Date: March 10, 1994
Case No. 93-WPC-007
93-WPC-008
In the Matter of
ALFRED E. JACKSON
and
AL ROSKAM,
Complainants,
v.
KETCHIKAN PULP COMPANY,
Respondent.
Appearances:
James W. McGowan, Esquire Lewis K. Scott, Esquire
329 Harbor Drive, Suite 201 Lane, Powell, Spears & Lubersky
Sitka, Alaska 99835 520 S.W. Yamhill St., Suite 800
For the Complainants Portland, Oregon 97204-1383
For the Respondent
Before: Paul A. Mapes
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding involves claims against Ketchikan Pulp Company
(hereinafter also referred to as "KPC") under the employee
protection provisions of the Federal Water Pollution Control Act,
33 U.S.C. §1367 (1988) (hereinafter also referred to as "the
Act" or "the WPCA"). In general, these provisions prohibit
employers from firing or otherwise retaliating against employees
who have engaged in certain actions in furtherance of the Act's
enforcement. The complainants, Alfred E. Jackson (hereinafter
"Jackson") and Al Roskam (hereinafter "Roskam"), both allege that
they were fired from their jobs at KPC in December of 1992 in
retaliation for activities that are within the scope of the Act's
protection.
[PAGE 2]
These cases were consolidated for hearing with the consent of
all parties, and a formal hearing was held in Ketchikan, Alaska, on
September 15, 16, 17, 18, 20, 21, and 22, 1993. At the hearing
testimony was received from 24 witnesses and the following exhibits
were admitted into evidence: Complainants Exhibits (CX) 1-5, 7, 9-
12, 14, 15, 19, 20 and 22-29; Respondent Exhibits (RX) 1-5, 10-34,
36-75, and 77-78. At the conclusion of the hearing, the record was
left open so that the parties could submit additional exhibits that
were unavailable at the time of hearing. Thereafter, copies of
Roskam's W-2 Wage and Tax Statements for the years 1991 and 1992
were admitted into evidence as Complainants Exhibit 30, and a copy
of Jackson's W-2 Wage and Tax Statement for 1991 was admitted into
evidence as Complainants Exhibit 31. In addition, five post-
hearing exhibits relating to the timeliness of Jackson's initial
complaint to the Department of Labor were admitted into evidence as
Administrative Law Judge Exhibits (ALJX) 1-5. All parties filed
post-hearing briefs and agreed that the proceedings in this case
would not be considered terminated for purposes of complying with
the 20-day decisional deadline until the final reply brief was
filed.[1] Tr. at 1966.
SUMMARY OF EVIDENCE
I. The Parties
KPC is a wholly-owned subsidiary of Louisiana Pacific
Corporation that is engaged in logging and pulp manufacturing at a
network of facilities on three islands in the far southeastern
corner of the State of Alaska. Tr. at 1249-52. The company has
approximately 950 employees, including approximately 350 hourly
employees who work at a pulp mill which sits along side a small
Pacific Ocean bay known as Ward Cove. Tr. at 1250. The mill,
which is located a few miles outside of Ketchikan, is open nearly
every day of the year and ordinarily operates 24 hours a day. Tr.
at 1351. The president of KPC is Martin Pihl (hereinafter "Pihl").
Tr. at 1388. The manager of the pulp mill is Steve Hagen
(hereinafter "Hagen"). Tr. at 1349.
Complainant Jackson is in his mid-fifties and has a high
school education. He has lived in Ketchikan since 1947 and began
working for KPC in 1959. Tr. at 705. For approximately 20 years
before his dismissal in 1992 Jackson was the A-Frame Operator at
KPC's pulp mill. Tr. at 706. The A-Frame is a floating platform
which supports a winch and various machinery. Tr. at 706. It is
located near the Boom, an area in Ward Cove where logs have been
chained together end-to-end to form a floating corral for other
[PAGE 3]
logs. Tr. at 232. As the A-Frame Operator Jackson was
responsible, interalia, for maintaining equipment,
performing various types of repairs and winding up swifters--long
lengths of galvanized metal cable that are used to secure logs that
are floating in the bay. Tr. at 717, 1709-10. Ordinarily, the A-
Frame is connected to the land by a floating walkway known as the
Boom Race. Tr. at 440, 461. At the time of the termination of
Jackson's employment at KPC, Jackson's leadman was Hugh McFarland
(hereinafter "McFarland"). Tr. at 1806. McFarland's supervisor
was Ray Cowan (hereinafter "Cowan"). Tr. at 422. During the times
relevant to this case Jackson was a member of a union of pulp mill
workers known as the Association of Western Pulp and Paper Workers
(hereinafter "AWPPW"). Tr. at 943-45.
Complainant Roskam is in his early thirties and has lived in
Ketchikan since he first started working for KPC in 1983. Tr. at
219. During most of the time he was employed by KPC he worked in
the Wood Room. The function of the Wood Room is to remove logs
from the water, debark them, and run them through a machine which
cuts them into chips. The logs arrive at the mill in large
floating bundles wrapped in metal cable. These bundles are usually
removed from the water by large cranes sitting on a deck outside of
the Wood Room and deposited in an area known as the Log Deck, where
they are then disassembled. Tr. at 221-24. When the cranes are
out of service, the log bundles are broken up while still in the
water and the logs are individually brought into the Wood Room
through a chute. Id. While employed in the Wood Room
Roskam worked as a crane operator and as a driver of a front-end
loader. At the time Roskam was fired from his KPC job his foreman
was Phil McElroy (hereinafter "McElroy"). Tr. at 1603-05.
McElroy's supervisor was Will Singer (hereinafter "Singer"). Tr.
at 1581-89, 1604. While employed by KPC Roskam was a member of the
AWPPW, and in 1992 was an AWPPW shop steward and safety
representative. Tr. at 327. Prior to their dismissal from KPC
Roskam and Jackson were known to each other, but did not associate
on a social basis. Tr. at 234.
II. Labor Relations Problems and Allegations of Water
Pollution Violations
During the time periods that are relevant to this case, KPC
encountered a series of problems in its relations with its
unionized employees. As well, KPC was also the object of various
allegations concerning its compliance with the WPCA. As explained
infra, these labor relations problems and allegations of
water pollution violations are highly relevant to a proper
evaluation of the adverse actions against both Jackson and Roskam.
[PAGE 4]
A. Labor Relations Problems
Three unions represent employees of KPC: the AWPPW, which has
approximately 290 members at KPC; the International Brotherhood of
Electrical Workers ("IBEW"), which represents approximately 10 KPC
employees; and the International Union of Operating Engineers
("IUOE"), which represents approximately 40-46 KPC employees. Tr.
at 1251. The last contract between KPC and the AWPPW terminated in
1984, and the contracts between the company and the other two
unions expired in May of 1992. Tr. at 1253, 1267. During the
summer of 1992 the company attempted to negotiate new contracts
with all three unions but these negotiations were unsuccessful.
Tr. at 1265-68. Because some provisions of the agreements sought
by the union negotiators could have adversely affected KPC's many
non-union employees (e.g., termination of a pension plan and
imposition of a union-shop rule), tensions between the company's
union and non-union employees were heightened. Tr. at 998, 1261-
64. Around the end of September of 1992, the memberships of all
three unions voted to authorize their leaders to call a strike.
Tr. at 1268. However, the strike authorizations failed to alter
KPC's negotiating position and in the first part of October KPC
unilaterally implemented the offers that had been rejected by the
unions. Tr. at 1266-68.
No strikes were in fact ever called in response to KPC's
unilateral imposition of its offers. Tr. at 1270. However, there
is convincing evidence that in the fall of 1992, some union
members, possibly at the urging of the AWPPW's leadership, decided
that as an alternative to engaging in a strike they would engage in
a program of internal sabotage against KPC's facilities and
operations.
The most direct evidence of a possible sabotage campaign was
provided by Larry Thomas (hereinafter "Thomas"), a heavy equipment
operator employed by KPC. He testified that in the fall of 1992 he
attended an AWPPW meeting in Ketchikan and heard two different
people mention sabotage as a possible means of getting KPC to
accept the union's terms. Tr. at 1450. According to Thomas, an
AWPPW official from Portland, Oregon, laughed at the references to
sabotage and said that it was something to be considered "a little
further down the road." Tr. at 1451-52. Thomas testified that he
joined the AWPPW after the meeting but decided to quit after
hearing more talk of sabotage. Tr. 1453. Thomas also testified
that when he informed Rodger Arriola (hereinafter "Arriola"), the
president of the AWPPW's local in Ketchikan, of his reasons for
quitting the union, Arriola said that sometimes a union has to
[PAGE 5]
engage in "bringing down the hammer." Tr. at 1457.[2] Thomas
also testified that he overheard other KPC employees talking about
possible sabotage after he withdrew from the AWPPW. Tr. at 1463-
64.
At least one other KPC employee also reported that union
supporters had been discussing possible efforts to sabotage KPC's
operations. According to a December 3, 1992 confidential memo to
Pihl and Hagen from Clyde L. Johnson (hereinafter "Johnson"), KPC's
Director of Industrial Relations, an employee in KPC's Powerhouse
had reported that another employee who was a union leader had told
workers in the Powerhouse that the unions were going "to get KPC
through sabotage." Tr. at 1296-97, RX 4. The types of sabotage
described in the memo included activities such as shutting off seal
water to pumps and changing lines on equipment. Id.
The reports that at least some union members were advocating
sabotage as a collective bargaining tactic are corroborated by some
graffiti that were found at various locations in KPC's pulp mill in
the fall of 1992. For instance, the record contains a December 2,
1992 photograph of graffiti that says "Caution--Sabatage (sic)
starts in Planning, the unknown facet of total quality management."
RX 60. Other photographs taken the same day show graffiti saying
"Burn it Down!" and "KPC will have the worst winter profits,
it will pay the workers to be here but no usable pulp will
be made. It's the worker (sic) revenge" (emphasis original), and
"Dump only after all B.O.D. folks go home acid liquor etc. into the
sewer."[3] RX 61, 62, 63.
Evidence of a deliberate effort by union members to sabotage
KPC's operations is also found in a report that was prepared for
KPC's management in early December of 1992. The report
specifically describes numerous equipment breakdowns or near
breakdowns that occurred in the KPC pulp mill between the last week
of August and the beginning of December of 1992. RX 1. According
to the report, during that period there were at least 27 suspicious
incidents involving KPC equipment.[4] The most serious of these
incidents occurred on October 21, when an emergency oil lubrication
pump for the pulp mill's largest turbine failed to come on and
thereby caused severe damage to the turbine's bearings. RX 1 at 4-
5, RX 70. The total cost of repairs was more than $3 million. Tr.
at 1407. The authors of the report concluded that the pump had
failed to perform because someone had purposely locked it off, and
KPC's president testified that in his opinion the evidence
indicated a "strong likelihood" of sabotage. Tr. at 1404, RX 1 at
5. The report also indicated that air lines, electrical cords, and
diaphragms had been deliberately slashed with a knife, that valves
[PAGE 6]
controlling seal water for numerous pumps had been intentionally
turned off, and that foreign objects had been placed inside various
types of machinery. RX 1, RX 70. According to Hagen's testimony,
some of the acts of suspected sabotage could have resulted in
environmental violations. Tr. at 1364-83. Virtually all of the
incidents of suspected sabotage occurred in the pulp mill's Machine
Room, Pulp Preparation Building, and Powerhouse. RX 3.
The evidence indicates that because of the seriousness and
extent of the apparent sabotage, Pihl decided to hold a series of
four meetings with KPC's employees during the first week of
December of 1992. The first meeting was on December 2 and was
between Pihl and KPC's "salaried" (i.e., management and
professional) employees. Tr. at 1391. The other three meetings
were with KPC's hourly employees and were all held on December 3,
1992. Id. During each of the meetings Pihl and Hagen
described the incidents that had occurred and explained that such
sabotage created both a safety problem and an economic problem that
could jeopardize all the jobs in the pulp mill. Tr. at 1393-99, RX
2. Pihl also asked all employees to immediately report anyone who
was seen outside of his or her work place and offered
rewards for information leading to the identification and
conviction of the person or persons engaged in the sabotage.
Id. According to Roskam, Pihl was so upset by the sabotage
that there were tears in his eyes during at least one of the
meetings with the hourly employees. Tr. at 331. Another witness,
who was called by the complainants, testified that an employee who
was close to KPC's management had told to him that the sabotage
problem was considered to be so serious that word had come from
KPC's corporate parent to "run off any troublemakers." Tr. at 195,
210-212.
B. Water Pollution Allegations
The evidence indicates that the operation of KPC's pulp mill
inherently involves the danger of three distinct types of water
pollution: chemical imbalances in effluents, leaks of hydraulic
fluid from cranes located along side the waters of Ward Cove, and
the disposal of used metal cable into the cove. According to the
record, during 1992 allegations were made to various law
enforcement agencies that KPC had in fact engaged in the first two
types of water pollution violations.
1. Chemical Imbalances in Effluents
KPC's most substantial water pollution responsibility is
controlling the discharge of chemicals that are used to convert raw
[PAGE 7]
wood into pulp. In order to comply with its operating permit, KPC
has various employees who periodically test the pulp mill's
effluent waste water to ensure that the pollutants that the mill
discharges are within acceptable limits. Tr. at 55-56. These
effluents average 30 to 35 million gallons per day. Tr. at 78.
The tests performed include tests of pH values, BOD (biological
oxygen demand) and suspended solids. Id. The results of
the tests are written down and, if the results show that the
company has exceeded its authorized limits, have to be reported to
the EPA. Tr. at 58. According to the testimony of Kevin James
(hereinafter also referred to as "James"), a former laboratory
assistant at KPC, there are reasons to believe that prior to
November of 1992 KPC may not have been accurately reporting the
results of these effluent tests. In particular, James testified
that while he was employed at KPC some of the equipment that was
used to collect effluent samples had been mysteriously disconnected
or turned off on various occasions. Tr. at 64-66, 70-71. He also
testified that while employed as a lab assistant he had been
pressured, both directly and indirectly, to change the results of
effluent tests so that they would be within the parameters of KPC's
operating permit. Tr. at 72-101.
During his testimony, James also indicated that after he
resisted these pressures he was demoted to the job of pulp tester.
Tr. at 103. Eventually, James complained to senior managers at KPC
about the effluent compliance problems and also spoke with EPA
investigators on at least five occasions. Tr. at 105, 110. The
EPA contacts, in turn, led the EPA investigators to interview other
KPC employees. Tr. at 106-108. According to James, the types of
questions the EPA investigators asked the other KPC employees
revealed him as the instigator of the investigation. Tr. at 109-
10. Sometime thereafter, James testified, he was approached by his
supervisor, Andy Kiander (hereinafter "Kiander"), who told him that
the company knew that he was the one who instigated the EPA
investigation. Tr. at 111. According to James' testimony, Kiander
in essence asked him to tell the EPA that the information he had
provided the agency was wrong and called him "Mr. Short Timer" when
he refused. Tr. at 112-13.
