Date Issued: May 23, 1995
Case No: 94-WPC-4
In the Matter of:
KEVIN JAMES,
Complainant,
v.
KETCHIKAN PULP COMPANY,
Respondent.
Appearances:
James W. McGowan, Esquire
329 Harbor Drive, Suite 201
Silka, Alaska 99835
For the Complainant
David H. Shoup, Esquire
Condon, Partnow & Sharrock
510 L Street, Suite 500
Anchorage, Alaska 99501
For the Respondent
Before: DANIEL J. ROKETENETZ
Administrative Law Judge
RECOMMENDED DECISION AND ORDER This action arises from a complaint under employee
(whistleblower) protection provisions of the Federal Water
Pollution Control Act, 33 U.S.C. § 1367 et seq. (1988)
(hereinafter also referred to as "the Act" or as commonly known
"the Clean Water Act"). These provisions prohibit employers from
discharging or otherwise retaliating against employees who have
engaged in certain actions in furtherance of the Act's enforcement.
[PAGE 2]
STATEMENT OF THE CASE
The Complainant, Kevin James (hereinafter also referred to as
"Complainant"), filed a timely complaint on May 14, 1993 with the
United States Department of Labor alleging discrimination by
Ketchikan Pulp Company (hereinafter also referred to as "KPC") in
retaliation for activities within the scope of the Act's protec-
tion.
The Complainant contends that he was suspended and placed on
leave with pay on November 20, 1992, and eventually discharged on
April 19, 1993, after cooperating with EPA/FBI investigators, who
conducted a search of the KPC facility in Ketchikan, Alaska on
November 18 and 19, 1992, pursuant to search warrants. The
Secretary of Labor, acting through a duly authorized agent,
investigated the complaint and on March 4, 1994, determined that
the Complainant had regularly engaged in activities protected under
the Act and that his discharge resulted because of his having
engaged in such protected activities. (AX 1)[1] On March 8, 1994,
the Respondent requested a formal hearing to appeal the findings of
the Secretary.
A formal hearing in this matter was conducted on July 18, 19,
20 and 21, 1994, in Ketchikan, Alaska, by the undersigned Adminis-
trative Law Judge. All parties were afforded full opportunity to
present evidence as provided in the Act and the regulations
thereunder.
ISSUES PRESENTED
1. Whether KPC took adverse employment action against the
Complainant in violation of the employee protection provisions of
the Clean Water Act.
2. Provided discrimination on the part of KPC is found,
whether the Complainant is barred from relief when, after the
discrimination, KPC discovered evidence of Complainant's wrongdoing
that, in any event, would have led to the adverse employment action
taken against him on lawful and legitimate grounds.
STIPULATIONS
Pursuant to my prehearing order, the parties were
instructed to confer and prepare a stipulation of facts that are
not in dispute. The parties submitted the following stipulations:
[PAGE 3]
1. William Kevin James was hired by Ketchikan Pulp Company on
June 24, 1988, to the position of stenciler.
2. Mr. James was suspended and placed on leave with pay on
November 20, 1992.
3. Mr. James was discharged on April 19, 1993.
4. On May 14, 1993, Mr. James filed a complaint with the
United States Department of Labor alleging discriminatory
action by Ketchikan Pulp Company under the Clean Water Act.
5. Ketchikan Pulp Company is an employer subject to the Clean
Water Act.
Based upon my observation of the appearance and demeanor of
the witnesses who testified at the hearing and upon a thorough
analysis of the entire record in this case, with due consideration
accorded to the arguments of the parties, applicable statutory
provisions, regulations and relevant case law, I hereby make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FINDINGS OF FACT:
Extensive testimony was elicited from both sides at the
hearing concerning the Complainant's employment history at KPC and
the events leading up KPC's discharge of the Complainant. KPC is
a wholly-owned subsidiary of Louisiana Pacific Corporation that is
engaged in logging and pulp manufacturing in Alaska. (Tr. 17) The
Complainant, Kevin James, was hired by KPC on June 24, 1988, to the
position of stenciler. (Tr. 16)
On October 14, 1988, while working the pulp mill, the
Complainant's arm became trapped for "a couple seconds" in a
hydraulic iron used for sealing plastic wrapping. (Tr. 280; RX AV)
The Complainant suffered third degree burns to his right hand and
wrist. (RX AV) The Complainant also testified that his hand was
crushed, but the medical documentation does not concur. (Tr. 280)
The Complainant received medical treatment off and on for more than
a year in Ketchikan. (RX AK)
On December 28, 1988, after recovering from his injury, the
Complainant worked as a stenciler in the finishing room for "a
couple months" and was assigned to the job of line trucking, which
consisted of hauling pulp on forklifts to storage areas. (Tr. 25;
[PAGE 4]
RX M) The Complainant worked in line trucking for approximately
nine months before his transfer to the KPC laboratory on September
15, 1989. (Tr. 25-26; RX M)
On December 8, 1989, the Complainant travelled to Salt Lake
City, Utah for plastic surgery on his injured hand. He stayed in
Salt Lake City from December 8, 1989 until January 14, 1990. He
testified that he stayed at a bed and breakfast located in Sandy,
Utah named "Beds and Boards" which was owned by his sister, Laura
Preece. (Tr. 276-277) However, on cross-examination, the Complain-
ant could not remember the rooms in which either he, his sister, or
her three children slept or whether the house was two or three
stories, despite the fact that he allegedly stayed at "Beds and
Board" for over one month. (Tr. 301-302) Also, the Complainant
could not recall whether or not his brother-in-law, Steve Preece,
was living at the house at that time or whether any other guests
stayed at his sister's house during that time. (Tr. 295-298) I
find the Complainant's testimony to be totally incredible on this
issue.
