This is a case arising under the Water Pollution Control Act ("the Act"), 33 U.S.C. 1367, and the applicable regulations codified at 29 C.F.R. Part 24. Complaints were filed with the Department of Labor by all three complainants in March of 1991 -- James L. Seda's on March 7, 1991, Jeff Walters' on March 11, 1991 and Phillip J. Wathier's on March 12, 1991 -- contending that they were unlawfully discharged on February 12, 1991 by Wheat Ridge Sanitation District ("respondent") after talking with the Environmental Protection Agency regarding alleged violations occurring at respondent's sewage treatment plant.

a. Background

   The Wheat Ridge Sanitation District is a quasi-municipal corporation that provides sewage transportation and treatment services to Wheat Ridge, Colorado residents (RX N. Att. 3). It is a small operation, serving approximately 28,000 people (TR 102) on a budget of approximately 1.5 million dollars (TR 101). The business of the District is managed by the Board of Directors, which consists of five members: George R. Holte, President; Gilbert C. Lang; M. W. Mattern; Donald Drommond; and Willard Krieger (RX E-2). In September of 1989, the employees of the District consisted of two full-time office employees and one part-time, as well as six or seven plant and line operators (TR 101). The District's facilities consist of the sewage lines and the plant. The lines transport the sewage to the plant where the

sewage is treated and then discharged (RX N. Att. 3). The employees who worked on the lines performed tasks such as jet cleaning and televising the lines and removing blockages from the lines (TR passim). Jet cleaning (jetting) is done by shooting high pressure streams of water through the lines to clean out debris (id.). The line is then televised, which involves putting a video camera through the line to make a videotape from which it can be determined whether there are any blockages or whether the line is clear (id.). Employees in the plant performed general maintenance on the plant and also worked in the lab collecting samples and testing them as required by law (id.). The District is governed by the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., which establishes the regulatory program that governs the discharge of pollutants into the Nation's waterways.

   Complainant James Seda was hired by the District in 1985 and was lead man of the line crew under supervisor Mark Montgomery from 1985 until 1989 (TR 206-07). For a short period of time after Mr. Montgomery left, during Pete Miller's short tenure as supervisor, Mr. Seda ran the TV truck. Then, after Lenny Hart became supervisor, he was made a lab technician and worked with Mr. Hart in the lab (id.). At the time of the EPA raid on June 12, 1990, Mr. Seda was working in the lab with Mr. Hart (TR 208).

   Complainant Jeff Walters likewise had worked for the District since 1985 (TR 321). From 1985 until Mr. Hart became supervisor, Mr. Walters worked as a plant operator and a line operator (TR 320, 322). When Mr. Hart became supervisor in March of 1990, Mr. Walters was delegated to line operations only (TR 322-23). At the time of the EPA raid, Mr. Walters was employed as a line operator (TR 323).

   Complainant Phil Wathier was hired by Pete Miller in August of 1989 (TR 482). When Mr. Miller left in early October of 1989, Lenny Hart was appointed supervisor by the Board (TR 483). Mr. Hart's mother and grandmother are the District's two full-time office employees, and have worked for the District for many years (see, e.g., TR 101, 1546). Mr. Wathier alleges he became concerned about Mr. Hart running the plant because he believed that Mr. Hart did not have the proper license under Colorado law to run the plant (TR 483-84). In late December of 1989 or early January 1990, Mr. Wathier alleges that he contacted the Colorado Board of Health and informed them that Mr. Hart was running the plant without the proper licensing (id.). He alleges that he was concerned that Mr. Hart was not capable of handling the

responsibilities and was also concerned about the public and his own safety because Mr. Hart instructed him to dump acrylomide, allegedly a toxic substance, into the head works of the plant (TR 484-85).

   After he received no response from the Colorado Board of Health, Mr. Wathier contacted the U. S. Environmental Protection Agency, where he spoke to Bill Smith, a Senior Special Agent for Criminal Investigations, about Mr. Hart's lack of a proper license and also about a recent discovery he had made with regard to improprieties in testing and the falsification of records by Mr. Hart (TR 404, 490, 493). Mr. Wathier stated that he did not contact the Board about these problems because he had heard that another employee, Craig Schoenrogge, had been fired after complaining to the Board about the dumping of Q-Seal (acrylomide), and he was worried he might lose his job if he reported his concerns to the Board (TR 492). In fact, Mr. Schoenrogge told the EPA that he had been fired "for attitute problems and not being able to get along with other people.' (RX N. Att. 3, Para. 14).

   After the initial contact with Mr. Smith at the EPA, Mr. Wathier provided the EPA with copies of the Discharge Monitoring Reports (DMRs) and laboratory bench sheets over a number of months (TR 404, 497). Mr. Wathier was promised that his identity would be kept secret by the EPA when he gave information to them (TR 420-21, 500). Mr. Smith, based on the information given to him by Mr. Wathier and Mr. Schoenrogge, wrote an affidavit and received a search warrant from a magistrate based on this affidavit (TR 404). The affidavit, as well as several newspaper articles published after the raid, stated that an unnamed, longtime employee of the District had served as an informant (CX 2, TR 415-16, RX N).