On November 18 and 19, 1992, agents of the FBI and EPA jointly
conducted a surprise raid on KPC's facilities and seized various
records. CX 3. On November 20, 1992, James was called to a
meeting in KPC's Industrial Relations office. CX 1. Present were
Michael Barron (hereinafter "Barron"), KPC's Personnel Director,
and Martin Chandler, Process Engineer, and a secretary. Id.
James was told by Barron that the company was conducting an inquiry
into the FBI/EPA investigation and that he was being suspended
[PAGE 8]
immediately with pay. Tr. at 117. The suspension was confirmed in
a letter Barron sent to James on November 20, 1992, and in a letter
dated November 24, 1992, from Johnson. CX 1, CX 2. The second
letter stated that the purpose of the suspension was "to allow KPC
to conduct an internal investigation into pertinent events." CX 2.
Sometime thereafter, KPC retained a private detective agency to
investigate James. As a result of the investigation, the company
obtained information indicating that James had apparently
fabricated a receipt for room and board expenses that he claimed to
have incurred while receiving medical treatment in Utah in 1989 for
a work-related injury. RX 46, RX 47, RX 48. At a meeting with
KPC officials on April 15, 1993, James was asked to respond to
various questions about the receipt. When he failed to provide
specific answers to questions the officials had about the receipt,
he was informed that his employment with KPC was terminated.[5]
RX 46. James had not met either Roskam or Jackson prior to the
time he was fired. Tr. at 131-32.
2. Leaks of Hydraulic Fluid from Cranes Along Side Ward Cove
A second but far less serious type of water pollution problem
at KPC stems from leaks of hydraulic fluid from the cranes located
along side the waters of Ward Cove. As previously explained, the
cranes are used to lift huge bundles of logs from the waters of
Ward Cove onto the Log Deck. According to Roskam's testimony,
during the five years that he worked as a crane operator he
frequently observed hydraulic fluid leaking into the waters of Ward
Cove from various components of the cranes, including their
fittings, cylinders, and pumps. Tr. at 347-51. Roskam also
indicated that the company attempted to limit the amount of
hydraulic fluid leaking into the water by placing special oil
absorbing pads on the leaking parts of the cranes, but that,
despite these efforts, some of the hydraulic fluid got into the
water on a daily basis. Tr. at 350-51. Singer, Roskam's
supervisor, confirmed Roskam's description of the leaks from the
cranes, as did several other witnesses. Tr. at 1581-85. He also
explained that the responsibility for replacing the oil absorbing
pads had been assigned to the crane operators because they were the
company employees who had the most direct knowledge of when the
pads needed to be changed. Tr. at 1585-87. The record also shows
that in 1992 the United States Coast Guard occasionally inspected
the waters of Ward Cove in response to complaints that hydraulic
fluid had leaked into the water. Tr. at 245. There is no
indication in the record, however, that any enforcement action was
ever taken against the company by the Coast Guard as a result of
these leaks or that the joint FBI/EPA investigation was inspired by
concerns about the effects of the leaking hydraulic fluid.
[PAGE 9]
3. Disposal of Used Metal Cable into Ward Cove
The third potential kind of water pollution associated with
the operations of KPC is related to the disposal of used metal
cable into the waters of Ward Cove. In this regard, the evidence
indicates that, in general, there are three situations in which KPC
employees might have an opportunity to discard cable into the
water.
First, the record indicates that when log bundles that have
been lifted up to the Log Deck are disassembled, the cable that had
been utilized to secure the bundles is no longer usable and must be
discarded. The evidence clearly establishes that in this situation
the unusable cable has not been discarded into the water, but has
instead been routinely sent to a special railroad gondola car,
where it is stored until it can be transported to a proper disposal
site. Tr. at 570.
Second, the evidence indicates that on various occasions the
Log Deck cranes become inoperable and, as a result, log bundles
cannot be disassembled on the Log Deck. In these situations, the
log bundles are disassembled by a worker in a small boat who
manually severs the metal cable that secures the bundles. When
this happens, the cable is ordinarily allowed to fall into the
water after it has been cut. Tr. at 388-89, 571-82. The cable
then remains under water until it is collected and disposed of
during periodic dredging operations. Tr. at 442-43. The evidence
also indicates that for a brief period in the late 1980's, KPC
employees had been directed to attempt to save this cable but had
quickly discontinued such efforts due to the safety dangers that
are inherent in attempting to retain a cable at the same time that
the logs that had been restrained by the cable are rapidly
spreading out in the water. Tr. at 434-36, 557-82. All parties,
including Jackson, agree that there would be significant safety
problems in attempting to prevent cable from falling into the water
in these circumstances. Tr. at 822.
Third, miscellaneous types of cable, such as the cable that
has been used on cranes or for making swifters, occasionally
becomes unusable at various waterfront locations, including the
Main Dock and Boom areas. As explained infra, there is a
dispute between the complainants and KPC concerning KPC's policy
and practice regarding the disposal of this type of cable.
There is no indication in the record that the joint FBI/EPA
investigation of KPC's compliance with environmental laws was
[PAGE 10]
prompted by concerns about KPC's practices in disposing of unusable
metal cable, or that the Coast Guard had ever investigated
allegations that KPC was improperly disposing of metal cable.
III. Protected Activities and Adverse Actions
The evidence indicates that both Roskam and Jackson engaged in
activities that are protected under the Act, that KPC managerial
personnel knew of at least some of these activities, and that KPC
took adverse actions against both employees. In both cases,
however, KPC had provided a substantial volume of evidence
indicating that there could have been independent reasons for the
adverse actions.
A. Protected Activities and Adverse Actions Involving Roskam
As explained below, the record shows that Roskam engaged in
various protected activities. Some of these activities were
clearly known to KPC at the time that it took adverse action
against him, but others, according to KPC's witnesses, were not.
The record also contains evidence indicating that Roskam engaged in
various types of work-related conduct that could have provided an
independent basis for the adverse actions.
1. Protected Activities by Roskam
The hearing testimony indicates that during the time Roskam
was employed by KPC he engaged in various activities that are
protected under the Act. First, according to the uncontradicted
testimony of Roskam and other witnesses, Roskam periodically
complained to KPC supervisory personnel about the Log Deck cranes
leaking hydraulic fluid into Ward Cove. Tr. at 245-52. Second,
according to Roskam's uncontradicted testimony, on six to eight
occasions between 1987 and November of 1992, he verbally complained
to the Coast Guard about the leaks. Tr. at 244-46. Third,
according to the uncontradicted testimony of Roskam and other
witnesses, on December 9, 1992, Roskam willingly participated in an
interview with FBI and EPA agents who were conducting an
investigation into KPC's compliance with the requirements of the
Water Pollution Control Act. Tr. at 263-70. According to this
testimony, the interview took place in a backroom of the IBEW hall
in Ketchikan after the agents approached Roskam and asked if he
could provide them information. Tr. at 265-66. The interview
lasted about 45 to 60 minutes and during the interview Roskam told
the agents "what I've seen happen out there [the KPC pulp mill]."
Tr. at 266. Because of the location of the interview room, it may
have been possible for as many as 15 to 20 union members to have
[PAGE 11]
seen Roskam as he participated in the interview. Tr. at 264-66.
Roskam also testified that he subsequently spoke to the agents on
one other occasion in Ketchikan and two or three times on the
telephone. Tr. at 269.
It is clear from Roskam's testimony and the testimony of
various KPC supervisors that KPC was aware of Roskam's internal
complaints about the leaks from the Log Deck cranes. Tr. at 1587.
For example, Singer testified that Roskam was one of an unspecified
number of employees who complained about hydraulic fluid leaking
into Ward Cove. Tr. at 1587. Likewise, Roskam's foreman, McElroy,
also acknowledged that Roskam had complained about the hydraulic
fluid leaks. Tr. at 1612.
There is conflicting evidence on the issue of whether KPC's
management knew of Roskam's complaints to the Coast Guard. The
evidence suggesting that KPC managers might have known of Roskam's
complaints to the Coast Guard consists primarily of Roskam's
testimony that on one occasion after he had reported hydraulic
fluid leaks to the Coast Guard, Singer approached him and
complained about the Coast Guard's inquiry in a manner that gave
Roskam the impression that Singer believed that Roskam had called
the Coast Guard about the leaks. Tr. at 257-63. Roskam based this
conclusion on Singer's angry demeanor when he inspected the leaks
and on the fact that Singer directed him to replace the absorbent
pads around the leaks. Id. Roskam acknowledged, however,
that Singer never explicitly said that he believed that Roskam had
reported the leaks to the Coast Guard. Tr. at 258, 261. Roskam
also testified that his superiors may have suspected him of being
the person who called the Coast Guard because he was the only
worker who cared about the leaks. Tr. at 373.
During his testimony Singer admitted that he was aware in the
first half of 1992 that someone had made a complaint to the Coast
Guard about hydraulic fluid in the water, but he denied having any
knowledge that Roskam had made such complaints. Tr. at 1589-90.
Singer also acknowledged that there had been a confrontation with
Roskam in 1992 about hydraulic oil in the water, but denied that
the confrontation was related to any complaints to the Coast Guard.
Tr. at 1593. Singer also testified that he didn't know if he had
ever suspected that Roskam may have called the Coast Guard. Tr. at
1590. Singer also disputed Roskam's contention that he was the
only worker who cared about the leaks and testified instead that
various employees complained about the leaks on a regular basis.
Tr. at 1587. In addition to Singer, all the other KPC managerial
personnel involved in the adverse actions against Roskam denied
that they had any knowledge of Roskam's complaints to the Coast
Guard prior to the time that he was fired. Tr. at 1223 (Barron),
[PAGE 12]
Tr. at 1300 (Johnson), Tr. at 1876 (Hagen), Tr. at 1400 (Pihl).
There is also arguably conflicting evidence on the question
of whether KPC's management knew of Roskam's participation in the
interview with the FBI and EPA agents on December 9. The evidence
that KPC's management may have become aware of the interview
primarily consists of testimony indicating that other union members
may have seen Roskam talking to the agents and Roskam's own
testimony that his interview soon became "common knowledge between
all the workers." Tr. at 269. There is also some evidence
suggesting that internal union matters rapidly became common
knowledge as a result of rumors circulating among KPC employees.
Tr. at 132, 1007-10. However, every KPC manager involved in the
adverse actions against Roskam denied having any such knowledge
prior to the time Roskam was terminated. See Tr. at 1175
(Barron), Tr. at 1876 (Hagen), Tr. at 1589 (Singer), Tr. at 1300
(Johnson), Tr. at 1400 (Pihl). However, at least some KPC managers
apparently became aware of Roskam's contacts with the Coast Guard
and the FBI and EPA agents on January 7, 1993, when KPC received a
copy of Roskam's whistleblower complaint from the Department of
Labor. Tr. at 1305, RX 69.
2. Adverse Actions Against Roskam
There were two adverse actions against Roskam during the time
periods that are relevant to this case. First, on November 13,
1992, Roskam was suspended from work for seven days. Second, on
December 18, 1992, Roskam was permanently terminated as an employee
of KPC.
a. Roskam's Suspension
According to a letter of suspension sent to Roskam on November
13, 1992, and the testimony of various KPC witnesses, Roskam was
suspended from work for a seven-day period in mid-November of 1992
because on two separate occasions on November 10, 1992, he left the
Hog Yard, where he was supposed to be using a front-end loader to
load "hog fuel" onto a conveyor belt. During the first absence, it
has been alleged, Roskam left his front-end loader blocking traffic
lanes in the Hog Yard. RX 13. During the second absence, a
conveyor allegedly became clogged due to improper loading and went
out of service. RX 13, Tr. at 1556-65, 1605-12. At the time of
Roskam's first absence from his work station, he was found making
a telephone call from a control room in the pulp mill. RX 13.
During the second absence he was found talking with another worker
in the Electrical Shop. RX 13. The final paragraph in the
[PAGE 13]
suspension letter warned Roskam that "[a]ny further infractions of
these or other Company rules will result in further disciplinary
action, up to and including discharge." RX 13.
During his testimony Roskam did not dispute the allegations
that he had twice left his work station on November 10. However,
he felt that he had justifiable reasons for having left his work
station and contended that his actions did not warrant any
discipline. Tr. at 237-43. In particular, Roskam testified that
the first time he left his work station he had gone to call the
shift superintendent to complain that a job that should have been
assigned to him had instead been assigned to another employee with
less seniority. Tr. at 317-19. The other time, Roskam testified,
he drove his front-end loader out of the Hog Yard in order to avoid
traffic congestion in the yard and had then gone to the bathroom
nearest to the spot where he had parked his vehicle. Tr. at 238-
40. Finally, Roskam testified that he had left his work station
without authorization "lots of times" before the November 10
incident and that even though there is a rule against leaving a
work station without authorization, to the best of his knowledge
the rule had never been enforced. Tr. at 242.
In response, both Singer and McElroy testified that Roskam had
not previously said that he needed to use the bathroom when he had
left the Hog Yard on the second occasion. Tr. at 1563 (Singer),
Tr. at 1611 (McElroy). As well, both McElroy and Singer testified
that it would not have been necessary for Roskam to have driven his
vehicle out of the Hog Yard in order to avoid traffic congestion.
Tr. at 1562 (Singer), Tr. at 1611 (McElroy).
b. Roskam's Termination
Roskam's period of suspension ended on November 21 and
thereafter he returned to work. On December 1, 1992, he was again
assigned to operate a front-end loader in the Hog Yard and
apparently completed his shift on that day without having any
problems with supervisory personnel. As previously explained, on
December 3, Pihl held a series of meeting with KPC's hourly
employees and requested that they report any other workers who had
been seen away from their work stations. Immediately after one of
these meetings Tom Carleton (hereinafter "Carleton") informed
Singer that while he had been working as a fire watch on the
December 1 swing shift he had seen Roskam away from his work site
on three different occasions.[6] Tr. at 1511-12, 1566. Shortly
thereafter, Singer reported Carleton's statement to Johnson. Tr.
at 1566-67, CX 25. Johnson then asked Singer to have Carleton show
[PAGE 14]
him specifically where Roskam had been seen. Tr. at 1566-67, CX
25. Within the next couple of days, Singer had Carleton show him
where he had seen Roskam. Tr. at 1567. Carleton showed him two of
the sites (one in the Powerhouse basement near a manlift and
another in the Turbine Room basement) and told him that the third
site was a walkway near the Electric Shop. Tr. at 1568. Singer
then reported the information to Johnson. Tr. at 1569.
After Singer reported to Johnson, the investigation of
Carleton's allegation was taken over by Barron. Tr. at 1569. As
part of the investigation, Barron decided to personally interview
Carleton, but was unable to do so until December 10 because
Carleton was off work for a "long weekend." Tr. at 1183-84, 1637-
38. Barron's notes of the December 10 interview indicate that when
Carleton returned he provided Barron essentially the same
information that he had provided to Singer.[7] Tr. at 1639, CX 7.