The Complainant submitted requests for reimbursement totalling
$3,689.82 to Alaska Timber Insurance Exchange (ATIE) for expenses
incurred from lodging and meals in Salt Lake City during his trip
there for plastic surgery. (CX 30) ATIE is the claims adjustor for
KPC, who is self-insured. (Tr. 1130-1131) On June 26, 1991, ATIE
reimbursed the Complainant ,280.00, but refused to reimburse the
him for lodging and meals in Salt Lake City for more than two days.
ATIE policy dictates that reimbursement for travel expenses for
medical treatment is available only to and from the nearest
location where the required treatment is available. (CX 35; RX AW)
Therefore, in the Complainant's case, only travel from Ketchikan to
Seattle, Washington and the return trip was reimbursable.
(Id.) The Complainant contested the reimbursement,
continually maintaining that his $3,689.82 lodging bill was proper.
(CX 34; RX T)
Upon his return to KPC in January, 1990, the Complainant
continued to work in the lab, where he tested pulp samples for
viscosity and brightness, and received on-the-job training. (Tr.
27-29) After six months, the Complainant began training and
testing for a lab assistant position to perform various product
quality control tests as well as monitoring effluent waste water.
(Tr. 26) On December 19, 1990, the Complainant was promoted to the
"BOD" bench in the laboratory, where he primarily performed
biological oxygen demand (BOD) tests in which effluent in the waste
water from the pulp was measured for various chemical elements.
(Tr. 32-33; RX M) Tests performed by the Complainant included
examining pH, total suspended solids (TSS), and magnesium oxide
[PAGE 5]
(MgO). (Tr. 48) KPC's BOD, pH and TSS levels are regulated by the
EPA under the Clean Water Act's NPDES permit system, which
restricts the content of effluent waste water on daily and monthly
bases.[2] (Tr. 35 & 82-83)
Prior to working in the KPC laboratory, the Complainant had
not completed any relevant education that provided him with a back-
ground for working in a laboratory or for performing chemical
tests. (Tr. 36) The Complainant testified that he just followed
KPC's laboratory procedures. (Tr. 36) Furthermore, none of the
Complainant's job duties required him to report his test findings
to the EPA, but he told co-workers that it was his job to let the
EPA know when the tests he performed were in violation of the
permit. (Tr. 72; 689)
KPC chemical engineer, Kathleen French, described the sampling
and testing procedure in the KPC laboratory. (Tr. 652-661) KPC
maintains four separate effluent streams, where water used in
production exits the facility. (Tr. 652) The four effluent streams
are the filter plant, the main sewer, the primary and the secondary
outfalls. (Id.) The filter plant and the main sewer
are KPC outfalls 003 and 001 respectively, while the primary and
secondary effluent stream are combined into outfall 002.
(Id.) Three rounds of samples are taken every day
from each of the outfalls. (Tr. 653) BOD personnel, such as the
Complainant, take samples from the sampling stations located at
each of the effluent streams. (Id.)
Next, the BOD personnel record the level of influent water,
i.e., the amount of water brought into the plant over the
prior 24 hours at the filter plant. (Tr. 655) Then the effluent
amounts from the primary and secondary streams are recorded.
(Id.) A standard amount of 2.4 million gallons per
day is used as the filter plant outfall, thus leaving the amount of
daily effluent from the main sewer as the only variable. (Tr. 656)
From 1990-92 KPC was unable to accurately record the outgoing water
from the main sewer because of its size (6 ft. diameter) and the
fact that pieces of logs from production were sometimes released
into the effluent stream and broke any measuring device that was in
place. (Id.)
Once BOD personnel reported the flow numbers to French, she
would calculate the number for the main sewer effluent by examining
various factors such as: the previous 24-hour behavior, expecta-
tions for that day, and the historical data at her disposal. (Tr.
661) After the BOD personnel received the flow number from French,
they would combine the individual pH number for each of the four
effluent streams as related to the flows. Under the NPDES permit,
KPC must submit a single outfall for each day on its discharge
[PAGE 6]
monitoring report (DMR); thus, lab personnel are required to
combine the results from the effluent streams into a single outfall
report. (Tr. 654; RX AT) BOD personnel, such as the Complainant,
were then required to record the pH/flow relationship in the pH log
sheet. (Tr. 663) French would later transfer the sampling results
from the log sheets to the DMRs which were sent to the EPA.
(Id.)
The Complainant regularly accused French of manipulating the
flow results in a way to influence the outcome of the pH levels.
(Tr. 109-110) French testified that the Complainant would often
verbally attack her for providing what the Complainant believed to
be manipulated figures. (Tr. 666) The Complainant testified that
he suspected BOD co-worker Katy French of "fudging" volumes on
reports on about fifty occasions. (Tr. 115) French vehemently
denied ever manipulating figures and testified that the Complainant
was the only KPC employee she knew that attempted to improperly
influence the sampling results that were sent to the EPA. (Tr. 664-
665) French testified that the Complainant would come in the lab
with sampling results that he believed to be in violation of the
EPA permit and loudly pronounce that "we're going to catch them
(KPC) today." (Tr. 662) French testified that pH levels varied
greatly from day to day depending on what was happening in produc-
tion and the amount of the effluent; thus, there was no way the
Complainant could know at that particular stage of the testing
whether KPC's effluents were in violation of the permit. (Tr. 657)
Complainant told the EPA that he could tell from observing the pH
chart at the main outfall when there might be a violation. (CX 46
at 4) The Complainant regularly accused French of manipulating the
flow levels until autumn 1992, when a flume was installed in the
main sewer effluent stream which provided a reliable number for the
effluent from the main sewer. (Tr. 668)
The Complainant complained internally to several superiors at
KPC about his concerns, including Clyde Johnson, Steve Hagan,
Robert Higgins, Andy Kiander, Steve Gardner, French and others.
