1. Whether the Complainant engaged in activity which is protected within the meaning of the Act, and

   2. Whether any adverse action taken against Complainant was due to his engaging in protected activity.

   After working fifteen years as a machinist, Complainant received his B.S. in civil engineering in 1997 and then completed his master's studies in December of 2000. He thereafter successfully completed the requirements for certification as a Professional Engineer in California in April of 2001. Complainant then was employed as a staff engineer with URS until he was laid off in late 2002. Complainant was hired by Respondent on February 10, 2003, as a project manager on various construction projects for which Respondent had been retained as consulting engineer.

   Complainant almost immediately expressed some concern that Environmental Protection Agency regulations which were to become effective on March 10, 2003, might require an additional Storm Water Pollution Prevention Plan ("SWPPP") on the Water System Rehabilitation Project located on the Pasquale Indian Reservation in San Diego County, California (CX 20 and CX 15). Apparently, as a consequence of Complainant's expressed concerns, a request for waiver was prepared and forwarded to the EPA on March 7, 2003, by Daniel Cody, the project manager whom Complainant was hired to replace and who spent several weeks training Complainant prior to actually leaving Respondent's employ (CX 28). This waiver dated March 7, 2003, was based on calculations which Complainant testified he had prepared.

   On April 15, 2003, Complainant spoke with Linda Reeves and Eugene Bromley of EPA regarding the requested waiver (CX 26). Complainant then prepared additional information which he sent to EPA on April 16, 2003 (CX 16 and 29). Complainant testified that although he prepared and submitted the calculations and request for waiver to the EPA, he felt pressured to do so by Mr. Springer. Complainant testified that he believed the Pasquale Indian Project would not properly qualify for a waiver but rather there should be a requirement to prepare and submit to EPA a SWPPP at a cost of eight to ten thousand dollars (CX 21).

   On April 29, 2003, Complainant briefly spoke with Mr. Springer. He received a $10,000.00 per year raise. Complainant testified that he advised Mr. Springer during this conversation that he would be more adamant about complying with EPA regulations regarding storm water pollution plan requirements in the future. Complainant also discussed problems that he was having with the office manager, Renee Dunn, whom Complainant felt had a poor attitude and demeanor. Mr. Springer requested that the Complainant bring to Mr. Springer's attention any further problems with Ms. Dunn rather than Complainant trying to deal with such issues himself.

   On May 7, 2003, Complainant had additional problems with Ms. Dunn resulting in Complainant telling Ms. Dunn that he intended to perform some of the duties which she had been performing. When Mr. Springer returned to the office later that afternoon, he was approached by Ms. Dunn who stated that she had felt threatened by Complainant's actions during their argument earlier that day and that she was distraught over Complainant telling her that he would take over some of her job functions himself. Mr. Springer then decided to terminate Complainant's employment based on Complainant's continued inability to properly relate to Ms. Dunn and Complainant's failure to leave personnel problems up to Springer rather than tackling them on his own. Mr. Springer promptly notified Complainant of his termination effective immediately.

   Section 507(a) of the WPC provides as follows:

No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . by reason of the fact that such employee . . . has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of this chapter.

33 U.S.C. § 1367(a).

   The Secretary of Labor has repeatedly articulated the legal framework under which parties litigate in retaliation cases. Under the burdens of persuasion and production in environmental "whistleblower" proceedings, the complainant must first present a prima facie case of retaliation by showing:

1) that the respondent is governed by the WPC;

2) that the complainant engaged in protected activity as defined by the WPC;

3) that the respondent had actual or constructive knowledge of the protected activity and took some adverse action against the complainant; and

4) that an inference is raised that the protected activity of the complainant was the likely reason for the adverse action.

See Hoffman v. Bossert, Case No. 94-CAA-4 at p. 3-4 (Sec'y Sept. 19, 1995); Macktal v. U.S. Dept. of Labor, 171 F.3d 323, 327 (5th Cir. 1999); Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995); Passaic Valley Sewerage Com'rs v. U.S. Dept. of Labor, 992 F.2d 474, 480-81 (3d Cir. 1993); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995).

Protected Activity

   Whistleblower provisions are intended to promote a working environment in which employees are free from threats of employment reprisals for publicly asserting company violations of statutes protecting the environment, such as the Water and Pollution Control Act. Passaic Valley, 992 F.2d at 478. Such provisions are intended to encourage employees to aid in the enforcement of such statutes through protected procedural channels. Id. With this purpose in mind, "protected activity" has been broadly defined as a report or internal complaint of an act which the complainant reasonably believes is a violation of an environmental act. The complainant need not prove that an actual violation occurred. Rather, he must prove only that his complaint was "grounded in conditions constituting reasonably perceived violations of the environmental acts." Ilgenfritz v. United States Coast Guard Academy, 1999-WPC-3 (ALJ Mar. 30, 1999).

