This case arises under the employee protection provisions of the Clean Air
Act (CAA), 42 U.S.C. §7622 (1994), the Solid Waste Disposal Act (SWDA) (also known
as
the Resource Conservation and Recovery Act (RCRA)), 42 U.S.C. §6971 (1994), the
Toxic
Substances Control Act (TSCA), 15 U.S.C. §2622 (1994), the Water Pollution Control Act
(WPCA), 42 U.S.C. §300j (1994), the Comprehensive Environmental Recovery Act
(CERCLA), 42 U.S.C. §9610 (1994) (collectively, the environmental acts), and the Energy
Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §5851 (1994). Before this
Board
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for review is the Recommended Decision and Order Dismissing Complaint (R. D. and O.) of the
Administrative Law Judge (ALJ) issued on June 2, 1997. The ALJ concluded that Complainant,
Timothy T. Jarvis (Jarvis), had failed to establish that Respondent, Battelle Pacific Northwest
Laboratory (Battelle), had violated the ERA and/or the environmental acts by taking adverse
action
against him in retaliation for engaging in activity protected under those statutes. Specifically, the
ALJ concluded that Jarvis failed to establish that the protected activity he had engaged in played
a
role in the decision to suspend him from his employment without pay for a period of one week.
R.
D. and O at 7. The ALJ further found that the suspension would have been imposed regardless
of
Jarvis' protected activity. Id.
The ALJ therefore recommended that the complaint be dismissed. Based
on
a review of the record and the arguments of the parties, we conclude that the ALJ's ultimate
conclusion is proper, and we dismiss the complaint. We provide the following analysis to correct
the ALJ's findings regarding whether Jarvis' work developing Risk Acceptance Criteria for use
by
the Department of Energy in the Tank Waste Remediation System constituted protected activity.
We also supplement the ALJ's retaliatory intent analysis.
1 The following abbreviations are
used in this decision to refer to the evidence of record: hearing transcript, HT; complainant's
exhibit,
CX; respondent's exhibit, RX.
2 In March 1992, Billy Shipp,
Battelle's Associate Laboratory Director for Environmental Technologies and a participant in the
decision to suspend Jarvis in April 1996, was among the various managers from Battelle and
Westinghouse Hanford who were responsible for safety at the 324 Building. RX 15. Although
Shipp
participated in a March 10, 1992 pre-inspection meeting with Jarvis concerning the lithium
storage issue,
he testified at hearing that he did not recall interacting with Jarvis on that occasion. RX 15; HT
at 33-37,
70, 120-24 (Jarvis), 362-68, 386-91 (Shipp).
3 Wiley, Chikalla, and Hirsch
left
their respective positions at Battelle in 1995 and early April 1996. HT at 142-43 (Jarvis).
4 The RAC developed by Jarvis
provides a comprehensive methodology for determining the safeguards warranted by a postulated
event,
which could be either a potential accident or a normal operating activity. Jarvis' RAC was
designed to
be utilized with risk assessment tools already in use, such as safety analysis reports and
environmental
impact statements, to determine the levels of risk that are acceptable for various aspects of DOE's
operation of its Tank Waste Remediation System and to supersede existing operational
guidelines. CX
1 at 1, 2, 16.
5 Battelle has a written policy
requiring most suspensions of staff in positions such as Jarvis' to be imposed in one-week
increments.
HT at 178-79.
6 The employee protection
provision
of the ERA was amended by Section 2902(b) of the Comprehensive National Energy Policy Act
of
1992, Pub. L. No. 102-486, 106 Stat. 2776, effective October 24, 1992.
7 We emphasize that the record
does
not suggest that Jarvis engaged in conduct in the course of his protected activities that would
remove
those activities from protection. See generally Martin v. Dep't of the Army, Case No.
93-SDW-
1, Sec. Dec., July 13, 1995, slip op. at 5 and cases cited therein (engaging in conduct that is
"indefensible under the circumstances" will remove otherwise protected activities
from
protection). The criticisms of Jarvis' communications style that arose from his auditing work and
the
teleconference regarding the RAC are not indicative of behavior that would negate the protection
provided under the ERA and the environmental acts. Cf. Hadley v. Quality Equipment
Co., Case
No. 91-TSC-5, Sec. Dec., Oct. 6, 1992, slip op. at 14-16 (activity lost its protected status when
complainant used obscene and abusive language).
8 The PARC apparentlywas not concerned about Jarvis' telephone conversation with McClusky, another of Mary
Jarvis'
supervisors. McClusky testified that Jarvis was "very amiable, very cordial" in his
telephone
conversation with McClusky on the night of Friday, April 19, 1996, and McClusky was emphatic
in
stating that he did not view Jarvis' call to him as inappropriate. CX 21 (McClusky dep.) at 15.
McClusky stated that he was anxious to help resolve the disagreement between Peschong and
Mary
Jarvis if he could do so. Id. at 18.
9 Gajewski and Heaberlin
testified
that the issue of Jarvis' communications style was considered by the PARC for the purpose of
determining the reasonableness of Peschong's reaction to Jarvis' telephone exchange with him on
Sunday, April 21. HT at 231, 238-39 (Heaberlin), 296, 299-301, 349, 351-53 (Gajewski). Not
surprisingly, Jarvis' perception of the exchange differed significantly from that of Peschong.
Compare CX 18 and HT at 97-98, 111-16 with RX 13 and HT at
310-
14, 323-24. It was thus logical for the PARC to consider Jarvis' "communications
style" in
determining whether Jarvis' statements to Peschong should have engendered the level of concern
demonstrated by Peschong.
10 At hearing, Battelle
presented the testimony of Judy Mahaffey, the Battelle supervisor who had been Mary Jarvis'
second
level supervisor and who was the source of Walters' information. HT at 413-26. In rebuttal,
Jarvis
presented his own testimony and that of William Kennedy, who had been Mary Jarvis' immediate
supervisor at the pertinent time. HT at 405-11 (Jarvis), 427-31 (Kennedy). Although the
testimony of
Jarvis and Kennedy contradicts some aspects of the account provided by Mahaffey, it is clear that
Mahaffey had advised Walters that she believed that Jarvis had intervened inappropriately in a
personnel
matter concerning Mary Jarvis. HT at 424. In determining whether an employer's explanation is
worthy
of credence, we must determine whether the employer actually believed and relied on the reasons
cited,
not whether such bases are factually sound. See Monteer v. Casey's General Stores, Inc.,
Case
No. 88-SWD-1, Sec. Dec., Feb. 27, 1991, slip op. at 7-8 and cases cited therein. In this case, the
record
does not suggest that Walters' statements to the PARC were made other than in good faith.