FINAL DECISION AND ORDER
This case arises under the whistleblower protection provision of the
Clean Air Act (CAA),
42 U.S.C. § 7622 (1988) and the pertinent regulations at 29 C.F.R. Part 24 (1995). On
December 12, 1995, the Administrative Law Judge (ALJ) issued a Recommended Decision and
Order
(R. D.& O.) that the complaint be dismissed. For the reasons set forth below, the ALJ's
recommended Order is accepted.
BACKGROUND
The Complainant (Erb) was employed by Respondent as a maintenance
worker at one of its
managed properties. For approximately the first eight months of his employment, from May
1994
through early January 1995, the resident management staff considered Erb to be a very good
employee. In January 1995, however, Respondent hired a new maintenance supervisor, James
Fischer, whose apparent style of supervision and perceived lack of competence were a
continuous
source of contention for Erb. Transcript (T.) at 19, 22, 44, 50-51 and 70. Although the
management
staff reviewed Erb's allegations regarding Fischer's competence, they found no basis for Erb's
complaints. T. at 67-68, R. D. & O. at 4.
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Fischer was aware of Erb's complaints, and in turn complained to the
management staff about
Erb's attitude and lack of being a "team player." T. at 163. The resident manager
initiated a number of formal and informal meetings with Erb and Fischer, but was not able to
effectuate a more harmonious working situation.
The hearing record is replete with testimony of Erb's unhappiness with
Fischer, and Fischer's
dissatisfaction with Erb. Erb testified that on March 1, 1995, which was a month before he was
terminated and three weeks prior to the incident giving rise to Erb's claim of whistleblower
protection, Fischer told him he intended to fire Erb as soon as the Resident Manager went on
maternity leave. T. at 22.
On March 23, 1995, Erb observed Fischer removing Freon gas, an
environmentally controlled
substance, from a faulty air conditioner using, apparently unknowingly, a broken gas evacuator
device. Erb did not advise either Fischer or other management personnel while the gas was
venting
into the atmosphere, but waited until the following day to notify management of Fischer's
mishandling
of the recapture process. T. at 27-31. The venting of Freon was a violation of the CAA, and
could
have subjected Respondent to substantial penalties.
Erb advised the building management staff, and in fact, did contact the
EPA with regard to
the Freon venting. However, the EPA did not pursue any sanctions against Respondent for the
apparently inadvertent venting. Respondent's management staff undertook an independent
investigation, concluded that the venting was inadvertent and took no action against Fischer.
Respondent's General Manager thanked Erb for calling the problem to their attention, and told
him
that he need not worry about any retaliation because it was advantageous to the company to be
advised of possible problems and to deal with them before they became critical. T. at 49-50,
171.
Shortly thereafter, the maintenance staff lost personnel and Erb was
given additional duties
as a porter, which he felt were outside of his current job description, but which he had previously
done. Erb went about his job, but was clearly unhappy. T. at 50-51, 173-76. After the first day
of
his newly assigned duties, Erb took two days off. When he returned to work, Fischer advised
him
that he was terminated for insubordination, specifically for not being "a team
player."
T. at 35-36, 50-51, 176.
DISCUSSION
In order to prevail in a whistleblower protection case based upon
circumstantial evidence of
retaliatory intent, a complainant must prove that he was an employee of a covered employer; the
complainant engaged in a protected activity; the complainant thereafter was subjected to an
adverse
action regarding his employment; the respondent knew of the protected activity when it took the
adverse action; and the protected activity was the reason for the adverse action. See Simon v.
Simmons Foods, Inc., 49 F.3d 386, 389(8th Cir. 1995).
The ALJ found that Erb did establish a prima facie case, but did
not show by a
preponderance of the evidence that he was discharged, even in part, based upon discriminatory
reasons. R. D.& O. at 7. In a case such as this, in which the Respondent introduced evidence to
rebut a prima facie case of a violation of the employee protection provision of the CAA,
it
is unnecessary to examine the question of whether Erb established a prima facie case.
See Hoffman v. Bossert, Case No. 94-CAA-004, Dec. and Remand Order, Sept 19, 1995,
slip op. at 6; Carroll v. Bechtel Power Corp., Case No. 91-ERA-46, Sec. Dec., Feb. 15,
1985, slip op. at 11 n.9, aff'd sub nom. Carroll v. U.S. Dep't of Labor, 78 F.3d 352, 356
(8th
Cir. 1996).
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The basic question to be examined is whether Erb carried his ultimate
burden to prove by a
preponderance of the evidence that he was discriminated against for engaging in protected
activity.
See St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993); Darty v. Zack Co. Of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 23, 1983, slip op. at 7-8. To carry that
burden
Erb must show that Respondent's stated reasons for his discharge -- insubordination and lack of
cooperation -- are pretextual. Hoffman, slip op. at 6.
The ALJ found that Respondent presented convincing evidence that it
had legitimate,
nondiscriminatory reasons for terminating Erb, with regard to his insubordination, lack of
cooperation
and a failure to improve his work habits. R. D.& O. at 6. The record repeatedly reveals
these issues as a source of continuous contention between Erb and Fischer for the three months
prior
to the protected activity. Erb admitted that he was told by Fischer, prior to engaging in any
protected
activity, that he would be discharged as soon as the Resident Manager went on maternity leave.
T.
at 22, 44-45. There is no record evidence that Erb made any attempt to modify his attitude with
regard to Fischer, and there is persuasive testimony by other witnesses concerning Erb's
continuing
negative attitude toward Fischer. DePrisco, T. at 66; Vaughan, T. at 147; Baad, T. at 160-61.
Erb proceeded in this case pro se, and was accorded
considerable latitude by the ALJ.
Although Erb presented a case setting forth his concerns regarding Fischer's competence as a
supervisor, he did not meet the requisite standard of proof that the adverse action taken against
him
was, even in part, motivated by his protected activity. We find, after reviewing the record and,
notably, Erb's own testimony at the hearing, that the ALJ's recommendation that the complaint
should
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be dismissed is correct.
CONCLUSION
The ALJ's Recommended decision of December 12, 1995, is accepted,
and the complaint in
this case is DISMISSED
- SO ORDERED.
- DAVID A. O'BRIEN
- Chair
- KARL J. SANDSTROM
- Member
- JOYCE D. MILLER
- Alternate Member
[ENDNOTES]