DATE ISSUED: October 24, 1995

CASE NO.:      95-WPC-3

In the Matter of

HENRY IMMANUEL,
          Complainant
          
       v .                 

WYOMING CONCRETE           
INDUSTRIES, INC.,          
          Respondent       

Richard E. Condit, Esq.
Mick G. Harrison, Esq.
          For the Complainant

James J. Sullivan, Esq.
Kathryn A. Kelly, Esq.
          For the Respondent

         Before:     Nicodemo De Gregorio
           Administrative Law Judge
         
RECOMMEND               ED DECISION AND ORDER

This proceeding arises under the employee protection
provisions of the Water Pollution Control Act (WPCA), 33 U.S.C.
§ 1367, and the regulations promulgated thereunder, 29 CFR
Part 24. Henry Immanuel (Complainant) alleges that he was
discharged by his employer Wyoming Concrete Industries, Inc.
(Respondent) in retaliation for environmental concerns he had
raised about his employer.  A hearing was held in Baltimore,
Maryland on May 2, 1995 where both parties appeared with
respective counsel.  Subsequently, both parties filed briefs,
which I have found very helpful.

    1-     Statement of the Case.
    
    Respondent Wyoming Concrete Industries manufactures and sells
concrete blocks ready mix concrete, precast architectural
products, and certain highway structures such as median barriers. 
Tr. at 265.  It owns five facilities, three in Delaware and two
in Maryland.  The president of Respondent is William DiMondi, 
[PAGE 2]
whose responsibilities in the summer of 1993 included overseeing
the personnel and sales departments.  Tr. at 264-65.



On June 8, 1993 Complainant Henry Immanuel applied for a
position as ready mix concrete truck driver at Respondent's
facility in Blades, Delaware.  Complainant filled out a a Driver
Application for Employment in the presence of the facility's
manager, Frank Fluharty, stating that the application was not 100
percent accurate.  Mr. Fluharty replied that accuracy of the
application was no big deal; his primary interest was to find out
if Complainant had a commercial driver's license and could drive. 
Tr. at 57, 60.  After passing a driving test and a medical
examination, Complainant was hired effective the following
Monday, June 14, 1993.  His basic task was to deliver concrete
from the plant to a customer's job site.  Tr. at 61.  In
accordance with company personnel policy in effect at that time,
Complainant's employment was subject to successful completion of
a probationary period of 60 days, Tr. at 279; CX 7 at 3; JX I.

Apparently from the start, Complainant began to notice what he
considered to be shortcomings in the work practices and the
working conditions at the Blades facility.  He was concerned
about the use of acid in cleaning trucks, the spillage of motor
oil on the ground, the storage of used engine oil in open
barrels, and brought these concerns to the attention of Mr.
Fluharty.  Tr. at 64-79.  But it was a company picnic for the
company employees and their families that gave Complainant the
opportunity to express all his grievances to the other employees.

Sometime before July 16, 1993 all employees and their
immediate families were invited to attend a company picnic to be
held in a state park in the afternoon of July 25, 1993.  CX 1.
Complainant came to the picnic with his family, and distributed
to other employees about 20 to 25 copies of a letter addressed to
"Dear Fellow Workers".  The letter listed seven categories of
"shortcomings" which Complainant had observed at the Blades
plant.  First on the list are the environmental problems:

     Environmental Problems- oil in drums exposed to rain has
     spilled onto the ground; the cement acid that is used on
     trucks to clean them goes directly onto the ground (does
     anybody believe that this stuff works?) What would the EPA
     say about this pollution?  JX 3.

The remaining complaints relate to 1) the safety of trucks; 2) 
[PAGE 3]
the safety of the loader at the plant; 3) the noise generated by
the trucks; 4) low wages; 5) the lack of health benefits; and 6)
unprofessional treatment.  JX 3. The letter ends with an appeal
to unionize, and recommends the Teamsters Union, Local 355.  Mr.
DiMondi received a copy of the letter from another employee in
the early afternoon.

At the end of the picnic, just as Complainant was about to
drive home with his family, Mr. DiMondi approached the car with a
copy of the letter in his hand, and an altercation ensued. 
According to Complainant, Mr. DiMondi waived the paper in his
hand and asked what it was about.  Complainant replied, read it. 
There were more questions and answers.  Then Mr. DiMondi told
Complainant he was fired.  Complainant observed that it was
illegal to fire him for exercising his rights, whereupon Mr.
DiMondi rehired him and told him to report for work at 7:00 a.m.
the next morning.  During this exchange, Mr. DiMondi appeared to
be in a rage.  Tr. at 87-91.  Complainant's version of the
encounter is corroborated by the testimony of his wife and their
young daughter Amunah, who were in the car with Complainant and
were intimidated by Mr. DiMondi's demeanor.  Tr. at 241, 228.

