(hereinafter "Johnson"), the District's Personnel Officer; Karen Wilson (hereinafter "Wilson"), a division manager in charge of strategic planning; and Aleta Kennard (hereinafter "Kennard"), the District's Technical Services Supervisor. Tr. at 584, 656, 1202, 1178. Among Kennard's subordinates were Linda Clark (hereinafter "Clark"), who was fired by the District on June 13, 1997. CX 17.

   Complainant Duncan holds a Bachelor of Science degree in Environmental Management. Tr. at 30. He began working for the District in 1987 and was a Senior Air Pollution Control Specialist during the entire period between 1990 and his termination by the District on September 25, 1997. Tr. at 30-31, 1359, CX 5. As a Senior Air Pollution Control Specialist, he supervised inspectors in the District's Stationary Source Division. Tr. at 31. According to Duncan's testimony, he was commended by Covell in 1995 and received awards from the Sacramento County Board of Supervisors in 1994 and 1995 for his work on a "Red Tape Task Force." Tr. at 32. Prior to 1997, Duncan had never been subjected to any type of disciplinary action. Tr. at 91.

   B. Chronological Summary of Relevant Events

   According to EPA records and the testimony of Duncan and Munz, on August 30, 1994 Duncan and Munz were sent to San Francisco by Covell to be interviewed by a group of EPA employees as part of an EPA effort to address "unresolved issues" between the District and the EPA concerning the District's enforcement of the Clean Air Act. CX 33 at 63177-81, Tr. at 34-38 (Duncan testimony), Tr. at 331-38 (Munz testimony). Duncan described the subject matter of this meeting as including such topics as how the District identified new sources of air pollution, what procedures were followed in making those identifications, and the role of the Engineering and Rules Sections in that process. Tr. at 35. As well, he testified the EPA employees "wanted in detail knowledge of our inspection activities and how we did them . . . [and] where we put our priorities in manpower." Tr. at 36. In Duncan's opinion, his responses to these questions could be characterized as "critical" of the District, but were nonetheless "a fair appraisal" of the problems at the District. Tr. at 38. According to Munz, the EPA staff "were asking some real probing questions about what they perceived as problems [at the District]." Tr. at 334. One of the most serious issues was apparently a "permit backlog." Tr. at 333, 336. Munz testified that because of this permit backlog, 1000 or more potential air pollution sources within the District's jurisdiction had not been issued permits and therefore were not receiving inspections by the District. Tr. at 336. The EPA's "minutes" of the meeting do not indicate that either Munz or Duncan accused the District of being involved in any illegal activities, but do reflect various comments which could be construed as critical of the District's operations, including statements by Munz or Duncan alleging that the Engineering and Enforcement sections were understaffed, that the Enforcement section was not allowed to participate in writing the rules included in permits issued by the District, and that internal District communication could be improved. CX 33 at 63177-81.

   According to a declaration submitted by Ed Snyder, a former chief of the Compliance and Oversight Section of the Air Division of Region IX of the EPA, at some unspecified date in August of 1994 Duncan contacted Chuck Seeley, one of the EPA employees who was at the August 30 meeting, and offered to provide the EPA "confidential information" about the District's operation. CX 32 (February 12, 1998 Declaration of Ed Snyder). Thereafter, Synder indicates, Duncan twice provided information to Seeley. The declaration further represents that upon Seeley's retirement in October 1994, Seeley told Snyder of Duncan's role as a confidential source within the District.

   According to Covell, on various occasions in 1994 he met with David Howecamp, the EPA Region IX Director of Air and Radiation Programs, regarding the reorganization of the District. Tr. at 1677. At the time, Covell testified, EPA was concerned about the District's permitting and enforcement backlog and was unusually active in conducting its own inspections and bringing it own enforcement actions against alleged violators, rather than relying solely on the District's efforts Tr. at 1678-80. However, Covell asserted, during the meetings he was "assured that this was no vendetta or specific attention directed by EPA Region IX at our district, it was just our turn for review." Tr. at 1678. Covell also acknowledged that at one of these 1994 meetings, Howecamp told him that "there may have been mole comments coming to [EPA]" from someone within the District. Tr. at 1677-78. However, Covell testified, Howecamp phrased the statement in such a way as to suggest that he did not know if in fact there were any "moles." Tr. at 1679. Nor, according to Covell, did Howecamp indicate who in particular was receiving the comments, who made the comments or even what the comments were. Tr. at 1679.

   During the following two years, the District was engaged in the process of transforming itself from a Sacramento County government entity into an independent agency. This transformation apparently affected the civil service status of the District's employees and required the renegotiation of pre-existing collective bargaining agreements between the District and its employees. Tr. at 148-85. When Duncan learned of these changes and conducted some legal research, he felt the District and the Sacramento Board of Supervisors were "violating state law [by removing] the District from the county organization." Tr. at 165, 183. As a result, some time in 1995 he met with his union's attorneys who, according to Duncan, agreed with his concerns. Tr. at 183. Ultimately, Duncan testified, an attorney representing his union unsuccessfully sought an injunction to stop the District from imposing an "interim contract" on its employees. Tr. at 167-69. According to Duncan, while acting in his role as a member of his union's board of directors, he voted to seek the injunction and also collected employee declarations, including one of his own, to support the request for the injunction. Tr. at 170-71.

   In July of 1996, according to Snyder's declaration, his supervisor asked him to contact the confidential source within the District (i.e., Duncan) and ask if he would be willing to talk to an agent from the EPA's Criminal Investigations Division. Snyder's declaration further represents that when the request was made to Duncan, he agreed to allow his name and telephone number to be given to the agent.

it interferes with both your work efforts in dealing with your program responsibilities. Linda has recourse through her representation organization and I expected the work time meetings to cease. You responded by telling me that you were not involved in any such meetings and would check with Mark. Since that time, I have continued to receive information that Mark continues to meet with Linda either in his or her office, or outside the building. As Mark's supervisor, I am again informing you that this is improper behavior and is not to continue. Please inform Mark of this directive, and I fully expect both of you to cooperate regarding this matter.

   On September 9, 1996, Munz responded to Covell's August 27 memo. CX 30 at 13. In the response, Munz asserted that he and Duncan had reason to interact with Clark "pertaining to a number of issues concerning District business as it relates to her rule making history and our need to understand that history." As well, he wrote that he, Duncan, and Clark were all "members of the negotiating team," and occasionally had discussions in that regard. He then stated, however, that he would "take steps to address" any "inappropriate discussions or time wasting" he observed among the employees under his supervision.

   During approximately the same period that Duncan, Munz and Clark began secretly providing materials to the EPA Special Agents, Duncan became engaged in a dispute with Covell over Covell's alleged failure to resolve conflicts that Duncan claimed to be having with one of his subordinates, who will be hereinafter referred to as "Jane Doe." The nature of the dispute was described by Duncan in a September 12, 1996 memorandum to Covell entitled "Sexual Harassment, [Jane Doe], County Policy, Your Obligations and Putting Me in Harm's Way." RX 29. The memo noted that in August of 1996 Duncan and Covell had met twice concerning Duncan's alleged problems with Jane Doe and indicated that Duncan believed that she was disrupting the work of the compliance team "due to her argumentative nature, resistance to taking direction, the willful undermining of work assignments, failure to honor agreed-upon time tables, and intentionally maligning the good reputations of a staff member and me." The memo further asserted that Jane Doe wanted to be supervised by someone else and that she claimed to have "engaged an attorney to file a sexual harassment lawsuit" against Duncan. According to Duncan's memo, Jane Doe had also been "defaming" him by telling other staff that he had a history of harassment and that he had been investigated previously for using a racial epithet in reference to another employee. He also wrote, "nothing can describe the humiliation, anger, and hurt I feel from a vindictive employee propagating things so vulgar and malevolent." Duncan's memo also described a meeting with Johnson concerning various alleged problems with Jane Doe and a confrontation with Jane Doe over her request to be supervised by someone else.

Duncan then complained that Johnson was denying that she had any responsibility to be present at further meetings with Jane Doe and further asserted that:

Duncan then complained about the decision to have Dozier and Johnson investigate Jane Doe's complaints because, he asserted, through his "union responsibilities" as a shop steward and member of the Board of the Sacramento Air District Employee's Association (SADEA) he had opposed their views "numerous times" during negotiations over a new collective bargaining agreement. He further asserted that "I believe they do not like me." Duncan also wrote that he also believed Covell was "shrugging off the seriousness of [Jane Doe's] actions and accusations; thereby leaving me to take the blame for her misconduct." In concluding, Duncan "formally" requested that he be removed as Jane Doe's supervisor and added that he would "take whatever measures are necessary to defend myself should your investigative team proceed with any findings other than, that I am innocent."

   It appears that sometime during the following week, Covell replied to Duncan's memo. Although neither party offered the reply into evidence, it is clear that Covell declined to grant Duncan's requests. As a result, on September 20, 1996, Duncan wrote another memo to Covell. RX 27. In the memo, Duncan thanked Covell for his quick response, but added that he was disappointed that his concerns "were not given the thoughtful consideration I had hoped." He further wrote "[t]he supervisory staff cannot carry on in a business as usual' mode in this situation and this is where management's responsibility lies, especially when it comes to sexual harassment, slander, insubordination and threats of a lawsuit against the supervisor." Duncan then asserted that Jane Doe was blocking his access to her calendar, spreading "malicious stories about our section," sending mail without review, creating a "hostile work environment," and "scheming to entrap me in some sexual harassment event." Duncan concluded: "[g]iven that you have denied my formal request to be relieved as her supervisor, and for the reasons cited above, I am forced to act on my own behalf and hereby resign from any further involvement with her. Effective immediately I am formally noticing you that I can no longer operate over Ms. [Jane Doe] in the capacity of her supervisor."