(Tr. 117) The Complainant also accused his supervisors at KPC of
attempting to convince him to "fudge" test results. (Tr. 84-85)
However, the Complainant testified that no one specifically told
him to change test results. (Tr. 89-91) Rather, his supervisors
allegedly "encouraged" him to submit test results within the
permit's limits. (Id.) The Complainant testified that he never
changed the results from the tests he conducted. (Tr. 85) KPC
presented a plethora of testimony from the Complainant's former co-
workers and superiors that he regularly conducted tests improperly
and that he did not perform his job in accordance with KPC's NPDES
permit. (See testimony of: Kathleen French, Tr. 665, 684-
686; Jody Ayers, Tr. 755-768; Michael Doyle, Tr. 800-807; Russ
Staska, Tr.
[PAGE 7]
855-857; James Heimrich, Tr. 892-897; and Michael Barron, Tr. 955-
960)
The Complainant also complained externally to the Sierra Club
and the EPA. (Tr. 118) He testified that he provided the EPA with
documents and samples in addition to being interviewed by EPA
official Sandra Smith on at least three occasions. (Tr. 121-136; CX
46, 47, & 48) Additionally, at the request of the EPA and FBI, the
Complainant conducted an interview with co-worker Frank Tellerico
while wired with a recording device in order to elicit information
regarding KPC laboratory practices and procedures. (Tr. 137)
On September 6, 1991 the Complainant was demoted back to pulp
testing for failing to report a pH violation on September 2, 1991
and also because he allegedly was too slow in performing his job as
a lab assistant. (Tr. 170, 955-958; CX 9H). KPC personnel director
Michael Barron testified that the Complainant was demoted for
ongoing problems in the lab, such as lack of cooperation with his
superiors, intimidating co-workers, disruptive behavior, and
excessive overtime billing caused by his inefficiency in completing
his assignments during his normal shift. (Tr. 956) The Complainant
was informed that he was "frozen", i.e., no possibility for
advancement as a pulp tester and also that he was suspended for
three days. (Tr. 172; CX 9H) The Complainant testified that he
tried to contact a superior to inform him that the pH test "broke",
i.e., went beyond the permissible level. But, he discovered
the problem after 5:30 P.M. and he allegedly could not reach anyone
at work or at home. (Tr. 173-174) Barron testified that there is
always a shift superintendent on duty who is in radio contact with
the gate guard at all times. (Tr. 975) I find the testimony of KPC
official Michael Barron to be credible and that legitimate justifi-
cations for the Complainant's demotion and suspension of September,
1991 were presented.
The evidence also indicates that the Complainant did not
contact the EPA until after his demotion on September 6, 1991.
Complainant's first interview with EPA criminal investigator Sandra
Smith took place on September 29, 1991. (Tr. 121-123; CX 46) the
Complainant was again interviewed by Smith on October 6, 1991. (CX
46) However, the Complainant testified that his first contact with
the EPA was in November, 1991 when the Sierra Club put him in
contact with the EPA. (Tr. 118-120) Complainant's testimony is
inconsistent in this regard.
On September 25, 1992, the Complainant was suspended again for
seven days for "dressing down" a supervisor and "intimidating" a
co-worker. (Tr. 186) The Complainant admitted to loudly calling
KPC environmental director Robert Higgins an "earthworm" in the
[PAGE 8]
presence of others because he observed Higgins smoking a pipe in
the lab, which was both against KPC's no-smoking policy and
dangerous. (Tr. 190-194) Higgins testified that he had a pipe in
his mouth, but he was not smoking. (Tr. 1049) Higgins also
testified that the Complainant was screaming wildly and waving the
KPC no-smoking policy in Higgins' face. (Tr. 1050). Higgins
stated that the all laboratory personnel witnessed the Complain-
ant's outburst. (Tr. 1050)
The Complainant testified that before the smoking incident on
September 25, 1992, Higgins walked by him and stated that he knew
Andrea Lowther's employer Kurt Halvorsen, thereby inferring that
Higgins could have her fired. (Tr. 194) Lowther is Complainant's
live-in girlfriend and she was fired from her job later that day.
(Tr. 195) Higgins denied that this conversation with the Complain-
ant ever took place. (Tr. 1050) Higgins testified that he knew
Kurt Halvorsen, but that he never talked to him about Andrea
Lowther and that he did not even know Lowther. (Tr. 1050-1051)
The Complainant admitted to making co-worker Jody Ayers cry
when he told her that he was "sorry if you go to jail." (Tr. 188-
189) The Complainant was attempting to get Ayers to talk to the
EPA and support his allegations of KPC's Clean Water Act viola-
tions. Complainant later apologized to Ayers for "dragging her
into this." (Tr. 188) Ayers complained to her supervisor, Andy
Kiander, about the Complainant's intimidation. (Tr. 778) I find
the testimony of Robert Higgins and Jody Ayers to be credible, and
the evidence presented indicates that the September, 1992
suspension of the Complainant was justified.
On November 18, 1992, EPA/FBI investigators raided the KPC
facility at Ketchikan, armed with search warrants. (Tr. 197) The
Complainant testified that he did not know about the raid before it
happened. (Tr. 198) The Complainant returned to work at 3:00 P.M.
on November 20, 1992 and shortly after arriving, was asked by
Michael Barron to "come upstairs." (Tr. 200) Present in Clyde
Johnson's office were Barron, Martin Chandler and a secretary. (Tr.
