ASIS placed Acord on lay off on November 22, 1993, along with a number
of other inspectors. ASIS 45; 35 and 80. ASIS explained that inspection work is seasonal and that
the lay offs in the fall of 1993 followed the regular practice of placing inspectors on lay off during
the cold months because it is physically difficult and could damage equipment to conduct certain
inspections in those conditions. T. 749-50; T. 1386-87. Acord claims those reasons are
pretextual because other inspection work was available; the layoff was within days of Acord
meeting with two Alyeska officials to discuss his environmental concerns; and some statements
in the record which appear to be evidence of discriminatory intent. For example, one comment
at the end of July 1993, made by the Alyeska Manager of Quality Services to the Alyeska Vice
President for Human Resources, appears to be direct evidence of discrimination: "ASIS will
probably suspend Acord. Acord will probably become a whistleblower shortly." C-106.
The ALJ did not mention or discuss this part of the record and therefore did not make any findings
on the inferences to be drawn from it or the weight to which it is entitled.
The ALJ did find that ASIS did not assign Acord to the mobile cargo
tanker inspection work that was still available at the time he was laid off because Acord did not
want to physically get into the tankers to do the inspections due to his respiratory condition. R.
D. & O. at 26. Acord no longer takes the position, as he did before the ALJ , that the failure of
ASIS to divide the inspection duties between two inspectors so that Acord would not have to go
[Page 6]
into the tankers was retaliatory. Rather, he argues that ASIS deliberately refused to consider
Acord for non-inspection positions which would not have been subject to layoff. Acord has not
identified specific positions that he sought, or shown that he was qualified for the positions ASIS
filled at the time, some of which were supervisory. T. 903; see, e.g., Von Zuckerstein v.
Argonne Nat'l. Lab., 984 F.2d 1467, 1474 (7th Cir. 1993). Acord also has not shown that
the other inspectors laid off in the fall of 1993 were considered or offered other positions with
ASIS, that is, that he was treated differently because of his whistleblowing.10
1 The Toxic Substances Control
Act, 15 U.S.C. § 2601 (1988), the Water Pollution Control Act, 33 U.S.C. § 1367, the
Solid Waste Disposal Act, 42 U.S.C. § 6971, and the Clean Air Act, 42 U.S.C. § 7622
(referred to collectively as "Acts").
2 In view of our decision on the
principal issue in this case, whether Respondents discriminated against Acord, we need not address
Respondents' respective timeliness arguments or Alyeska's argument on joint employment.
3 For a full statement of most of
the relevant facts, see R. D. & O. at 4-6.
4On other occasions, Acord perceived
events as retaliation against him when, in fact, it was he who may have acted improperly. Acord was
asked to stop asking a secretary, Chrissy Matson, for dates after she told her supervisor she wanted him
to stop. T. 1032-33; 1137-39. Acord then claimed that Alyeska had falsely accused him of sexual
harassment when no such charge was ever leveled and no record of the incident was ever put in his
personnel file. C- 284. Although the details of the events when Acord asked Ms. Matson for dates are
not clear, if anything it was Acord who acted improperly by making these repeated requests, and
Alyeska which acted appropriately under the sexual harassment guidelines, 29 C.F.R. §
1604.11(d) (1996), by counseling Acord on his unwelcome conduct, which he did not deny, as soon as
Alyeska became aware of it. Although Acord's original complaint to the Department of Labor claimed
that falsely accusing of him of sexual harassment was illegal harassment under the Acts, ALJ Exh. 1,
he no longer presses that claim here.
6 For other examples of Acord's
evasiveness which undermine his credibility, see T. 647-53; 695-96.
7 Acord repeatedly failed to comply
with the request to provide completion dates for each priority item or to submit the details on his
environmental complaints; he resisted the direction to complete that task before doing other assigned
work and submitted inadequate documentation after four months of requests. T. 822-826; 1140-41.
Q. In
February of 1993, you
took the position . . . as
a [q]uality inspector in
the Anchorage office?
A. That's correct.
Q. And your wage rate had been $21 an hour . . . and
it went to $26 an hour when you got to Anchorage . . .
?
A. I don't know if that's correct.
* * * *
Q. Wasn't your wage increased to $26 an hour at that
time?
A. Yes, it was.
* * * *
Q. And would you agree with me that the position in
Anchorage you assumed in February of 1993 was a
promotion?
A. I wouldn't consider it a promotion.
Q. You don't consider when you go from $21 an hour
to $26 an hour to be an advancement of some sort?
A. It was a monetary advancement, yes.
Q. But not a promotion? In your mind?
It would have been an upgrade, yes. I would agree with
you that it's a promotion.
* * * *
Q.In fact you took the job that your supervisor, Mr.
Nunn, had been doing prior to that time.
A. I assumed his duties, yes.
T. 552-55.
9 We discuss the lay off and
discharge together because ASIS fired Acord for failure to meet certain job requirements about which
he was warned in the lay off notice.
10 We do not imply that proof
of disparate treatment is a necessary element of proof in a whistleblower case under the Acts, see
De Ford v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983), but the lack of such evidence
supports the ALJ's conclusion that Acord's lay off was not retaliatory.
11 Acord also did not meet
repeated requests for completion of other types of paperwork such as time sheets, see, e.g.,
Aly. 19; Aly. 20; Aly. 25, and this was reflected in the notice of layoff. ASIS 45.
12 Acord argues that an
independent review of the disputed missing documentation showed that he had in fact supplied the
requested documents. That review concluded that some documents had been received, but that
"[a]ll other items mentioned in the Newcomer letters remain unresolved...." ASIS 78 at p.
00803.
13 As late as the first week
of December 1993, after the December 3 deadline to which Acord had agreed for submission of missing
documentation, the ASIS Vice President/ General Manager and the Director of Human Services
continued going over the documents, checking the files and contacting the Fairbanks office to make
certain they were correct about the gaps in Acord's documentation. T. 1632-33.
14 We do not suggest by this
discussion that we have concluded that Alyeska and ASIS were Acord's joint employers.