   Four days later, Covell sent Duncan a reply memo in which Covell wrote that he did not believe that Duncan's memo "serve[d] a constructive purpose," and indicated that he intended "to wait until the ongoing investigation is fully completed before taking any action." RX 28. Covell added that Duncan's accusations that Covell had not been thoughtful

or responsible in his approach to the matter were "untrue, unwarranted and unprofessional." Covell noted that delay in the matter resulted, in part, from Duncan's own actions, and in part from Covell's busy schedule. He noted, as well, that he had consulted "several persons who are knowledgeable about personnel issues, including the District Counsel" and that they had concurred in his handling of Duncan's complaint. Covell then noted that none of the many allegations concerning Jane Doe set forth in Duncan's September 20 letter were supported by "objective facts or documentation," and specifically requested that such materials be provided to him. Covell further noted that, to his knowledge, neither Duncan nor Munz had followed his direction to document Jane Doe's misconduct or develop a Performance Improvement Plan to improve her performance and correct her allegedly improper behavior. Covell then pointed out that the District's counsel had indicated that such documentation would be necessary to support the course of action Duncan was proposing. Covell then responded to Duncan's asserted fear of personal liability by commenting that "[s]o long as you take a professional approach to your supervision" of Jane Doe and "carefully document your directions to her and exchanges with her, the District Counsel does not believe you are placed in any significant personal jeopardy.'" As well, he wrote, Jane Doe had told him that she had no plans to make any sexual harassment claim against Duncan. Finally, Covell rejected Duncan's putative resignation from supervision of Jane Doe in the following words: "I categorically deny that you have any authority to unilaterally resign from such supervision unless you are resigning your position with the District." Covell added that failure to resume such supervision could result in disciplinary action. According to Covell's trial testimony, until the occurrence of this dispute he had "no reason to believe" that Duncan was not doing a great job. Tr. at 1661-62.

   On November 1, 1996, Duncan sent an inter-office memorandum to Covell and various other District executives in which he asserted that he had a mental disability and was entitled to accommodation under the Americans with Disabilities Act. RX 11 at 9. The text of the memo is as follows (capitalization in original):

DECLARATION OF MENTAL DISABILITY AS COVERED BY THE AMERICAN DISABILITIES ACT (ADA):

I have been diagnosed with a mental disability. I have been taking various medications over the last few years as a result of my disability. I have been working out of class with no additional compensation for over five years. Consistently, over the last year, the new Management Team has chronically neglected to provide the support required to sustain me in my role as Supervisor of Compliance. Additionally, the malicious and unwarranted harassment of my person relative to my interactions with Linda Clark have undermined the treatment of my disability and my health.

FORMAL REQUEST FOR ACCOMMODATION AS PROVIDED UNDER ADA:

Based on the above issues, I am formally requesting ACCOMMODATION. The form of accommodation I'm requesting is in accordance with my current Civil Service Classification, that is to supervise one employee or provide lead to 2 or more employees.

DECLINATION TO TENDER MY RESIGNATION

I decline to resign my position of Senior Air Pollution Control Specialist

DISCRIMINATION OF MY PERSON IN RESPECT TO COMPENSATION AND GENDER

The fact that Aleta Kennard is compensated for "out of class work" and I am not amounts to a discriminatory practice. Her Civil Service job description, as it relates to the supervision of employees, is identical to mine. The other 2 male Senior APC Specialists also do not receive special salary adjustments. I believe the extra compensation for Aleta Kennard is gender motivated and also a discriminatory [sic].

According to Duncan's trial testimony, he filed this request because Covell's memo telling him he could not "resign" as Jane Doe's supervisor caused him to fear that he would be fired unless he disclosed his mental disability and requested an accommodation. Tr. at 2612-15.

   On November 12, 1996, Johnson sent to Dozier an e-mail memo concerning three subjects: Duncan's accommodation request, a decision to place Jane Doe on leave with pay pending an evaluation of her mental state, and a discrimination complaint filed by Clark with California's Department of Fair Employment and Housing ("DFEH"). CX 2. Johnson's

memo listed the subject of the memo as "Three Confidential Matters" and, as a result, this memo has become known as the "THREECON" memo. The full text of the memo is as follows:

1. Based on two dr's notes received on [Jane Doe], it was decided in a meeting with [Covell and others] and me to place [Jane Doe] on Administrative Leave with pay pending further evaluation of her mental state. I'm trying to reach [Jane Doe] tonight by phone to instruct her not to come to work until further notice.

2. Also in the meeting: it was decided that a packet will go to [Jane Doe] and Mark Duncan both which contains a Request for Reasonable Accommodation, Workers' Comp Claim Form Packet and an SDI packet. Apparently Mark has given Eric a letter advising of various disabilities (I have not seen a copy) and is requesting accommodation.

3. Linda Clark has filed a complaint with DFEH charging that she has been denied reasonable accommodation. The notice from DFEH arrived today addressed to you. Lynda [sic] opened it and gave it to me. We have 21 days to respond.

   According to Dozier, after she read this memo she saved it for "a few days" in an electronic file that she had entitled "5150." Tr. at 744-46, 753. Dozier also testified that the 5150 file was the only electronic file she had and, as a result, any e-mail she decided to save went into it, regardless of the e-mail's subject matter. Tr. at 746, 752, 754, 756. Dozier also testified that, at the time she saved the THREECON memo, she believed that the contents of the 5150 file could not be accessed by other District employees and further represented that she did not learn until later that she had mistakenly selected computer settings that allowed other District employees to access the file through the District's local area network (LAN) system. Tr. at 747, 787. Nonetheless, she testified, other District employees "couldn't just run across it by mistake," and explained that before someone could read the contents of the file they would have had to make a deliberate effort to gain access to it. Tr. at 747-48. According to Dozier, the term "5150" refers to things that are "unbalanced or didn't make sense" and that when she worked for the City of Oakland's Office of Public Works the term was also sometimes used to refer to "crazy people." Tr. at 744-45, 758. Dozier also testified that she used the term 5150 in naming her e-mail save file because at the time she set up the file, the District was separating from Sacramento County and things were "very, very chaotic." Tr. at 755.

   As indicated in the THREECON memo, on November 13, 1996, Johnson provided Duncan with a number of forms, including a form titled "Request for Reasonable Accommodation." RX 11 at 25. On November 26, 1996, Dozier wrote to Duncan, informing him that the District had yet to receive a completed request form, and asking him to return a completed form to her by December 3. RX 11 at 39. The note also indicated that if Duncan had

questions or needed additional time, he should contact Dozier or Johnson. On December 3, Duncan sent an e-mail to Dozier asking for additional time. RX 11 at 40. Dozier responded by e-mail a few minutes later and indicated that "the additional time to complete the form is fine." In reply, Duncan sent an e-mail indicating that he would "hopefully" complete his request by December 13.

   Duncan completed the form on December 11, 1996. RX 11 at 21-25. In it, he listed his disability as "adult attention deficit disorder/depression," and listed his physician as Dr. Clopton. In an attachment, Duncan listed the accommodations he requested. These included: (1) flexible work hours, including an arrival time between 8:30 and 9:30 a.m., a lunch period of one-half to one hour, and a departure time of between 5:00 and 6:00 p.m., (2) "[f]lexible leave usage (including leave without pay)," (3) telecommuting privileges "1-2 days per week," (4) a "[q]uiet and undisruptive work environment," (5) "[f]lexible break times," (6) "[r]ecognition and tolerance of union board position and advocacy of disabled," and (7) "[m]anagement support." Duncan then described how the accommodations would help him. He wrote, first, that flexible hours would help "in my medical appointments as well as the medical issues required by my sons' disability." He then wrote that "a telecommute day once a week would enhance my efficiency by reducing distractions," "[r]especting my other hat' associated with my union board position would relieve stress from my job," and "[a]ssistance and support from management would greatly reduce the stress level on myself and the whole office."

    According to Dozier's testimony, in early January of 1997 a supervisor reported to her that an unnamed employee had found a copy of the THREECON memo on someone's chair. Tr. at 781-83. Dozier further testified that she could not understand how the memo "popped up" and therefore had Kevin Williams, the District's LAN administrator, determine how the memo had been disclosed. Tr. at 782. She added that after searching the LAN systems computer records, Williams printed out a document indicating that someone using Duncan's computer password had in effect gone into her computer files and "moved" the THREECON memo into a file used by the Enforcement Section. Tr. at 782-83, RX 2 at 352 (computer record purporting to show that on November 14, 1996 someone using a computer password assigned to "MARKD" had transferred a document entitled "THREECON" into the files of the Enforcement Section).