According to Barron, Carleton seemed to be a little reluctant to
describe what he had seen, but was quite detailed in his
description. Tr. at 1184-85. Barron also testified that Carleton
was sure that the person he had seen during his rounds on December
1 was Roskam. Tr. at 1209. According to Carleton, Barron didn't
seem to have "any kind of attitude" toward Roskam. Tr. at 1543.
After the meeting, Barron testified, he attempted to determine how
reliable Carleton's report had been, and had questioned Carleton
over the telephone about any possible motives he may have had to
discredit Roskam. Tr. at 1187.
According to Barron, the next step in his investigation was to
hold a meeting with Roskam. Tr. at 1193. The meeting occurred on
December 17 and was also attended by Singer and Arriola. RX 16.
Barron testified that the meeting was not held sooner because
Roskam had been off work on his "long weekend" until 11:00 p.m. on
the 16th. Tr. at 1640. At the meeting Barron told Roskam and
Arriola that Roskam had been seen outside of his work area multiple
times and at multiple locations on December 1, but did not
specifically identify Carleton as the person who had seen Roskam.
Tr. at 1194. The evidence introduced by KPC indicates that Roskam
denied being away from his work station on December 1, even when
given details of the sightings to jog his memory. Tr. at 337-39,
1210-12, RX 16. Roskam specifically denied being in the walkway
between the Electric Shop and Stores and being in either the
Turbine Room or the Powerhouse Basement. Tr. at 1642-43, RX 16.
After the meeting, Barron testified, he again called Carleton to
make absolutely sure that it was Roskam who he had seen on December
1. Tr. at 1645-46, RX 77. Barron testified that he also spoke
with Johnson, Hagen, and an attorney for Louisiana Pacific, Chris
[PAGE 15]
Biencourt. Tr. at 1213. According to Barron, Hagen directed him
to again ask Roskam if he had any explanation for what Carleton had
reported seeing. Tr. at 1647.
On December 18 there was a second meeting which was attended
by the same people who attended the meeting on the 17th. Tr. at
1647. At this meeting Roskam was told that it was Carleton who had
reported seeing him at three different locations on December 1 and
that Carleton had said that at one of these locations he had warned
Roskam about a gas leak. Tr. at 1649. During the meeting Roskam
was again asked if he had been away from his work area on December
1 and he again responded that he had not. Tr. at 1647-48. The
meeting was then interrupted while Barron and Singer conferred with
Hagen, and at the conclusion of the meeting Roskam was told that he
was being terminated from his employment. Tr. at 1650.
According to Hagen, he was the KPC official who made the
decision to terminate Roskam. Tr. at 1213, 1215. Hagen also
testified that he based his decision on the fact that Roskam had
previously been suspended for having been absent from his work
station and on his conclusion that Carleton's report of having seen
Roskam at various locations on December 1 was credible. Tr. at
1874. In addition, Hagen testified, he gave weight to the fact
that the areas of the pulp mill where Roskam had been seen were the
same areas where it was believed that sabotage had been occurring.
Tr. at 1874. Hagen's also testified that at the time he made the
decision to fire Roskam, he was unaware that Roskam had complained
to the Coast Guard or that he had been interviewed by FBI and EPA
agents. Tr. at 1876.
On the morning of December 19 Roskam called Barron on the
telephone and informed him that during the night he had concluded
that his December 1 work shift may have been the work shift when he
left the Hog Yard to get a fuseholder cap for his payloader. Tr.
at 1651. According to Barron's notes of the conversation, Roskam
also said that he remembered seeing Carleton in the Powerhouse as
he was on his way to get the fuseholder cap from the Auto Shop.
Tr. at 1652, CX 5. These notes also indicate that Roskam said that
during his trip to the Auto Shop, he had attempted to go out the
side door of the Powerhouse, but had to take another route because
the door was boarded up. Id. According to Barron, Roskam
told him the trip to get the fuseholder cap took a total of about
half an hour. Tr. at 1654. After getting this information, Barron
talked to George Mortensen (hereinafter "Mortensen"), who had been
Roskam's acting foreman during that time period. According to
Barron, Mortensen told him that sometime around December 1 Roskam
had been told to try to get a fuseholder cap from a payloader
[PAGE 16]
parked near the Hog House and, if unable to do that, get a cap from
the Auto Shop. CX 4, Tr. at 1655. Mortensen also indicated,
however, that he would have expected Roskam to drive his payloader
to the Auto Shop if he couldn't get the fuseholder cap from the
payloader parked near the Hog House. Tr. at 1656. Barron
also made inquiries about the door that Roskam said had been
boarded up when he had seen Carleton and learned from the worker
who had boarded up the door that the only day that the door had
been boarded up was November 25. Tr. at 1657.
On December 30, 1992, a letter was sent to Roskam confirming
the termination of his employment. RX 14. The letter was composed
by Barron but had been signed by Singer pursuant to KPC's normal
practice of having such letters signed by an immediate supervisor.
Tr. at 1660. The letter stated that Roskam's account of going to
find a fuseholder cap had been considered but that it had been
determined that the errand must have occurred prior to December 1.
RX 14. During his testimony, Barron also pointed out that even if
Roskam had in fact been trying to find a fuseholder cap on December
1, such an errand would still not explain how Carleton could have
seen Roskam on three different occasions over a four hour period.
Tr. at 1658.
Thereafter, the AWPPW appealed the decision on Roskam's
behalf. A meeting to consider the appeal was held on January 13,
1993, and was attended by Barron, Johnson, Hagen, Roskam, Arriola,
and Chuck Mahlum, a regional official of the AWPPW. Tr. at 1665,
RX 15. At the meeting Roskam described his trip to find a
fuseholder cap and, according to Barron, stated that the door in
the Powerhouse basement which had been boarded up on the night he
went to get a fuseholder cap was different from the door that
Barron had understood him to have described on December 19. Tr. at
1674. Barron believes that during the meeting he gave Roskam and
Arriola a map which had notations indicating that Carleton had seen
Roskam at 4:30, 6:15 and 8:15 p.m. on December 1. Tr. at 1663-64,
CX 5, RX 51. Following the meeting Barron and Arriola jointly
reviewed the paper tapes which recorded the times that the workers
on fire watch duty on December 1 arrived at particular points in
the mill.[8] Tr. at 1669. After reviewing the tapes, Barron
decided that his prior calculation of the times Roskam had been
seen was in error and that the correct times were 3:14, 5:14 and
7:14 p.m. Tr. at 1217, 1669-77. Barron testified, however, that
the exact times Roskam was sighted were immaterial to KPC since
Roskam had not been authorized to be out of his work area at any
time. Tr. at 1674. Accordingly, on January 29, 1993, Hagen sent
a letter to Arriola informing him that KPC had found no reason to
change the decision to terminate Roskam. The letter also stated
that in view of the
[PAGE 17]
absence of any reason for Carleton to have fabricated his story,
his account of the events of December 1 was considered to be more
credible than Roskam's account, which was described as
"inconsistent and incomplete." RX 15.
At the hearing, Roskam did not dispute the evidence indicating
that on December 17 and 18 he had denied being absent from his work
station on December 1. Tr. at 273, 277. He also testified that he
now remembers having seen Carleton in the Powerhouse basement on
December 1 and at another location in his own "department." Tr. at
293, 296-97. However, he suggested that Carleton's account of the
events of December 1 may have been motivated by Pihl's offer of a
reward for information about persons engaged in sabotage.[9] Tr.
at 277-78. He also asserted that it is normal and appropriate for
a person in his job to occasionally go to the Powerhouse to get
instructions and to go to Stores to get supplies such as Windex and
paper towels. Tr. at 1926-27. He also testified that he could
have easily forgotten having gone on such an errand during the 16
days between December 1 and December 17. Tr. at 1928. Finally,
Roskam denied engaging in any sort of sabotage activities and
denied any knowledge of such efforts by other union members. Tr.
at 297-98.
B. Jackson's Protected Activities, Work Record, and Adverse
Actions
The record shows that like Roskam, Jackson also engaged in
protected activities. The record also shows that these activities
were clearly known to KPC at the time that adverse actions were
taken against Jackson. However, the record also contains evidence
indicating that Jackson engaged in other work-related conduct that
could have provided an independent basis for the adverse actions.
1. Jackson's Protected Activities
The record indicates that while employed by KPC Jackson
frequently made internal complaints concerning alleged water
pollution by KPC. The evidence also shows that on at least one
occasion Jackson explicitly threatened to report alleged
environmental violations to the FBI and that on another occasion he
threatened to provide such information to various public interest
groups.
According to Jackson's testimony, he has been concerned about
water pollution in Ward Cove for many years, and was particularly
concerned about fish and birds being poisoned by the chemicals that
KPC discharged from KPC's main sewer outfall, as well as by the
[PAGE 18]
possible effects of the chemicals on his own health. Tr. at 728-
33, 813-14. In recent years, he testified, he began to make more
and more complaints to KPC managers about these concerns. Tr. at
733. The complaints, which were both verbal and written, were
addressed to his immediate supervisors and to higher level
managers, such as Hagen and Pihl. Tr. at 733-34, 807-11, CX 20, CX
22, CX 23. As well, in 1992 many of the complaints were written
into a log book that is known as the A-Frame Log. RX 49.
Jackson also made a series of particularly strong complaints
between September 29 and October 4, 1992. For instance, on
September 29 he wrote a letter of complaint to Steve Grossman
(hereinafter "Grossman"), a KPC safety officer. The letter stated
that Jackson and other workers in the Boom area had become sick to
their stomachs on a regular basis since 1984 and had experienced
sore throats, burning eyes, and skin rashes due to what Jackson
described as the "polluted water in the cove." CX 23. It also
stated that he had seen "diving ducks die by the score" and
"hundreds" of dead jellyfish. Id. Two days later Jackson
sent a second written complaint to Grossman. In this second
complaint Jackson reported that while the A-Frame crew had been
working in the barge loading area on the morning of October 1,
Jackson had experienced a sore throat and sour stomach and another
crew member had been bothered by the smell of fumes coming from the
pulp mill's discharge area. Tr. at 745-46, CX 24, RX 42. The
complaint concluded, "[i]f problems continue to exist--I will send
all copies of my complaints to the FBI."[10] CX 24. On the same
day Jackson also wrote comments about the fumes in the A-Frame Log.
RX 49 at 30. Three days after sending the second complaint to
Grossman, Jackson got into an argument with Cowan and accused him
of knowing about an "environmental coverup" in Ward Cove. Tr. at
646-49, RX 33. Later the same day, Jackson threatened to take his
complaints about the company to Greenpeace, the Veterans of Foreign
Wars, and an organization called American Native Rights.
Id.
Although Jackson acknowledges that he never actually made any
complaints about water pollution to any government agency during
the period he was employed by KPC, his testimony does indicate that
on the day following his termination by KPC he willingly
participated in an interview with FBI and EPA agents who were
investigating possible water pollution violations at KPC's pulp
mill. According to Jackson, the interview occurred at the IBEW
union hall, where Jackson had gone to vote in an AWPPW election.
Jackson testified that when he learned the agents were in the
building, he voluntarily talked to them about his termination by
KPC and about his environmental complaints. Tr. at 734, 943-45.
[PAGE 19]
The KPC supervisors and managers to whom Jackson says he made
internal complaints about water pollution have all freely
acknowledged that such complaints, including Jackson's threat to
provide information to the FBI, were in fact made. Various KPC's
officials, however, have testified that they were unaware of any
contact Jackson may have had with any government agency about
alleged environmental violations prior to the time he was fired.
Tr. at 540-41 (Cowan), Tr. at 1755 (Eakes), Tr. at 1892-93 (Hagen),
Tr. at 1401 (Pihl).
2. Jackson's Work Record
The record shows that in addition to engaging in various
activities that are protected under the Act, Jackson also engaged
in a variety of non-protected conduct that was justifiably
considered by KPC's management to constitute unacceptable behavior.
Most significantly, the record contains a variety of letters
of suspension and reprimand which indicate that Jackson's inability
to control his temper had led to a series of confrontations with
his supervisors and other employees. For example, KPC records show
that in June of 1985 Jackson was suspended for three days for
refusing to perform an assignment and for arguing with his
supervisor. RX 22. Likewise, on March 23, 1987, Jackson was
reprimanded for throwing a quick cut saw a distance of 12 feet and
for losing his temper in a manner that was intimidating other
workers. RX 23. Indeed, the letter of reprimand stated that other
boom employees had told investigators that they were afraid to work
with Jackson because of his violent temper. Id. Only three
months later Jackson was again reprimanded for losing his temper
and "yelling and screaming" at other employees. RX 24. No
disciplinary action was taken against Jackson in 1988 or 1989, but
on September 13, 1990, Jackson was suspended for 14 days for
physically assaulting Cowan while Cowan was attempting to give
instructions to a work crew. RX 25. According to Cowan's written
report of the incident, Jackson had repeatedly interrupted Cowan's
presentation to the work crew and had then stopped the presentation
entirely by physically grabbing Cowan by the throat. RX 31. About
four months later, Jackson was reprimanded for failing to follow
Cowan's instructions concerning sharpening drill bits and for
failing to properly maintain the equipment on the A-Frame. RX 26.
The letter of reprimand directed Jackson to begin maintaining a log
book so that his supervisors could monitor his maintenance
practices. Id. This log book later became known as the A-
Frame Log. Tr. at 478.
Jackson's poor work record was also described in the
[PAGE 20]
testimony of Jackson's immediate supervisors, who stated that they
found Jackson's job behavior to be unsatisfactory in a variety of
ways. For example, McFarland, who has known Jackson for 30 years,
testified that Jackson has been insubordinate, argumentative,
abusive to subordinates, and more trouble to supervise than the
rest of his crew "all put together." Tr. at 1806-12. According to
McFarland, it was difficult to get other employees to work on the
A-Frame with Jackson and that, as a result, the employees assigned
to the A-Frame tended to have the least seniority. Tr. at 1808.
Likewise, Cowan testified that he had "a lot of problems" with
Jackson and that he didn't take or give directions very well. Tr.
at 471-72. Cowan also testified that Jackson was "getting harder
and harder to manage," and that one of the reasons for requiring
Jackson to keep the A-Frame Log was to enable Cowan to avoid face-
to-face conversations with Jackson. Tr. at 483-86. According to
one KPC witness, Cowan had wanted to terminate Jackson ever since
the incident in which Jackson had grabbed Cowan by his neck. Tr.
at 1225.
The record also shows that during the time Jackson was
employed by KPC he made numerous allegations and complaints about
a wide variety of subjects that are in no way related to water
pollution. For example, the record indicates that during a meeting
in October of 1992, Jackson complained that one of his co-workers
on the A-Frame (Merrill James) had been assigned to the A-Frame to
torment him, that a Forest Service employee had been changing raft
numbers as part of a scheme to violate logging restrictions, and
that KPC was covering up safety violations. Tr. at 652-59, RX 33.
In addition, Jackson allegedly accused McFarland of being involved
in violations of the laws governing logging and log exports, and on
at least one occasion complained about exposure to second-hand
cigarette smoke in employee lunch rooms. Tr. at 1814, CX 23. The
entries in the A-Frame Log indicate that Jackson also recorded such
non-environmental complaints in the log book. Examples of such
complaints noted in the log book include complaints concerning
alleged safety problems on the A-Frame,[11] the failure of KPC to
provide him adequate help,[12] and criticisms of other workers and
his supervisors.[13] RX 49 at 17-30.