   Armed with the search warrant, the EPA arrived at the plant on June 12, 1990 to conduct a search of the premises (TR 405). June 12th happened to be the day set for the monthly Board of Directors meeting, so the Board members showed up in the afternoon and became aware of the presence of the EPA (RX 0). Since the EPA needed to go through files that were located in the Board's meeting room, the Board left the plant and reconvened at the offices of its attorney, Barry Hudson (id.). Mr. Smith of the EPA interviewed in private each of the District's non-office employees and seized most if not all of the District's business documents (TR 405). Mr. Hart was the first to be interviewed and was made aware that all non-office employees would be interviewed, (TR 405-06). Towards the end of the day, the employees claim that Mr.

Hart instructed them not to speak to anyone unless he or Mr. Hudson, the District's attorney, were present (TR 211, 327, 501). Mr. Smith testified that when he confronted Mr. Hart, Mr. Hart informed him he made the announcement to the employees per the instructions of Mr. Hudson (TR 412, 150). Mr. Hudson stated that he did not instruct Mr. Hart to tell the employees to refuse to speak to the EPA (id.).

    Tony DiGiacomo, one of the District's employees, was appointed by the Board as supervisor of the line operations on June 20, 1990 (RX P). Mr. Krieger and Mr. Brown testified that Mr. DiGiacomo was chosen over some more senior employees because they felt he had more leadership ability than the other employees (TR 1164, 1250). In September of 1990, Mr. DiGiacomo asked to be relieved of his duties because he could not handle the employees and was not getting cooperation from them (TR 92, 1252, 1324, 1455).

   After Mr. DiGiacomo was relieved as supervisor, the Board decided to bring in an outside contractor to supervise the employees (RX B-1, TR 1165). Mr. Brown was given the responsibility of finding a contractor (RX B-1, TR 1166). Mr. Brown contacted several contractors, of which only H2O Construction and Maintenance, Inc. ("H2O") was interested in the position (TR 1166). A contract was entered into with H2O for training and supervision of the line employees and for employee evaluations (RX D-1).

   The employees were notified by the Board that it had contracted with H2O to supervise and supplement the District's manpower and assured the employees that their employment would continue under the supervision of H2O (RX E-1). Jeff Irvin, the President of H2O, met with the District's employees in late September or the first of October to introduce himself and to inform them that Jim Mulford would be working with them to observe and give suggestions on procedures (TR 1045-46). After approximately a week of observation, Mr. Mulford was officially made supervisor of the line crew (TR 644).

   Mr. Mulford worked with the employees until mid-October (TR 657). At that time, he went on a vacation that had been planned for a year (TR 800, 1049). Mr. Mulford stated that he had problems with cooperation in those first couple of weeks during which he was the supervisor (TR 657, 1047-49). Some specific instances include a problem with Mr. Seda's attitude that was noted from the first day of H2O's tenure with the District (TR 645-46; RX E, 10/2/90). Mr. Mulford noted problems with the use of a camera that was not working properly and which had been used in that condition for quite some time, as well as unorganized televising being done by the crew (TR 646-50; RX E, 10/2/90 and 10/3/90). Mr. Mulford also observed that the employees took long lunch breaks, often returning to the plant early to wait to punch out at noon (TR 651-52; RX E, 10/4/90). One day the jet truck ran out of water, which could have been avoided by effective preparation,

i.e., filling the truck before they went out for the day (TR 653-54; RX E, 10/5/90). Mr. Irvin felt that many of the problems that Mr. Mulford had run into could be remedied by proper training, which Mr. Mulford attempted before he Left (TR 1049). The employees stated that they could work much better on their own (TR 10493. When Mr. Mulford left on vacation, Mr. Irvin decided to allow the employees the freedom to work unsupervised, as they had requested, to see if that would be more effective than active supervision (id.). Once Mr. Mulford left, the employees went back to their previous way of jetting and televising and did not follow the new procedures given by Mr. Mulford (TR 1085).

   Mr. Mulford returned for a day or two in December when a backup occurred and there was a need for extra workers (TR 658; RX E, 12/10/90). He found that the line crew was not jetting properly to clear the backup (id.). According to Mr. Mulford, the procedure they were using to clear the backup could have easily resulted in the flooding of houses (id.). On the same day, the crew did not screw a root cutter on properly, so it came off in the pipe (TR 659, RX E, 12/10/90). To retrieve it, the crew had to dig up and break the pipe (id.). The next day, two District employees went to pick up pipe, when this could have been done by one (TR 661; RX E, 12/11/90).

   Sometime in late November or early December, a backup occurred at 38th and Wadsworth where some city employees had caused a pipe blockage when installing a light pole (TR 257, 351, 663-64). Until this could be fixed, the District had to pump water out of the pipes to keep it from flooding homes (TR 258, 351-52, 664). On January 4th, H2O received a phone call from a resident that her home was flooded (TR 665, 1051). Since this was not the first time flooding had occurred as a result of this backup, Mr. Irvin sent Mr. Mulford to the District to make sure this was taken care of (TR 1051-52). The District's employees had been late in arriving to pump out the manhole and had only pumped out one truckload when Mr. Mulford arrived (TR 666). Mr. Mulford asked Mr. Seda to take the truck and dump it so that they could pump some more water out (TR 666-67). Mr. Seda refused, saying they were waiting for sample bottles to arrive (TR 667). The engineers had asked that they take samples when they noticed the water was green (TR 667, 775-76). Mr. Mulford felt that the priority was not to take samples, that could be done anytime, but to make sure the resident's house was not flooded again (TR 776). Mr. Mulford made the request again to which Mr. Seda responded, "I don't have to take orders from you." ( TR 221, 668). Mr. Seda testified that Mr. Mulford

had not been on site regularly since October, so he did not think that he was their supervisor at that time (TR 300-02). In response to this altercation, Mr. Irvin spoke to the Board at the next Board meeting, January 8, 1991, to clarify his authority to issue a reprimand (TR 1052). After the meeting with the Board, Mr. Irvin drafted a formal reprimand of Mr. Seda with regard to the January 4th incident (RX L-1, TR 1053). He and Mr. Mulford then met with Mr. Hudson sometime between January 8th and the 11th to determine if the reprimand was procedurally correct (TR 1053). The reprimand was issued to Mr. Seda on January 14 (id.).