   According to Grose, he first became aware of the disclosure of the THREECON Memo on January 7, the day after he started working at the District. Tr. at 1461-62. Grose further asserted that when he spoke to Jane Doe about the memo's disclosure, she was "quite shocked and upset by it." Tr. at 1936. On January 9, 1997, Grose testified, he learned from Kevin Williams that computer records showed that Duncan had "messed with" the THREECON Memo. Tr. at 1820-21. On the following day, Grose recounted, he asked Duncan if anyone else knew or had used his computer password and was told that to the best of Duncan's knowledge, no one else was aware of it. Tr. at 1820-21, RX 2 at 337-38. According

to Grose, on January 21 he again met with Duncan and told him that the evidence indicated that he was the person who transferred the THREECON memo to the Enforcement Section's files. Tr. at 1823, 2199, RX 2 at 349-51. At that time, Grose testified, Duncan denied being the person and attempted to demonstrate how someone else could have moved the memo, but "whatever he was trying to show me on my computer in my office it failed because nothing really came of that," perhaps because Dozier had "closed" her e-mail. Tr. at 1823-24. Grose added that it was his impression that in addition to denying that he had been the one who transferred the THREECON memo, Duncan also denied "anything else associated with that at all." Tr. at 2197. Grose further testified that he then told Duncan that the evidence was "compelling" that he had been the perpetrator and that disciplinary action would be pursued. Tr. at 1824, 2199. Thereafter, Grose testified, he began preparing a written Notice of Disciplinary Suspension. Tr. at 1824, 1828, RX 2 at 349-51.

   On January 28, 1997, four copies of a 20-page draft letter from Duncan, Clark and Munz to Sacramento attorney Gary Messing was found by District clerical personnel on a computer printer nearest to the offices of the District's senior managers. CX 1, Tr. at 64-66 (Duncan testimony). The letter's caption lists its subject matter as follows (capitalization in original):

THE VIOLATION OF STATE LAW BY THE SACRAMENTO METROPOLITAN AIR QUALITY MANAGEMENT DISTRICT BOARD OF DIRECTORS AND THE SACRAMENTO COUNTY BOARD OF SUPERVISORS FOR CONSPIRING TO DEPRIVE AND WILLFULLY STRIPPING DISTRICT STAFF OF STATUTORY ENTITILEMENTS [sic] BY STATE LAW AND NONSTATORY [sic] COMPENSATION ESTABLISHED BY CONTRACT IN THE CREATION OF THE SMAQMD AS A SPECIAL DISTRICT.

HARASSMENT FOR SUPPLI NG [sic] INFORMATION TO THE OVERSIGHT (WHISTLE BLOWING) AUTHORITIES REGARDING "BADGES OF FRAUD" AND WILLFUL NEGLECT OF DUTY.

DISCRIMINATION, RETALIATION AND DEFAMATION OF OUR PERSONS BY THE DISTRICT MANAGEMENT STAFF AND NORM COVELL FOR THE FOLLOWING: AGE, GENDER, MENTAL DISABILITY, HOSTILE WORK ENVIRONMENT AND SEXUAL HARASSMENT WITH REGARDS TO THE AMERICANS WITH DISABILITIES ACT.

The great majority of the letter's text (i.e., almost all of the letter's first 17 pages) consists of an attempt to explain the contention that the District evaded Sacramento County civil service rules by illegally restructuring itself when making legislatively-mandated changes in its governing board in 1994. However, in a second section of the letter entitled "Cooperation with the Department of Justice" the letter indicates that in 1993 and 1994 Duncan and Munz had spoken candidly with EPA employees who were auditing the District's performance and that since Duncan's July 1996

meeting with the EPA special agents, Duncan, Clark and Munz had sent the EPA investigators five "Informational Packages" including "internal documents and information that point to willful misconduct" on the part of the District and its management. CX 1 at 18-19. The letter further represents that "the Department of Justice is currently utilizing the information and investigating various District practices and staff for criminal neglect of duty and fraud." The letter also indicates that the authors felt that Covell believed that they were the "moles" who he had been told were supplying information to the Department of Justice. The letter concludes:

We wish to receive counsel as to our options and strategies in pursuing damages for the above issues against the District Board, Civil Service System, Norm Covell and his management team and a few employees who are openly discriminating, harassing, and defaming us. . . . It is obvious to us a plot to deprive or remove us from our rightful positions through intimidation, favoritism, false accusations, abuse of process, the creation of a hostile work environment and discriminatory work practices. Below are the entities and people who have damaged us.

Included in the letter's list of proposed defendants were the District's Board, Covell, Dozier, Taylor, Grose, Wilson, the Board of the union representing the District's employees (SADEA), and six co-workers who allegedly committed acts of defamation, discrimination, retaliation, libel, slander, and sexual harassment.

   According to Grose, he was in Dozier's office when someone (presumably a clerical employee) brought what he believes to be the January 28 letter (hereinafter "the Messing letter") to Dozier. Tr. at 1360-61. However, he testified, Dozier told him that it was not anything he needed to know about. Tr. at 1360. He also testified that he has never read the letter and is unaware of its contents. Tr. at 1361. According to Dozier, after reviewing the letter, she spoke to Covell about who had written the letter and to whom. Tr. at 801. She also testified that Spinelli was present the first time she mentioned the letter to Covell, though she conceded she could not remember exactly the order in which she spoke to the two of them. Tr. at 801-02. Dozier also testified that her primary focus at the time was how to deal "with an employee who may have been using our time and our materials to generate this particular [20 page] document." Tr. at 803. According to Spinelli, she took the letter from Dozier and went to her own office to read it. Tr. at 595. Upon reading the letter, she was concerned by the allegation that a criminal investigation into the District was pending. Tr. at 602. She also testified that she later informed Covell in his office that Duncan, Linda Clark, and Eric Munz had alleged in the Messing letter that they were supplying information to the EPA in connection with a criminal investigation. Tr. at 612. According to Spinelli, Covell was "puzzled" by the report. Tr. at 613. According to Covell, Spinelli also told him something to the effect of "this must have been what Dave Howecamp was referring to in 1994 or whenever it was about moles within the program." Tr. at 1712. He understood this to mean that Duncan was the "mole" referred to by

Howecamp. Tr. at 1712. According to Munz, at about 3:00 p.m. on January 28 Spinelli went to his office and personally handed him a copy of the Messing letter along with a "Post-It" note stating, "this was in my printer." Tr. at 393-94, 397. Munz further testified that she then asked him, "is it all true, especially the part about the criminal investigation?" Tr. at 394. Munz also testified that around noon that same day, he had been in Duncan's cubicle and had observed Duncan repeatedly made unsuccessful attempts to print out a copy of the Messing letter. Tr. at 396-97.

   According to Duncan, he had not intended to have the Messing letter printed on the network printer. Tr. at 2604. He testified, as well, that the routing of the Messing letter to the network printer was the first and last time that something he had tried to print on his desktop printer had come out somewhere else. Tr. at 2609. Duncan also testified that, ultimately, the Messing letter was never sent. Tr. at 2601. According to Kevin Williams, the District employee primarily responsible for administering the District's internal computer network, print jobs are normally routed to each computer user's "local" printers and if such a printer is not working, the print job will not be automatically rerouted to one of the District's two network printers. Tr. at 2219-2223. Instead, he testified, if a local printer is not working the user would have to go to the network printer icon and "point and click" to send the document to the network printer. Tr. at 2222-23. As well, he testified, even if a document is printed on the network printer, subsequent documents will not go to that printer, unless specifically selected on each job. Tr. at 2223. In his opinion, if a user intended to print a document on the user's local printer and the document was instead printed by a network printer, the user must have inadvertently selected the network printer for the document. Tr. at 2225-26. Williams also denied resetting the printer default on Duncan's printer in January of 1997. Tr. at 2225.

   On January 29, 1997, the District held a workshop on preventing sexual harassment. Tr. at 1363-64. According to Grose, Duncan and Munz were present, but Duncan was about 40 minutes late for the meeting. Tr. at 1364. The next day, Jane Doe complained to Grose that she was being subjected to a hostile work environment by Munz, Duncan and a third Enforcement Section employee. Tr. at 1364-66 (testimony of Grose), CX 19. In particular, she alleged that Duncan and the other employee, "had blocked [a] doorway and not allowed [Jane Doe]to pass through." Tr. at 1369. As well, it was alleged that "in order to pass through the passageway, [Jane Doe] had to come into physical contact" with Duncan and the other employee. Tr. at 1370. About three weeks later, Munz sent a memo to Grose in which Munz quoted Grose as having told him that he had determined, after conducting a thorough investigation, that the allegation against Duncan and the other employee were "bogus" and that the complaint against Munz was "foundationless as well." CX 19. During his trial testimony, Grose confirmed that his investigation into the complaint against Duncan had been closed and that in his opinion there had been "a lack of evidence to support the claim." Tr. at 1377, 1418.