Jackson does not dispute the evidence indicating that he had
been suspended and reprimanded on various occasions. Jackson also
admits that he "gets a little hot sometimes" and concedes that he
did grab Cowan. Tr. at 862, 864. However, he testified that he
only lobbed, not threw, the quick cut saw, and contends that he
does not have a problem getting along with other employees. Tr. at
860. He also generally characterized the disciplinary actions
against him as being based on "lies" and contended that the letters
[PAGE 21]
memorializing those actions do not reflect his side of the matters
that they purport to describe. Tr. at 861-62, 866, 958. Jackson
also denies having accused McFarland of participating in illegal
activities involving logs, but apparently does not dispute the
other evidence concerning his history of repeatedly making
complaints on a variety of topics. Tr. at 905-06.
3. Adverse Actions Against Jackson
There were two adverse actions against Jackson in the fall of
1992. The first occurred in October, when Jackson was suspended
from work for a period of ten days. The second occurred on
December 8, when Jackson's employment by KPC was permanently
terminated.
a. The October Suspension
According to the testimony of various KPC supervisory
personnel, the events that eventually led to Jackson's ten-day
suspension were precipitated by a complaint from McFarland,
Jackson's most immediate supervisor, about a comment Jackson had
written on the October 3 Work Plan.[14] According to McFarland,
who is himself a member of the AWPPW, the comment was objectionable
because it was, in his opinion, tantamount to calling the non-union
worker a scab.[15] Tr. at 1818, 1822. According to McFarland,
about 3:30 p.m. on October 3, he told Jackson that he was entitled
to his personal opinion but that he should not write such comments
on company documents. Tr. at 1819. In response, McFarland
testified, Jackson told him "more or less where to go", and a
heated argument ensued. Id. Immediately after the
argument, McFarland testified, he tried to find Barron, but was
unsuccessful. Tr. at 1820. While looking for Barron, however, he
encountered two other KPC managerial employees and told them that
he'd "had enough" and that if something wasn't done about Jackson,
"I was going down the road." Tr. at 1820. The following morning,
McFarland testified, he spoke to Cowan and told him, "'If they
don't do something with him, they can get somebody else in here.'"
Tr. at 1821.
A short while after his conversation with McFarland, Cowan met
with Jackson and told him to stop putting extraneous information in
the A-Frame log book and Work Plan. Tr. at 646. According to
Cowan, environmental complaints such as Jackson had been writing in
the log book should have instead been raised in a safety meeting.
Tr. at 495. Cowan's notes indicate that Jackson argued with him
about the matter and, in essence, contended that he could write
whatever he wished in the log book. RX 33. During the course of
the argument, Jackson allegedly referred to Cowan as "the stupidest
[PAGE 22]
cocksucker" at KPC. RX 33. Cowan then immediately ordered Jackson
to appear at a disciplinary meeting. Tr. at 651-52.
The disciplinary meeting was held the same day and was chaired
by Jim Eakes (hereinafter "Eakes"), KPC's Materials Handling
Supervisor. Also present were Cowan, Barron, Jackson and Gary
Benner (hereinafter "Benner"), an AWPPW shop steward. Tr. at 1730.
At the meeting Jackson asserted that he had never been told what to
write in the log book and expressed various complaints about Cowan.
Tr. at 652-53, 1730-35, RX 33. It was also at this meeting that
Jackson complained that Merrill James had been assigned to the A-
Frame to torment him, that a Forest Service employee was changing
raft numbers, and that KPC was covering up safety violations.
Id. This was also the meeting at which Jackson threatened
to take his complaints to Greenpeace, the Veterans of Foreign Wars,
and American Native Rights. Id. At the conclusion of the
meeting Jackson was told that he was being suspended for ten days.
Tr. at 1735.
After the meeting, Eakes investigated the situation further.
As part of his investigation, Eakes testified that he spoke to
McFarland and was told that Jackson had accused him as well as
Cowan, an unnamed tug operator, and Pihl of improprieties in
accounting for log rafts. Tr. at 1736. According to Eakes,
McFarland also told him that Jackson would not follow instructions
and that it had been difficult to get people to work for Jackson.
Tr. at 1736-37. Eakes also testified that he asked three members
of the A-Frame crew if they were having any problems working near
the discharge area and they all said there were no problems.[16]
Tr. at 1738. Eakes testified that he also spoke to a KPC tugboat
operator named Hert, who indicated, according to Eakes' notes, that
he believed that federal investigators had or would come to his
house as a result of accusations made by Jackson. Tr. at 1738, RX
32. Eakes testified that he also reviewed the A-Frame Log and
underlined in red those passages that he felt were not consistent
with the log book's purposes. Tr. at 1739-40. In doing so, Eakes
said, he observed that Jackson's initial entries in the log book
had been limited to statements on the condition of the A-Frame, the
A-Frame engine and "donkey" engine, but that in the more recent
entries Jackson had been including statements that had nothing to
do with the log book's purposes. Tr. at 1740.
On October 8 there was another meeting, which was attended by
everyone who attended the October 4 meeting except Benner, who was
replaced by Arriola. Tr. at 1742. At this meeting Eakes discussed
management's dissatisfaction with Jackson's behavior, including
Jackson's alleged insubordination and use of abusive language. Tr.
[PAGE 23]
at 1742-45. Eakes testified that he also read each of the entries
in the A-Frame log that he had underlined in red and told Jackson
that such remarks should not be written in the log. Tr. at 1745-
48. According to Eakes' calculation, 33 of the lines he underlined
in red involved environmental concerns and 120 related to other
matters. During his testimony Jackson said that he doesn't think
that he was shown the log book at this meeting, but acknowledged
that during the meeting he was told he could make his own notes
about his concerns and submit them to whomever he wished. Tr. at
898-901. Barron also recalled that during the meeting Jackson was
told that he could record his complaints in his own notebook. Tr.
at 1843. According to Eakes, Jackson was also told during the
October 8 meeting that none of his allegations of illegal dealings
in logs had been determined to be valid and that his allegations
about the safety of the A-Frame had also been found to be without
merit.[17] Tr. at 1750. Eakes also testified that at the
conclusion of the meeting Jackson was told that if he wanted to
continue to be employed by KPC he would have to make a clear
commitment to modify his behavior. Tr. at 1752. According to
Barron, the determination not to fire Jackson at the October 8
meeting was "a close decision." Tr. at 1837. Barron also
testified that Jackson was told that this would be his "final
warning" and that it was made "very clear" that Jackson would be
terminated if he did not conform to management's expectations.
Id.
The concerns Eakes expressed at the meeting were subsequently
memorialized in a letter that was given to Jackson on October 13,
1992. In addition to disputing Jackson's allegations about illegal
dealings in logs and the safety of the A-Frame, the letter
described Jackson's complaints about pollution in Ward Cove as
being as "grossly exaggerated" and "a misrepresentation." RX 27.
In concluding, the letter warned that if Jackson continued to
conduct himself in an unacceptable manner, he would be subject to
additional discipline, including termination. RX 27. On October
13, Jackson signed the letter as confirmation of his commitment to
comply with the company's demands for changes in his behavior. RX
27.
b. Jackson's Termination
After Jackson's ten-day suspension ended there were apparently
no further disputes between Jackson and his supervisors until
December 3, 1992, when Cowan encountered Jackson and another
employee named Joe Mathis (hereinafter "Mathis") as they were
working on KPC's Main Dock. According to Cowan's account, he was
walking on the Main Dock when he unexpectedly came face to face
with Jackson and simultaneously observed Mathis, a new employee who
[PAGE 24]
was under Jackson's supervision, feeding an approximately 120-foot
length of worn-out, jagged cable down a drain pipe that fed into
the water beneath the dock. Tr. at 500-07, 514, 543-47. Cowan
testified that when Jackson saw him, Jackson's jaw dropped and he
looked "like he had been caught with his hand in the cookie jar."
Tr. at 544. Cowan further testified that he immediately ordered
Jackson and Mathis to pull the cable back out of the hole. Tr. at
502, 546. In response to this directive, Cowan testified, Jackson
said, "'We put it there all of the time.'" Tr. at 509, 546. Cowan,
who testified that he had no doubt that Jackson knew that cable
should not be put down the drain hole, said that he turn replied to
Jackson, "'Bullshit. You know better than that.'" Tr. at 509, 557.
According to Cowan, a short while later Mathis told him that
Jackson had instructed him to put the cable down the hole and had
told Mathis that it was standard operating procedure. Tr. at 510-
11.
Later on the same day a meeting was held in a KPC conference
room to discuss possible disciplinary action against Jackson. Tr.
at 1710, RX 19. In attendance were Cowan, Jackson, Eakes, Barron
and Benner. Id. According to Barron, Jackson was asked
during the meeting if he had told Mathis to put the cable down the
hole and had immediately answered, "'Yes, I told him to put it down
the rat hole. I told him that's what the dock crew does.'" Tr. at
1229, 1838. Barron also testified that Jackson also said that
putting cable in the water was the right thing to do because an
article published by EPA had concluded that metal in the water was
good for the ecosystem. Tr. at 1229. According to Benner, Eakes
appeared to be "agitated" during the meeting and said that he
feared that EPA would find out "that something had been put in the
water." Tr. at 1942-44. Benner also recalled that at the meeting
Jackson had said that KPC employees had been putting cable in the
water for a long time. Tr. at 1943.
After the December 3 meeting, Barron testified, he attempted
to obtain more information about KPC's policies concerning the
disposal of cable into Ward Cove, and in particular the practice of
putting cable down drain holes. Tr. at 1232-34. According to
Barron, he talked to various supervisors and determined that it was
against KPC's policy to allow metal to be intentionally put into
the water. Tr. at 1235-36. He also testified, however, that he
heard "rumors" that cable may have been discarded into the water
five or six years previously. Tr. at 1238. In addition, Eakes
testified that he also investigated Jackson's assertion that other
employees had routinely disposed of cable through the drain hole.
Tr. at 1714. As part of his investigation, Eakes said, he spoke to
various current and former supervisors and determined that except
[PAGE 25]
when log bundles have to be broken up while still floating in the
water, it had been KPC's practice and policy not to allow employees
to discard cable into the water. Tr. at 1715-20.
Following the inquiries by Barron and Eakes, another meeting
was held. This meeting, which took place on December 8, was
attended by Jackson, Eakes, Barron, Cowan, and Arriola. RX 19.
According to Arriola's account of the meeting, Jackson was told at
the meeting's outset that he was being terminated for "attempted
sabotage." Tr. at 1061. Similarly, Barron testified that at the
meeting Jackson was told that he was being fired because putting
the cable down the drain hole was considered by KPC to be an
intentional act that was done for the purpose of undermining the
company, i.e., exposing KPC to possible penalties for an
environmental violation. Tr. at 1840-41. Barron also testified
that the word "sabotage" was used to describe Jackson's behavior.
Tr. at 1840. According to Arriola's account, Barron indicated at
the meeting that Mathis was not being punished because he was a new
employee. Tr. at 1063. Jackson's termination was made effective
as of the conclusion of the meeting and the termination decision
was confirmed in a letter sent to Jackson on the same day. RX 19.
Subsequently, Arriola appealed the decision to terminate Jackson,
and an appeal meeting was held on January 13, 1993. On January 29,
1993, Hagen sent Arriola a letter informing him that the appeal had
been denied. RX 20. The letter noted that Jackson's personnel
records showed "a pattern of misconduct" and noted that Jackson had
been suspended for misconduct for 10 days in October. RX 20.
According the Hagen, he was the one who made the decision to
terminate Jackson on December 8. Tr. at 1876. Hagen also
testified that the decision to terminate Jackson was based on
Jackson's history of suspensions and reprimands and that Jackson
would have not have been terminated for the December 3 incident
alone.[18] Tr. at 1878-79. Hagen explicitly denied that the
termination was in any way related to Jackson's environmental
complaints. Tr. at 1880.
Jackson has not disputed the sequence of the events leading to
his termination on December 8. Jackson does, however, dispute the
testimony of the KPC witnesses in two material respects.[19]
First, Jackson now denies telling Mathis to put the cable down
the drain hole. According to Jackson, he told Mathis that the dock
crew usually put such cable through the drain hole, but that Mathis
should just leave the cable on the dock and let the dock crew take
care of it. Tr. at 793, 800, 913-14, 921-22, 929. Jackson further
testified that he was surprised to later see Mathis putting the
[PAGE 26]
cable down the drain hole. Tr. at 795. Jackson also suggested
that Mathis may not have heard him when he told him to let the dock
crew dispose of the cable. Tr. at 800, 921. To counter this
testimony, KPC called Mathis as a defense witness. During his
testimony, Mathis directly contradicted Jackson's assertion that he
had not told Mathis to put the cable down the drain hole. In
particular, Mathis testified that Jackson told him to put the cable
down the drain hole and had even shown him where it is located.
Tr. at 1616-17. Mathis also testified that shortly after Cowan had
encountered him and Jackson on December 3, he had told Cowan that
Jackson had directed him to put the cable down the hole. Tr. at
1618. During his testimony Mathis also verified that he had signed
a written statement dated January 26, 1993, in which he represented
that Jackson had told him to put the cable down the drain hole. RX
21.
Second, Jackson has disputed KPC's contention that it was
contrary to KPC's policy or practice to discard cable into Ward
Cove. In particular, Jackson testified that during his 30 years
at KPC metal was thrown overboard "lots of times" by himself and
other workers. Tr. at 724-25. In addition, Jackson testified that
he has never been told not to put metal into the water and that he
could not find anyone else at KPC that had been given such an
instruction. Tr. at 225. During his testimony Jackson also stated
that in the past he had heard members of the dock crew discuss the
practice of putting unusable cable down a drain hole, and said that
another worker, whose name Jackson could not recall, had told him
that a supervisor named Ferd Wilkin had once permitted members of
the dock crew to dispose of a cable in that manner. Tr. at 946-48,
957. Jackson's testimony was supported in part by Arriola, who
testified that he had personally seen cable being discarded down a
drain hole on the Main Deck. Tr. at 1021-24. Jackson's attorney
also established during the cross-examination of various witnesses
that a number of cables can be seen lying beneath the Main Dock
during low tide. Tr. at 1764, 1862.
To counter Jackson's contention that KPC permitted employees
to throw cable into Ward Cove, KPC presented testimony indicating
that, except when log bundles have to be broken up while still
floating in the water, it has been KPC's policy and practice since
at least the middle of the 1980's to prohibit employees from
throwing cable or similar metal products into Ward Cove. Most
significantly, according to the testimony of Cowan and McFarland,
such a policy was instituted when a KPC environmental manager named
Ron Lundimo (hereinafter "Lundimo") spoke to a group of workers in
the Boom Shack during the mid 1980's and told them that
environmental regulations prohibit them from throwing cables and
[PAGE 27]
other types of metal into the water. Tr. at 557-63 (Cowan), 1821-
25 (McFarland). Both Cowan and McFarland also testified that they
believed that Jackson had been at this meeting, but could not
specifically recall if he was there. Tr. at 615 (Cowan), Tr. at
1823-24 (McFarland). As well, both Eakes and Cowan testified that
in the past Jackson himself has complained about employees throwing
cable into the water. Tr. at 569 (Cowan), Tr. at 1723 (Eakes).
