Date:  January 27, 1994
CASE NO.:  94-CAA-5

In the Matter of

     KEVIN FRANK RIVERS
               Complainant

          v.

     MIDAS MUFFLER CENTER
               Respondent



                    RECOMMENDED DECISION & ORDER

                             Background

     These proceedings arise under the Employee Protection
Division of the Clean Air Act, 42 U.S.C., Section 7622 (Act), and
the implementing regulations thereunder.  The complainant filed a
complaint with the Secretary of Labor on September 22, 1993,
alleging he was a protected employee engaged in protected
activity within the scope of the Act and was a victim of
discrimination as a result of that activity.

     An investigation was conducted by the Phoenix, Arizona,
Office of the Wage and Hour Division of the Employment Standards
Administration.  In a letter dated October 25, 1993, the
Assistant District Director determined that the complainant was
terminated in a manner inconsistent with usual procedures on the
same day he contacted the Environmental Quality Vehicle Emission
Department. (Administrative EX 1).  As a result of that finding,
the recommendation was made that the remedy in the case should be
payment of the last weeks wages, plus the equivalent of five
additional weeks wages.

     In response to that finding, the Respondent requested a
formal hearing on October 29, 1993, and the case was assigned to
me for adjudication on November 5, 1993.  A hearing was set for
December 17, 1993, in Phoenix., Arizona.  At the time and place
so designated the Complainant appeared pro se and
Mr. Dan T. McKinnon appeared on behalf of the Respondent, also
pro se.  Neither desired counsel.  The record
consists of those two witnesses testimony, three Administrative
exhibits detailing the 
[PAGE 2]
procedural history of this case, two Complainant's exhibits and a
Respondent's exhibit received post-hearing.


                              Evidence

     At the hearing, Complainant testified that he began  his
employment with Respondent in March, 1993, and that his last day
of employment was September 8, 1993, when he was wrongfully
terminated.

     About 4:00 p.m. on September 7, 1993, Complainant stated
that a vehicle identified as an International Scout was delivered
to Respondent's place of business for the replacement of dual
mufflers and tailpipes.  Complainant testified that because the
date of manufacture of the vehicle was unknown, he investigated
and determined from a door sticker that the production date was
1979. [1]  A model year which Complainant maintains according to
Respondent's policy manual and EPA requirements required a
catalytic converter.

     Complainant testified that he informed his manager, Larry
Lazzara, the production year of the vehicle.  Subsequently, he
said Mr. Lazzara told Complainant he had talked with Mr.
McKinnon, the general manager, and he had said "make it look like
a 1974 model vehicle on paper."

     According to Complainant no work was performed on the
vehicle that day.  The next day when Complainant reported to
work, he worked on another vehicle replacing the CV joints.  At
lunch time, Complainant stated that he got into "a little
skirmish about time cards" with Mr. McKinnon because he had not
clocked out for lunch.  During that discussion, Complainant
stated he confronted Mr. McKinnon about the absence of a
catalytic converter on the International Scout.  He stated Mr.
McKinnon told him to get his facts straight.  Subsequent to that
conversation Complainant, called the EPA in Phoenix, Arizona.  He
testified he spoke with a man named "Dick" and was informed that
it was illegal to put dual exhaust on a vehicle without a
catalytic converter.  Complainant further testified that because
Mr. Lazzara overheard this conversation and went into the office,
Complainant "presumed" he went in to speak to Mr. McKinnon about
it.

     After lunch, Complainant returned to work on the other
vehicle, another employee installed the dual mufflers and
tailpipes on the Scout, and that afternoon the owner of the Scout

[PAGE 3]
came and retrieved the vehicle.  Shortly after that event,
Complainant testified Mr. McKinnon "came out and told me to pick
up my tools and leave."


     Following his termination, but before leaving, Complainant
stated he again called EPA, talked to both "Dick" and another
person whose name he does not know and was told to get some proof
of what happened.  Based upon that conversation, Complainant
stated he returned to the office and retrieved from the trash a
copy of the computer printout which he offered as Exhibit C-2.  
In doing so, he explained that the peculiarity of the print out
is the fact that the model, year and license of the vehicle were
written in by hand instead of computer printed.  After these
events, Complainant stated he left the premises but not before
Mr. McKinnon accused him of damaging the CV joint he had earlier
been repairing.  Complainant subsequently filed the complaint
which is the subject of this investigation. 