   On February 4, 1997, Grose sent Duncan a "Notice of Proposed Disciplinary Action" in which he indicated an intention to recommend to Covell that Duncan be suspended from work for five days without pay. RX 2 at 349-51. In a section summarizing the facts warranting the suspension, Grose wrote that on January 9 he had observed Williams locate computer records showing that Duncan had transferred the file containing the THREECON memo to an Enforcement Section computer drive ("W Drive") on November 14, 1996; that on January 10 Duncan had denied any knowledge of anyone using his computer or having access to his password; and that on January 21 Duncan had denied being the person who had transferred the THREECON memo to the W-Drive. The Notice then asserted that the "nature of the confidential correspondence" between Johnson and Dozier was such that "the act enabling it to be made available publicly is very serious and cannot be condoned under any circumstances and indeed, puts the District at risk of great liability." The Notice further asserted that Duncan's conduct had violated the District's Initial Terms and Conditions of Employment in four specific respects. In particular, it was alleged: (1) that making the document "available to a general audience" demonstrated a failure to "analyze situations accurately and adopt an effective course of action," and therefore constituted an "inexcusable neglect of duty," (2) that the "inconsistencies" between Duncan's January 10 and January 21 statements constituted dishonesty, (3) that making a confidential memo publicly accessible constituted "discourteous treatment" of the fellow employees who wrote, received, and were the subjects of the memo, and (4) that making the memo available to the members of the Enforcement Section put the District "at great liability," and therefore constituted a "failure of good behavior."

with [Johnson and Dozier] who negligently transmitted confidential information on an insecure system" (capitalization in original). Duncan then gave the following description of how he had previously read Dozier's e-mail (capitalization in original):

Some time ago, I proxied LaShelle Doziers' [sic] mail to retrieve a document I had mistakenly deleted. This document was found in a file labeled [sic] "5150". The correspondence I was looking for was my safety shoe memo to Lashelle. The file contained many of my E-mails, as well as E-mails from [Munz, Clark, and two other employees]. This strange label bothered me and finally I searched California Code for "5150". What I found was very disturbing. 5150 is the section in the California Welfare and Institutions Code which enables the state to seize a mentally disturbed person for observation in a mental health facility for 72 hours (attached). This person must be deemed a danger to himself or herself or others to envoke this section of the code. Additionally, this is the slang term utilized by the police and mental health people for the mentally ill. I was horrified that our correspondence was contained in a file which labeled us, as "Mentally Disturbed." I was allowed to access LaShelles' [sic] Groupwise "preferences" through her proxy and I found that she had approved "read and write" access for EVERYONE, to Email, Appointments and Tasks. This meant that ANYONE could access her E-Mail and read, write, copy and transfer her files as well as viewing who she labeled as mentally ill.

This callous disregard of those individuals she labeled 5150 dramatically reveals her personality flaws in employee relations and explains her Her [sic] aristocratic behavior and condescending treatment of Eric, Linda and myself. . . . I insist that the District pursue disciplinary action against Carolyn and LaShelle with the same zeal it took with me.

   During his trial testimony, Duncan repeated the foregoing account of how he came to discover Dozier's 5150 file and again explicitly denied that he was the person who had transferred the THREECON memo to the W drive. Tr. at 83, 2250-72. He also asserted that he felt that his initial electronic search through Dozier's computer files to find his memo about safety shoes was necessary because Dozier was so hostile to him that she would not have voluntarily given him the memo even if he had directly asked her for it. Tr. at 2623-24. When asked if he believed it was unethical to have read Dozier's e-mail, he first testified that he believed Dozier's placement of his memo in a file titled 5150 was "extremely unethical," and then testified "[s]o I mean it's just a matter of which is more unethical." Tr. at 2512. Duncan also admitted that after finding and printing out the safety shoe memo he had "checked on the law to see if there was anything illegal" about going into Dozier's e-mail because it had "seemed unethical" to him when he did it. Tr. at 258-59.

   According to Grose, in late January he became aware that Covell would soon be issuing a memo ending informal telecommuting by District employees and therefore verbally informed Munz on February 3 that he was "pulling the plug" on telecommuting. Tr. at 2658. Munz agrees that Grose spoke to him on February 3 about terminating telecommuting privileges, but implied during his trial testimony that the termination of such privileges applied only to Duncan. Tr. at 397-98. As anticipated by Grose, on February 5 Covell issued a memo formally directing District managers to terminate all informal telecommuting. RX 26. Six days later, Grose himself issued a memo to Stationary Source staff on "Telecommuting Policy." CX 34. The memo stated, first, that "all telecommute arrangements are rescinded." It then stated that until a new telecommute policy was established, "all requests for overtime work at home must be approved by me. No regularly scheduled work shall be done at home." On the same day, Grose also issued a memo titled "Hours of Work." RX 22. This memo, which was addressed to all Stationary Source Section staff members directed that (1) effective February 24, 1997, all work shifts were required to begin and end within the hours of 6:00 a.m. and 6:00 p.m., with any work outside that period subject to Grose's prior approval, (2) all schedule changes were to be approved by Grose, and (3) by February 24, 1997, all employees were to inform Grose of their intended work schedules. According to Grose, when he asked Duncan for his work schedule, Duncan merely provided a copy of his ADA accommodation request. Tr. at 2664. Likewise, Duncan testified that when Grose asked what his schedule was, "I told him I was waiting, pending my accommodation." Tr. at 2434.

    According to an internal EPA memorandum, on February 11, 1997 Spinelli met with two agents in the EPA's Criminal Investigation Division in an attempt to learn the nature of the investigation referred to in the Messing letter. CX 33 at 62420. The memo indicates that she was told that the agents did not at that time consider the investigation to be "criminal in nature" and that at that point they were "attempting to evaluate" information they had received. During the meeting, Spinelli asked for the source of the information but the agents declined to disclose their source. The agents also told Spinelli that if they continued the investigation, the inquiry would focus on whether the District had spent money provided by the EPA in the manner intended, whether environmental laws were violated when permits were issued or inspections conducted, and whether there was any conspiracy between the District's Board and anyone else to violate federal laws. There is no evidence in the record indicating that this investigation ever led to any charges against the District or its employees.

   On February 21, 1997, Taylor issued a report setting forth the results of his Skelly investigation. RX 18. According to the report, he conducted a "hearing" on February 10, interviewed Williams on February 12, and conducted e-mail testing on February 12 and 18. The report also set forth the respective contentions from Grose's February 4 Notice and Duncan's February 10 response. He also noted a contention of Duncan's, apparently raised at the hearing, that management had forged the document showing that Duncan's password had been used in moving the file. Regarding this contention, he concluded that it was "possible but highly unlikely that management would create a conspiracy to falsify this evidence . . . ." Regarding Duncan's contention that others had used his password or computer, Taylor concluded, after

conferring with Williams, that it was "highly unlikely that anyone other than Mark accessed the mail." Taylor also concluded that the information about Duncan contained in the THREECON memo was not "particularly embarrassing" to Duncan, but would be embarrassing to Jane Doe if it were generally known. Taylor then set forth, inter alia, the following findings:

• I find this act of violating someone else's personal mailbox reprehensible. To compound such an inexcusable act by blaming the person whose mailbox was violated is even more unforgivable. To further fail to notify the person that their preferences had been set so that others could access their email makes the violation even worse. Add to that the fact that the person is a supervisor with a higher level of authority and responsibility and it is, to me, incomprehensible.

• This act alone, without any copying or moving of the email, is sufficient in my mind to warrant a suspension

Taylor added that the issue of Dozier allegedly maligning Duncan by naming her e-mail file "5150" was outside the scope of the disciplinary action, and that he saw no "retaliatory component" to the proposed suspension. According to Taylor's trial testimony, during the course of his Skelly inquiry he had investigated the theories that someone else had used Duncan's password, or "snuck up to Mark's computer" while he was away from it. Tr. at 1990. However, he testified, he found that there was no directory of passwords in the system. Tr. at 1990. As well, he testified, he determined that it would be difficult for someone to have used Duncan's computer undetected and noted that there was a policy in the Stationary Source Division prohibiting employees from using other employees' computers. Tr. at 1991-92.

In the text of the letter, the complainants requested a "formal investigation" into David Howecamp's putative wrongdoing and asserted that sometime between July of 1996 and January of 1997, Covell had "boasted in a District manager's meeting that David Howecamp . . . had disclosed to him that the District had moles' supplying information about the District to EPA . . . . As a result of this and assuming that we were the moles,' Covell enlisted the help of

various District staff, outside of their normal duties, to closely monitor, harass, allege misconduct and obstruct us in our daily activities." The letter went on to allege that "[w]e recently have been confirmed as the moles' through management's tampering with Mark Duncan's computer." This "tampering" was, according to the letter, effected by the District management "re-rout[ing] Duncan's printer cable connection." In addition, the letter described the complainants' workplace as "so oppressive and vicious that we have been forced to seek refuge by filing complaints with the California Department of Fair Employment and Housing and by declaring emotional and mental disabilities under the Americans with Disabilities Act, these conditions actually being precipitated and exacerbated by our hostile workplace environment." The letter concluded that David Howecamp's "callous disregard for us requires a thorough investigation."

   On March 20, 1997, Duncan has asserted, there was a second confrontation between himself and Grose. In particular, Duncan asserted in an April 21, 1997 memo to Covell entitled "Persistent Intimidation, Physical Aggression and Workplace Harassment by David Grose" that while he was in Grose's office on March 20, Grose accused him of making an offensive remark to another employee, asked him to explain his whereabouts on February 21, and criticized his "leadership" of his section. RX 2 at 328. According to Duncan, the other employee had denied having been offended by Duncan's remark and the inquiry concerning his whereabouts on February 21 was really a ruse to catch him in a lie. In Duncan's words:

I explained to him that off the top of my head, I didn't know (a month had elapsed). I asked him if he had checked the sign out sheet at the front desk. He told me that he had not, though he would check the sheet later. I thought back on it and I told him that I had been out spot checking visual emission sources and some problem sources in the District. He replied that he felt any surveillance that I embarked upon should be with the zone inspector. I told him that with my many years of experience as an inspector and supervisor I merely wanted to check the "pulse" of County concerning these problem sources. He acknowledged the value of surveillance but told me not to go out into the field without a "purpose." He added, that on February 21, LaShelle Doszier [sic] was looking for me in the afternoon to "serve me" with papers and they could not locate me. I said that my check out sheet should've told them what I was doing and that I recalled that I was patrolling the Del Paso/North Highland areas. Grose agreed with me and then told me that I had written "surveillance Java City and RC Collet" on the sign out sheet. I was very disturbed by his statement. Grose had tried to trap me in a lie by not revealing that he had checked the sign out sheet that day. I told him that it had all worked out because La Shelle did "serve" me and I had appealed my suspension... . . I was very uncomfortable with our quot;meeting" and wished it to be over, especially with the predominant overtones of counseling/discipline.