    A meeting was held between the District's employees and the Board on January 7, 1991 (TR 222, 1536). This meeting had been requested by Mr. Seda, but all the employees attended (id.). The Board listened to Mr. Seda's account of the incident on January 4th and also heard general complaints from the employees regarding the problem at 38th and Wadsworth (TR 222-23, 524). There was also some concern expressed by the employees about privatization, i.e., bringing in a private company to completely take over the operation (TR 1535, 1538). It had been mentioned by Mr. Irvin or Mr. Mulford as a possibility for the District (TR 393-94, 1539). The Board assured the employees that if privatization was to occur the Board would give them reasonable notice (TR 1538).

   After the incident on January 4th between Mr. Mulford and Mr. Seda, Mr. Mulford came to the District every day (TR 391). After another flooding of the same resident's house, Mulford decided that H2O would take over the pumping and dumping at 38th and Wadsworth to make sure it got done (TR 390, 669-70, 67475). Mr. Mulford kept noticing a problem with the employees getting to the manhole to pump on time (TR 669, 674). Mr. Mulford continued to have problems with the crew members taking time off without contacting or getting permission from he or Mr. Irvin (TR 691-92, 698). Even after a memo was issued expressing their concern with the taking of time off without permission, it still occurred (id.). This made planning extremely difficult because there must be at least two men on a crew (TR 693). There were several instances where a crew assigned to an area would leave its station (TR 670; 687; RX E, January 17, 1991). The employees did not notify him when equipment was broken (TR 695; RX E, January 23, 1991). On one day, Mr. Mulford noticed that some of the crew took three lunch breaks (TR 689-90; RX E, January 22, 1991). At times, the crew disregarded his orders (TR 671-72).

   Mr. Seda testified that on January 16, 1991, he was feeling ill and spoke to Mr. Mulford in the morning about leaving early (TR 225). At lunchtime he decided he could no longer stay at work the way he was feeling, so he left for the day (id.). Mr. Mulford stated that Mr. Seda disappeared on the 16th without explanation (TR 679). Mr. Seda did not return to work again (TR 700, 94, RX B). Mr. Seda testified that he called in sick on January 17th and left a message with Tony DiGiacomo that he was going to be out a couple more days (TR 226). He stated that on the next Sunday, he called Mr. Irvin's answering service to request a week of vacation (TR 226). He never heard back from Mr. Irvin until he received a letter dated January 28, 1991 stating that Mr. Irvin had assumed from his absence that Mr. Seda had quit his job with the District (TR 227-28, RX P-1). He went down that day and spoke to Mr. Mulford and then requested medical leave from the Board, which was granted (TR 227-28, 1542-43). Mr. Mulford and Mr. Irvin both stated that neither they nor the other employees heard from Mr. Seda after he left on January 16th until Mr. Mulford received a phone call from him on January 28th (TR 681, 682, 685, 686, 700-03, 1054-56).

   Although neither Mr. Mulford nor Mr. Irvin presented the employees with a formal written memorandum explaining evaulation procedures, there were informal discussions that took place at which it was explained to the employees what was expected of them (TR 693-93, 707-10, 884-85, 1140-42, RX 0-1). At least once they followed up verbal instructions with a written memorandum explaining policies that they felt needed to be put in writing because of the problems that were occurring (RX 0-1). For example, on January 24th, Mr. Mulford discussed problems about members of the crew leaving early without notifying him and about not notifying him about equipment breakdowns (TR 697-98; RX E, January 24, 1991). The complaint about the employees leaving early was one of many about the employees not putting in a full day of work, both by H2O and by Mr. Hart before the raid (RX H. RX L, RX 0-1, TR 693-94, TR 884-85). These discussions were also accompanied by a memo to reiterate the verbal discussion on January 23, 1991 (TR 691; RX E, January 23, 1991).

   On January 30, 1991, Mr. Mulford was reviewing the crew's job reports (RX E, January 30, 1991). He found that Mr. Wathier had included on his job reports footnotes about things he felt were changes in the current policy, as well as safety problems, so he faxed these reports to Mr. Irvin (TR 703-07; RX E, January 30, 1991). Mr. Wathier had been absent from work for six out of the last eleven work days (id.). Mr. Mulford was also upset because Mr.