     As far as damages, Complainant maintains he was earning
$7.00 per hour, working approximately 56 hours per week and
bringing home net pay checks of $283 to $340 per week.  After his
termination, he stated he did not work for about a month. 
Complainant feels five weeks pay plus an additional three days
wages due him at the time he was terminated is what he is owed. 
When he eventually found a job he testified it started at $5.50
per hour, but no additional damages are claimed. (Tr. 29, 30).

     The only other witness was Mr. Dan McKinnon.  He testified
that the Midas Center in question was franchised by Midas
International and that Harold Ciskin owned the franchise. 
Despite that fact, however, Mr. McKinnon stated that he had been
the general manager of the location "running the store under
management contract, so everything that happened is my
responsibility." (Tr. 6).  He also noted the store closed on
December 1, 1993, and was no longer in operation.

     Mr. McKinnon testified he has 15 years experience in the
Midas business and is familiar with emission control and
converter replacement laws.  On the day of Complainant's
termination, Mr. McKinnon stated he and Complainant got into a
discussion about the time cards and punching out for lunch, and
that for the first time Complainant raised an issue about the
International Scout vehicle.  Mr. McKinnon explained that no
violation existed for the following reasons and that he was
unconcerned about Complainant's remarks:


[PAGE 4]
          What we installed on the vehicle was two
          mufflers and two tailpipes, period.  The EPA
          laws are this:  If there is a need to work on
          the exhaust system, in the area of where the
          original catalytic converter was supposed to
          be, then you are required to restore the
          system to original single system, and install
          a catalytic converter.  It is not a
          violation, and it is not illegal, to install
          mufflers and tailpipes only, on a vehicle
          that came into the shop with a pre-existing
          custom dual exhaust system.

          We were not involved in removing the
          catalytic converter.  We were not involved in
          any tampering.  We simply put mufflers and
          tailpipes on the vehicle and we are
          completely within the rights and laws of the
          EPA to do so.

     According to Mr. McKinnon, the first conversation he had
with Complainant occurred about 1:30 p.m., and he said that about
4:30 p.m. he walked around the shop and discovered the other
vehicle upon which Complainant was working was still unfinished
though it was due to be picked up at 5:00 p.m. and that the CV
joint had been broken off because Complainant had beaten the
joint with a hammer.  At this time, because of poor workmanship,
Mr. McKinnon states that he terminated the Complainant. (TR. 34). 
As far as Complainant phoning the EPA after their 1:30
conversation, Mr. McKinnon denied any knowledge of such action on
the part of Complainant.  Mr. McKinnon stated that he was not in
the shop the preceding day, September 7,  and that the only
discussion he had with the Complainant about the Scout had ended
at 1:30, and he thought nothing about it because he knew he was
not in violation of the law.  Mr. McKinnon stated it was not
until he received a letter from the Department of Labor notifying
him of Complainant's complaint that he thought anymore about the
subject.

     Regarding Complainant's work habits, Mr. McKinnon testified
he had had tardiness problems with Complainant, who held a second
job, and that only a week or two earlier he had asked the
Complainant to choose between his two jobs.

     As far as the CV joint, Complainant conceded that he used a
hammer and stripped the threads, but maintains he repaired and
completed the work, at least on one side, before termination.  
[PAGE 5]
Complainant agreed, however, that his second job had been the
subject of numerous discussions since his employment with
Respondent. (Tr. 41).

     In addition to the computer printout which Complainant
offered into evidence as exhibit C2, he also offered into
evidence a letter dated September 27, 1993, recounting his
version of the events leading to his termination. (C-1).  The
record remained open for 15 days post-hearing for both parties to
provide additional evidence or argument either chose, including
anything that would substantiate either parties position
concerning the legitimacy of the work performed on the
International Scout.  Complainant did not respond.  Respondent,
on the other hand, by cover letter dated December 22, 1993,
provided a copy of what Mr. McKinnon called "exhaust system
repair guidelines facts sheet provided by the U.S. EPA for use in
our field of business."  The five page document is dated March
13, 1991, and printed on what appears to be government
stationary.  It has been identified as exhibit R-1.  The form of
the writing is in question and answer.  Question 8 on page four
and its corresponding answer read as follows:

          Question 8

          Are there any general guidelines for muffler
          shops about the kind of exhaust work that can
          be legally performed on a previously tampered
          vehicle?