Duncan further alleged that Grose's concerns about complaints of neglect Grose claimed to have received from Duncan's subordinates were in fact an "arbitrary and subjective appraisal of my skills." Duncan also wrote that he told Grose that his subordinates could not expect him to have the same enthusiasm as before because his morale had been adversely affected by a number of "issues that were plaguing" him: "unequal treatment and pay (gender related), discriminating hiring and promotion policies, the hostile workplace, and the noncompliance with labor, ADA, and Civil rights laws as well as the civil service system." Duncan then asserted that the following occurred:

to the text of the March 18, 1997 letter sent to Inspector General of EPA. As a result of this complaint, in early April of 1997 OSHA investigator Charles Byers informed the District of the complaint and began interviewing District employees, including Grose. According to Grose, it was at this time (i.e., on April 8 or 9, 1997) that he first learned that Duncan, Munz and Clark were cooperating with an EPA investigation. Tr. at 1362, 1833. Before then, he testified, he didn't "have a clue" about any "whistleblowing." Tr. at 1833.

   On April 16, 1997, Duncan, Clark and Munz sent a memo to Roger Dickinson, a member of the District's Board, in which they alleged that "[t]hings are totally out of control at the air district" and that they were "afraid that someone is going to get seriously hurt, or worse, unless you and the other Board members immediately intervene." (emphasis in original). CX 30 at 34. The memo then alleged that because they had provided information to the EPA they were being subjected to "severe and malicious" harassment by the District's management. (emphasis in original). In concluding, they requested that they be placed on paid administrative leave, effective immediately, "until such time as both Federal investigations have been completed." Attached to the memo were two memorandums from Munz in which he alleged specific incidents of harassment against himself, Duncan and Clark. The next day, Spinelli sent the complainants a letter informing them that since it was inappropriate to address a request for administrative leave directly to the Board, the Board would not act on the request. Spinelli also noted that any request for a leave of absence should be submitted to Johnson in writing and comply with the guidance set forth in Article 9 of the General Unit's Labor Agreement. RX 2 at 335.

   On April 18, 1997, Grose sent Duncan a certified letter captioned "Order to Report to Work." RX 2 at 334. In this letter, Grose noted that earlier that day Duncan had left a message indicating that he would not report to work "until the Board of Directors made a decision" regarding his request for administrative leave. The letter then informed Duncan that District employees cannot request administrative leave but could request leaves of absence in the manner described in Spinelli's letter of April 17. Grose also wrote that Duncan should either submit such a request by April 21, 1997 or report to work by 8:30 on the same date. Grose concluded that "upon your return, there are several performance issues to discuss with you. Your absence from the office has prevented me from discussing these issues with you at an earlier date." According to Grose's trial testimony, the performance issues included the "zone plan" and Duncan's cellular phone use. Tr. at 1438.

   On April 21, 1997, Duncan sent Covell a memo entitled "Persistent Intimidation, Physical Aggression and Workplace Harassment by David Grose." RX 2 at 328. In the memo, Duncan alleged that Grose had "advance[d] at me in an aggressive fashion and is verbally combative." According to the letter, this behavior first occurred when Grose had ordered Duncan to leave the District's offices during his five-day suspension. According to Duncan, at that time Grose's behavior was so confrontational, "I thought he was trying to pick a fight

(physical combat) with me." According to Duncan, Grose also "assailed" him a second time during their confrontation on March 20, 1997. The letter then alleged that a third "altercation" had occurred near a District copy machine on April 7, 1997 as Duncan was "copying the transcripts from a meeting" attended by Jane Doe, Covell, Johnson, Munz, and Duncan. Duncan wrote that Grose "moved very close to me to observe what I was copying, again in my personal space." According to Duncan, Grose told him to stop his copying because it did not involve District business and Grose repeated his order when Duncan replied that it was "an issue of District business." In the memo, Duncan also complained that at some unspecified time Bridget Tollstrup, one of the District's managerial employees, had disrupted a meeting between Duncan, Munz and Clark. According to Duncan, Tollstrup was "angry and out of control," as well as "inappropriate and hostile." Duncan ended the memo by asking Covell to "[p]lease talk to your staff and ask them to refrain from creating a workplace that is hostile and intimidating."

worse based on [the previous week] when you were absent the entire week." Accordingly, Grose announced that for the next three months Duncan would be on "controlled leave." Controlled leave, according to the letter, required Duncan's adherence to the following requirements: (1) any work absence would be subject to Grose's prior approval with approval for sick leave having to be obtained by 8:00 a.m on the date of illness and approval for other types of absences requested in writing at least one day in advance, (2) substitutions of types of leave would require written approval, (3) detailed medical verifications setting forth a diagnosis, prognosis and work limitations would be required for any absences due to sickness, (4) Duncan would be required to contact Grose each work day between 7:00 and 8:00 to report any expected absences, and (5) Duncan's work hours, break, and lunch times would be on a fixed schedule. As well, Grose added, any proposed work activties that would require Duncan to leave his office would have to be approved in advance by Grose. See also Tr. at 1424-29 (Grose testimony).

   Nine days after sending Duncan the May 6 letter placing him on controlled leave, Grose sent a second letter to Duncan informing that he was already failing to comply with the letter's requirements. RX at 324. In particular, Grose asserted that although the May 6 letter clearly required Duncan to personally report each absence to Grose before 8:00 a.m. on the date of the absence, Duncan had failed to make such personal reports for absences on May 13, May 14, or May 15 and that on May 12, he had notified Grose of his absence by fax, rather than in a phone call. According to Grose's letter, the fax stated "I CANNOT COME IN TO WORK TODAY. I AM ILL!"(capitalization in original). The letter also reiterated Grose's requirement that Duncan provide a signed medical verification for his alleged illness and insisted that Duncan provide such verification by May 20, 1997. In concluding, Grose noted that Duncan's non-compliance with leave requirements was considered insubordinate and that if he did not immediately comply with these requirements, he would be subject to discipline "up to and including termination." On this same day, the California Employment Development Department (hereinafter also referred to as "EDD")sent the District a "Notice to Employer of State Disability Claim Filed." RX 2 at 362. The notice included a number of boxes to be checked by the employer, but did not provide any medical information about Duncan's medical condition or the basis for his disability claim. Nor did the form in any way suggest that the claim had been granted or otherwise approved. One of the questions in the notice asked "Did the employee stop work for any reason other than illness, injury or pregnancy?" (emphasis in original). In responding to this question, Johnson checked "yes" and wrote "employee has provided no substantiation for time missed from work."

   On May 21, 1997, Duncan sent Grose a response to his May 15 demand that Duncan comply with the controlled leave requirements. RX 2 at 321. In the letter, Duncan wrote: "I informed Diane Vaira [the District employee responsible for maintaining employee attendance records] May 13, 1997 that I was going on long term disability, I assumed you would have been informed." Duncan then added that he had also "received correspondence from the Employment Development Department confirming that [the District] has been informed

of the fact that I am on extended disability leave." Duncan further asserted that, contrary to Grose's allegation, he had in fact made "telephone contact" with the District to report his absences on May 13, 14, and 15, but did not give the name of the person or persons who had supposedly received his calls. Next, the letter contended that the written medical verification required by Grose's May 6 letter "has been provided by my physician in accordance with the requirements of the Employment Development Department's Disability Program." Duncan then added, "I am not aware of any legal requirement that I continue to contact my employer each day, when proper documentation of my long-term illness has already been provided." He concluded that "my physician has determined that the current estimate of my ability to return to work is not before October 21, 1997."

   On June 3, 1997, Grose responded to Duncan's May 21 letter and, in doing so, informed Duncan that EDD's reporting requirements are for payments of disability and that "EDD has no authority over the [District]." RX 2 at 319. As well, Grose enclosed with the letter a form entitled "Medical Substantiation of Illness/Injury and Sick Leave Usage" and directed Duncan to have the form completed by his physician and returned to the District by June 9, 1997. The letter also disputed Duncan's assertion that he had in fact contacted the District on May 13, 14 and 15, and informed Duncan that his absences from work would be considered unexcused for each day that he failed to comply with the controlled leave procedures. However, Grose also indicated that once Duncan provided the requested medical information, he would not be required to call in on a daily basis during the period when the medical authorization was in effect. Finally, Grose informed Duncan that if the medical information he requested was not received by June 9, Duncan's absences would continue to be considered unexcused and Duncan would be subject to disciplinary action, including possible dismissal.