Mr. DiMondi remembers the incident differently.  He testified
that he received a copy of the letter at about 2:00 p.m. but
waited until the end of the festivities to approach Complainant
to express his disappointment that Complainant had chosen the
company picnic to "run down" management without first discussing
the concerns with management.  Mr. DiMondi denied firing
Complainant on the spot.  According to him, when Complainant
stated that he could not be fired because he had distributed the
leaflet, Mr. DiMondi replied that he could fire him.  Mr. DiMondi
also denied that he acted in such a way as to give the impression
that he wanted to strike Complainant.  Tr. at 381-84.

It is not necessary to resolve the discrepancy in the
testimony as to whether Complainant was fired at the picnic.  The
relevance of the incident to this case consists in this, that the
letter was distributed to the other employees of Respondent; that
a copy of the letter found its way into Mr. DiMondi's hands; and
that Mr. DiMondi, reacted with anger.

On July 30, 1993, the Friday next following the picnic,
Complainant attended a meeting with Messrs.  DiMondi and
Fluharty.  First, Complainant was invited to discuss his
grievances.  Then, Mr. Fluharty reviewed a Performance
Evaluation/Status Determination form, which rates Complainant
with respect to 15 personal traits and work performance and 
[PAGE 4]
concludes that he should not be converted to regular status.  RX
8. DiMondi concluded the meeting by informing Complainant that he
was terminated.  Mr. DiMondi gave six reasons for the decision to
discharge Complainant, including three customer complaints
regarding his attitude and handling of equipment;
misrepresentations on the employment application; and inability
to work a full shift.

    2-     Statement of the Applicable Law.
    
   Section 507(a) of the Water Pollution Control Act provides as
follows:

     No person shall fire, or in any other way discriminate
     against...   any employee...  by reason of the fact that
     such employee... has filed, instituted, or caused to be
     filed or instituted any proceeding under this chapter, or
     has testified or is about to testify in any proceeding
     resulting from the administration or enforcement of this
     chapter. 33 U.S.C. §1367(a).

Section 507(b) of the Act provides that any employee who believes
that he has been fired or otherwise discriminated against by any
person in violation of the Act may, within 30 days after such
alleged violation occurs, apply to the Secretary of Labor for a
review of such firing or discrimination.  "A copy of the
application shall be sent to such person who shall be the
respondent." 33 U.S.C. §1367(b).

In order to establish a case of retaliatory discharge under
the Act Complainant must establish that (1) he was an employee of
Respondent; (2) he engaged in an activity protected by the Act;
(3) Respondent took adverse action against him; and that (4) the
adverse action was taken because he participated in the protected
activity.  Passaic Valley Sewerage Com'rs v. Dept. of
Labor, 992 F.2d 474, 480 (3rd Cir. 1993); Carson v.
Tyler Pipe Co., Case No. 93-WPC-11, Sec. Dec., March
24, 1995, slip op. at 5-6; Carroll v. Bechtel Power Corp.,
Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 8-12. 
Of course, Complainant must have filed a timely complaint.

    3-     Statement of the issues.
    
    The primary issues in this case are (1) whether the complaint
that gave rise to this proceeding was timely filed, or, more
precisely, whether the 30-day statute of limitations should be
tolled; (2) whether Complainant's distribution of the leaflet at 
[PAGE 5]
the company picnic was activity protected by the Act; and (3)
whether Complainant was discharged because of his participation
in that protected activity.

    4-     Timeliness of the Complaint.
    
    Within a week of his discharge, Complainant sought help from
the Environmental Protection Agency, and was advised to contact
the Occupational Safety and Health Administration (OSHA), the
National Labor Relations Board (NLRB), and the Delaware's
Division of Natural Resources and Environmental Control (DNREC). 
Tr. at 104, 107.  Accordingly, Complainant addressed a letter
dated August 4, 1993 to DNREC; filed a complaint with NLRB on
August 12, 1993; and filed a complaint with OSHA by telephone on
August 27, 1993.  JX 6; RX 1; CX 2. One year later, by letter
dated September 16, 1994, Complainant filed with the Wage and
Hour Division, Department of Labor the complaint which initiated
the instant proceeding.  JX 4.

     Section 24.3 of Title 29, Code of Federal Regulations
relates to the form of a complaint under the Act and the time and
place where the complaint may be filed.  The regulation provides
that any employee who believes that he has been discriminated
against by an employer in violation of the Act may file a
complaint alleging such violation.  The complaint must be filed
with the Wage and Hour Division within 30 days after the
occurrence of the alleged violation.  No particular form is
required, except that the complaint must be in writing and should
include a full statement of the acts and omissions which are
believed to constitute the violation.

Obviously, the complaint dated September 16, 1994 was filed in
the proper forum but not on time.  Complainant's contention,
however, is that this case comes within the doctrine of equitable
tolling as enunciated in School Dist. of City of Allentown
v. Marshall., 657 F.2d 16 (3rd Cir. 1981).  In that
case the court identified three situations where tolling a
statute of limitations is appropriate:
     (1)  the defendant has actively misled the plaintiff respecting
     the cause of action;
     (2)  the plaintiff has in some extraordinary way been prevented
     from asserting his rights; or
(3)  the plaintiff has raised the precise statutory claim in
issue but has mistakenly done so in the wrong forum. 657 F.2d at
20.