201) The Complainant testified that he was denied union represen-
tation. (Tr. 201) Barron informed the Complainant that he was
suspended immediately, but the Complainant testified that he was
not given a reason. (Tr. 202-203) The Complainant received two
letters from KPC clarifying that he was suspended and placed on
leave with pay until further notice. (Tr. 203-205; CX 1 & 2) The
letters declared that the Complainant was suspended pending an
investigation into "pertinent events." (Id.) Michael
Barron testified that "pertinent events" included the KPC laborato-
ry which was being investigated. (Tr. 970-971). Barron also
testified that
[PAGE 9]
the Complainant was suspended for his own safety. (Tr. 970)
Barron stated that many KPC employees were afraid that the plant
might be closed and blamed the Complainant for the EPA involvement.
(Id.)
Between November, 1992 and April, 1993, the Complainant went
to KPC facilities "a couple times" to pick up his pay checks. (Tr.
206) Other employees informed the Complainant that KPC had hired
an investigator who was asking them questions about the Complain-
ant. (Tr. 206) In February 1993, investigators contacted the Com-
plainant's father in Salt Lake City, Utah as well as the Com-
plainant's former brother-in-law, Steve Preece. (Tr. 210-212) The
Complainant contended that many other people in the Salt Lake City
area were contacted by KPC investigators. (Tr. 213-214) The
Complainant also testified that at this same time, an unidentified
man was seen sorting through his garbage. (Tr. 213-214; CX 50)
On April 7, 1993, Clyde Johnson notified the Complainant that
KPC had reason to believe that the Complainant engaged in insurance
fraud by submitting falsified lodging bills relating to the plastic
surgery on his hand performed in December 1989. (CX 3) An April
15, 1993 meeting was held with Clyde Johnson, Michael Barron, union
steward Gary Bender, and the Complainant in attendance.
(Id.) At the meeting, the Complainant offered
no proof of payment for his lodging expenses at the Beds and Boards
establishment. (Id.) On April 19, 1993, Clyde Johnson
informed the Complainant that his employment with KPC was
terminated immediately for the Complainant's submission of a
falsified claim for reimbursement. (CX 4)
After the Complainant was discharged, KPC discovered that the
he had falsified his original KPC employment application in many
areas. (Tr. 333-384; RX A) The Complainant identified his
ethnicity as Hispanic, although he is not. (Tr. 336) The
Complainant explained that he thought Hispanic was the best choice
to describe him because he is primarily Caucasian and part Native
American. (Id.) The Complainant also listed his girlfriend,
Andrea Lowther, as his wife and dependant and identified her as
"Andrea James" on his application for worker's compensation and
insurance purposes. (Tr. 335-340) The Complainant also incorrectly
stated that he graduated from high school and that he had completed
60 hours of college credit, when actually, he received his general
education diploma (GED) and only completed 27 hours of college
credit. (Tr. 362; 377; RX AI & AF) Additionally, the Complainant
misrepresented his prior work history and included his sister as a
non-relative reference, claiming that he only knew her for ten
years. (Tr. 354-359; 365-367)
[PAGE 10]
CONCLUSIONS OF LAW:
Timely Complaint
KPC contends that because neither the Complainant nor his
attorney objected to the November 20, 1992 suspension with pay at
the time it was announced, the Complainant thereby waived his right
to later object to that suspension. (Respondent's Pre-hearing
memorandum, at 6) KPC has failed to present any law in support of
this contention, and I find the argument lacking in any legal
merit.
KPC also argues that the Complainant failed to meet the time
requirements of 29 C.F.R. § 24.3(b) in order to file a
complaint regarding the November 20, 1992 suspension. (Respondent's
Pre-hearing memorandum, at 6) Section 24.3(a) states that "[a]n
employee who believes that he or she has been discriminated against
by an employer . . . may file, or have another person file in their
behalf, a complaint alleging such discrimination." 29 C.F.R.
§ 24.3(a) Section 24.3(b) requires that "[a]ny complaint
shall be filed within 30 days after the occurrence of the alleged
violation." 29 C.F.R. § 24.3(b) Thus, KPC contends that
because the Complainant did not file his complaint until May 14,
1993, more than 30 days after the November 20, 1992 suspension, he
thereby waived his right to file a complaint regarding that
suspension.
The Supreme Court has stated that the period for filing a
timely complaint begins to run "after the alleged unlawful
employment practice notice of the challenged employment decision,
rather than the time that the effects of the decision are ultimate-
ly felt." Delaware State College v. Ricks, 449 U. S. 250,
258 (1981) (Title VII claim) Shortly thereafter, the Court
further held that when considering whether a complaint has been
timely filed, "the proper focus is on the time of the discriminato-
ry act, not the point at which the consequences of the act become
painful." Chardon v. Fernandez, 454 U. S. 6, 8 (1981)
(§ 1983 claim) Therefore, under the so-called Ricks-Chardon
rule, KPC's contention that in order to contest the November 20,
1992 suspension, the Complainant needed to file his complaint
within 30 days of that date is valid.
However, I find that the November 20, 1992 suspension, which
continued up to and including April 19, 1993 when the Complainant
was discharged, constitutes a "continuing violation" which tolls
the filing period until the day the suspension was lifted and the
Complainant was discharged. In accord with the 4th Circuit, I
[PAGE 11]
find that:
the Ricks-Chardon rule is premised on an employee's
having been given final and unequivocal notice of an
employment decision having delayed consequences. Only
upon receipt of such notice does the filing period begin
to run. Until that time, there is the possibility that
the discriminatory decision itself will be revoked, and
the contemplated action not taken, thereby preserving the
pre-decision status-quo.
English v. Whitfield, 858 F.2d 957, 961 (1988) (Energy
Reorganization Act claim)
During the suspension, which started on November 20, 1992 and
continued until the Complainant was discharged on April 19, 1993,
the Complainant was paid his full wage, and likely maintained the
belief that he would be reinstated at some point in the future.
