Complainant testified as follows:

JUDGE BURCH: And the basis of the complaint that we are here for today is that you made or intended to make complaints concerning violations which occurred.

THE WITNESS: That is what I am just getting to. Yes, sir.

JUDGE BURCH: And the fact that your employer may not have liked your hair is irrelevant to that subject.

THE WITNESS: That is why I filed another one.

JUDGE BURCH: So I just want you to be sure that you understand --

THE WITNESS: Yes, sir.

JUDGE BURCH: -- that if I should find in your favor, it could only be on the basis that you did report what you considered to be violations, and for that reason, you were turned down.

THE WITNESS: Yes, sir. As I said, I refused when I was first approached, and that was very early on my being transferred or being put on shift operations. It seems like, if I remember correctly, about teh [sic] first or second week that I was taking these readings myself --

JUDGE BURCH: What are the -- you have to explain to me what readings you are talking about.

THE WITNESS: These readings that I was taking, that I was in charge of, was the one that I believed was causing the whole problem here. There was water being discharged from our cooling towers which cooled water from the plant, turbines and so forth, that was being discharged into the nearby Pecos River.

This water wasn't supposed to be above so many degrees Fahrenheit according to the office, which was 105 degrees. Well, even the EPA said or the standards were supposedly not to be above 105 degrees.

The readings were consistently above 105; matter of fact, many times above 110 degrees. I would take these to the control room and report them before I wrote them down, because I was told to.

My supervisor said, You tell me what you got, and you write down what you are told. Just leave the rest to us. Well, I couldn't agree with this, so --because mainly I was having to write down what I believed to be an untruth or a lie.

This went on for a matter of time, and I kept writing 105-plus, meaning that the degrees were above standards. I was approached the first time by Mr. Barton, and I was told that I was not cooperating there at the reading, where I took the reading. I was approached by him on -- I can't really say what day it was, being as, like I said, I wasn't you know, writing this down or keeping record of it, and I was told, Take care of this reading.

He informed me that by my not writing down this -- he didn't tell me exactly what to write down. He told me that by not cooperating with what they told me to do, I was showing a bad attitude and lack of cooperation. This was after my supervisor, my immediate supervisor had approached me and told me that he had been called in to the office and told by the office -- I don't know if it was Mr. Carroll or Mr. Barton or both -- to tell me not to write down anything above 105. When I told my supervisor, Well, if we are doing this, we are, in effect, breaking the law, and he said, Well, that is a matter of opinion. I said, No. That is the law.

Transcript of hearing (T.) at 10-12.

circuit in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (1984), held that because internal complaints were involved, "the discriminatory acts alleged did not result from protected conduct and there is no violation of the Act or regulations." R. D. and O. at 5.

    In the case of Willy v. The Coastal Corporation, etc., Case No. 85-CAA-1, Decision and Order of Remand of the Secretary issued June 4, 1987, Secretary Brock respectfully declined to follow the Fifth Circuit's decision in Brown & Root, being persuaded that reporting violations of the environmental statutes enumerated in 29 C.F.R. § 24.1 to one's employer is a protected activity and that Mackowiak v. University Nuclear Systems. Inc., Case No. 82-ERA-8, Decision and Final Order of the Secretary issued April 29, 1983, aff'd and remanded, 735 F.2d 1159 (9th Cir. 1984), and Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986), cases holding that internal complaints are protected activity, should be followed. This has consistently been the secretary's ruling on internal complaints. See Francis v. Bogan, Case No. 86-ERA-8, Final Decision and Order issued April 1, 1988, slip op. at 3.

    In any event, here, the ALJ went on to apply the dual motive test which shifts the burden of proof to an employer to show that it would have discharged the employee even in the absence of protected conduct. R.D. and O. at 5. The dual motive test only comes into play if the Complainant establishes a prima facie case and there is evidence of both legitimate and improper motives for the adverse action against Complainant. See Henry v. Pullman Power, 86-ERA-13, Final Decision and Order of the Secretary issued June 3, 1987, slip op. at 2.

    A review of the record establishes that the sole motivating factor in Respondent's discharge of Complainant was complainant's insubordination. There is no basis for any inference that the discharge of Complainant was motivated by protected activity. It is beyond dispute that at a meeting held in an attempt to resolve an Equal Employment Opportunity Commission (EEOC) complaint that had been filed by Complainant, Respondent had agreed with Complainant's request to transfer Complainant back to maintenance where he originally worked.

    Complainant testified as follows about that meeting:

Q Why were you fired, Mr. Lopez?

A Supposedly for having a personality conflict with Mr. Carroll.

Q Is that what you were told?

A That is what I was told.

Q You don't like Mr. Carroll, do you?

A Well, I don't like what he does to me, to my person.

Q You have told him and expressed openly on more than one occasion that you don't like him. Isn't that correct?

A That is true.

Q And you told him that to his face. Is that correct on more than one occasion.

A That is true.

Q He was the plant superintendent, wasn't he?

A Yes.

Q He was the top representative of the company at the Rio Pecos plant.

A I suppose so. Yes.

Q Now, when you filed your charge with EEOC, at some point, there was an attempt at settlement to be made in that case wherein you outlined several demands of the EEOC before you would settle that case.

A Right.

Q Is that correct? What were they?

A Well, one was to have him removed.

Q Okay. There were three, were there not?

A I think so. I can't remember --

Q One was to have Mr. Carroll removed.

A Yes.

T. at 36-38.

    The ALJ, in evaluating the evidence found that:

[t]here 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 EEO 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 Carroll, 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 befores, this termination was required by his actions and demands of that date.

R. D. and O. at 5 and 6.

    I adopt these findings and conclusions. There is nothing in the record to support any inference that Mr. Anderson, the employee of Respondent who made the decision to fire Complainant, was at all aware of Complainant's protected activities or that the protected activities had any bearing on the decision to fire Complainant. Complainant was terminated for insubordination. Although whistleblowers are protected from retaliation for blowing the whistle, the fact that an employee may have blown the whistle does not afford him protection from being disciplined for reasons other than his whistleblowing activities nor does,it give such an employee carte blanche to ignore the usual obligations involved in an employer-employee relationship. Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986). As the court found in Dunham: "[a]n otherwise protected 'provoked employee' is not automatically absolved from abusing his status and overstepping the defensible bounds of conduct." 794 F.2d at 1041 (citations omitted).

    The complaint is DENIED.

    SO ORDERED.

       ANN MCLAUGHLIN
       Secretary of Labor

Washington, D.C.