(415) 974-0514
FTS 8-454-0514

CASE NO. 86-ERA-25

In the Matter of

ALFREDO S. LOPEZ
    Complainant

v.

WEST TEXAS UTILITIES
    Respondent

Alfredo S. Lopez
    722 Kaufman
    McCamey, TX 79752
       In Pro Se

Tommy B. Duke, Esq.
    600 - 17th Street, Suite 1615N
    Denver, CO 80202
       For the Respondent

Before: EDWARD C. BURCH
    Administrative Law Judge

    This proceeding arises from the provisions of 29 C.F.R. Part 24, which implements the non-discriminatory protection provisions of, among others, the Water Pollution Control Act, 33 U.S.C. 1367, the Toxic Substances Control Act, 15 U.S.C. 2622 and the Energy Reorganization Act of 1974, 42 U.S.C. 5851.

    Complainant was terminated from his employment as an auxiliary operator trainee for West Texas Utilities on February 4, 1986.

    Mr. Lopez completed a form WH-3, his complaint in this matter. The form is dated February 14, 1986. It is stamped "RECEIVED" March 4 U.S. Department of Labor." There is another stamp of March 10, 1986 at the top. Handwritten at the bottom is "logged 3/17/86." A stamp on the back by the Wage and Hour Division bears the date of March 17, 1986. A letter of April 4, 1986 from the Nicasio Flores to Mr. Lopez states: "Your complaint was received on March 4, 1986. The letter further states:

"Our investigation did not verify that discrimination was a factor in the actions comprising your complaint. Conversely, it is our conclusion that your allegations are unprovable for the following reason:

"Your termination was based on other factors not covered under the protected activities as defined in Part 24.2(b)(1).

"This letter will notify you that if you wish to appeal the above findings you have a right to a formal hearing on the record. To exercise this right you must, within five (5) calendar days of receipt of this letter, file your request for a hearing by telegram ...

"If you decide to request a hearing it will be necessary to send copies of the telegram to West Texas Utilities and to me ..."

    Respondent contends, initially:

    1. The complaint was not timely filed;

    2. Copies of the request for formal hearing were not sent to respondent, as required.

    29 C.F.R. 24.3(b) provides:

"Time of Filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.'

    Complainant was terminated February 4, 1986. The date of March 4, 1986, I find, is the date the complaint was received by the Wage and Hour Division of the U.S. Department of Labor. This conclusion is substantiated by the stamp on the complaint of that date as well as the letter of Nicasio O. Flores. Thus, the claim was timely filed.

    The mailgram requesting a formal hearing is dated April 10, 1986. The letter of April 4, 1986 was, most certainly, not received until, at the earliest, April 6, 1986. Thus, the mailgram was timely sent and timely received (although not stamped until April 15, 1986).

    Respondent's counsel states a copy of the mailgram was not received. Mr. Lopez states he sent a copy to respondent. Complainant will be given the benefit of the doubt. It is found a copy was sent to respondent.

    Thus, the jurisdictional requirements have been met by Mr. Lopez.

    29 C.F.R. 24.2 provides in applicable part:

"... 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 the employee's request, engaged in any of the activities specified in paragraph (b) of this section.

"(b) Any person is deemed to have violated the particular Federal law in these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has:

    "1. Commenced, or caused to be commenced, or is about to commence or caused to be commenced a proceeding under one of the Federal statutes listed in Section 24.1 or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;

    "2. Testified or is about to testify in any such proceedings; or

    "3. 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 such Federal statute."

    Alfredo Lopez contends he was terminated from his job because (1) he refused to record false water temperature readings, (2) he was unwilling to falsify records of water chlorination treatment and disposal of treated water into the Pecos River and (3) his refusal to "Change my convictions about methods of disposing (of) asbestos, P.C.B. or non-P.C.B. transformer oil and its uses."

    There was no evidence offered concerning the third allegation. Thus, only contentions (1) and (2) will be considered.

    As a result of his alleged refusal to falsify records complainant contends he was subjected to harrassment culminating in his dismissal.

    West Texas Utilities provides electrical power to Western Texas. The power is generated by natural gas. As a result of this generation water is heated and subsequently discharged into the Pecos River. At the time of discharge the water temperature is not supposed to exceed 105 degrees Fahrenheit.