The Complainant had been suspended twice before and thereafter
reinstated by KPC. Also, the Complainant was given no indication
in the November 20, 1992 suspension notice that he may later be
discharged. KPC simply stated that he was "temporarily" suspended
pending an investigation into "pertinent events." (CX 1)
I find that the suspension notice of November 20, 1992 was not
a final and unequivocal notice of an adverse employment action and
that the suspension of the Complainant constitutes a "continuing
violation" which tolls the filing period. Therefore, I find that
the complaint of May 14, 1993 was within 30 days of April 19, 1993
and timely filed under the requirements of 29 C.F.R. §
24.3(b).
Complainant's Prima Facie Case
The Clean Water Act's whistleblower provision states:
No person shall fire, or in any way discriminate against,
or cause to be fired or discriminated against, any
employee or any authorized representative of employees by
reason of the fact that such employee or representative
has filed, instituted, or caused to be filed or institut-
ed any proceeding under this chapter, or has testified or
is about to testify in any proceeding resulting from the
administration or enforcement of the provisions of this
chapter. 33 U.S.C. § 1367(a).
Under the Act's whistleblower provision, the Complainant must
prove, by a preponderance of the evidence, that (1) he was an
[PAGE 12]
employee of the party charged with the discriminatory action; (2)
he was engaged in a protected activity under the Clean Water Act:
(3) the employer took an adverse action against him; and (4) the
evidence created a reasonable inference that the adverse action was
taken because of his participation in the statutorily protected
activity. Passaic Valley Sewerage Commrs. v. U. S. Dept. of
Labor, 992 F.2d 474, 480-81 (3rd Cir. 1993); see also
Mackowiak v. Univer. Nuclear Systems, Inc., 735 F.2d 1159,
1162 (9th Cir. 1984) (whistleblower action under Reorganization
Act).
Employee and Employer:
The parties are in agreement that the Complainant is an
employee and that KPC is an employer for purposes of the whistle-
blower provision of the Act. As "employee" and "employer" have
been interpreted broadly under various federal whistleblower
provisions, I find likewise. In the Matter of William
Wood, et al., No. 79-ERA-3, slip op. of ALJ at 8, adopted by
SOL (Nov. 8, 1979) (every employee considered an enforcer of the
law and protected from reprisal for reporting violations);
United States ex rel. Kent v. Aiello, 836 F.Supp. 720, 725
(E.D. Cal. 1993) (term "employer" has the widest of readings when
used in federal statutes).
Protected Activity
Evidence was presented that the Complainant communicated with
EPA officials on several occasions in 1992, as well as continually
threatening to report KPC's alleged Clean Water Act violations. (CX
46, 47, 48) Whistleblower provisions are intended to promote a
working environment in which employees are free from threats of
employment reprisals for publicly asserting company violations of
statutes protecting the environment, such as the Clean Water Act.
Passaic Valley Sewerage Commrs. v. U. S. Department of La-
bor, 992 F.2d 474, 478 (3rd Cir. 1993). Such provisions are
intended to encourage employees to aid in the enforcement of such
statutes by raising substantiated claims through protected
procedural channels. (Id.)
KPC contends that the Complainant is not entitled to the Act's
protection for two reasons. First, KPC argues that the Complainant
is not entitled to protection under the Clean Water Act's whistle-
blower provisions because he deliberately violated that Act
himself. (Respondent's Pre-hearing memorandum, at 2) While KPC
presented extensive evidence regarding the Complainant's lack-
adaisical attitude toward his testing responsibilities as a KPC lab
employee, they have not conclusively proven that the Complainant
deliberately violated the Clean Water Act, and as a result, is not
[PAGE 13]
prohibited from seeking protection under the Act for KPC's
allegedly discriminatory conduct.
Second, KPC contends that the Complainant is not entitled to
the Act's protection because his contact with the EPA was in
retaliation for his suspension and demotion on September 6, 1991.
(Respondent's Pre-hearing memorandum, at 3) KPC cites to
Wolcott v. Champion Int'l Corp., 691 F.Supp. 1052 (W.D.
Mich. 1987), in support of this proposition. I find KPC's
reliance on Wolcott to be misplaced. In Wolcott, the
District Court found that the employee attempted to extort his
employer by threatening to report OSHA violations if he and his
friends were denied jobs. Wolcott, at 1063. The court
stated that the whistleblower statute is not intended to serve as
a means for employee extortion of his employer or as an offensive
weapon for disgruntled employees. (Id., at 1064-1066)
Furthermore, the court found that the employee's reports to the
Michigan Department of Labor were "a laundry list of gripes, not
violations of law." (Id., at 1063)
As discussed above, the Complainant engaged in protected
activity both before and after his September 6, 1992 demotion.
While the evidence presented does indicate that the Complainant's
first contact with the EPA did not occur until after his September
6 demotion, timing alone is not sufficient to prove a retaliatory
motive on the part of the employee. Furthermore, the evidence
indicates that the Complainant regularly reported his beliefs
regarding Kathleen French's alleged misconduct concerning the NPDES
permit to his superiors and threatened to contact the EPA to report
such alleged violations. These internal complaints preceded his
September 6, 1991 demotion, and such complaints have been held to
constitute protected activities. Mackowiak v. Univ. Nuclear
Systems, 735 F.2d 1159, 1163 (9th Cir. 1984)
Additionally, no evidence was presented by KPC that the Com-
plainant attempted to extort his employer before contacting the
EPA. The Complainant's allegations to the EPA were seemingly
justified as evidenced by the EPA/FBI raid on KPC facilities
shortly after communications between the Complainant and those
agencies.[3] I find that KPC's reliance on Wolcott as a
bar to the Complainant's use of the Clean Water Act's employee
protection provision is without merit. Many of the Complainant's
alleged protected activities occurred before the September 6
demotion and I do not find that the Complainant's alleged protected
activities, as a whole, to be in retaliation for his September 6
demotion.