   On this same day, Covell sent Duncan a written response to his April 21 memo alleging that he was being harassed by Grose. RX 2 at 316. In the response, Covell indicated that he found Duncan's complaints to be without merit and that, as manager of the Stationary Source Program, Grose was "well within his rights to question you on your performance, attendance, behavior and work product." Covell also noted that on the occasion when Tollstrup had allegedly harassed Duncan, he and Munz had been engaged in an unauthorized meeting with Clark and had not followed instructions regarding any such meetings. He then wrote "[y]ou were given the opportunity to state the purpose of your meeting, yet Mr. Munz answered Ms. Tollstrup's question by saying the reason for the meeting was none of your business.'" Covell added that Duncan was not a victim in these matters, but "like all other employees, [was] accountable for [his] day's work." In concluding, Covell commented that he was "concerned about your perception of events and your apparent feelings of victimization." For this reason, Covell, added, he was encouraging Duncan "to seek professional help" through the District's Employee Assistance Program.

   On June 9, 1997, Duncan sent Covell a "formal grievance" alleging "deliberate miscalculation of my retroactive accrued vacation and sick time, for the period between July 1, 1996 through May 1, 1997." RX 2 at 305. According to Duncan's grievance, he had been told by Diane Vaira that Dozier had told her to calculate Duncan's leave differently from other employees. As a result, Duncan alleged, he had been "shorted" approximately 34 hours of sick leave and 41 hours of vacation leave.

   On June 11, 1997, Duncan sent Grose a response to Grose's letter of May 21. RX 9 at 8. According to Duncan's letter, he had "made several attempts to acquire the information" Grose was seeking but that his physician had "unfortunately" not completed and returned the District's form. Duncan apologized for any inconvenience this may have caused and indicated that he was faxing Grose a copy of original State Disability Insurance (SDI) form completed by Dr. Clopton. Duncan added, "I am aware that you put me on controlled leave May 6, 1997. I notified the District of being put on disability, verbally, when I called in sick weeks ago. I hope the SDI form will document my disability and rectify any unexcused absence, from April 21, 1997 through October 21 1997." The form Duncan provided is an undated form filled out by Dr. James Kirk Clopton. RX 9 at 1. The form listed Duncan's symptoms as including "marked concentration and memory impairment. Depressed [illegible] cognition. Anhedonia. Irritability. [Decreased] energy and appetite. Impaired [illegible]." According to the form, Dr. Clopton's diagnosis was "depression, [illegible], severe" and his treatment plan included prescriptions for Prozac, Wellbutrin, and Adderall. The form also indicated that Duncan's disability commenced on April 21, 1997, and would last until approximately October 21, 1997.

Tr. at 2490-91.

   On June 17, 1997, Covell responded to Duncan's June 9 grievance by informing Duncan that under the collective bargaining agreement applicable to District employees,

his grievance should have first been submitted to his division manager and was therefore being denied. RX 2 at 302. However, in the same letter, he also informed Duncan that his grievance could be properly considered by Grose. According to Grose, while reviewing Duncan's time sheets in order to respond to this grievance, he noticed discrepancies between the entries on Duncan's time sheets and a "matrix" he personally maintained of the times worked by the personnel in his section. Tr. at 2675-78.

   On July 1, 1997, Duncan arrived at the District's office and apparently told Munz that he was returning to work. RX 2 at 291, Tr. at 112. According to a letter Johnson wrote to Duncan later that day, Duncan was informed by Johnson that he would have to leave the premises because the "incomplete medical information" the District had so far received indicated that he was unable to return to work until October 21. The letter further indicates that before Duncan would be allowed to return to work, he would have to obtain a medical release from his physician certifying that he was capable of returning to work and inform Grose of his expected return date. As well, she indicated, he would have to undergo a fitness-for-duty exam by a physician selected by the District, which she indicated would be scheduled once he submitted a medical release from his physician and discussed a return-to-work date with his supervisor. Duncan was also cautioned that unless he had an appointment with his supervisor, he was to remain away from District premises until such time as the above procedures were satisfied. RX 2 at 292.

   On July 11, 1997, Duncan wrote to Johnson, asking when the fitness-for-duty exam would be scheduled. RX 2 at 293. Four days later, Johnson sent Duncan a reply in which she reiterated her prior statement that a fitness for duty examination would not be scheduled until he had received a medical release from his own physician and discussed a return to work date with his supervisor. RX 2 at 290.

   On July 16, 1997, Grose wrote to Duncan regarding his leave accrual grievance. RX 2 at 286. In the letter, Grose noted that on June 25 Duncan had made an appointment to discuss the grievance with Grose that afternoon, but had failed to keep the appointment. Accordingly, Grose concluded, the grievance was considered "settled" because Duncan's had failed to satisfy the SADEA contract requirement that grievances be orally discussed. On July 31, 1997, Duncan filed a "level 2" appeal of his leave accrual grievance. RX 2 at 60. Attachments set forth what Duncan believed to be the appropriate calculations of his vacation and sick leave balances. RX 2 at 61.

   On August 15, 1997, Grose sent to Duncan a document entitled "Notice of Proposed Disciplinary Action Discharge." RX 2 at 78. The Notice listed as the contractual bases for the proposed discipline Duncan's history of prior disciplinary actions and several new charges, which were purportedly supported by an extensive number of attachments accompanying the notice. The prior disciplinary actions consisted of Duncan's five-day suspension

in March, the April 18 letter directing Duncan to report to work, and the May 6 letter putting Duncan on controlled leave. The new charges that purportedly justified Duncan's termination were three-fold.

   First, the Notice alleged that Duncan had "misused/abused" the cellular phone that had been issued to him in January of 1994. In particular, Grose alleged that although a January 24, 1994 memo from Munz had limited the use to the cellular phone to "county business" and emergencies, between November 22, 1996 and May 31, 1997 Duncan had repeatedly used the phone for other purposes. In fact, it was alleged that during that period, Duncan had used the cellular phone to make (1) 174 calls while "on leave from District service," (2) 29 calls during weekends, and (3) 87 calls outside of his " normal work/commute hours (including some made as late as 2:14 a.m., 2:10 a.m., 11:07 p.m., 3:29 a.m.)." Grose further noted that 110 of the calls were made to "the private residence of a fellow employee" and that 53 of the calls were "made while roaming in El Dorado County both during off hours and during hours for which you were allegedly working." He also alleged that the total cost of the unauthorized calls was $212.48.

April 4 Duncan called to say he would be out all day, but claimed on his time sheet to have worked for eight hours; (13) that on April 10 and 11 Duncan was gone all day without reporting any leave on his time sheet. It was further alleged in Exhibit B that Duncan's failure to call in pursuant to the controlled leave procedures and his failure to meet the various deadlines for providing medical justifications for his absences from work constituted "insubordination."

   Third, the Notice alleged that Duncan had failed to perform four assigned tasks. First, it was asserted that Duncan had failed to prepare a Zone Inspection Plan despite receiving repeated requests from Grose for the plan. According to Grose, he reassigned the project to another worker on April 17 and received an acceptable final product on April 18. See also Tr. at 1460-61. Second, Grose alleged that although Duncan had been assigned to draft a letter to auto body vendors on January 6, he had never completed the assignment. Third, it was alleged that although Duncan had scheduled a meeting with two people on April 22, but did not appear for the meeting and "[a]s a result, other employees conducted the meeting on overtime to avoid discredit to the District." Finally, Gross alleged that Duncan also failed to attended a previously scheduled CPR training session and as a result the District was billed $25. See also Tr. at 1869.

   When questioned during the trial concerning his reasons for preparing the Notice of Proposed Discharge, Grose testified that Duncan's putative whistleblowing was not among the factors motivating the notice. Tr. at 1927-28. Grose further testified that neither Covell nor Dozier, nor anyone else in a management position at the District ever hinted, directly or indirectly, that he should find reasons to discipline Duncan. Tr. at 1933. When Grose was asked how he had come to discover the cellular phone misuse alleged in the Notice of Proposed Discharge, he testified that the discovery of these alleged abuses had occurred while he was preparing the District's budget in the middle of March, 1997. Tr. at 1450. During that process, he testified, he examined the telephone billing records for about 12 of his subordinates who had phones provided by the District. Tr. at 1451. His inquiry, he indicated, focused on calls made after working hours, on weekends or holidays, and during periods when employees were on leave. Tr. at 1452. Grose testified that he found that few calls were made during those times, with the exception of calls made by Duncan. Tr. at 1452. Grose further testified that although he asked phone users other than Duncan to explain their calls during non-business hours and received good explanations for all of those calls, he did not ask Duncan about his calls because "the frank quantity and magnitude of these indicated that those types of explanations were not present." Tr. at 1454-56. Grose also indicated that although cellular phone bills average $9.00 to $20.00 per month for each of his inspectors, Duncan's bills ranged from $30.00 to $80.00 per month. Tr. at 1850-52. Grose further testified that he felt Duncan's cell phone abuse was "serious enough and broad based enough" that he "may have considered" it a firing offense standing alone. Tr. at 1928. When asked about the portions of the Notice of Proposed Discharge alleging that Duncan had falsified his time sheets, Grose testified that he had first discovered the alleged falsifications while reviewing Duncan's time sheets to determine the merits of Duncan's June 9 grievance asserting that his vacation and sick

leave had been miscalculated. Tr. at 1859-66, 1917, 1924. When the undersigned administrative law judge asked Grose about disciplinary actions he had initiated during his prior job as a supervisor at the Bay Area Air Quality Management District, Grose testified that he had recommended the termination of two employees and the suspension of one. Tr. at 1929. According to Grose, one of the terminations involved an employee who was found to have spent work time attending a three-hour law school class once a week for a period of several weeks and was fired solely on that basis. Tr. at 1930-31. Similarly, he testified, the other terminated employee was fired for only one act of dishonesty: falsely representing that she had a valid driver's license. Tr. at 1931-32, 2191.