Cowan also testified that, except for cables that have been allowed
to drop from log bundles that are being disassembled in the water,
no one to his knowledge has intentionally placed cable in the
waters of Ward Cove during the last 10 years. Tr. at 590. Cowan
also testified that the cable that can be seen under the Main Dock
is "rusty and cruddy" cable that has been there "a long time." Tr.
at 591.
KPC also introduced evidence indicating that at about the same
time that Lundimo spoke to employees in the Boom Shack, Richard
Madden (hereinafter "Madden"), a dock crew supervisor, observed
workers feeding an unusable cable down a drain hole in the Main
Dock and ordered an end to such a practice. Tr. at 1859-60.
Madden also testified that since that time he has been unaware of
anyone discarding cable into the water from the Main Dock. Tr. at
1861. Madden's successor, Jerry Stidd, also testified that he is
unaware of any cable being put down drain holes since the middle of
the 1980s. Tr. at 1868. He also testified that there is no doubt
in his mind that KPC employees know that they are not to dispose of
cable in that manner. Tr. at 1869. He acknowledged, however, that
employees did put cable down drain holes prior to 1985 or 1986.
Tr. at 1868-69.
KPC also presented testimony from Jackson's co-workers to
establish that in recent years it has not been the practice of KPC
employees to discard cable or other types of metal into the water.
For example, Merrill James testified that the only time that he has
seen cable go into the waters of Ward Cove is when it falls in
accidently or when, for safety reasons, it is allowed to drop off
a log bundle that is being broken up while still in the water. Tr.
at 391. He also said that he's heard of swifters being thrown into
the water, but suggested that the only reason that nobody has been
disciplined for this is because such conduct is unlikely to be
observed by anyone else. Tr. at 408-09. Likewise, Rodney Stockli,
a former assistant of Jackson's, testified that about a year before
Jackson was fired, Cowan had cautioned a work crew to not allow
even used nails to fall into the water. Tr. at 1133-34.
Finally, KPC's counsel also elicited information from both
Jackson and Arriola indicating that the examples they cited of
[PAGE 28]
cable being deliberately discarded from the land into the water
occurred long before 1992. For example, Jackson acknowledged that
during a pre-hearing deposition he had testified that he was
unaware of instances of cable being deliberately thrown into Ward
Cove during the previous six years.[20] RX 78. Likewise, Jackson
acknowledged that Ferd Wilkin's employment at KPC had ended more
than six years ago. Tr. at 983. Jackson also admitted that he had
never personally seen anyone other than Mathis dispose of a cable
by putting it down a drain hole and had never been directed by a
supervisor to discard a cable in such a manner. Tr. at 839-41,
946. Likewise, Arriola acknowledged on cross-examination that his
observation of workers putting a cable down a drain hole on the
Main Deck had occurred in 1986. Tr. at 1076.
IV. Timeliness of Jackson's Complaint
Under the provisions of 29 C.F.R. §24.3(b) a complaint
under the employee protection provisions of the WPCA must be filed
within 30 days after the occurrence of the alleged violation. For
purposes of determining the timeliness of such a filing, a
complaint filed by mail is deemed to be filed on the date of
mailing. Id. In this case, KPC alleges that Jackson failed
to meet the 30-day filing deadline.
Jackson was terminated on December 8, 1992. Therefore, under
the regulations, his complaint had to be mailed on or before
January 7, 1993. The evidence shows that Jackson's handwritten
complaint was dated January 2, 1993, but was not received by the
Department of Labor's Seattle office until January 15, 1993. RX
68. The District Director in the Seattle office has signed a
statement indicating that his office did not retain a copy of the
envelope containing Jackson's complaint. ALJX 1. Consequently,
there is no written record directly showing the exact date that
Jackson mailed his complaint. However, Jackson testified that he
mailed the complaint on January 2, after talking to Roskam about
where to send it. Tr. at 1933-35. Jackson also testified that he
believes that he sent a copy of his complaint to his attorney,
James McGowan (hereinafter "McGowan"), as indicated on the last
page of the complaint, and that he thinks he must have sent the
copy to McGowan on the same day he sent the complaint to Seattle.
Tr. at 1938-39, RX 68.
Jackson's testimony that he mailed his complaint on January 2
is circumstantially supported by the testimony of Roskam.
According to Roskam, he had told Jackson that his complaint had to
be received by the Department of Labor within 30 days and
that when Jackson later informed him that he had mailed in his
complaint, he
[PAGE 29]
was unsure if the complaint would arrive by what he thought to be
the deadline. Tr. at 1924-26. Roskam further testified that he
does not believe he would have been worried about the timeliness of
Jackson's complaint if he had known that a complaint is timely so
long as it is mailed within 30 days. Tr. at 1926.
Jackson's testimony that he mailed his complaint on January 2
is also supported by McGowan, who was called as an adverse witness
by KPC. During his testimony McGowan stated that he first received
a copy of Jackson's complaint by fax, and that, although he does
not remember the exact date that he received it, he does recall
that he did receive another fax from Jackson on the same day and
that the other fax is marked as having been received on January 2.
Tr. at 1948-51. McGowan also testified that he "breathed a sigh of
relief" when he got his copy of Jackson's complaint, because he
then knew that Jackson had complied with the 30-day deadline. Tr.
at 1951-52. McGowan further indicated that after he returned to
his law office in Sitka, he would attempt to locate the copy of the
complaint that Jackson had faxed to him and make that copy
available to KPC's counsel. Tr. at 1952. After the hearing
McGowan submitted two affidavits concerning his receipt of a copy
of Jackson's complaint. In the first affidavit he represented that
he had searched his files for the copy of the complaint that he
said Jackson had faxed to him on January 2 and was unable to find
it. ALJX 2. McGowan therefore concluded that he had discarded the
fax after he received a better copy of Jackson's complaint in the
mail. Id. In the second affidavit, McGowan represented
that he had located two pages of a four-page fax that had been sent
to him by Jackson on January 2. ALJX 3. According to an
attachment to the affidavit, the two pages of the fax that were
retained were the cover sheet and a page entitled "Termination
Notice," which contained various information about the wages due to
Jackson after his termination. Based on the fact that Jackson's
complaint is two pages long and the fact that two pages were
missing from the fax, McGowan then concluded that the missing two
pages were, in fact, Jackson's complaint. Id. McGowan
later reaffirmed all of the foregoing representations in a
deposition that was taken on December 16, 1993. ALJX 4.
KPC has attempted to counter the testimony of Jackson and
McGowan with several different types of circumstantial evidence.
First, KPC elicited testimony from Jackson indicating that at the
time he sent his complaint to Seattle, he mistakenly thought he had
been fired by KPC on December 12, rather than December 8, thereby
suggesting that he may have erroneously thought that his complaint
was not due until January 11. Tr. at 1936, RX 68. Second, KPC has
offered an affidavit from Johnson indicating that during December
of 1992 KPC's personnel department provided three separate pieces
[PAGE 30]
of paper to Jackson in connection with his termination--a two page
termination notice and a one page letter from Cowan formally
confirming that Jackson had been terminated on December 8, thereby
implying that the two pages missing from McGowan's fax were
materials KPC provided to Jackson rather than Jackson's complaint.
ALJX 5. Third, Johnson testified that, as a general rule, mail
service between Ketchikan and Seattle ordinarily takes only one to
three days. Tr. at 1302. Johnson also testified that KPC had
received its notice of Jackson's complaint from the Labor
Department's Seattle office only two days after the notice was
mailed, and that notice of Roskam's complaint had been received in
only three days. Tr. at 1304-05.
ANALYSIS
The legal standard for determining if a respondent violated
the whistleblower provisions of the WPCA and similar statutes is
well established.[21] In particular, a complainant must initially
present a prima facie case consisting of a showing that he or she
engaged in protected conduct, that the employer was aware of that
conduct, and that the employer took some adverse action against the
complainant. In addition, as part of the prima facie case the
complainant must present evidence sufficient to raise the inference
that the complainant's protected activity was the likely reason for
the adverse action. If the complainant establishes a prima facie
case, the employer then has the burden of producing evidence to
rebut the presumption of disparate treatment by presenting evidence
that the alleged disparate treatment was motivated by legitimate,
non-discriminatory reasons. At this point, however, the employer
bears only a burden of producing evidence, and the ultimate burden
of persuasion of the existence of intentional discrimination rests
with the employee.[22] If the respondent successfully rebuts the
employee's prima facie case, the employee still has the opportunity
to demonstrate that the proffered reason was not the true reason
for the employment decision. This may be accomplished either
directly, by persuading the factfinder that a discriminatory reason
more likely motivated the employer, or indirectly, by showing that
the employer's proffered explanation is unworthy of credence. In
either case, the factfinder may then conclude that the employer's
proffered reason is a pretext and rule that the complainant has
proved actionable retaliation for the protected activity.
Conversely, the trier of fact may conclude that the respondent was
not motivated in whole or in part by the employee's protected
activity and rule that the employee has failed to establish his or
her case by a preponderance of the evidence. Finally, the
factfinder may decide that the employer was motivated by both
prohibited and legitimate reasons, i.e., that the employer had dual
[PAGE 31]
or mixed motives. In such a case, the burden of proof then shifts
to the respondent to show by a preponderance of the evidence that
it would have taken the same action with respect to the complainant
even in the absence of the employee's protected conduct.
Guttman v. Passaic Valley Sewerage Commission, 88-WPC-2
(March 13, 1992), aff'dsubnom.Passaic
Valley Sewerage Commissioners v. U.S. Dep't of Labor, 992 F.2d
474 (3rd Cir. 1993); Darty v. Zack Company, 80-ERA-2 (April
25, 1983). SeealsoMt. Healthy City Board of
Education v. Doyle, 429 U.S. 274 (1977); NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
There are two situations in which relief under the Act must be
denied even though a complainant may be able to demonstrate that an
employer took adverse action in retaliation for some protected
activity. First, relief under the Act must be denied if the
complainant failed to file a timely complaint with the Department
of Labor. Second, relief must be denied if the complainant himself
committed a deliberate violation of the WPCA.
I. The Lawfulness of Roskam's Termination
Roskam contends that he was terminated in retaliation for his
protected activities and that he is therefore entitled to relief
under the Act. KPC contends, however, that Roskam was not
terminated because of any of his protected activities, but was
terminated for other, entirely lawful reasons.
A. Roskam's Prima Facie Case
As noted above, to establish a prima facie case a complainant
must establish: (1) that he engaged in protected activity, (2) that
the respondent knew of the protected activity, (3) that the
respondent took adverse action against him, and (4) that the
protected activity was the likely reason for the adverse action.
The protected activity in which Roskam claims to have engaged
consists of his complaints to the Coast Guard about leaking
hydraulic fluid, his participation in an interview with FBI and EPA
agents, and his internal complaints about the hydraulic fluid
leaks. It is indisputable that the complaints to the Coast Guard
and the participation in the interview with the FBI and EPA agents
are both forms of protected activity. Likewise, it has been held
that internally communicating a water pollution complaint to a
company's managers is also a form of protected activity.
SeeGuttman, supra. Thus, it is
clear that Roskam has met the first of the four criteria for
establishing a prima facie case.
[PAGE 32]
The second element of a prima facie case requires proof that
the respondent was aware of the complainant's protected activities.
In this case, the evidence does not convincingly show that KPC was
aware of Roskam's complaints to the Coast Guard or his cooperation
with the FBI and EPA agents.[23] However, the evidence does
clearly show that KPC's management was aware of Roskam's internal
complaints about hydraulic fluid leaking into Ward Cove. Thus, I
find that Roskam has satisfied the second of the four criteria for
establishing a prima facie case.
The third required element of a prima facie case is proof that
the respondent took adverse action against the complainant. KPC
does not dispute the fact that Roskam was terminated as an employee
of KPC, and accordingly, the complainant has successfully
established this element of a prima facie case.
In order to establish the fourth and final element of a prima
facie case a complainant must present evidence sufficient to raise
the inference that the complainant's protected activity was the
likely reason for the adverse action. The motives for adverse
actions against employees are necessarily subjective and for this
reason it is rare that there is direct evidence of any connection
between an employee's protected activities and an adverse action
against the employee. However, it is well established that such a
connection can be proven by circumstantial evidence. See,
e.g., Ellis Fischel State Cancer Hospital v. Marshall, 629
F.2d 563, 566 (8th Cir. 1980); Mackowiak v. Univer. Nuclear
Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). Thus, for
example, it has been held that the proximate timing of the
protected conduct and the adverse action can be sufficient to raise
the inference of causation. Jim Causley Pontiac v. NLRB,
620 F.2d 122, 126 (6th Cir. 1980). SeealsoDonovan v. Stafford Construction Co., 732 F.2d 954, 960
(D.C. Cir. 1984); Burrus v. United Telephone Co. of Kansas,
Inc., 683 F.2d 339, 343 (10th Cir. 1982); NLRB v. American
Geri-Care, Inc., 697 F.2d 56, 60 (2nd Cir. 1982).
In this case, Roskam has not provided any direct proof of a
nexus between his termination and his protected conduct. However,
he has offered a variety of circumstantial evidence which, he
contends, shows that he was terminated in retaliation for his
protected activities. First, it is pointed out that Roskam's
termination occurred within a matter of days after he participated
in the December 9 interview with the FBI and EPA agents, thereby
establishing a temporal link between the protected activity and the
termination. Second, it is contended that KPC's terminations of
Jackson and Kevin James show that KPC is inclined to retaliate
against employees who complain about environmental violations.
[PAGE 33]
Third, it is alleged that KPC's investigation of the allegation
that Roskam had been away from his work station on December 1 was
"lackadaisical" and "inadequate," thereby demonstrating that KPC
was trying to find a plausible pretext for terminating Roskam's
employment.
Frankly, the evidence upon which Roskam relies to establish a
prima facie case is weak. For example, although Roskam's
termination did closely follow his interview with the FBI and EPA
agents, the investigation that provided the grounds for Roskam's
ultimate termination clearly began well before Roskam participated
in the interview. Moreover, the evidence of KPC's possible
knowledge of the interview is highly speculative. Likewise, the
assertion that the investigation of Roskam's activities on December
1 was lackadaisical and inadequate is completely unpersuasive. In
fact, as the extensive evidence concerning that investigation
shows, the inquiry was conducted in a reasonably prompt and
thorough fashion. However, the suspension and ultimate termination
of Kevin James does provide some evidence that KPC wished to rid
itself of employees who were complaining about environmental
violations and possibly cooperating with law enforcement agencies.