Wathier had called Mr. Krieger, a board member, about his concerns before discussing them with him, his supervisor (TR 707). The next day, January 31, 1991, Mr. Mulford spoke to Mr. Irvin about Mr. Wathier (TR 704-05). Mr. Irvin then spoke to Mr. Wathier and asked him to write statements explaining his concerns (TR 705, 1149-50; RX E, January 31, 1991). Mr. Wathier stated at the hearing that he was told to rewrite his reports without the complaints (TR 526-27). Mr. Irvin also spoke to Mr. Wathier about his excessive absences from work (TR 1152-53; RX E, January 31, 1991).

of 1990, and earlier for Mr. Wathier, regarding violations at the plant. The Board contends that the layoffs were a business decision made to save the District and its constituents money as recommended not only by their private contractor but their engineer as well. The Board members also claim that they did not know who the EPA informant was until his name was revealed at the hearing, and that a majority of the Board members were not aware that employees had spoken with the EPA on the day of the raid in June of 1990.

b. Burden of Proof

   Initially, in cases brought under the Act and other similar statutes protecting whistleblowers, it is the complainant's burden to make a prima facie showing that:

1. The complainant engaged in conduct protected by the applicable statute;

2. The party charged with unlawful discrimination knew of the employee's protected activity; and

3. The adverse employment action was motivated, in whole or in part, by the employee's protected activity.

See, e.g., Dartey v. Zack Co., 82-ERA-2 (April 25, 1983); see also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). If the complainant can establish each of these elements, then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. I find that the complainants have failed to meet their burden of proof. In the alternative, I find that the respondent carried its burden of proving a legitimate, non-discriminatory reason for its action.

c. Protected Activity

   Complainant Mr. Wathier claims that his communications with the Environmental Protection Agency, both before the raid and at the time of the raid, constitute protected activity under the Act. Both Mr. Seda and Mr. Walters claim that speaking to the EPA on the day of the raid was protected activity.

   Protected activity is defined at 29 C.F.R. §24.2(b). Under the regulations, if an employee:

   (1) Commenced, or caused to be commenced, or is about to commence or cause to be commenced a proceeding under [the Act];

   (2) Testified or is about to testify in any such proceeding; or

   (3) Assisted or participated, or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of [the Act,].

he has engaged in protected activity.

   (1) Phillip Wathier's role as informant

   It is clear that Mr. Wathier was engaged in activity protected by the Act. Under N.L.R.B. v. Scrivener, 405 U.S. 117, 92 S. Ct. 798 (1972), where the Court was interpreting an analogous whistleblower law, the Court held that the whistleblower statutes were designed to protect those who give information to the government in furtherance of enforcing the acts in question. An action does not have to have been instituted against the employer under the Act to find that an employee's giving of information to a government agency is protected activity. Scrivener, supra, at 802.

    In the present case, Mr. Wathier, over a period of a couple of months, communicated with the EPA about alleged violations of the Water Pollution Control Act at the District's plant. This activity falls under the third definition of protected activity, i.e., that the employee assisted or participated in an action to carry out the purposes of the Act. 29 C.F.R. §24.2(b)(3). Under DeFord v. Department of Labor, 700 F.2d 281, 286 (6th Cir. 1983), the employee does not actually have to participate through testimony or otherwise in a formal proceeding. Participation in an investigation done by the agency or the instigation of an investigation by the agency is enough to satisfy the requirements for protected activity. Mr. Wathier participated in the investigation of the District by the EPA by providing information that led to the raid of the facility on June 12, 1990; therefore, Mr. Wathier's role of informant before the raid qualifies as protected activity.

   (2) Speaking to the EPA on the day of the raid

   All three of the complainants were

interviewed by the EPA on the day of the raid, June 12, 1990. In the DeFord case, the court found that participation in a routine investigation that involved interviews of some of the employees, of which the complainant was one, was enough to find protected activity. DeFord, supra, at 286. Although Deford was decided under the Energy Reorganization Act, the same principles apply under the Act involved in this case. 29 C.F.R. §24.1. The Court in DeFord stated that "the purpose of the Act is to prevent employers from discouraging cooperation with [in that case] NRC investigators .... " Id. Under this principle, all three of the complainants engaged in protected activity on June 12, 1990.

d. The Board's Knowledge of the Protected Activity

   The second element that the complainants must prove is that the employer knew about the protected activity. Dartey, supra. The employer cannot retaliate for an employee's participation in protected activity if it was not aware that the protected activity occurred.

EPA on June 12, 1990 (TR 88), but later stated he knew that the EPA had spoken to some of the employees but he did not know which (TR 138). He did state, incorrectly, that he did not believe Lenny Hart was questioned by the EPA (TR 138). The President of the Board, Mr. Holte, stated on direct examination that he did not know prior to the hearing that Mr. Seda or Mr. Walters had talked to the EPA on June 12, 1990 (TR 1519), but did learn that the EPA investigator told Mr. Hudson not to threaten the employees and took it from that that some employees had spoken to the EPA (TR 1547-48). He did not know if all of the employees were interviewed or, if only some of them were, which ones were interviewed (TR 1548).

   Mr. Seda and Mr. Walters stated that they were sure that the Board knew they had spoken to the EPA on June 12th, but neither of them could give any concrete evidence or even a convincing reason why the Board would have known (TR 244, 326-27, 375-78, 396-99). The employee break room where the interviews occurred was remote from the office where the Board was meeting (TR 397). In its own investigation the Board never asked the employees if they had spoken to the EPA on June 12th or at any other time (TR 377, 504).