There can be little doubt that the Complainant's cooperation
with the EPA and FBI, leading up to the raid and search of KPC's
[PAGE 14]
facilities, as well as his prior internal complaints and threats,
both satisfy the Act's requirements for protected activities.
An employee's cooperation with a government investigation
has been found to be a protected activity under the Clean Water
Act. Simon v. Simmons Foods, Inc., F.3d , Case No. 94-2421 (8th Cir. Feb. 27, 1995) Therefore, I find
that the Complainant is eligible for protection under the Clean
Water Act's whistleblower provision and has proven that he was
engaged in protected activities prior to his suspension by KPC on
November 20, 1992.
KPC's Knowledge of Complainant's Protected Activities:
Evidence was presented that KPC knew of the Complainant's
cooperation with EPA officials prior to the November 18-19, 1992
raid. KPC process engineer Kathleen French testified that the
Complainant often told laboratory co-workers that it was his job to
tell the EPA when the tests indicated a violation of the permit.
(Tr. 689) In addition, KPC personnel manager Michael Barron
testified that the Complainant's co-worker informed him that the
Complainant was talking to the EPA and tried to force her to do
likewise. (Tr. 993) Also, on October 5, 1992, Michael Barron
searched the Complainant's bag as he was leaving the KPC facility
after being informed by Jim Heimrich that the Complainant was seen
near the clarifier. (Tr. 987) Complainant admitted to taking
sludge samples that day and turning them over to the EPA. (CX 47 &
48) The company also was aware that its employees would be inter-
viewed by EPA/FBI investigators during their search of KPC's
facilities. (CX 54) KPC circulated a memorandum to its employees
on November 19, 1992 advising employees of their right "not" to
talk to the EPA/FBI investigators. (Id.)
Thus, whether or not KPC knew of each contact between the
Complainant and the EPA, it nonetheless was aware of Complainant's
activities with and relating to the EPA. I therefore find that
KPC had actual knowledge of the Complainant's protected activities
under the Act.
Adverse Employment Action:
The adverse employment action which is the basis for this
complaint is the suspension of Complainant's employment with KPC on
November 20, 1992. The parties have stipulated to this suspension
date and the fact that KPC took adverse employment action against
the Complainant, for whatever reason, is not disputed.
Causal Relationship:
[PAGE 15]
The evidence presented demonstrates that the Complainant's
intent to report KPC to the EPA and his cooperation with EPA
criminal investigators, at the very least, played a role in KPC's
suspension of the Complainant on November 20, 1992. The Complain-
ant was suspended, albeit with pay, on the day following the
surprise EPA/FBI raid on KPC facilities and remained on suspension
until reasons were discovered which lawfully justified his
discharge. The Complainant's prior communications with the EPA and
the evidence he provided likely played a part in the EPA's and
FBI's ability to secure a search warrant for KPC's facilities in
Ketchikan, Alaska. Following the search, these same communications
between the Complainant and the EPA were likely the underlying
motivation for the November 20, 1992 suspension and April 19, 1993
discharge of the Complainant.
In the absence of direct evidence of a causal relationship
between the protected activity and subsequent adverse employment
action, it is well established, in the Ninth Circuit and elsewhere,
that the causation element of the prima facie case may be
proven with circumstantial evidence. Mackowiak, at 1162;
see also Ellis Fischel State Cancer Hospital v. Mar-
shall, 629 F.2d 563, 566 (8th Cir. 1980). For example, the
proximate timing of the protected activity and the discriminatory
treatment may be sufficient to raise the inference of causation.
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1984) (proximity
in time between the protected conduct and adverse action alone is
sufficient to establish causation). KPC's suspension of the
Complainant occurred on November 20, 1992, one day after the raid
on KPC facilities by EPA/FBI investigators with whom the Complain-
ant had cooperated. I find this proximity sufficient to raise an
inference that KPC's suspension of Complainant on November 20, 1992
was motivated, at least in part, by the Complainant's protected
activities. As a result, I find that the Complainant has estab-
lished a prima facie case of discrimination under the Clean
Water Act.
Rebuttal of the Prima Facie Case
Once the Complainant satisfies his prima facie case,
the burden shifts to KPC to produce evidence of the existence of a
legitimate, non-discriminatory reason for the adverse employment
action taken against the Complainant. St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993). To carry its burden, KPC must
only produce evidence of some legitimate grounds for the
November 20, 1992 suspension of the Complainant.
KPC presented evidence that its decision to suspend the
Complainant on November 20, 1992 was based on concerns for the
Complainant's own safety pending an investigation into "pertinent
[PAGE 16]
events." (Tr. 970) The investigation included the laboratory and
the reasons for the EPA raid. (Id.) Therefore, the asserted
grounds for KPC's discharge of the Complainant, if credited,
constitute legitimate and non-discriminatory grounds for the
adverse action taken against the Complainant. However, the
finding of some legitimate grounds entails no credibility assess-
ment at this stage of the proceedings. St. Mary's Honor
Center, Supra, at 2748. Therefore, I find that KPC has
successfully carried its burden of production in presenting a
legitimate, non-discriminatory reason for the suspension of the
Complainant's employment with KPC on November 20, 1992.
Dual Motive:
Having found that illegal motives, at the very least, "played
a role" in the Complainant's suspension and also that KPC presented
legitimate reasons for suspending the Complainant, the issue of a
"dual motive" arises. The "dual motive" test was devised by the
U. S. Supreme Court in Mt. Healthy City School Dist. v.
Doyle, 429 U.S. 274 (1977) and has been held to apply to the
whistleblower provisions of the Clean Water Act. Fogue v. U. S.