   On August 21, 1997, Duncan sent Grose a fax in which he informed Grose that he been authorized by Dr. Clopton to return to work on August 22. In addition, the fax asked Grose to schedule a fitness for duty exam so that Duncan could return to work. Also included in the fax was a copy of a prescription form on which Dr. Clopton had written "Mark is released to return to work as of 8/22/97 without restriction." In a reply letter sent to Duncan this same day, Grose informed Duncan that a fitness-for-duty exam would be scheduled and that until such exam was performed, Duncan would be placed on administrative leave, with pay, effective August 22, 1997. RX 2 at 54. Grose also noted that: "Administrative Leave with pay is neither punitive nor is it to be used as vacation time. You are to be available by phone during your normal work hours."

   On September 4, 1997, Dozier sent Duncan a letter informing him that she had reviewed Duncan's appeal from Grose's denial of his leave accrual grievance and had concluded that Grose was correct in dismissing the appeal because of Duncan's failure to appear at the appointment where the grievance was to be orally discussed. RX 2 at 52.

   On September 5, 1997, Duncan sent Taylor, who was again the designated Skelly officer, a written response to the allegations in Grose's August 15 notice. CX 28. In the response, Duncan asserted that the discharge proposal was "the culmination of a series of retaliatory actions that have been levied toward me due to my whistleblowing' and cooperation with Federal Criminal Investigators" and contended that it "violate[d] the basic notion of due process and the concept of progressive discipline." Duncan also contended that (1) the five-day suspension cited by Grose was based on an incident for which he had been "falsely accused," (2) Grose's April 18 order to report to work "was a directive and not a disciplinary action," and (3) he had not been placed on controlled leave until "after" (emphasis original) the District "had been properly notified that my physician had placed me on 100% State-approved disability leave." Duncan then set forth a detailed response to each of the new allegations cited by Grose as supporting Duncan's termination. Among other things, Duncan asserted that his use of the District's cellular telephone "has always been for official business and any personal calls made on the District phone were always of a brief and prudent nature." He also referred to an attachment which purportedly showed that he had incurred a total of $137.68 in charges on his personal phone bill for calls on District business

in a pending disciplinary action indicated that it is "not permissible under the current SMAQMD employment contract." He added that Duncan's use of his personal property on District business was "commendable but cannot be represented as offsetting personal use of District property."

   In discussing Duncan's alleged falsification of time records, Taylor's report initially noted that "several" of the purported falsifications were "minor and/or simple transpositions" that did not result in any harm to the District. However, the report then specifically rejected various assertions Duncan had raised to explain the remaining discrepancies. Most significantly, Taylor rejected Duncan's assertion that many of his purported absences were attributable to efforts "to perform surveillance on stationary sources located along his commute route" by noting that Duncan had not written any violation notices at all in 1997, was no longer certified to write such notices and was supposed to supervise the inspectors who wrote such notices, not write the notices himself. Similarly, Taylor rejected Duncan's assertion that he had flexible work hours by noting that Grose had reported that each employee in the Stationary Source Division was committed to specific work hours. As well, Taylor pointed out that although Duncan had requested flexible work hours in his ADA request, the request was never approved and further noted that on February 3 Grose had reportedly instructed Munz that telecommuting was not authorized for employees in the Stationary Source Division. In addition, Taylor acknowledged that Munz had reported that some absences occurred too late in a pay period to be reflected on the time sheets for that pay period, but discounted this argument on the grounds that many of the discrepancies occurred "well in advance of the time sheet turn-in due dates and could easily have been logged correctly." Taylor then concluded that "[t]here are sufficient instances of late arrivals, early departures and missed work time for which no accounting is made . . . to warrant the charge of falsification of time sheets." He added that the fact that Munz had signed off on the time sheets did not "automatically make the ... time sheets valid," since Munz either knew of the falsification and did nothing or did not have a system in place to verify work time.

   In addressing Grose's allegation that Duncan had failed to perform required duties, Taylor's report concluded that Duncan had failed to act professionally in carrying out his assignment to produce a Zone Map plan," but that "it is not clear that a timeframe was sufficiently well established to find a failure to perform required duties." Similarly, he found that it could not be "clearly established" whether or not Duncan drafted the letter to auto body vendors and concluded that since Duncan had in fact informed the District of his absence on April 22, he could not be faulted for failing to attend the CPR training and meeting on that day. Thus, Taylor concluded, there was "insufficient cause to uphold a finding of failure to perform required duties."

    In a summary of the report, Taylor concluded that "discharge is appropriate" in view of Duncan's history of progressive discipline and the report's finding that two of the three most recent charges against him were warranted.

   On the day after Taylor submitted his report to Covell, Johnson sent Duncan a letter advising him that, while on administrative leave with pay, time spent during a work day as a party to a legal matter was considered personal time. RX 2 at 41. Accordingly, she advised him, a request for time off would have to be filed with Grose, and vacation leave or leave without pay would have to be taken for the period used to pursue the legal action. RX 2 at 41. According to Johnson, this was in accordance with the District's "time off to comply with a subpoena" policy. RX 2 at 41. The letter also informed Duncan that "from this date forward, you are to remain at home and be available for contact at your home telephone number for the duration of Administrative Leave, with the exception of requested time off as stated above." RX 2 at 41.

at 2368. As the trial of this matter concluded, Duncan was still receiving state disability benefits and Dr. Clopton had not changed his prognosis. Tr. at 2368. Duncan also testified that he has not made any effort to find alternative employment because he is so depressed and forgetful that he cannot "even imagine myself interviewing" for another job. Tr. at 2502. As well, he testified, pursuing his litigation against the District (i.e., participating in the workers' compensation, whistleblower and arbitration proceedings) is to him "a full-time job." Tr. at 2503. Duncan is seeking a total of ,100,000 in damages, including front pay and compensation for emotional distress. Tr. at 28.

   As previously noted, there has been a full trial of this matter and the District has presented evidence of lawful reasons for terminating Duncan. Therefore, the question of whether Duncan has established a prima facie case is moot and the analysis of the facts can be limited to the issue of whether Duncan has proven a violation of the CAA by a preponderance of the evidence. See USPS Board of Governors v. Aikens, 460 U.S. 711, 713-16 (1983). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998); Olsousky v. Shell Western E & P, Inc., 96-CAA-1 (ARB April 10, 1997) n. 2.

   Review of the record indicates that Duncan has alleged that essentially three different types of adverse actions were taken against him in retaliation for providing information to the EPA: the five-day suspension in March of 1997, various acts of so-called harassment and discrimination, and the termination of his employment in September of 1997. A discussion of the evidence pertaining to each of these types of adverse action is set forth below.

   1. Five-Day Suspension

indication that Duncan challenged the accuracy of this chronology during either the Skelly hearing or the arbitration hearing concerning his suspension. In fact, at the trial's conclusion, Duncan even conceded that perhaps he "could be off" in asserting that he was not notified of Grose's intent to impose discipline until after the disclosure of the Messing letter. Tr. at 2274-75.

   Finally, it is recognized that the critical comments that Duncan made to EPA representatives in the meetings held during 1994 and 1996 were apparently known to some of the District's senior managers before January of 1997 and therefore could have conceivably prompted Duncan's five-day suspension. However, the 1994 comments were so far removed in time that it is unlikely that they were a motivating factor and there has been no showing that Grose (who did not begin working for the District until January of 1997) was ever aware of any of these protected activities. It is also noted that evidence that a complainant engaged in wholly unprotected misconduct immediately prior an adverse employment action may belie a causal connection between earlier, on-going protected action and the adverse action. See Gibson v. Arizona Public Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept. 18, 1995), citing Monteer v. Milky Way Transp. Co., Inc., 90-STA-9 (Sec'y July 31, 1990).

   Accordingly, I find that Duncan's five-day suspension was in fact solely motivated by the District's legitimate interest in ensuring the confidentiality of the sensitive personal information in the computerized files of its chief administrative official and that the suspension was not even in part motivated by retaliatory animus.

   2. Alleged Acts of Harassment and Discrimination

   Duncan also alleges that during 1996 and 1997 he was subjected to various types of harassment and discrimination as a result of his protected activities. Most significantly, he complains (1) that he was forbidden to associate with co-complainant Linda Clark, (2) that he was ridiculed and humiliated by Dozier's decision to include memos from or about him in a file entitled "5150," (3) that Grose physically intimidated him by bumping into him and otherwise invading his "space," and (4) that Grose and the District refused to grant him paid administrative leave when requested during April of 1997. For the reasons set forth below, I find that these alleged adverse actions either didn't occur at all or, if they did occur, weren't the result of unlawful discrimination.

and attendance were so deficient that her supervisors had clear justification for asking Covell to direct that she avoid spending work time with Munz and Duncan. See Tr. at 1202-1356 (testimony of Aleta Kennard), RX 1 (personnel file of Complainant Clark), RX 19A and 19B (supervisor's working file regarding Complainant Clark). It is also clear that as a rule writer Clark had very few, if any, business-related justifications for spending work time with Enforcement Section personnel like Duncan. Tr. at 1246-47 (Kennard's testimony that Clark was not required to work with anyone but her supervisor in drafting rules), Tr. at 818-19 (Clark's testimony that "I worked by myself"). The record further shows that the deficiencies in Clark's job performance progressively worsened throughout 1996 and that by February of 1997 Clark had essentially stopped coming to work at all. CX 17 (notice of termination indicating that between February 1 and May 16, 1997 Clark worked only 49.8 hours and was absent from work a total of 502.2 hours). It is further noted that the District's termination of Clark's employment in June of 1997 was later upheld by an independent arbitrator who concluded that because of Clark's "atrocious attendance record and her lack of performance, the District had good cause to dismiss her." RX 15 at 10. Accordingly, I find that the restrictions on Duncan's work time contacts with Clark were fully justified and that Duncan has failed to show that this alleged act of harassment was even in part retaliatory.