   Only two of the five Board members had any knowledge whatsoever that employees spoke to the EPA on June 12, 1990, and even those two did not know who or how many had been interviewed. Further, there is no evidence at all that either of these Board members knew specifically that Seda, Walters and/or Wathier had spoken to the EPA on June 12, 1990. The testimony of the complainants supplies no evidence leading to the conclusion that the Board generally would have had knowledge of this protected activity. Therefore, although the complainants' interviews with the EPA on June 12, 1990, were protected, the Board members had no knowledge that any of these complainants participated in this protected activity.

e. Board's Motivation for the Layoffs

   Assuming arguendo that the Board members did know of the protected activity, the third element needed to establish a prima facie case of retaliatory discrimination is that the adverse employment action, in effect a termination in this case, was motivated by the employee's protected activity. Dartey, supra. The complainants have claimed that several actions of the Board were discriminatory.

   First, Mr. Seda claimed in his complaint that by placing him on administrative leave with pay

immediately after the EPA raid, the Board had retaliated against him. During his testimony at the hearing, Mr. Seda stated that he would not criticize the Board's decision to put him on administrative leave (TR 247). The Board put both employees who worked in the lab at the plant on administrative leave because that is the area the EPA charges concerned (RX Q. TR 74, TR 1248-49). This was done until an investigation by the Board could determine if there were violations and if so, who was responsible for the violations (id.). Mr. Seda was reinstated and returned to work on August 9, 1990 (RX Z). The Board's actions in this instance were reasonable given the circumstances, therefore I find that placing Mr. Seda on administrative leave immediately after the raid was not a retaliatory action.

   Second, Mr. Wathier claims that the installation of a fence between the garage and the plant and the hiring of an outside contractor to run the plant were retaliatory actions by the Board. Hiring an outside contractor and fencing the plant were reactions to the allegations by the EPA regarding the workings of the plant (TR 1159-60, 1247). The Board wanted to have a chance to do its internal investigation and still have someone it knew to be competent running the plant (id.). The decision to hire a contractor was made at the June 12, 1990 Board meeting before anyone on the Board was even aware that one of its employees was surreptitiously providing information to the EPA. Therefore, this action could not have been retaliatory (RX 0. TR 1159-60, TR 1248). The fence was put in to satisfy the contractor's request for security at the plant (TR 972-74). This clearly was not a retaliatory move on the part of the Board. It was an action taken to protect itself from further violations.

   Mr. Seda in his complaint and Mr. Wathier during his testimony also claim that the hiring of H2O Construction and Maintenance, Inc. to supervise the employees after Tony DiGiacomo was relieved of his position as supervisor was a retaliatory action by the Board. No evidence to support this contention was presented at the hearing. The Board contends that it hired a contractor because promoting one of the employees had not worked

   (TR 1541, 1587-88). Mr. DiGiacomo had been appointed supervisor but could not get the employees to work for him and eventually asked to be relieved of his supervisory duties (TR 1323-24, 125052, 1251, 1533). The Board reasonably concluded from this incident that using one of its own employees as a supervisor would not work.

   Finally, at the hearing, the Board members testified that the layoff was in response to economic considerations based on lower productivity as a result of the inefficient and insubordinate practices of the employees, as well as changing needs for personnel during different parts of the year (TR 97-98, 1391, 1458-59, 1551-52, 1561). The inefficiency and insubordination of the employees not only existed during the tenure of the contractor, H2O Construction and Maintenance, Inc.; there was also evidence produced during the hearing of problems experienced by prior supervisors with the District's employees (TR 1257-58, 1320-21, 1520-21, 1533). The President of the Board, Mr. Holte, testified that the Board also felt that privatizing would save money because the District would not have to deal with the problem of needing more staff during some times of the year and less during other times (TR 1561). The contractor could more effectively deal with the changing personnel needs (id.). The Board members also all testified consistently regarding the events occurring in the months following the raid, and the contemporaneous documentation produced at the hearing supports their testimony. Therefore, I find the testimony of the five Board members to be highly credible. Further, I find that the reasons given for the layoff have not been inconsistent and have not changed over time as contended by the complainants, and consequently do not support a finding of retaliatory motive for the layoff.

   The crux of complainants' case that the layoff was retaliatory is their contention that, prior to the layoff, there had been no complaints regarding their work performance (see, e.g., TR 14, 19, 25). As is indicated above, lower productivity due to the inefficient and insubordinate work practices of respondent's line employees is the primary reason offered by respondent for going the privatization route. If there is no factual basis for this reason, then complainants would be well on their way to showing that their discharge was motivated by their protected activity. But there is a strong basis supporting respondent's action.

a detailed recitation of Mr. Mulford's testimony is quite illuminating.

   Mr. Mulford spent his first week with the District's line crew as an observer and fellow worker (TR 643-44). He was there to observe how they worked and to give suggestions on more efficient procedures (id.) During this first week, Mr. Mulford observed some problems with the performance of the Districts employees. During their first meeting, Mr. Seda was uncooperative and developed an "attitude" (TR 645). Mr. Seda inserted the televising camera into the manhole in a fashion that took longer and dirtied the lens (TR 646; RX E, October 2, 1990). Mr. Seda and Mr. DiGiacomo then proceeded to televise the line with the camera seriously out of focus (TR 647; RX E, October 2, 1990). Later, Mr. Mulford determined that the camera was broken and the crew had been using this defective camera for quite some time (TR 647-49). On October 4, 1990, the crew returned to the shop by 11:15 a.m. and waited around until noon to clock out for lunch (TR 651-52; RX E, October 4, 1990). Mr. Irvin responded to the extended lunch period the next day with a meeting at which he instructed the employees that they should not return to the shop to punch out, but just go to lunch from the worksite. In this way, lunch would take only one hour out of the work day (TR 652; RX E, October 5, 1990). Mr. Mulford also ran into a problem on October 5, 1990 when the jetting truck was not filled before they started work. This caused the crew to run out of water before they were finished (TR 653-54; RX E, October 5, 1990). When the jetting truck runs out of water before a section of line is finished, the jet has to be pulled out and refilled and then the entire section must be jetted again (id;). This results in much wasted time (id.).