   Internal complaints are specifically recognized as protected activity because the employee is encouraged to first take environmental concerns to the employer to allow the perceived violation to be corrected without governmental intervention. Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987)(Order of Remand). Such complaints also afford the employer an opportunity to justify or clarify its policies where the perceived violations are a matter of employee misunderstanding. Ilgenfritz, 1999-WPC-3, at p. 479.

   Although broadly defined, protected activity has been limited to the assertion of violations that involve a safety issue or an issue which impacts the environment. In Odom v. Anchor Lithkemko/International Paper, for example, the Administrative Review Board held that it is "well established that the whistleblower provisions forbid an employer from retaliating against an employee because he complained about reasonably perceived violations of the Acts' requirements related to environmental safety." 96-WPC-1 (ARB Oct. 10, 1997). The provisions do not apply to [a claimant's] occupational, racial, and other nonenvironmental concerns." Id. at p. 5. See also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) (Energy and Reorganization Act protects employees from retaliation based on internal safety and quality control complaints); Kesterson v. Y-12 Nuclear Weapons Plant, 95-CAA-12 (ARB April 8, 1997) (whistleblower provisions protect employees for making safety and health complaints); Deveraux v. Wyoming Assoc. of Rural Water, 93-ERA-18 (Sec'y Oct. 1, 1993) (complaints to management about inaccurate records, mismanagement and waste are not related to environment or safety); and Basset v. Niagara Mohawk Power Co., 85-ERA-34 (Sec'y Sept. 28, 1993) (protected conduct includes filing internal quality control reports and making internal complaints regarding safety or quality problems).

Inference That Protected Activity Was Reason for Adverse Action

   To prevail on the fourth element of the prima facie case, a complainant needs only to establish a reasonable inference that his or her protected activity lead to, or caused, the respondent's adverse action. This burden to show an inference of unlawful discrimination is not onerous. McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y Jul. 16, 1993). One factor to consider is the temporal proximity of the subsequent adverse action to the time the respondent learned of the protected activity. Jackson v. Ketchikan Pulp Co., 93-WPC-7 and 8 (Sec'y Mar. 4, 1996). Close temporal proximity may be legally sufficient to establish the causation element of the prima facie case. Conway v. Valvoline Instant Oil Change, Inc., 91-SWD-4 (Sec'y Jan. 5, 1993). On the other hand, if a significant period of time lapses between the time the respondent is aware of the protected activity and the adverse action, the absence of a causal connection between the protected activity and the adverse action may be sufficiently established. Shusterman v. Ebasco Serv., Inc. 87-ERA-27 (Sec'y Jan. 6, 1992).

Burden of Producing Evidence Shifts upon Prima Facie Showing by Complainant

   If the complainant presents a prima facie case showing that protected activity motivated the respondent to take an adverse employment action, the respondent then has a burden to produce evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. In other words, the respondent must show it would have taken the adverse action even if the complainant had not engaged in the protected activity. Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).

   Where the respondent presents evidence of a legitimate purpose, the final step in the adjudication process is to determine whether the complainant, by a preponderance of the evidence, can establish the respondent's proffered reason is not the true reason for the adverse action. In this final step, the complainant has the ultimate burden of persuasion as to the existence of retaliatory discrimination. The complainant may meet this burden by showing that the unlawful reason more likely motivated the respondent to take the adverse action. Or, the complainant may show the respondent's proffered explanation is not credible. See Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996); Shusterman v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992); Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y Jun. 28, 1991); Darty v. Zack Co., 80-ERA-2 (Sec'y Apr. 25, 1983). In any event, the complainant bears the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Darty v. Zack Co., 80-ERA-2 (Sec'y Apr. 25, 1983) at p. 5-9, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   Based upon the evidence introduced and having considered the arguments and positions presented, I make the following Findings of Fact, Conclusions of Law and Recommended Order.

Prima Facie Case

   The Respondent is governed by the WPC as the issues claimed by the Complainant involve efforts to comply or obtain a waiver with respect to the storm water pollution prevention aspects of the Act. Complainant claims that he engaged in protected activity by voicing internal complaints with regard to the attempts to obtain a waiver from the SWPPP regulations on the Pasquale Indian Project. These internal complaints to Mr. Springer relate to issues impacting the environment and thus constitute protected activity for purposes of the Act. See Poulos v. Ambassador Fuel Oil Co., Inc., 86-CAA-1 (Sec'y Apr. 27, 1987) (Order of Remand); Odom v. Anchor Lithkemko/International Paper, 96-WPC-1 (ARB Oct. 10, 1997). Mr. Springer testified that there was no real environmental impact involved herein as the contractor on the project had voluntarily undertaken steps which, following Complainant's discharge, were accepted by the EPA in lieu of a SWPPP (RX 8). Nonetheless, the internal complaints voiced by Complainant herein were "reasonably perceived violations of the environmental acts." Ilgenfritz v. United States Coast Guard Academy, 1999-WPC-3 (ALJ Mar. 30, 1999). While Respondent claims lack of knowledge regarding this protected activity, Complainant testified that there were several conversations regarding the waiver on the Pasquale Indian Project which seem to be borne out by his notes and the two requests for waiver submitted to the EPA (CX 18, 21, 24, 26, 16 and 28). Further, the undersigned accepts Complainant's testimony that he advised Mr. Springer in the same conversation in which he received a raise that he would be more adamant about compliance with EPA regulations in the future. Although this internal complaint may be somewhat vague, I will give Complainant the benefit of the doubt in furtherance of the purposes of the Act and accept it as protected activity made known to the Respondent, recognizing that such internal complaints may need to be made somewhat discreetly and with some degree of tact by an employee interested in maintaining his job.

