get[ting] rid of Joe," it would not be legally significant in connection with Tracanna's layoff and subsequent job offers, which were determined by higher-level ASIS personnel. See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1263 (10th Cir. 1998) ("An employer . . . may be liable for discriminatory retaliation by reason of the actions of persons in supervisory positions who had significant control over the Plaintiff's hiring, firing, or conditions of employment, or by management-level employees who have ultimate authority to hire, fire and to control conditions of employment.").

he was placed on layoff, it follows that when he sought to be reassigned to other work he stood in no different position than any other inspector who had completed a project and was awaiting reassignment. Therefore, Tracanna had the burden of proving both: 1) that he applied for a position that was available; and 2) that he was rejected in circumstances that raise the inference that the rejection was motivated by retaliatory animus. International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977) ("Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought"); Chavez v. Tempe Union High Sch. Dist. No. 213, 565 F.2d 1087, 1091 (9th Cir. 1977) ("when there is a charge of overt discrimination, a showing of a job vacancy is essential in order to establish a prima facie case"). As we discuss below, Tracanna failed to prove that there was a vacancy for a job that met Tracanna's specifications.

   The ALJ found that "a tremendous amount of inspection work did exist at VMT" during the period between Tracanna's layoff in April 1994 and his resignation in August 1995. R.D. and O. at 7. Further, the ALJ determined that ASIS unlawfully failed to offer any of its "abundant" and "substantial" electrical inspector work to Tracanna. In so ruling the ALJ relied heavily upon the testimony of Alyeska's Kingrea and Biddy, and ASIS employees Coffman and Glover, and rejected the testimony of ASIS' Carver. The ALJ also explicitly refused to give any weight to the fact that, although there had been extensive discovery in this case, Tracanna had failed to introduce into evidence even one work order for an electrical inspector job (other than for work on the AKOSH Project which Tracanna would not accept):

    There is a conflict of evidence in this regard, as Mr. Carver testified that there were no outstanding work orders from Alyeska. In fact, Mr. Carver stated that all work orders were actively pursued, as that was how ASIS made their money. Having considered the testimony and demeanor of the aforementioned witnesses, along with the testimony of Mr. Coffman and Mr. Glover who stated that there was more than enough work for them as electrical inspectors, I find that the weight of the evidence suggests that there was ample work for electrical inspectors. The only evidence suggesting that electrical inspection work was not available was the testimony of Mr. Carver; and I find that the facts plainly do not support Mr. Carver's position. In addition, I find that Complainant's inability to produce an actual work order is immaterial, as the credible testimony of the witnesses, specifically Mr. Kingrea, provided herein sufficiently demonstrates to the undersigned that such work was available and Mr. Tracanna was qualified for it.

R.D. and O. at 17. Finally, the ALJ found that the positions ASIS did offer Tracanna were "inferior." As we discuss below, the ALJ's misplaced reliance on the testimony of Kingrea, Biddy, Coffman, and Glover, and rejection of Carver's testimony led to an erroneous determination regarding the work that was available.

   First, the testimony of James Kingrea, who was the Alyeska inspection team manager during the time in question, and of William Biddy, Kingrea's assistant, does not support the finding that there were electrical inspector positions available which would have met Tracanna's specifications. Kingrea testified that in the area he was managing "there was a need for a lot [of electrical inspections]" and that getting electrical inspections done "was always a problem." T.358-359. Biddy echoed this opinion. However, both Kingrea and Biddy admitted on cross examination that they did not have any personal knowledge of what positions were available at ASIS during the relevant time period. Therefore, we decline to accord weight to their testimony.