Dept. of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991). The "dual
motive" test requires that when both discriminatory and non-
discriminatory reasons for the adverse employment action have been
presented, the employer must prove, by a preponderance of the
evidence, that it would have taken such action against the employee
"even if" the protected activity had not occurred. Simon v.
Simmons Food, F.3d , Case No. 94-2421 (8th
Cir. Feb. 27, 1995) (Clean Water Act whistleblower); Mackowiak
v. Univer. Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir.
1984). The additional burden is placed on KPC because "the
employer is a wrongdoer; he has acted out of a motive that is
declared illegitimate by the statute. It is fair that (it) bear
the risk that the influence of legal and illegal motives cannot be
separated because . . . the risk was created by (their) own
wrongdoing." Mackowiak, at 1164 (quoting NLRB v.
Transportation Management Corp., 462 U.S. 393, 403 (1983).
As justification for the November 20, 1992 suspension of the
Complainant, KPC cannot rely on the reasons given for the Com-
plainant's discharge on April 19, 1993. The Complainant's dishon-
esty in completing his employment application as admitted to by the
Complainant (Tr. 259 and RX A, D, & E) and his fraud in submitting
falsified bills for reimbursement following his recovery from a
hand injury (RX T & W) were not discovered until after the November
20, 1992 suspension. Therefore, these justifications are im-
material when determining the reason behind the November 20, 1992
suspension of the Complainant.
[PAGE 17]
Even without considering the Complainant's application and
insurance fraud, the evidence indicates that the Complainant was a
difficult employee who often caused problems at the workplace.
Even when an employee has engaged in protected activities, he may
nonetheless be disciplined, including termination of employment,
for insubordinate and disruptive behavior. Dunham v. Brock,
794 F.2d 1037, 1041 (5th Cir. 1986). KPC presented substantial
evidence of the Complainant's stormy employment history with KPC.
Prior to the November 20, 1992 suspension with pay, the Complainant
had received verbal and written warnings concerning his job
performance and actions, and also had been suspended twice and
demoted. (Tr. 968) Thus, I find that the evidence proved that the
Complainant created substantial friction in his relations with co-
workers and superiors. (CX 9H; RX X; RX AC).
Nevertheless, KPC failed to produce evidence of the Com-
plainant's insubordinate or disruptive behavior on or about
November 20, 1992, the date of his suspension. KPC also failed to
present persuasive evidence that the Complainant's conduct leading
up to November 20, 1992 justified a five-month suspension.
Additionally, I find KPC's stated reasons for suspending the Com-
plainant unpersuasive. Other than the testimony of Michael Barron,
KPC presented no evidence that the Complainant's safety would be in
danger if he continued to work at KPC after November 20, 1992.
Likewise, KPC did not adequately articulate its reasons why the
Complainant needed to be under suspension during the investigation
into "pertinent events." I find that KPC's stated reasons for the
November 20, 1992 suspension of the Complainant to be mere pretexts
for discrimination. As a result, KPC has not proven, by a
preponderance of the evidence, that it would have suspended the
Complainant on November 20, 1992 even if he had not cooperated with
the EPA investigation. Therefore, I find that KPC's suspension of
the Complainant on November 20, 1992 to be in violation of the
employee protection provision of the Clean Water Act and damages
will be awarded accordingly.
Damages and Remedy
Even where KPC is found to have discriminated against the
Complainant for his whistleblowing activities, after-acquired
evidence of the Complainant's wrongdoing may be used by KPC to
discharge the Complainant on lawful grounds. Following the
November 20, 1992 suspension, KPC discovered substantial evidence
that justified the Complainant's discharge under KPC's Rules of
Conduct. Such evidence indicated that the Complainant had
fraudulently submitted bills for reimbursement relating to the
[PAGE 18]
plastic surgery performed on his right hand in Salt Lake City in
December 1989. (Tr. 1102-1103) KPC Rules of Conduct state that
employee dishonesty may result in discharge. (RX AD) Also, KPC
industrial relations manager Clyde Johnson testified that another
KPC employee had been discharged for submitting fraudulent claims.
(Tr. 1109-1110) An employer who learns about employee misconduct
that justifies a legitimate discharge is not required to ignore the
information, "even if it is acquired during the course of discovery
in a suit against the employer and even if the information might
have gone undiscovered absent a suit." McKennon v.
Nashville Banner Publishing Co., U.S. ,
Case No. 93-1543, 1995 LEXIS 699, at 19 (Jan. 23, 1995). There-
fore, in light of the evidence discovered by KPC regarding the
Complainant's insurance fraud, I find that KPC lawfully terminated
the employment of the Complainant on April 19, 1993.
Evidence of the Complainant's wrongdoing, however, does not
absolve KPC of its discriminatory conduct under the Act. While
evidence of the Complainant's misconduct may be supervening grounds
for his discharge, it does not obviate the fact that the Complain-
ant was suspended because of his protected activities. The recent
U. S. Supreme Court decision in McKennon v. Nashville Banner
Publishing Co., supra, supplies the framework for
formulating damages in a case involving an employee discriminated
against for his protected activity and an employer who thereafter
discovers legitimate, non-discriminatory reasons for the employee's
discharge.
Justice Kennedy, writing for a unanimous Court, declared that
the employee's remedy "should be a calculation of backpay from the
date of the unlawful discharge to the date the new information was
discovered . . . [and that] neither reinstatement nor front pay is
an appropriate remedy" (Id.) Therefore, under this formula,
the monetary remedy available to the Complainant in is the amount
of backpay from the time of his discharge until the time KPC could
lawfully discharge him. In this case, however, the employer
suspended Complainant "with pay" and did not discharge him
until the discovery of misconduct that justified a discharge.