As well, Roskam had clearly made internal complaints about water
pollution and it is at least conceivable that KPC managers may have
learned of Roskam's complaints to the Coast Guard or heard about
his interview with the FBI and EPA agents. Accordingly, I find
that Roskam has submitted enough evidence to warrant an initial
inference that KPC terminated him because of his protected
activities.
B. KPC's Evidence of Lawful Motives
Since Roskam has established a prima facie case, the
respondent has the burden of producing evidence to show that the
alleged disparate treatment of Roskam was actually motivated by
legitimate, non-discriminatory reasons. As previously explained,
however, at this point the overall burden of proof still remains on
Roskam.
In support its contention that Roskam was fired for reasons
that were unrelated to his protected activities, KPC relies on
essentially four contentions.[24]
First, KPC asserts, the evidence shows that at the time of
Roskam's termination the company was the target of a deliberate
campaign by members of one or more of unions to sabotage KPC's
operations. This sabotage campaign, KPC contends, was so serious
that it threatened the company's economic viability as well as the
[PAGE 34]
physical safety of its employees.
Second, KPC contends that only two days before KPC's president
met with all of the company's hourly employees to seek their aid in
putting an end to the sabotage, Roskam left his work station on
three different occasions and went to areas of KPC's facility where
many of the instances of sabotage had occurred, including sabotage
to a turbine that had caused approximately $3 million in damage.
Roskam's failure to remain at his work station on December 1 was
particularly egregious, KPC asserts, because only a few weeks
previously he had been suspended for exactly the same kind of
misconduct.
Third, KPC asserts that Roskam's explanations for being seen
out of his work area on December 1 were inconsistent, incomplete,
and unconvincing. For example, the first two times Roskam was
asked about his whereabouts on December 1, he completely denied
being away from his work station even when given some details of
the sightings to jog his memory. Moreover, it has been pointed
out, Roskam's subsequent story about looking for a fuseholder cap
is inconsistent with other evidence and, more importantly, could at
best explain only one of the three occasions on which he was seen
away from his work station.
Fourth, KPC contends that the thoroughness of its inquiry into
Carleton's report of having seen Roskam on December 1 demonstrates
the company's good faith. In particular, it is noted that KPC's
managers made a determined effort to find out if Carleton had any
motive to fabricate an allegation against Roskam and also
repeatedly gave Roskam opportunities to explain the information
that Carleton had provided.
C. Conclusions Concerning KPC's Motives in Terminating Roskam
At this stage of the analysis, Roskam can prevail if the
preponderance of the evidence shows either that the reasons given
by KPC for terminating him were a mere pretext or that the
complainant's protected activities were the more likely reason for
his termination. As well, Roskam can prevail if he can show that
his protected activities were one of the motivating factors in the
termination and if KPC thereafter fails to show by a preponderance
of the evidence that it would have taken the same adverse action
even in the absence of the protected activity.[25] After
considering all of the relevant evidence, I have concluded that
Roskam has failed to show that the reason given for his termination
was a mere
[PAGE 35]
pretext or that his protected activities are the more likely reason
for his firing. Moreover, I have also concluded that Roskam's
protected activities played no part in his termination, and that
even if they were considered at the time he was terminated, he
would have still been terminated even if he had not engaged in
protected activities. There are three primary reasons for these
conclusions.
First, the reason that KPC has offered for terminating Roskam
is definitely not a pretext. An abundance of highly credible
testimonial and documentary evidence clearly establishes that at
the time of Roskam's termination KPC's management was extremely
concerned about stopping a sabotage campaign that constituted both
a severe safety threat and a menace to the company's economic
viability. Moreover, the evidence is also clear that Roskam's
repeated forays away from his work station were directly contrary
to the company's written work rules and the warning in the letter
of suspension that Roskam received on November 13, 1992.
See RX 12 (Rule 20 of KPC's Rules of Conduct) and RX 13
(letter of suspension). Roskam's absences from his work station on
December 1 were further aggravated by the fact that although he was
sighted at three different times, he failed to provide any
explanation for two of those sightings and provided only a belated
and highly questionable explanation for the third.
Second, the proffered reasons for finding that Roskam's
protected activities were a factor in his termination are very weak
and therefore unconvincing. As previously explained, the evidence
offered to prove that KPC had knowledge of Roskam's contacts with
the Coast Guard, FBI and EPA is highly speculative and
unpersuasive. Thus, the only protected activities that were
clearly known to KPC's management were Roskam's occasional
complaints regarding hydraulic oil leaks. Although it is arguable
that even those activities may have motivated KPC to terminate
Roskam, such a conclusion is inconsistent with the fact that KPC
failed to terminate Roskam on two prior occasions in 1992 when it
had plausible non-discriminatory reasons for terminating him, i.e,
when he left his work station on November 10 and when he allegedly
threatened to beat another worker (Larry Thomas) with a baseball
bat.[26] The evidence also clearly shows that KPC's investigation
of Roskam's activities on December 1 was not in any way a sham that
was designed to provide cover for other motivations. It is noted
in particular that the investigation began almost an entire week
before Roskam spoke to the FBI and EPA agents and was initiated
only after another worker made a highly credible report about
repeatedly seeing Roskam at locations where sabotage had been
occurring. Although it has been argued that the investigation
[PAGE 36]
might have been conducted more expeditiously, the reasons that have
been given for the length of the investigation are fully credible.
Finally, although the evidence does contain evidence strongly
suggesting that KPC terminated Kevin James because of his protected
activities, there are substantial differences between the two
terminations. Most significantly, the evidence shows that KPC's
management was well aware that information that Kevin James had
provided to the FBI and the EPA was the principal cause of the FBI-
EPA raid that occurred in mid-November of 1992. As well, the
evidence shows that James was summarily suspended before the
company had any reason to believe that it had a lawful basis for
taking adverse action against him. In contrast, KPC had no reason
to believe that Roskam's protected activities had caused the
company any harm and did not take any adverse action against Roskam
until after it had conducted a thorough investigation that provided
strong reasons for concluding that Roskam had repeatedly left his
work station without any justifiable reason.
Finally, there are persuasive reasons for concluding that even
if Roskam's protected activities were one of the motivating factors
behind his termination, he would have been fired even if he had not
engaged in those activities. Such a conclusion is warranted
because Roskam's activities clearly suggested that he may have been
involved in sabotage and because the evidence shows that at the
time of Roskam's termination it was highly likely that any employee
whose violation of company rules suggested possible involvement in
sabotage was almost certain to be terminated. The reasons for
suspecting that Roskam was involved in sabotage are clear and
substantial. For example, despite having been recently suspended
for leaving his work place, on December 1 Roskam was seen away from
his work station at three different times in three areas of the
plant where sabotage had been occurring. Moreover, Roskam
initially denied being in any of those areas and only later
provided an explanation that in itself gave only a partial and
questionable justification for his presence in those areas. When
such evidence of possible involvement in sabotage is combined with
the fact that KPC's management justifiably regarded the on-going
sabotage campaign as a threat to the company's very survival, it
appears far more probable than not that Roskam would have been
terminated by KPC regardless of whether or not he had ever engaged
in any of the protected activities known to KPC.
II. The Lawfulness of Jackson's Termination
Jackson also contends that he was terminated in retaliation
for his protected activities and that he is therefore entitled to
relief under the provisions of the WPCA. KPC, however, contends
[PAGE 37]
that Jackson was not terminated because of his protected activities
and that in any event Jackson is not entitled to relief under the
WPCA because he failed to file his complaint in a timely manner and
because he is himself guilty of wilfully violating the Act's
prohibition against dumping pollutants into navigable waters.
A. KPC's Motivation in Terminating Jackson
As previously explained, in order for Jackson to establish
that he was terminated in violation of the WPCA, he must first
present a prima facie case that justifies an inference that he was
terminated in retaliation for having engaged in protected
activities. If such a prima facie case is shown, KPC then has the
burden of presenting evidence to show that there was a legitimate
motive for his termination. If the evidence considered as a whole
shows that Jackson's protected activities played no role in his
termination, his claim for relief must be denied. Conversely, if
the evidence shows that his protected activities played at least
some role in his termination, relief must be granted unless KPC can
show that he would have been terminated regardless of his protected
activities.
1. Jackson's Prima Facie Case
It is clear that Jackson has proven the first three elements
necessary to establish a prima facie case. He engaged in protected
activities, his pre-termination protected activities were clearly
known to KPC's management, and adverse action was taken against
him. Thus, if Jackson has also produced enough evidence to warrant
at least an inference that his protected activities were a likely
reason for his termination, he will have established a prima facie
case. In order to raise such an inference Jackson relies on both
direct and circumstantial evidence. As direct evidence of a
connection between his protected activities and his termination,
Jackson contends that Cowan, his supervisor, admitted during the
hearing that Jackson's termination was based in part on Jackson's
environmental criticisms. As well, Jackson points out that the
letter of suspension that he received in October of 1992
specifically criticized his environmental complaints. Jackson also
relies on the following four circumstances, which he contends
indirectly demonstrate a connection between his protected
activities and his termination. First, Jackson contends that since
his termination occurred only a few months after he threatened to
complain to the FBI and only a few weeks after the FBI conducted a
raid on KPC's plant, there is a causal relationship between his
protected activity and his termination. Second, Jackson contends
that the apparently minor nature of the conduct which KPC says
[PAGE 38]
precipitated his termination suggests that there was an unlawful
motive for his termination. In this regard, he points out that in
the past he had escaped termination after committing far more
serious infractions, such as grabbing Cowan around his neck.
Third, Jackson asserts that the terminations of Roskam and Kevin
James demonstrate that KPC had formed an intention to terminate
employees who engaged in protected activities. Finally, Jackson
contends, the fact that he had allegedly never been expressly told
not to dump cable into the bay tends to show that the reason that
KPC proffers for his termination is merely a pretext.
As will be explained infra, KPC has suggested a variety
of reasons for rejecting the inferences that Jackson has drawn from
the evidence and disputed the factual contentions that underlie
those inferences. However, I find that the evidence cited by
Jackson is at least sufficient to warrant an inference that
Jackson's termination may have been motivated by his protected
activities. Accordingly, I find that Jackson has established a
prima facie case.
2. KPC's Evidence of Lawful Motives
Since Jackson has established a prima facie case, KPC now has
the burden of producing evidence to show that the adverse action
against Jackson was in fact motivated by legitimate, non-
discriminatory considerations. To support its position that
Jackson's termination was not related to his protected activities,
KPC relies on essentially four contentions.[27]
First, KPC contends, Jackson's termination was not solely
caused by Jackson's disposal of cable into Ward Cove, but was
instead was the result of a long series of misconduct, of which the
December 3 incident was only the last straw. In this regard, KPC
points out that since 1985 Jackson had been repeatedly suspended
and reprimanded for various kinds of improper behavior such as
refusing to perform assignments as instructed, arguing with his
supervisors, throwing equipment, intimidating other workers, making
unsubstantiated allegations about alleged illegal behavior by other
employees, and, on one occasion, grabbing his supervisor by the
neck. See pp. 18-23, supra. Moreover, KPC argues, only two
months before Jackson was terminated he had been nearly fired and
clearly warned that he would in fact be fired if his work behavior
did not improve. See RX 27.
Second, KPC argues, as it did regarding Roskam's claim, that
Jackson's termination must be considered in the context of KPC's
efforts to cope with a sabotage campaign that the company viewed as
[PAGE 39]
a serious and immediate threat to its survival as a viable economic
entity.
Third, KPC asserts that when its managers considered the facts
surrounding Jackson's decision to tell Mathis to discard the jagged
cable into Ward Cove, they reasonably concluded that Jackson had
intentionally engaged in a deliberate act of sabotage. As grounds
for reaching such a conclusion KPC points out that there are a
variety of circumstances that indicate that Jackson was
intentionally trying to expose the company to sanctions for
illegally dumping cable into the water. Most importantly, KPC
contends, it is well understood by KPC's waterfront employees,
including Jackson, that once metal cable has been brought onto the
land, it must remain there and cannot be discarded into the water.
In addition, KPC points outs that since Jackson could have easily
told Mathis to either leave the cable for the dock crew or put it
in the gondola car that had been set aside for such purposes,
sabotage was his only plausible reason for telling Mathis to put
the cable down the drain hole. Likewise, KPC observes that in view
of Jackson's frequently professed concerns about water pollution,
he would not have been inclined to tell Mathis to put the cable in
the water unless he had some ulterior motive. FPC also contends
that the expression on Jackson's face when he encountered Cowan on
the Main Dock revealed Jackson's apprehension that he had been
caught "with his hands in the cookie jar."
Fourth, KPC contends that its good faith in terminating
Jackson is demonstrated by the fact that it did not terminate
Jackson until after KPC's managers had thoroughly investigated
Jackson's assertion that it was common practice to discard worn
cable down drain holes in the Main Dock.
3. Conclusions Concerning KPC's Motives in Terminating
Jackson
As previously explained, Jackson can prevail in either of two
ways. First, he can show that the reason given for his termination
is a mere pretext or that his protected activities are the more
likely reason for that termination. Second, he can prevail if he
shows that his protected activities were at least a partial cause
of his termination and if KPC then fails to show by a preponderance
of the evidence that he would have been terminated even if he had
not engaged in protected activities.
a. Allegation that Jackson's Termination Was Based on a
Pretext
[PAGE 40]
After considering all of the evidence concerning Jackson's
termination, I have concluded that Jackson has failed to show that
the reason that KPC has given for the termination is a sham or that
his protected activities are the more likely reason for the
termination. There are two primary reasons for this conclusion.
First, the evidence demonstrates that the reason given for
Jackson's termination was not a pretext. Indeed, the evidence of
KPC's high level of concern about the sabotage campaign and the
evidence that KPC believed that Jackson was involved in that
campaign is very strong.
In particular, the record demonstrates that numerous acts of
sabotage had occurred (including one incident that caused
approximately $3 million in damage) and that these acts of sabotage
endangered both the safety of KPC's workers and the company's
economic viability. Indeed, the evidence shows that KPC's
management was so concerned by the on-going incidents of sabotage
that KPC's president was literally reduced to tears when he
described the problem in a mass meeting with company employees.
The evidence is also convincing that KPC's managers reasonably
believed that the sabotage campaign included acts that could have
resulted in environmental violations. This is demonstrated by the
fact that pro-sabotage graffiti specifically called for workers to
commit acts that potentially violated the WPCA, such as the
unauthorized discharge of certain chemicals. KPC's concern about
possible environmental violations was also justifiably heightened
by the fact that only a few weeks before Jackson's termination, FBI
and EPA agents had raided the company's premises in an effort to
find evidence of environmental crimes.