          Answer 8.  As the answers to the
          previous questions indicate, the Agency's
          authority to enforce against tampering
          violations has been greatly expanded. 
          Individuals are now prohibited from
          tampering.  Repair shops, therefore, must now
          restore vehicles' exhaust systems to their
          original catalyst configuration if they
          work on that part of the exhaust system.  The
          Agency will not pursue enforcement action
          against repair shops that perform repairs on
          one part of a vehicle's exhaust system where
          tampering has occurred in another part of the
          system. (Emphasis added). The Agency does
          require, however, that when working on a
          vehicle where the catalytic converter has
          been removed, the repair shop must replace
          the catalytic converter if the section of
          pipe where the 
[PAGE 6]
          original converter should have been, needs to be
          replaced.  This would also include situations where
          the entire exhaust pipe is replaced.  Repair shops
          must install a catalytic converter when
          replacing the entire exhaust pipe.  (R-1).

              Findings of Fact and Conclusions of Law

     Initially, Complainant must show that it was likely that the
adverse action taken against him was motivated by a protected
activity.  The Respondent can rebut Complainant's position by
showing and producing evidence that the adverse action was
motivated by a legitimate non-discriminatory reason.  If
Respondent makes such a showing, then the Complainant must prove
that the proffered reason was not the true reason for the adverse
action.  In other words, the reason offered for termination by
Respondent was a pretext.

     In this instance, I find that while Complainant did engage
in protected behavior in calling the EPA, that there is no proof
that Mr. McKinnon, on behalf of Respondent, knew of Complainant's
contact.  Additionally, it is my finding that Respondent has
demonstrated Complainant was terminated because of his poor work
product, and Complainant has failed to rebut Respondent's reason
for termination by demonstrating the excuse offered was simply a
pretext. 

     There is no contention that Respondent at all time relevant
was not an "Employer" under the Clean Air Act, 42 U.S.C. 7622. 
Likewise, there is no contention that Complainant, as a protected
employee under the Act,  did not contact the EPA concerning a
perceived violation of the Act.  The issues are:  (1) whether or
not Mr. McKinnon knew of Complainant's telephone call to EPA and
(2) whether or not Mr. McKinnon discharged the Complainant
because of Complainant's telephone call to the EPA.

     As to the first issue, Complainant does not assert that Mr.
McKinnon definitely knew of the telephone call prior to his 
termination.  Complainant only assumed Mr. McKinnon knew, and Mr.
McKinnon steadfastly denies that he did.  There is no
corroborative evidence in support of either witnesses position,
and therefore, I find Complainant has failed to prove knowledge
on part of the Respondent.

     Regarding the second issue, while both witnesses are in
agreement that at approximately 1:30 p.m. on September 8, 1993,
prior to the call, that Claimant did question whether or not the
work performed on the International Scout was legal, Mr. McKinnon

[PAGE 7]
asserts he was always convinced that the work was legal; and
based upon exhibit R-1 it would appear that his conclusion was
well founded because the work was performed on an existing system
from the muffler through the tailpipe and not in the area forward
where the original catalytic converter had been located.  While
this, of course, would not diminish the protection provided
Complainant under the Act if he acted in good faith in contacting
the EPA and was terminated because of the contact, it does tend
to demonstrate to me that had Mr. McKinnon not had other
personnel problems with the Complainant this isolated event was
not threatening to him and he would doubtfully have terminated an
otherwise good employee because of it.

     Mr. McKinnon testified he terminated the Complainant because
of the poor work he performed on another vehicle.  Complainant
conceded he damaged the CV joint and had to rethread the grooves. 
Both parties agreed there was a confrontation at the lunch hour
that day over clocking out.  Likewise, both agree that for quite
sometime Complainant's second job had been a contention between
the parties and only a week or two earlier he had been asked to
make a choice.  Therefore, it is my finding that previous
personnel problems existed and that Complainant was terminated
because of the poor work he performed on the day in question. 
Complainant has come forward with no evidence that Mr. McKinnon's
reasons for terminating him were a pretext.
                         Recommended Order

     It is ORDERED that the complainant of Kevin Frank Rivers is
hereby DISMISSED.

     Entered this 27th day of January, 1994, at Metairie,
Louisiana.


                              _____________________________
                              C. RICHARD AVERY
                              Administrative Law Judge


[ENDNOTES]
           
[1]   Initially Claimant testified the manufactured date of the
vehicle was 1977, but later corrected the date to be 1979.