Thus, because the Complainant suffered no loss of wages during his
suspension, I find that the Complainant is not entitled to any
monetary relief, in the form of back or front pay, or reinstate-
ment.
However, I feel I must address the actions of KPC in searching
for evidence of misconduct by the Complainant. KPC's extensive
search into the Complainant's background, which included the use of
private detectives and interviews with co-workers, and continued
[PAGE 19]
even after the Complainant was discharged, has created an atmo-
sphere of apprehension and has produced a substantial chilling
effect on future KPC employee cooperation with government in-
vestigators. While applicable law does not permit me to award the
Complainant monetary relief from KPC's discriminatory treatment
because of his own misconduct, I nonetheless may otherwise order
affirmative action as a means of deterrence of future illegal
conduct by KPC. Compensation for injuries caused by prohibited
discrimination is an object of the whistleblower statutes, but
deterrence is another. McKennon v. Nashville Banner Publishing
Co., supra; see alsoAlbemarle Paper Co. v.
Moody, 422 U.S. 405, 417-418 (1975) (whistleblower statutes
designed to force employers to eliminate discrimination).
The Clean Water Act's whistleblower provision and other
similar federal provisions share a broad, remedial purpose of
protecting workers from retaliation based on their concerns for
safety and quality. Donovan v. Stafford Construction Co.,
732 F.2d 954, 960 (D.C. Cir. 1984). Therefore, employees must be
allowed to work in an atmosphere where communication with govern-
ment agencies is permissible without fear of employment reprisal.
I find that KPC's treatment of the Complainant, through its
retaliatory action and search into his past, has destroyed the
atmosphere of permissible communication with the government at
KPC's facilities. I therefore order affirmative action to
effectuate the purposes of the Clean Water Act and to deter future
misconduct by KPC in the form of plantwide posting of anti-dis-
crimination orders at KPC's Ketchikan facility, as well as
plantwide posting of explicit notices incorporating guidance for
employees regarding avenues of complaint concerning possible viola-
tions of federal labor and environmental statutes by KPC.
Notices informing employees of their rights are appropriate
remedies in order to protect KPC's current and future employees
from repetition of the discriminatory practices discussed in this
Recommended Decision and Order. Donovan v. Freeway Constr.
Co., 551 F.Supp. 869, 879-82 (D.R.I. 1982)
In evaluating the entire record, I conclude that the weight of
the evidence demonstrates that KPC violated the employee protection
provisions of the Federal Water Pollution Control Act, 33 U.S.C.
§ 1367, et seq., in suspending the Complainant on
November 20, 1992 due, at least in part, due to his engaging in
activities protected by the Act. I also conclude that evidence
later discovered gave KPC legitimate grounds for discharging the
Complainant on April 19, 1993.
Attorney's Fees[PAGE 20]
The Clean Water Act provides that whenever an order is issued
to abate a violation of the Act, reasonable attorney's fees
incurred by the Complainant in connection with the institution and
prosecution of a proceeding under the Act shall be assessed against
the person committing such violation. 33 U.S.C § 1367(a); 29
C.F.R. § 24.6(b)(3). Therefore, I hereby recommend that
reasonable attorney's fees be awarded to the Complainant and
assessed against KPC.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Respondent, Ketchikan Pulp
Company, be ORDERED to post and display prominently at its
principal office and situs of each employee time-clock continuously
for a duration of one-hundred and eighty (180) days a copy of the
notice appended hereto as Appendix A.
___________________________
DANIEL J. ROKETENETZ
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for review by the Secretary
of Labor to the Office of Administrative Appeals, U.S. Department
of Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Ave., N.W., Washington, DC 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
APPENDIX ANotice to all employees of Ketchikan Pulp Company.[PAGE 21]
1. An employer is prohibited from firing, suspending, harassing or
otherwise discriminating against any worker who complains to the
employer and/or federal, state or local government agencies about
environmental, health, safety, or other hazards being created by
the employer.
2. On November 20, 1992, an employee was suspended for five months
for cooperating with an Environmental Protection Agency and Federal
Bureau of Investigation (FBI) investigation into Ketchikan Pulp
Company's alleged violations of the Water Pollution and Control
Act.
3. The Department of Labor ordered Ketchikan Pulp Company to post
these notices and to stop harassing and/or discriminating against
employees who complain about such hazards.
4. If Ketchikan Pulp Company is creating any such hazards, you may
call the Department of Labor, the Environmental Protection Agency,
the Occupational Safety and Hazard Administration, or any other
government agency.
This notice is posted per order of the U. S. Department of Labor.
[ENDNOTES]
[1]
In this Recommended Decision and Order, "CX" refers to
Complainant's Exhibit, "RX" refers to Respondent's Exhibit, "AX"
refers to Administrative Exhibits, and "Tr." refers to the Tran-
script of the hearing.
[2]
NPDES refers to the National Pollutant Discharge Elimination
System under the Clean Water Act. 33 U.S.C. § 1342. As
required by its NPDES permit, KPC regularly submits discharge
monitoring reports (DMR) to the United States Environmental Protec-
tion Agency (EPA). (RX AT)
[3]
The EPA did not permit criminal investigator Sandra Smith to
testify at the hearing in the case at bar. (AX 34) Therefore, the
veracity and usefulness of the information provided to the EPA by
the Complainant is unknown. However, it is reasonable to assume,
based on timing alone, that the Complainant's communications with
the EPA were in some way used by the EPA and/or FBI in preparation
for the raid on KPC facilities in November 1992.