   There seems to be no real dispute that Complainant was terminated by Respondent (an adverse employment action). Complainant testified that he was terminated approximately one week after his complaint to Respondent about being more adamant in complying with EPA regulations. While the termination did not immediately follow Complainant's voicing of an internal complaint, the weeks delay could easily be attributed to the fact that Mr. Springer as well as the Complainant were frequently out of the office and thus did not have daily contact with each other. Given that the burden to show an inference of unlawful discrimination is not onerous and the relative temporal proximity of the termination herein, I find the evidence sufficient to establish the causation element of the prima facie case. See McMahan v. California Water Quality Control Board, San Diego Region, 90-WPC-1 (Sec'y Jul. 16, 1993); Conway v. Valvoline Instant Oil Change, Inc., 91-SWD-4 (Sec'y Jan. 5, 1993).

   Thus, Complainant has shown that he was engaged in a protected activity; that he was the subject of an adverse employment action; and that there was a reasonable inference of a causal link between his protected activity and the adverse action since the termination followed within a week of his communication to the Respondent his complaint regarding adherence to environmental regulations.

Nondiscriminatory Justification by the Respondent for Termination

   Mr. Springer testified that he terminated Complainant on May 7, 2003 due to his disrespectful and harassing behavior towards Ms. Dunn and due to Complainant issuing Ms. Dunn a memo taking away part of her duties less than a week after Mr. Springer had told Complainant to bring any personnel problems to Mr. Springer for resolution. Mr. Springer testified, as did Ms. Dunn and Mr. Bradtke, that there had been some conflict between Complainant and Ms. Dunn previously which further surfaced on May 7, 2003. Additionally, Mr. Springer testified that he had an earlier problem with Complainant's use of profanity in the office for which he had counseled Complainant. While Complainant's witness, Mr. Anderson, testified that Ms. Dunn was emotional and became upset easily, his testimony does not diminish the fact that there was a personality conflict between Complainant and Ms. Dunn. Rather, Mr. Anderson's testimony merely confirms the likelihood of such a conflict. Further, it is not surprising that Mr. Springer should ultimately chose to resolve the personality conflict by terminating Complainant (a ninety day employee) rather than taking some adverse action against Ms. Dunn, a five year employee recently in remission from a bout with cancer. While one may question whether Mr. Springer over-reacted and/or over-protected Ms. Dunn in this situation, it does appear that this personality conflict between Complainant and Ms. Dunn was the cause for Complainant's termination and not his internal environmental complaints.

   Complainant submitted a decision by the California Unemployment Insurance Appeals Board in which it was determined that the Respondent had not proven that Complainant was terminated for misconduct and thus Complainant was entitled to unemployment benefits (CX 1). While this decision is in no way binding in this forum, the decision simply finds that the Complainant's actions in this case did not rise to the level of "misconduct" required by the unemployment regulations to disqualify Complainant from receiving unemployment benefits. The decision does not find that the actions of Complainant relied upon by Respondent as justification for his termination were not the true reasons for his termination. Rather, the decision simply finds that the actions by the Complainant arising from the underlying personality conflict with Ms. Dunn were not egregious enough to be classified as misconduct. Indeed, the undersigned agrees with the CUIAB decision that the actions of Complainant were not "misconduct" for purposes of the unemployment statute. However, it appears clear that Complainant's interaction and the underlying personality conflict with Ms. Dunn were the reason for his termination, not his rather vague promise to be more adamant regarding future environmental issues. Accordingly, I find that Complainant has not met his burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Darty v. Zack Co., 80-ERA-2 (Sec'y Apr. 25, 1983) at p. 5-9, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   Based upon the foregoing Findings of Fact, Conclusions of Law and upon the entire record, Complainant has not proven retaliation by Respondent and his complaint is hereby DISMISSED.

   SO ORDERED.

      Russell D. Pulver
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary 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, NW, Washington, DC 20210. Such a 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