Likewise, there is convincing evidence that Jackson's conduct
was reasonably believed by KPC's managers to be an act of
environmental sabotage. In particular, the evidence shows that
Jackson, as well as KPC's other waterfront employees, knew that KPC
did not permit it employees to discard cable into the water except
on those occasional instances when, for obvious safety reasons,
cables were allowed to be dropped from log bundles that were being
disassembled while still in the water. Although Jackson has denied
having knowledge of this policy, his denial is not believable
because it is inconsistent with the testimony of numerous other,
more credible witnesses and with his own pre-trial deposition
testimony.[28] Moreover, the record contains no evidence
suggesting that Jackson would have had any rational reason other
than sabotage for having told Mathis to put the jagged cable down
the drain hole. As KPC has pointed out, he could have easily told
Mathis to leave the cable for the dock crew or to put the cable in
the gondola car
[PAGE 41]
that was routinely used for holding such unusable cables. Indeed,
as has also been pointed out by KPC, discarding the jagged cable
into Ward Cove was directly contrary to Jackson's frequently
professed concerns about water pollution. It is also noted that
Jackson's long history of hostility toward KPC's management could
have given KPC further reason for suspecting that Jackson was a
likely participant in the sabotage campaign. The record also
convincingly demonstrates that KPC made a good faith effort to
investigate Jackson's assertion that dumping cable down the drain
hole on the Main Dock was a common practice. For example, both
Barron and Eakes questioned other company employees before
concluding that Jackson's assertion was inaccurate.
In short, the evidence persuasively shows that at the very
time when KPC's management was engrossed in an effort to combat an
on-going sabotage campaign, Jackson was caught engaging in conduct
that was reasonably and sincerely believed, following a good faith
investigation, to be a deliberate act of sabotage.[29]
Second, I have concluded that KPC's reason for firing Jackson
was bona fide because the evidence that has been offered to prove
that KPC was retaliating against Jackson's protected activities is
not convincing. The evidence offered by Jackson indicates that
there are two types of protected activities that might have caused
KPC to retaliate against him: (1) Jackson's interview with the FBI
and EPA agents on December 9 and (2) Jackson's history of making
internal complaints and threatening to make external complaints.
However, when these protected activities are considered in their
proper contexts, the evidence fails to persuasively demonstrate
that either category of protected activity is likely to have
prompted Jackson's termination.
Jackson's Interview with the FBI and EPA Agents.
Jackson's December 9 impromptu interview with the FBI and EPA
agents clearly didn't cause Jackson's termination since the
termination had occurred on the day before the interview.
Nonetheless, Jackson contends, the interview could have still
affected KPC's decisions concerning Jackson's employment because
his appeal of the termination decision was not considered by KPC
until after the interview had occurred. Such a contention could
have merit if there was some evidence that KPC officials knew of
the interview at the time that they considered Jackson's appeal and
if there was also some evidence to indicate that, but for such
knowledge, KPC would have reinstated Jackson. However, there is no
such evidence in the record. Rather, the evidence only shows that
other union members may have seen Jackson talking to the FBI and
EPA agents and
[PAGE 42]
that, as a result, rumors of the interview may have made their way
to KPC's management. Such speculative evidence is not sufficient
to warrant the conclusion that KPC knew or even suspected that
Jackson had been interviewed. Indeed, KPC's apparent failure to
ever apprehend any of the workers who were responsible for the
sabotage suggests that the company's ability to obtain information
about the activities of its workers was quite limited.[30]
Moreover, even if it could be assumed that KPC's managers knew of
Jackson's interview with the FBI and EPA agents, there is nothing
in the record which reasonably suggests that Jackson would have
been reinstated if they had not known of such an interview.
Jackson's Internal Complaints. Jackson's reasons for
asserting that his internal complaints and threats to complain to
outside entities led to his termination are somewhat stronger than
his reasons for contending that his termination was caused by his
cooperation with the FBI and EPA agents. However, even these
reasons are still unconvincing. The strongest evidence in this
regard is the evidence indicating that KPC terminated Kevin James
in response to his complaints to the FBI and EPA. There are,
however, a number of material differences between the facts
surrounding the termination of James and the facts surrounding
Jackson's termination. These differences are so substantial and so
pervasive that it is not reasonable to conclude that the two
terminations were the result of a common motive.
It is noted, for instance, that Jackson's protected activities
were of far less concern to KPC than the protected activities of
Kevin James. For example, due to the detailed and direct knowledge
that James had of KPC's environmental compliance problems, his
allegations created a very real possibility that KPC would be
criminally prosecuted for environmental violations. In contrast,
Jackson's water pollution complaints were vague and speculative.
Moreover, Jackson had a history of making various types of
unsubstantiated allegations that never resulted in any legal action
against KPC. For example, in the past Jackson had made allegations
that various KPC employees had violated logging restrictions and
had accused KPC of covering up safety violations by bribing an
engineer who had inspected the A-Frame. Neither allegation ever
resulted in any sort of enforcement action against KPC.
It is also noted that while James was pressured to withdraw
his allegations about KPC's alleged environmental violations,
Jackson was not told that he couldn't articulate his complaints.
Rather, the record shows that Jackson was told that he was entirely
free to record his various complaints in his own notebook and that
[PAGE 43]
he was being precluded from writing his complaints in the A-Frame
log book and Work Plan only because those records were designed for
entirely different purposes. Tr. at 628, 664-65, 1843. Indeed,
Jackson admitted that during a meeting in October of 1992 he was
explicitly told that he could submit his complaints to whomever he
wished. Tr. at 901. Moreover, there is no evidence that Jackson
was ever threatened with retaliation if he took his complaints
outside the company, even though he had specifically threatened to
contact a variety of outside entities.
There are also substantial differences in the ways in which
the terminations of Kevin James and Jackson occurred. In
particular, the record shows, James' suspension was initiated at
KPC's highest management level immediately following an FBI/EPA
raid that KPC's management attributed to complaints that James had
made to the EPA. No particular act of alleged misconduct was given
for James' suspension, and KPC's management ultimately had to hire
private detectives to find the information that was used to justify
the decision to permanently terminate him. In contrast, Jackson's
termination was in effect initiated by his direct supervisor
(Cowan) immediately after Jackson had been seen engaging in
improper conduct. The alleged improper conduct was investigated
through normal channels and clearly described in Jackson's
termination letter. It is also noteworthy that Cowan initiated the
process that led to Jackson's termination only one day after Cowan
and the other KPC managers had been alerted to the sabotage problem
in a special meeting with KPC's president. There is, moreover, no
evidence suggesting that KPC's management ever hired a private
detective to obtain derogatory information on Jackson. In short,
while the adverse action against Kevin James was highly unusual
from a procedural prospective, the termination of Jackson was
procedurally routine.
Jackson also argues that the environmental complaints that he
made in October of 1992 further suggest that KPC was motivated by
unlawful considerations when it decided to terminate him. The
evidence, such as the text of the letter of suspension that Jackson
received in October of 1992, does provide some support for this
argument. However, this argument is ultimately unpersuasive
because if KPC was inclined to terminate Jackson for having made
water pollution complaints, it would have been most likely to have
done so in October of 1992, when the complaints were the most
vociferous, rather than in December. Indeed, given Jackson's prior
disciplinary record and the aggravated nature of Jackson's October
confrontations with both McFarland and Cowan, KPC would have had a
perfect excuse for firing Jackson in October of 1992, if the
company had actually desired to terminate him for making
[PAGE 44]
environmental complaints.[31] The fact that it did not take the
opportunity indicates that it was not inclined to fire him for
making such allegations, even at a time when it had more than
adequate independent reasons for firing him. Jackson's post-
hearing briefs attempt to deal with this problem by suggesting that
KPC's attitude later changed because it suspected that Jackson may
have been partially responsible for the raid by FBI and EPA agents
in November of 1992. This argument is not persuasive, however,
because the evidence does not indicate that KPC's management in any
way suspected that Jackson may have been even partially responsible
for the raid. Indeed, the record contains a substantial amount of
evidence indicating that KPC's managers had determined that Kevin
James was the one whose allegations had led to the raid. It is
also noted that the evidence does not suggest that Jackson in any
way made any additional environmental complaints between the date
of his suspension and the date of his termination.
The other circumstantial evidence cited by Jackson is also
unpersuasive. For example, although Jackson's termination followed
the FBI/EPA raid by several weeks, the raid provides as much
support for the argument that KPC's managers had become more
concerned about cracking down on environmental violations as it
does for the argument that KPC had decided to retaliate against
employees who made environmental complaints. Likewise, the
argument that Jackson committed only a minor violation of a rule of
which he had been unaware is completely unconvincing. Rather, as
already explained, the evidence shows that Jackson must have known
that it was improper to discard cable down drain holes. Likewise,
the evidence indicates that, in view of KPC's heightened concern
about environmental sabotage, such misconduct was not considered to
be a minor infraction. Jackson's argument that the company had
failed to terminate him for even more serious violations is also
unpersuasive. Such an argument must fail because it does not
recognize that an employer has justifiable grounds for considering
both specific individual infractions as well as an employee's
entire disciplinary history in making termination decisions.
Moreover, this argument is in error in assuming that Jackson's
prior episodes of misconduct were more serious than what KPC's
managers reasonably believed to be an act of environmental
sabotage.
b. Allegation that Jackson's Termination was Prompted in Part
by his Protected Activities
Although Jackson has failed to prove that KPC's stated reason
for his termination was a pretext or that his protected activities
were the more likely reason for the termination, he can still
[PAGE 45]
prevail in this case if: (1) the evidence shows that his protected
activities were one of the reasons for his termination and (2) KPC
fails to demonstrate that he would have been terminated even if he
had not engaged in protected activities.
In order to show that his protected activities were at least
a partial cause of the termination Jackson relies on essentially
three types of evidence. First, Jackson relies on the same
circumstantial evidence which is alleged to show that his
termination was a mere pretext. This evidence is unpersuasive for
the reasons that have been previously set forth.
Second, Jackson relies on a portion of the hearing testimony
in which Cowan stated that Jackson's disciplinary record was one of
the factors that led to Jackson's ultimate termination and conceded
that one of the reasons for the October 1992 suspension was
Jackson's practice of writing environmental complaints in the A-
Frame log book.[32] Although the evidence does in fact
demonstrate that Jackson's October 1992 suspension was in part
instigated by his insistence on writing extraneous complaints in
the A-Frame log book, including environmental complaints, this
evidence by itself is insufficient to establish that Jackson's
termination was partly attributable to unlawful motives.[33]
Rather, before such a conclusion would be warranted it must first
be established that the type of conduct which prompted the adverse
action constituted a form of protected activity. Significantly,
Jackson has not met this burden. His failure to meet this burden
is due to the fact that the expression of his environmental
complaints in the Work Plan and A-Frame log book was so intertwined
with other unprotected conduct that the complaints lost any
protection that they would have otherwise enjoyed under the Act.
Although employees have a right under the WPCA and similar statutes
to make internal complaints about certain subjects, it is well
settled that this right is not so extensive that it permits
employees to disregard their job duties or ignore rules and
regulations that are reasonably necessary for an employer to
efficiently conduct its business. SeeEEOC v. Crown
Zellerbach Corp., 720 F.2d 1008, 1015 n. 5 (9th Cir. 1983);
Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346,
1355 (9th Cir. 1984); Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159, 1164-65 (9th Cir. 1984);
Lockert v. U.S. Dep't of Labor, 867 F.2d 513, 518 (9th Cir.
1989). Thus, for example, there is no statutory protection for an
employee who spray paints environmental complaints on the walls of
an employer's buildings or expresses such complaints at similarly
inappropriate times and places. In short, even though some of
Jackson's various grievances were of an environmental nature, he
had no statutory right to use the A-Frame log book (which was
[PAGE 46]
essentially a maintenance record) or the Work Plan (which was
essentially a record of daily accomplishments) as a forum for
expounding those grievances.[34] Accordingly, I find that
Cowan's admission that Jackson's October suspension was partially
attributable to writing environmental complaints in the A-Frame log
book is not sufficient to demonstrate that Jackson's termination
was in part prompted by his protected activities.
Third, Jackson relies on language in his October 1992 letter
of suspension that suggests that the suspension was prompted in
part by environmental complaints that Jackson articulated in places
other than the Work Plan and A-Frame log book. In particular, the
letter of suspension specifically criticizes Jackson's complaint
about the conditions at the main sewer outfall as being "grossly
exaggerated" and goes on to characterize his allegation about
seeing dead fish and birds as "a misrepresentation." RX 27 at 2.
This evidence reasonably supports an inference that Jackson's
suspension was at least partially motivated by internal
environmental complaints that, unlike the complaints in the Work
Plan and A-Frame log book, constituted a form of protected
activity.[35] It is emphasized, however, that the record shows
that insofar as protected activities played a role in Jackson's
suspension, their role was of relatively minor significance in
comparison with the other, entirely lawful reasons for that
suspension. Indeed, the evidence is convincing that Jackson would
have been suspended in October of 1992 even if these protected
activities had not been considered. Nonetheless, since the
protected activities did play some role in the suspension and since
the suspension clearly was one of the factors that contributed to
Jackson's ultimate termination, I must find that Jackson's
termination was in part motivated by his protected activities.
Since the evidence indicates that Jackson's termination was
motivated in part by his protected activities, Jackson is entitled
to relief under the Act unless the evidence shows that KPC would
have terminated Jackson even if he had not engaged in the protected
activities. On this issue the evidence overwhelmingly favors KPC.
Although I have determined that Jackson's environmental
complaints were one the factors that were indirectly considered
when Jackson was terminated, the evidence also clearly demonstrates
that these complaints played a trivial role in the termination and
that the termination would have occurred even if Jackson had never
engaged in protected activity. In particular, the evidence shows
that Jackson's protected activities were only a minor irritant to
KPC when viewed in comparison with Jackson's other, unprotected
activities. As the record indicates, in the years immediately
[PAGE 47]
preceding his termination Jackson had been repeatedly disciplined
for such actions as refusing to perform assignments,
insubordination, throwing equipment, yelling and screaming at other
employees, recklessly accusing others of criminally violating non-
environmental laws, and even grabbing his supervisor by the neck.
In fact, his relationship with his supervisors was so bad that
McFarland threatened to quit if something wasn't done about Jackson
and Cowan tried to avoid face-to-face dealings with Jackson if at
all possible. Likewise, other workers resisted being assigned to
work under Jackson's supervision and in at least one instance were
described as being "afraid" of working with Jackson. Given these
circumstances, it is clear that even if Jackson had never made any
environmental complaints, his employment status would have been
very precarious by December of 1992 and virtually any infraction
might have been enough to cause his termination.
Significantly, in the circumstances confronting KPC's
management in December of 1992, the so-called "straw that broke the
camel's back" was far more than a mere "straw." Although Jackson
asserts that his actions in telling Mathis to discard the jagged
cable into the waters under KPC's Main Dock were at most a minor
infraction of company rules, this contention is not persuasive.
Rather, as previously explained, the record clearly shows that
KPC's management had good reasons for believing that Jackson's
conduct constituted a deliberate act of sabotage and for
concluding, therefore, that termination was both a necessary and
appropriate punishment. Indeed, it must be recognized that at the
time of Jackson's termination, KPC's management was so preoccupied
with putting an end to the sabotage that any employee who was found
to have intentionally engaged in sabotage was very likely to be
terminated, even if the employee had a good disciplinary record.
It is, of course, recognized that one of the prior disciplinary
actions against Jackson had been partially motivated by Jackson's
protected activities and that KPC admits that this disciplinary
action played a role in the decision to terminate Jackson.