    Complainant was first employed January of 1980 in the Maintenance Department. August of 1984, at his request, he was transferred to operations as an auxiliary operator trainee. His work consisted of taking temperature readings. He was not empowered to change temperatures, but simply to record and report. Complainant states that the temperature of water discharged into the Pecos River often was over 105 degrees and he was instructed by his superiors to not report the excess temperatures. He formulated the practice of recording the correct water temperature if it was under 105 degrees, to record 104 degrees plus if the temperature was between 105 and 110 degrees and to record 105 degrees plus if over 110 degrees. He states he was continually called into the office and was told he had a bad attitude. He states his supervisors were not specific as to what this bad attitude was.

    November 1985 Mr. Lopez filed a complaint with the Equal Employment Opportunity Commission resulting from a "company grooming policy." Employees had been instructed to wear short hair. Complainant's hair was collar length. He first wore a hair net, but later was told that his net was not sufficient and he was to have his hair cut. He objected and was told he had an attitude problem. He did not receive any promotions. He believed he was being harrassed because of his Mexican ancestry. At the time of filing the EEOC complaint no mention was made of water temperature problems. Only after his discharge on February 4, 1986 did complainant file this complaint with the U.S. Department of Labor. That respondent may or may not have discriminated against the complainant because of his long hair, or Mexican ancestry, is not material to this proceeding.

    It is also clear that Mr. Lopez had not commenced any proceeding under any applicable statute (toxic substances, clean water, ERA), nor had he testified in any such proceeding at the time of his termination, nor is there any evidence prior to termination that he intended to file a complaint or to testify.

    This case arises within the jurisdiction of the Fifth Circuit Court of Appeals. A like situation was present in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). In that case the complainant contended he had been discharged because of his filing of intracorporate quality control reports. The Administrative Law Judge and the Secretary of Labor both found that the employer's discriminatory conduct resulted from filings and that the filings were protected conduct. The Fifth Circuit disagreed, stating that the statute required that the discriminatory conduct must result from actual cooperation with a regulatory agency. As the Court stated

at page 1031 of the decision:

    "The dispute in this case concerns whether under 42 U.S.C. Section 5851(a)(3) an employer is barred from discriminating against any employee for the filing of an intracorporate quality control report. We hold that the filing of such a report is not protected by statute."

    Thus, in the instant case, the discriminatory acts alleged did not result from protected conduct and there is no violation of the Act or regulations.

    The Court in Brown & Root, supra, recognized that there is a split in the circuits, citing Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

    In Mackowiak, the trier of fact had concluded there was no discrimination by the employer. The Ninth Circuit rejected that finding, inferred discrimination from the facts, and entered its own findings of fact that discrimination had occurred. The Court also stated that the statute "protects quality control inspectors from retaliation based on internal safety and quality control complaints." The Court then directed that the "dual motive" test of Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568 (1977) be applied.

"Mt. Healthy created a two-part test for 'dual motive' cases. Under it, once the plaintiff has shown that the protected activity 'played a role' in the employer's decision, the burden shifts to the employer to pursuade the court that it would have discharged the plaintiff even if the protected activity had not occurred.'

    In the instant case, even had it arisen in the Ninth Circuit, complainant must fail.

    There was no intent to discharge complainant prior to February 3, 1986. The employer was, on February 3, 1986, attempting to resolve the EEOC complaint. A meeting was had with Lopez, Floyd Nickerson (respondent's coordinator) and Aubrey Carroll, the Plant Manager as well as Mark Barton, a supervisor. The meeting of February 3, 1986 was the culmination of prior attempts to resolve this matter. On February 3 Mr. Lopez was advised that respondent

wished to resolve the matter and wished for Mr. Lopez to have a new start. He was told he could transfer back to maintenance if he wished. Lopez announced his conditions. They were: (1) that the Plant Manager be fired, (2) that his record be purged of all detrimental language, and (3) that he be given a guarantee he would progress in the company. He was advised these demands could not be met. During the meeting Mr. Lopez gestured at Carrol, called him "God", wheeled and turned his back on the conversation, spoke in a demanding voice and in general was unco-operative, unreasonable and abusive. Complainant put the company in the position of firing either the Plant Superintendent or Mr. Lopez. When this meeting was reported to Mr. Carroll's superior, Mr. Anderson, the manager of Plant operations in Abilene, the decision was made by Mr. Anderson to immediately terminate Mr. Lopez. Thus, the termination resulted from the insubordination of Mr. Lopez on February 3, 1986. Whatever had gone before, his termination was required by his actions and demands of that date. Thus, under even the dual motive test of Healthy, supra, it is found that Mr. Lopez would have been discharged even in the absence of protected conduct.

    The complaint of Alfredo S. Lopez is dismissed.

       EDWARD C. BURCH
       Administrative Law Judge

Dated: 30 JUN 1986
San Francisco, California

ECB:csw