While it could be argued that the foregoing passage was merely an attempt to rationalize past events as having been the result of strategic maneuvering, there are several considerations that suggest that in fact Duncan did in fact deliberately disclose the Messing letter. First, the disclosure of the Messing letter did indeed occur at a time when, in Duncan's terminology, "it looked as if" Duncan "might be disciplined or terminated." In fact, the disclosure occurred only one week after Grose verbally informed Duncan that he would be disciplined, but before there had been any final decision on that discipline. Second, Duncan has testified that, just as claimed in the above letter, he made his Americans with Disabilities Act request disclosing his alleged psychiatric disabilities to the District in a deliberate attempt to prevent the District from possibly firing him for his attempt to "resign" as Jane Doe's supervisor. Tr. at 2612-15. Third, Duncan has failed to provide any other credible explanation for the emergence of the Messing letter from the printer used by the District's top management instead of the printer on his own desk. In

   3. Termination

   The final adverse action that is alleged to have been motivated by illegal retaliatory motives is Duncan's termination as a District employee in September of 1997. As previously explained, Grose's initial notice of proposed discharge listed as grounds for the termination three past disciplinary actions and three new charges. The past disciplinary actions cited in Grose's notice were Duncan's five-day suspension for having transferred the THREECON memo to the W drive, the April 18, 1997 letter sent to Duncan because of his unauthorized failure to report to work pending a decision on his demand for paid administrative leave, and the May 6, 1997 imposition of controlled leave based on Duncan's numerous work absences. As also previously explained, the three new charges consisted of allegations that Duncan had repeatedly misused the District's cellular telephone, had engaged in a continuous pattern of falsifying his time sheets, and had failed to perform four assigned tasks.

   It is apparent from review of the text of Grose's notice of proposed termination that Grose elected to set forth in the notice almost every potential act of alleged misconduct that could conceivably be used to support Duncan's termination, no matter how trivial or technical such an act of misconduct might be. For example, Grose apparently listed every questionable use of the District's cellular telephone, every occasion when Duncan seemed to have failed to have worked the entire period reported on a time sheet, and even such minor events as Duncan's lateness for a sexual harassment seminar. In addition, the new charges consisted of allegations that had not been previously discussed with Duncan. Arguably, such actions could be viewed as circumstantial evidence of hostility and such evidence might in turn support an inference that Grose's efforts to fire Duncan were at least partially motivated by a desire to retaliate against Duncan's protected activities. However, I find that when all of the relevant evidence is considered, Duncan has failed to meet his burden of showing by a preponderance of the evidence that the District's decision to terminate his employment was at least in part motivated by retaliatory motives. There are three reasons for this conclusion.

   First, although the reasons cited in Grose's proposed notice of termination were so numerous and in some cases so trivial that someone might infer that there was an animus against Duncan, Grose also had such a significant number of legitimate reasons for proposing Duncan's termination that the legitimate reasons alone were likely to have generated animus against Duncan. For example, Duncan's obviously untruthful statements denying that he had transferred the THREECON memo to the W drive, Duncan's continued use of the District's cellular phone to call Clark while supposedly too disabled to work, and the numerous questionable entries on Duncan's time sheets could have by themselves generated an animus and convinced Grose that Duncan was too dishonest to be employed by the District. Significantly, Grose's animus toward dishonesty in his subordinates is illustrated by his testimony that while working for the Bay Area Air Quality Management District, he terminated two subordinates for single acts of dishonesty. Similarly, Grose might well have determined that such acts of insubordination as Duncan's appearance at the District's office and use of its internet station during the week of his suspension, Duncan's resistance to Grose's determination that Duncan should spend less time in the field, Duncan's unilateral decision not to come to work until the District acted on his administrative leave request, and Duncan's prolonged

refusal to comply with Grose's controlled leave procedures were collectively so serious that termination was warranted on the basis of insubordination alone or at least in combination with Duncan's acts of dishonesty. In addition, Grose may well have been further motivated by Duncan's atrocious attendance record, i.e., by the fact that during the four-month period ending on May 6, 1997 Duncan used up all his sick and vacation leave and was absent from work in a leave-without- pay status for an additional 202 hours. It is also worth noting that although Grose was aware of Duncan's cooperation with the EPA by the time he recommended Duncan's termination, the fact that Grose didn't begin working at the District until January of 1997 made it highly unlikely that Grose would have believed that any of the information Duncan provided to the EPA could have been about him personally.

   It is further noted that the only indication that Grose was not a credible witness consists of allegations in Duncan's post-trial brief that two statements made during Grose's testimony in a May 14, 1998 arbitration proceeding somehow undermine his earlier testimony in this case. First, Duncan's post-trial brief alleges that comparison of Grose's statement in the arbitration proceeding that by May of 1998 he had "pitched" some pink receptionist message slips concerning the work absences of employees in his section with Grose's March 1998 testimony that he then still had such a collection of message slips raises the inference "that Grose only saved notes relating to Duncan's whereabouts." Second, Duncan's post-trial brief contends that Grose's testimony in this proceeding that he was "not aware" that Duncan was ever allowed to work "telecommute hours" is inconsistent with Grose's testimony before the arbitrator that "as far as I know" Duncan was "never" authorized to telecommute. Neither of these challenges to Grose's credibility is convincing. Grose's testimony that he "pitched" the message slips by May of 1998 is hardly suspicious in view of his further testimony to the arbitrator that, as many people do, he periodically "pitches" his message slips when his collection gets too big. ALJX 9 at 206. Likewise, the allegation that Grose has given inconsistent testimony on the question of Duncan's authority to telecommute is mere semantic quibbling, especially in view of the fact that Grose volunteered in his testimony in this proceeding that there was one instance when he had allowed Munz to let an unnamed employee telecommute and that in that instance the employee might have been Duncan. Tr. at 2657-58. It should also be pointed out that the assertion in Duncan's post-trial brief that Grose engaged in retaliatory acts against Duncan whenever possible is inconsistent with the fact that in February of 1997 Grose found Jane Doe's sexual harassment charges against Duncan to be without merit. Finally, it is also noted that Grose's demeanor during his testimony in this proceeding was consistent with the demeanor of a person who is telling the truth to the best of his ability, regardless of whether the answers given would or would not be favorable to his side of the litigation.

   Therefore, based on the foregoing considerations and on Grose's truthful demeanor during the trial, I conclude that Grose testified honestly when he asserted that Duncan's whistleblowing activities were not among the factors that motivated his proposal to terminate Duncan.

   It is further noted in this regard that Taylor's detailed written report and trial testimony, including his demeanor while testifying, indicate that, in performing his role as a Skelly officer, Taylor made a good faith effort to consider the allegations against Duncan on the merits and that he testified truthfully when he represented that he did not allow his conclusions to be influenced by any animosity arising out of Duncan's protected activities. Tr. at 2007-08. Indeed, the evidence suggests that Taylor gave Duncan the benefit of the doubt on charges that could have in fact been sustained (e.g., the allegations that Duncan's calls to Clark before April 22 were unauthorized).

The foregoing factors, as well as Covell's credible demeanor while testifying, all strongly indicate that the District's stated reasons for firing Duncan were not a pretext and that in fact these reasons were the more likely cause for Duncan's termination.

   Finally, it is noted that even if it could be concluded that Duncan's termination was at least partly motivated by his protected activities, the District has more than met the burden of showing by a preponderance of the evidence that it would have taken the same action even if it had never learned of Duncan's protected activities. As already explained, the record shows that in the 14 month period immediately preceding Duncan's termination he repeatedly engaged in unprotected acts of insubordination and hostility toward the District's management and in the nine month period prior to the termination also engaged in a series of acts of dishonesty. While it might be argued that any one or two of these acts of insubordination and dishonesty were by themselves insufficient to warrant Duncan's dismissal, when these acts are considered collectively, as any rational employer would, it is clear that very few if any employers would have retained Duncan as an employee. As the Secretary of Labor has previously noted:

Although whistleblowers are protected from retaliation for blowing the whistle, the fact that any 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).

Lopez v. West Texas Utilities, 86-ERA-25 (Sec'y July 26, 1988). Thus, as in this case, an employer legitimately may discharge a worker for insubordinate behavior, work refusal, and disruption. See also Hale v. Baldwin Associates, 85-ERA-37 (Sec'y Sept. 29, 1989) (affirming an administrative law judge's finding that there was no statutory violation where a whistleblowing employee was discharged for not accepting assignments and for disrupting the work place); Couty v. Arkansas Power & Light Co., 87-ERA-10 (Sec'y Feb. 13, 1992); Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993).

   The complaint of Complainant Mark Duncan is hereby dismissed.

      Paul A. Mapes
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary of Labor unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).