   On October 8, 1990, the crew was informed that Mr. Mulford was from that time forward their immediate supervisor (TR 655). On October 10, 1990, Mr. Mulford gave the crew a lesson in proper root cutting (TR 655-56). The root cutting they had done had not cleared the line properly (id.). Mr. Mulford continued to work with the line crew until October 16, 1990, when he left to go on vacation (TR 800, 1049). Before he left he met with Mr. Irvin and expressed some concerns regarding the work performance of the District's employees (TR 657). Generally, he felt the crew was producing only three to four hours out of an eight hour day (id.). When a part was needed two employees would go instead of one, and there were problems with members of the crew not being at work (id.).

   Mr. Mulford did not return to the District until December 10, 1990, when he was called upon to help relieve a blockage of a line ( TR 658; RX E, December 10, 1990). When he arrived, the crew was incorrectly trying to clear the line, creating a strong possibility that it would flood a house (TR 658-59). Once the water receded, it was necessary to use the root cutter to clear some of the roots out of the pipe (id.). The crew did not attach the root cutter securely and it fell off in the pipe (id.) They had to dig up the pipe and break the pipe to retrieve the root cutter (id.). The next day, December 11, 1990, two District employees along with two H2O employees went out to replace a pipe (TR 660-61). The two District employees went to get the new pipe from the supplier (TR 661). Only one was needed since the supplier loaded the pipe (id.). By having two people go get the pipe, the project took much longer than it would otherwise have taken because the broken pipe needed to be dug up by hand (id.).

   On request of the District's employees, H2O took over all line duties during the Christmas holiday (TR 663). On December 22, 1990 when Mr. Mulford and his crew arrived, they found that one of the trucks was two and a half quarts low on motor oil and the flush truck had only a quarter tank of gas (TR 661-63; RX E, December 22, 1990). This was upsetting to Mr. Mulford because they were filling in for the District's employees and everything was supposed to be ready for them to use (TR 663).

   On January 4, 1991, the next day Mr. Mulford supervised the District employees, the incident with Mr. Seda at 38th and Wadsworth occurred (see p. 8 supra). This incident involved serious insubordination on the part of Mr. Seda, who refused to follow instructions and then participated in an argument over Mr. Mulford's authority to supervise (id.). Mr. Seda was given a letter of reprimand for this incident (RX L-1; TR 1053). It was also evident on that day the employees were late in getting to 38th and Wadsworth to pump, and that was the reason that a person's home was flooded (TR 666).

   One week later, on January 11th, the same resident's home was flooded (TR 669). When Mr. Mulford arrived at the manhole at 38th and Wadsworth, the manhole was open and had been left unattended (TR 670). It is obviously dangerous to leave an open manhole unattended (id.). After the flooding was relieved, Mr. Mulford directed Mr. Wathier and Mr. DiGiacomo to televise the line so they could determine if

the flooding was preventable (TR 671). Mr. Wathier and Mr. DiGiacomo told him that it did not need to be done because it had already been done, but they could not produce any videotapes or reports from this previous inspection (id.). Mr. Wathier and Mr. DiGiacomo indicated to Mr. Mulford that they needed to try out the jet to see if it worked (TR 672). He suggested strongly that they try out the jet and televise at the same manhole so they could do two things at the same time (id.). The two employees left, tried out the jet elsewhere and did not return to televise until one hour later (id.).

    Following the second backup at 38th and Wadsworth, Mr. Mulford decided to take care of the monitoring and pumping of the manhole outside of normal working hours himself, using H2O employees rather than the District's to avoid any further flooding (TR 674-75). The District's employees were told only to pump during the day (TR 675). The next day, the District crew showed up at the manhole one half hour late to pump (TR 675-76; RX E, January 15, 1991). The level of the water was so high that there was a chance of flooding the same homeowner (TR 677). Mr. Irvin had demanded that there be no more flooding, so Mr. Mulford felt he could not rely on the District's employees any longer (TR 674-75). Therefore, after January 15th, H2O took over all responsibility for monitoring and pumping the 38th & Wadsworth manhole (TR 677; RX E, January 15, 1991).

   On January 16th, Mr. Seda left work in the middle of the day; he had not returned to work at the time of the layoff. Mr. Mulford does not remember, and nothing in his notes indicates, that Mr. Seda spoke to him about being ill on the 16th (TR 679). Mr. Seda testified that he told Mr. Mulford that he was not feeling well and that if he did not feel better he was leaving (TR 225). Mr. Wathier also testified that he overheard this conversation, and that Mr. Mulford told them that Mr. Seda was sick (TR 540-41). Nevertheless, neither Mr. Mulford, Mr. Irvin nor any of the other crew members heard from Mr. Seda from January 16th (TR 680-81, 685-87; RX E, January 17, 18, 21, 1991) until he called Mr. Mulford on January 28th, at which time Mr. Mulford and Mr. Irvin had come to the conclusion that Mr. Seda had quit ( TR 701; RX E, January 28, 1991). Mr. Seda came over to see Mr. Mulford and asked him if he was supposed to have returned to work that day. Mr. Mulford told him that they had assumed he had quit since he had not called in, and delivered a letter to Mr Seda from Mr. Irvin to that effect (TR 700-02; RX P1; Rx E, January 28, 1991). At that time, Mr. Seda did not claim that he had called or that he was on vacation (TR 703), although he did

mention that he had been sick (id.).