   Second, Larry Coffman, an electrical inspector at VMT, testified that "there was a tremendous amount of [electrical inspection] work there to be done. . . . It would probably have been years of work . . . ." T. 219. Glover, another inspector at VMT, testified that he had more work than he could keep up with. T.293. However, neither of these witnesses specified whether there was a large amount of non-AKOSH Project electrical inspection work, and neither addressed Tracanna's unwillingness to work a two week on/two week off schedule. In fact, one of the positions Tracanna rejected involved working as an electrical inspector at VMT on a two week on/two week off schedule opposite Coffman. To put it simply, the fact that there was ample electrical inspection work to be done does not necessarily mean that there were vacant electrical inspector positions which also met Tracanna's specifications.

   On the other hand, we find compelling the testimony of ASIS' William Carver and Loann Larson (the human resources manager of ASCG, Inc., the parent company of ASIS), and the fact that Tracanna was unable to produce any direct evidence that there were electrical inspector positions available which he was not offered. Carver, who became the general manager of ASIS in the spring of 1994 testified:

[T]here wasn't [sic] any work orders [from Alyeska] that [ASIS] did not actively pursue. That was how we made our money. If we had an inspector on the line, we made money every hour he was there, and if we didn't, we didn't make any money. . . . [T]o my knowledge we actively pursued all the work orders we had.

CX 61. The ALJ determined that Tracanna's resignation amounted to a constructive discharge because "ASIS' continued attempts to offer him inferior jobs rendered his conditions at ASIS so difficult, unpleasant and unattractive, a reasonable person would have felt compelled to resign and obtain more appropriate employment elsewhere." R.D. and O. at 18.

   As we have noted earlier in this decision, a "constructive discharge" occurs when an employee, who has not been terminated directly by his employer, finds that because of discrimination his working conditions have become objectively so intolerable that it is necessary to resign his employment. We conclude that the conditions Tracanna faced while on inactive status and seeking to be reassigned to a position that suited him were not "objectively intolerable." Therefore, he was not constructively discharged.

   The standard by which an alleged constructive discharge is measured is a stringent one. The Ninth Circuit, in which this case arises, has held that:

To support his claim of constructive discharge, [a plaintiff is] required to demonstrate that . . . a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions. See Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1411 (9th Cir. 1996). An isolated incident of mistreatment is not enough; [plaintiff] had to show aggravating factors such as a continuing pattern of discriminatory treatment. See id. at 1411-12; King v. AC & R Advertising, 65 F.3d 764, 767-68 (9th Cir. 1995) (stating that, to defeat a summary judgment, the claimant "had to show that the conditions giving rise to his resignation were extraordinary and egregious") (applying California law of constructive discharge).

Huskey v. City of San Jose, 204 F.3d 893, 900 (9th Cir. 2000); Fielder v. UAL Corp., 218 F.3d 973, 987 (9th Cir. 2000) (same). Of critical importance here is that dissatisfaction with an assignment, a poor performance rating, or even a demotion "does not by itself trigger a constructive discharge." The plaintiff must show that "the conditions giving rise to his resignation were extraordinary and egregious. . . ." King v. AC & R Advertising, 65 F.3d 764, 767-68 (9th Cir. 1995).

   As we have found above, Tracanna was laid off when he asked to be removed from his position. Within a matter of days after his layoff, ASIS offered Tracanna two positions, both of which he rejected. Other offers followed; however Tracanna rejected all but a few temporary positions because the assignments offered to him did not meet his specifications. The circumstances in which, as a result, Tracanna found himself did not transform his subsequent resignation into a constructive discharge.

   In summary, we find Tracanna has failed to prove that ASIS' decision to place him in layoff status after he asked to be removed from the AKOSH Project was retaliatory. With regard to the job offers during the period between his April 1994 layoff and August 1995 resignation, Tracanna has failed to prove that suitable job openings were available for which he should have been considered. Finally, the record does not support a finding that Tracanna's 1995 resignation meets the legal standard for a constructive discharge. Accordingly, for the reasons discussed above, this complaint is DISMISSED.

   SO ORDERED.

       PAUL GREENBERG
       Chair

       CYNTHIA L. ATTWOOD
       Member