However, the record also very clearly indicates that the other
reasons for that prior disciplinary action were so strong that the
same disciplinary action would have occurred even if Jackson's
protected activities had not been considered. Accordingly, I find
that even if Jackson had never engaged in his protected activities,
his other activities alone would have led to his termination in
December of 1992. I also therefore find that he is not entitled to
any relief under the provisions of the WPCA.
B. Affirmative Defenses
KPC has also raised two affirmative defenses which it asserts
[PAGE 48]
bar any claim for relief that Jackson may have under the provisions
of the WPCA. First, asserts KPC, Jackson's claim is barred because
he failed to make a timely complaint to the Department of Labor.
Second, KPC contends, Jackson is not entitled to any relief under
the Act because he deliberately violated the Act's prohibitions
against water pollution by telling Mathis to discard the jagged
cable into the waters of Ward Cove.
1. Timeliness of Jackson's Complaint
As the complainants' final post-hearing brief points out,
KPC's contention that Jackson failed to file his complaint in a
timely fashion is an affirmative defense. Therefore, the burden is
on KPC to prove that Jackson's complaint was not mailed within 30
days after his December 8, 1992 termination.
In an attempt to satisfy this burden of proof, KPC has
introduced evidence showing that mail ordinarily takes one to three
days to travel between Ketchikan and Seattle and evidence showing
that Jackson's complaint was not received by the District Director
in Seattle until January 15. This evidence is certainly sufficient
to raise an inference that Jackson did not mail his complaint until
more than 30 days after December 8. Such an inference is also
supported by the fact that in his complaint Jackson mistakenly
asserted that he was not terminated from his employment until
December 12.
However, there is substantial evidence suggesting that Jackson
did in fact mail his complaint within 30 days after December 8.
Most significantly, the evidence shows that when Jackson wrote his
two-page complaint he dated it January 2 and indicated in it that
a copy was being sent to McGowan, who did in fact receive a four-
page fax from Jackson on January 2. RX 68, ALJX 3. Although two
pages of the fax that McGowan received from Jackson have been
discarded, McGowan has testified under oath that he received a copy
of Jackson's complaint on the same day that he received other faxed
materials from Jackson and recalls breathing "a sigh of relief"
upon determining that the complaint was timely. Tr. at 1950-52.
This evidence in combination with the well-known fact that mail
addressed to government offices occasionally goes astray and gets
delayed is sufficient to essentially balance out the evidence which
suggests that Jackson's complaint was not mailed until after the
30-day deadline had passed.[36] Accordingly, I find that KPC has
failed to meet its burden of showing by a preponderance of the
evidence that Jackson's complaint was not mailed within 30 days
following his termination.
[PAGE 49]
2. Jackson's Alleged Violation of the WPCA
Under the provisions of subsection 507(d) of the Act, 33
U.S.C. §1367(d), the protections of the Act are unavailable to
any employee who, acting without the direction of his employer,
"deliberately violates" any of several various specified
prohibitions against water pollution. KPC contends that this
provision applies to Jackson because he violated the Act when he
told Mathis to discard the jagged cable into Ward Cove. Jackson
disputes this contention on the grounds that there is insufficient
proof that discarding cable into Ward Cove violates the WPCA and on
the grounds that Cowan's intervention prevented any such violation
from ever occurring.
Since the provisions of subsection 507(d) in effect constitute
a type of affirmative defense, KPC has the burden of proof on this
issue. In order to prove a violation of the WPCA a plaintiff must
prove two elements: (1) that the defendant discharged a pollutant
into the navigable waters of the United States, and (2) that such
discharge did not comply with permit conditions. State of
Michigan v. City of Allen Park, 501 F. Supp. 1007, 1014 (E.D.
Mich. 1980). KPC has failed to prove either of these elements. In
particular, the evidence fails to show either that Jackson actually
accomplished the discharge of the jagged cable into Ward Cove or
that such a discharge, if it had been accomplished, would not have
been within the scope of a permit issued under the Act's
provisions.[37] It is noted in this regard that KPC has contended
that the evidence indicating that KPC managers were concerned about
the possible legal consequences of discarding metal cable into Ward
Cove proves that such conduct is not within the scope of KPC's
pollutant discharge permit. This argument is unpersuasive. Such
evidence suggests that there were fears that the permit might not
authorize such discharges, but it does not persuasively demonstrate
that such discharges were in fact not allowed under KPC's permit.
It is also particularly noteworthy that although KPC clearly has
access to its own pollutant discharge permit, it failed to offer a
copy of that permit as an exhibit. Such a failure warrants an
adverse inference on this issue. Accordingly, I find that
Jackson's claim is not barred by the provisions of 33 U.S.C.
§1367(d).
ORDER
It is recommended that the complaints of Alfred E. Jackson and
Al Roskam be dismissed.
[PAGE 50]
_____________________________
Paul A. Mapes
Administrative Law Judge
Date:
San Francisco, California
[ENDNOTES]
[1] The final reply brief was received in the San Francisco
office of the Office of Administrative Law Judges on February 22,
1994.
[2] It is unclear from this testimony, however, whether Arriola
was referring to production slowdowns, sabotage, or both. Tr. at
1457-59.
[3] The references to "acid" and "liquor" are to pulp plant
chemicals that could pollute the waters surrounding the KPC plant
if not properly treated by the "B.O.D. folks," KPC's
environmental compliance staff. Tr. at 1285-86.
[4] The report also described a suspected work slowdown that
occurred on August 29, 1992.
[5] James subsequently made a complaint with the Department of
Labor under the employee protection provisions of the Act. At
the time of the hearing that complaint was still pending in the
Department's Wage and Hour Division.
[6] A fire watch is a an KPC employee who has been assigned to
periodically walk a specific route and inspect various parts of
the pulp mill for fire hazards. Tr. at 1482.
[7] During the hearing Carleton testified that he actually saw
Roskam on four occasions on December 1, but that on the first of
these occasions Roskam was sitting in the Barker Room with two or
three other people, i.e., that Roskam was within his assigned
work area. Tr. at 1497-98.
[8] According to the testimony of various witnesses, there are
special clocks located throughout the pulp mill that fire watch
workers must punch into as they make their rounds. These punch
clocks then record on a paper tape the exact time that each fire
watch worker arrived at each location.
[9] According to Johnson, Carleton has not been given any reward
for the information he provided about Roskam. Tr. at 1299.
[10] Jackson reported that a few hours after he sent the
complaint to Grossman, McFarland directed the A-Frame crew to go
to the nurse's office to be fitted with half-face gas masks. Tr.
at 746-47. The crew then wore the masks for the remainder of the
work day. Id.
[11] E.g., "A-Frame in need of OSHA Inspection," "It was brought
to my attention by the then Union Pres. that [KPC's safety
manager] was let go by Co. for his stand on the A-Frame and
asbestos removal," "Booms will come down on heavy lift-boats,
etc.--someone will get seriously hurt."
[12] E.g., "work by self still," "still shorthanded, working
alone," "this is no place for a greenhorn when we're
shorthanded," "greenhorn from yard crew helping."
[13] E.g., "working alone as McFarland makes the rounds in 18
footer [in] his make believe job," "five of crew are
greenhorns," "Boat operator informed me Bob Cowan has been using
hanging straps on tows, boom stix--other straps have disappeared
off the A-Frame."
[14] The Work Plan is a form that is filled out on a daily basis
and is used to describe the jobs that have been completed by the
A-Frame's crew members. Tr. at 869-70.
[15] The Work Plan entry which McFarland found to be
objectionable is as follows: "Relashing barge slip--discharge
before noon--a lot of dead jellyfish after lunch--3 men
on crew wearing masks--4th non-union must be exempt."
RX 34 (underlining in original). McFarland's testimony indicates
that he considered the statement "4th non-union must be exempt"
to be a sarcastic remark directed at a particular non-union
employee. Tr. at 1818.
[16] According to Barron, a short while after Jackson's October
1 complaint about hazardous fumes in the discharge area,
technical engineers had been sent to area with gas monitoring
equipment but had reported only "slight SO2" readings that did
not warrant the use of gas masks. Tr. at 1831-35, RX 24, RX 42.
[17] A report concerning the safety of the A-Frame is set forth
in RX 36. According to Eakes, this report shows that the A-Frame
is structurally adequate. Tr. at 1728-29. Eakes also testified
that after seeing the report Jackson alleged that KPC bought off
the engineer who had prepared it. Id.
[18] In addition, Cowan also testified that Jackson's
disciplinary record played a role in his termination. Tr. at
629. Cowan also agreed with a cross-examiner's statement that
Jackson's past disciplinary problems included "criticizing the
company for environmental issues in the log book." Tr. at 629.
[19] During the hearing Jackson also initially disputed Barron's
testimony that during the December 3 meeting Jackson had admitted
telling Mathis to put the cable down the hole. In particular,
Jackson testified that he believed that he had told the others at
the meeting that he had told Mathis to leave the cable for the
dock crew. Tr. at 921-25. During cross-examination, however,
Jackson changed his testimony on this issue and acknowledged that
he had not claimed that he had told Mathis to leave the cable for
the dock crew until his deposition in August of 1993. Tr. at
927-29. According to Jackson, he may have failed to report his
actual instructions to Mathis during the December 3 meeting in
order to protect Mathis from being disciplined. Tr. at 937.
[20] During the hearing, however, Jackson disputed this prior
testimony. Tr. at 837, 939, 976-81.
[21] It is clear from the evidence in the record that KPC is an
employer subject to the requirements of the WPCA and that both
Roskam and Jackson are covered by the Act's provisions governing
whistleblowers.
[22] In this regard, it is noted that the complainants are in
error in contending that the burden of persuasion shifts to the
respondent once a complainant has established a prima facie case.
SeeSt. Mary's Honor Center v. Hicks, 509 U.S. ___,
125 L.Ed 2d 407 (June 25, 1993).
[23] It is recognized, of course, that an employer might falsely
deny having knowledge of the protected activities of its
employees, and that as a result it may be often be necessary to
prove such knowledge by presenting circumstantial evidence that
raises an inference that the employer did in fact know of the
protected activities. However, in this case the circumstantial
evidence of such knowledge is extremely weak. At most, the
evidence only shows: (1) that KPC's management might have
suspected that Roskam's alleged concerns about water pollution
had led him to complain to the Coast Guard and (2) that KPC's
managers might have heard rumors that Roskam had been interviewed
by the FBI and EPA agents. This rather speculative evidence is
clearly outweighed by the fact that every KPC witness who was
asked about his knowledge of Roskam's protected activities
credibly denied having any awareness of either the Coast Guard
complaints or the interview with the FBI and EPA agents.
Although Roskam contends in a post-hearing brief that on one
occasion Singer accused Roskam of having complained to the Coast
Guard, the evidence does not support this contention. Rather,
the evidence only shows that Singer was irritated about having to
clean up some hydraulic oil leaks and that Roskam surmised that
this irritation reflected a suspicion that Roskam had complained
to the Coast Guard. Such evidence is hardly sufficient to
warrant the conclusion that Singer accused Roskam of reporting
the oil leaks to the Coast Guard.
[24] KPC's post-hearing briefs actually contain numerous
separately numbered contentions concerning its reason for
terminating Roskam, but for purposes of exposition I have
condensed these contentions into four basic categories.
[25] In short, the employer bears the risk that the influence of
legal and illegal motives cannot be separated. Pogue v. U.S.
Department of Labor, 940 F.2d 1287, 1291 (9th Cir. 1991).
[26] According to Thomas, sometime in the fall of 1992 Roskam
approached him and said, "'I have a mighty big baseball bat, and
I'm the type of person, I will use it. And I'll beat the fuck
out of you if you try to cross that picket line." Tr. at 1461.
Thomas also testified that after Barron was told of the threat,
Roskam was briefly suspended before being reinstated with back
pay. Tr. at 1469-73. Thomas' testimony also indicates that
Roskam had been reinstated because three other workers had
apparently corroborated Roskam's denial of the allegation. Tr.
at 1469.
[27] KPC's post-hearing briefs actually set forth numerous
overlapping contentions concerning its reasons for firing
Jackson. All of these contentions, however, fall into the four
broad categories that are summarized in the text.
[28] In this regard, it should also be noted that Jackson's
assertion during the hearing that he did not tell Mathis to put
the jagged cable down the drain pipe is completely unbelievable.
That assertion directly conflicts with the testimony of Mathis,
which was fully credible, as well as with Jackson's own prior
admissions that he had in fact given such an order to Mathis.
[29] It is noted in this regard that KPC does not have to prove
that Jackson actually was engaged in sabotage. Rather, since the
fundamental issue in this case turns on KPC's intent, KPC needs
to prove only that its managers had a reasonable and good faith
belief that Jackson was committing sabotage.
[30] It is noted that KPC received a copy of Jackson's
whistleblower complaint from the Department of Labor on January
22, 1993--seven days before KPC denied Jackson's appeal.
However, the complaint does not contain any information
suggesting that Jackson had provided information to either the
FBI or the EPA. RX 68.
[31] For example, KPC could have easily justified such a
termination on the grounds that McFarland, Jackson's leadman, was
threatening to quit as a result of Jackson's increasing
insubordination and on the basis of the fact that Jackson had
called Cowan a "stupid cocksucker."
[32] In particular, Jackson relies on the following question and
answer:
Q. Okay. So we can't do that just in a vacuum. He
wasn't fired just for participating in this alleged
cable in the bay incident. He was fired for that
as the last straw in a series of events which included,
among other things, criticizing the company for
environmental issues in the logbook, right?
A. Yes.
Tr. at 229.
[33] The evidence also indicates that there were a number of
secondary reasons for the suspension, including the fact that
Jackson failed to follow the specific instructions of his
supervisors, used "vulgar names" to describe his supervisor and
other employees, and unjustifiably accused others of illegal
dealings in logs. See RX 27.
[34] As previously noted, only some of the extraneous comments
that Jackson wrote in the A-Frame log book concerned
environmental subjects, and most of the comments related to non-
environmental complaints, such as Jackson's allegations about the
safety of the A-Frame and his criticisms of various co-workers.
Significantly, KPC's managers did not distinguish between the
environmental and the non-environmental comments when they
determined that Jackson should be suspended.
[35] It is noted in this regard that such activities are
protected under the WPCA regardless of whether the underlying
complaints are meritorious or not. SeeGuttman,
supra. Thus, it is a violation of the Act to take adverse
action against an employee on the grounds that the employee's
water pollution complaints lacked merit.
[36] It is noted, of course, that Jackson testified that he
mailed his complaint on January 2. This testimony has been
discounted, however, because Jackson's testimony on other
material issues has not been credible. Although Roskam also
testified in support of Jackson's assertion that he mailed his
complaint on January 2, that testimony was vague and conclusory.
Accordingly, it has not been given substantial weight.
[37] It is clear, however, that jagged cable does constitute a
pollutant. See 40 C.F.R. §122.2, which defines the
term "pollutant" to include "garbage" and "wrecked or discarded
equipment."