   On January 17, 1991, Mr. Walters and Mr. DiGiacomo called Mr. Mulford from a manhole to inform him that the root cutter they were using had broken (TR 683). Mr. Mulford decided to go over there himself to take the root cutter to be fixed so the crew members could stay and continue root cutting with the spare root cutter (id.). He picked it up and when he returned two hours later, he could not find Mr. Walters and Mr. DiGiacomo anywhere in the area (id.). Mr. Mulford proceeded to 38th and Wadsworth where Mr. Wathier was monitoring the pumping, and was told by Mr. Wathier that Mr. Walters and Mr. DiGiacomo had been there and had just left (id.). While he was gone the crew was supposed to be out root cutting, not visiting (TR 683-84).

   In Mr. Mulford's notes on January 22, 1991, he wrote that he "continued trying to organize crew and establish some sort of production." (RX E, 1/22/91). Mr. Mulford testified that it seemed like every time he assigned a task to the crew, "they would just go on and wander. They'd end up back at the shop. They'd be at the parts house. They'd be somewhere other than doing what [he] assigned them to do." (TR 687).

   At 12:17 p.m. on January 22, he returned to the shop. All the crew members were in the break room, so he assumed they were taking their lunch break (TR 687). A meeting was held at 1:10 p.m. at which Mr. Mulford explained that they needed two people to be available until 4:30 p.m. every day (TR 688-89; RX E, January 22, 1991). If one person wanted to skip lunch, he could leave at 3:30 p.m., but the other two needed to remain until 4:30 p.m. (id.). Also discussed at the meeting was the need to let he or Mr. Irvin know when an employee was leaving early (TR 689). Both Mr. Wathier and Mr. DiGiacomo then stated they would take lunch now (TR 689; RX E, January 22, 1991). Mr. Mulford then left and returned around 3:20 p.m. He found Mr. Wathier playing with a machine in the snow and Mr. DiGiacomo napping in the break room (TR 689-90; January 22, 1991). Mr. DiGiacomo told him they were waiting for a hose to be delivered, so he felt it was a good time for lunch (id.). This was his third lunch, according to Mr. Mulford's calculations (id.). Neither of the employees had called to check on the part, and when the call finally was made the part had been sitting on the counter at the store ( TR 690).

   On January 23, 1991, Mr. Mulford wrote a

memo to the employees stating that he or Mr. Irvin must be notified when an employee wanted to take time off (TR 691; RX 0-1). It was sent to Mr. Irvin to be approved (id.), and was distributed on January 24, 1991 (TR 699, RX E, January 24, 1991). Mr. Mulford had problems with the crew taking time off which made it very hard to set schedules (TR 691). The employees had been notified of this problem orally before this time (TR 689, 694).

   Also on January 23, 1991, Mr. Wathier and Mr. Walters left the shop at 7:30 a.m. to do some jetting and returned to the shop at 9:55 a.m. to get tools to open the manhole (TR 694). They had spent two 2 1/2 hours without any work being done (id.). Later in the afternoon, Mr. Wathier and Mr. Walters reported to Mr. Mulford that the jet was not working yet (TR 695). Mr. Mulford then left at 2:45 p.m. and returned at 3:35 p.m. to find that both Mr. Wathier and Mr. Walters had left, in direct contravention of his instruction for two men to remain until 4:30 p.m. (TR 696, RX E, January 23, 1991). No word was left regarding whether the jet was fixed, so Mr. Mulford had no idea if they had a working jet available for the evening (TR 697).

    The next day, Mr. Mulford distributed the memo he had written the day before and discussed once again the policy for leave and reporting the condition of equipment (TR 698; RX E, January 24, 1991). Mr. Walters and Mr. Wathier were sent out to check the jet to see if it was working ( TR 698). They returned in 30 minutes stating that the jet was working (id.). When they pulled the truck into the plant to clean the grease line, the jet did not work (TR 698-99, RX E, January 24, 1991). The clutch was burnt out (id.). On January 31, 1991, Mr. Mulford had a discussion with Mr. Wathier and Mr. Irvin. At this meeting, they discussed Mr. Wathier's excessive time off from work (RX E, January 31, 1991).

   On February 8, 1991, Mr. Mulford made notations in his daily report of things he wanted to discuss with the crew (RX E, February 8, 1991), which he did on the next work day, February 11, 1991 (TR 708; RX E, February 11, 1991). This list included taking excessive time for lunch, the crew having taken a one hour forty-five minute lunch break the previous Friday; the unacceptable condition of the jet load sheet, which was dirty, muddy and crumpled; the failure to close the garage doors during the daytime so that heat was allowed to escape; the fueling of the equipment at noon instead of at the end of the day; and the vagueness of job reports (TR 708-10; RX E, February 8, 1991 and February 11,

1991).

   February 12, 1991 was the day of that month's Board meeting (TR 711; RX E, February 12, 1991). Mr. Mulford met with Mr. Irvin to discuss their report to the Board (TR 711). A memorandum was written which recommended that the Board privatize its operations (RX T-1). Supporting this recommendation was a general summary of the problems that Mr. Mulford had been having with the crew since the beginning of H2O's tenure with the District (TR 712; RX T-1). Mr. Mulford had come to the conclusion that he could not supervise these employees (id.). This memorandum was the basis of the Board's decision to privatize and consequently lay off all the employees.

   All the complaints about the employees that were detailed during Mr. Mulford's testimony are well documented in his daily log (RX E). Moreover, Mr. Mulford was one of the most credible witnesses I have observed in almost 13 years as an Administrative Law Judge. Therefore, I find the testimony of Mr. Mulford establishes that there were significant complaints regarding the performance of respondent's line employees during H2O's tenure as supervisor prior to February 12, 1991.

   Complaints also had been made to the Board before H2O was hired. The Board had heard complaints from other supervisors and understandably came to the conclusion that it could not work with its own employees in an economical and efficient way. Mr. DiGiacomo was supervisor for three months right after the EPA raid. He finally threw up his hands and asked to be taken out of that position because he could not get the employees to work (TR 92, 1252, 1324, 1455). Mr. Hart also had to write several memoranda instructing the employees to work their full eight hour days (RX H. RX L). He had problems with the employees arriving late and leaving early (id.). Mr. Miller had to issue a reprimand to Mr. Seda for not wearing proper safety gear (RX G). Some of the Board members stated that Mr. Miller complained during Board meetings that he could not get cooperation (TR 1321, 1258), and Mr. Holte testified that Mr. Miller finally turned in his resignation because he could not work with the District's employees (TR 1520-21).

   The detailed information contained in Mr. Mulford's testimony, notes and job reports regarding the problems he experienced with the employees, as well as evidence illustrating problems experienced by prior supervisors, reduces to shambles the complainants' argument

that the there had been no complaints regarding their work performance prior to February 12, 1991. The respondent's claim that the inefficient and insubordinate work practices of the line employees led to its decision to privatize and therefore discharge all its line employees is well supported in the record.

between the District and H2O. It should be noted, however, that under the contract H2O could only recommend personnel actions. The Board retained the authority to hire, fire and discipline its employees.

   Mr. Seda, in his brief, puts emphasis on the request for evaluations from the Board in the January meeting as evidence of retaliatory motive. Much of the same analysis is pertinent here as was in the paragraph above regarding the clause in the contract giving H2O the responsibility for evaulations. The contractor was a supervisor and in that position was required to give employee evaulations at the end of the year so the Board would be aware of the quality of work it was receiving from its employees. This is a common supervisory responsibility and it is therefore not out of the ordinary for the Board to have asked H2O to make these year-end evaluations.

months recommend that the line operations be privatized, on the basis that privatization would be more cost effective for the District (RX T-1). The engineering consultant agreed with this recommendation (TR 98-99, 1172, 1273, 1331-32), and had himself recommended privatization six months earlier based on his concurrent experience with seven or eight other Sanitation Districts which were privatized (RX W. TR 1172). Mr. Brown testified that all of the Districts he consults with were privatized at that time (TR 1172); his opinion that privatization was more efficient and cost-effective than using one's own employees had an ample basis. With this information from the consultants on whom the Board relied for expertise and to whom it normally turned for recommendations on what actions need to be taken, the Board voted to privatize, which resulted in, the need to lay off all of its line employees. This reliance was reasonable, and was in accordance with the way the Board usually operated. This is evident from other decisions reflected in the minutes of the Board's meetings, and from the testimony at the hearing. Therefore, since its reliance on the consultants was not a change in procedure for the Board, the fact that the Board did not ask for further economic evidence on the issue and instead relied on the judgment of its line supervisor and engineer that privatization would be less costly does not support a finding of retaliatory motivation.

   Therefore, I find that the respondent's decision to privatize and consequently lay off all three of the complainants was based on the belief that privatization would be more efficient and cost-effective for the District. Regardless of whether this belief is in fact correct, it is clear that the Water Pollution Control Act, as well as other whistleblower protection statutes, only protect an employee from retaliation against protected activity, i.e., actions "motivated by unlawful animus. Turner v. Texas Instruments, 55S F.2d 1251, 1257 (5th Cir. 1977); see also Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1036 (Sth Cir. 1980); Seraiva v. Bechtel Power Corp. 84-ERA-24 (1984), aff'd, 1985, by Secretary of Labor.

   Since the complainants were laid off as a result of a legitimate non-retaliatory action of the Board, not for engaging in protected activity, respondent has not violated the Act.

f. Summary

   In summary, I find:

(1) That each of the complainants engaged in protected activity;

(2) That the members of the Board were not aware that the complainants had engaged in protected activity; and

(3) Assuming arguendo that the Board was aware that the complainants had engaged in protected activity, that the complainants were laid off from their jobs in a lawful manner unrelated to the protected activity.

   Accordingly, it is recommended that the complaints be dismissed.

   It is recommended that the discrimination cases of James Seda, Jeff Walters and Phillip Wathier against Wheat Ridge ation District under the Water Pollution Control Act be dismissed.

      JEFFREY TURECK
      Administrative Law Judge