The court added that the filing of a claim in the wrong forum 
[PAGE 6]
must also be timely before it will toll the appropriate
limitations period.  Ibid.  The court also stated that the
restrictions on equitable tolling must be scrupulously observed.
657 F.2d at 19.

Complainant argues that the filing of the complaints with
DNREC and OSHA during August 1993 meets the wrong forum test of
the equitable tolling doctrine.  Complainant's Post-Hearing Brief
at 21.  I cannot agree.

On August 4, 1993 Complainant wrote a letter to DNREC.  The
letter simply states that Complainant distributed a letter, a
copy of which was enclosed, on July 25, 1993, and was terminated
from the job on July 30, 1993; points out that the first item on
the list of complaints pertains to environmental problems at the
Blades plant; and concludes that a major problem would be at the
drum cleanout area after cement delivery.  JX 6. The letter does
not allege a violation of the employee protection provisions of
any statute, state or federal, and does not seek any relief.  It
has the appearance of a citizen's report of a possible law
violation and suggests that an investigation of the environmental
problems at the Blades plant would be appropriate.  The letter
does not indicate that a copy was sent to Respondent.

On August 27, 1993 Complainant filed a complaint with the
Philadelphia office of the Occupational Safety and Health
Administration by telephone.  Complainant stated that he had
worked for Respondent as a cement mixer driver; that he had
advised the plant manager of environmental, wage, and safety
problems at the work site; that he had distributed a leaflet to
employees accusing Respondent of ignoring environmental problems,
transportation violations, unsafe trucks, low wages, and lack of
health benefits, and suggesting the need to form a union to
address the problems; and that he had been terminated on July 25,
1993, rehired, and terminated again on July 30, 1993 for poor
work performance.  CX 2. It is clear that the complaint was
understood by OSHA investigators as alleging a retaliatory
termination for having complained of safety conditions at the
work place, and that Complainant knowing this interpretation of
his complaint did not protest.  OSHA investigators Ronald F. Tate
and William D. Seguin conducted a personal interview of
Complainant on September 28, 1993.  During the interview
Complainant was asked why he felt Respondent had terminated him,
and he replied that it was due to his attempt to unionize the
work place.  On being advised that such activities were handled
by NLRB, Complainant stated that he had already filed with NLRB,
Wage and Hour, and EPA.  He was specifically notified that OSHA 
[PAGE 7]
would not address the issue of termination for union activities,
and that its sole objective was to determine if there was
evidence that his discharge was the result of safety complaints. 
Finally, the investigators advised Complainant that it was
unlikely that they could establish an OSHA violation as he
himself felt that the reason had to do with union activities. 
Complainant agreed, and requested that the complaint be
withdrawn.  RX 6.

   In sum, within 30 days of his discharge Complainant contacted
several agencies and gave them an account of what had happened. 
But these stories are not complaints raising the "precise
statutory claim" that section 507 of WPCA had been violated, even
though a lawyer may see in them the basis for filing a complaint. 
Respondent was entitled to notice within 30 days from July 30,
1993, that it had been charged with violating section 507 of the
WPCA.  The regulations may be read as relieving Complainant of
the statutory duty to notify the person charged with
discrimination, and as devolving upon the Administrator of the
Wage and Hour Division the duty to do so "upon receipt" of a
timely complaint. 29 CFR §24.4(a). Respondent in this case
did not receive a timely notice either way.  Part of the
rationale for tolling a limitations period when a claim has been
filed in the wrong forum is that the respondent has been put on
notice within the appropriate limitations period.  School
Dist. of City of Allentown v. Marshall, 657 F.2d 16,
20 (3rd Cir. 1981).  I note that in that case, which arose under
analogous provisions of another statute, the Secretary had tolled
the filing period on the grounds, among others, that the
complainant had written to EPA within 30 days of the alleged
violation, narrating his experiences.  The court stated that this
point was not defended on appeal, and that in any event it would
hold that the letter did not constitute a complaint. 657 F.2d at
19.

   Accordingly, I conclude that the complaint in this case must
be dismissed because it is time-barred.  Although this timeliness
issue is dispositive of the case, I shall consider the other two
issues briefly.

5- Protected Activity.

   Complainant contends that his distribution of the leaflet at
the company picnic on July 25, 1993 was an activity protected by
the WPCA.  I agree.


[PAGE 8]
   At first sight, the text of the Act, quoted above, suggests
that its purpose is to protect employees who either initiate or
testify at a proceeding under the Act.  The regulations extend
the protection to employees who assist or participate 11 ... in
any manner in such a proceeding or in any other action to carry
out the purposes of such Federal statute". 29 CFR
§24.2(b)(3). The Secretary has consistently held that
internal complaints are protected activities.  Carson v. Tyler
Pipe Co., Case No. 93-WCP-11, Sec. Dec., March 24, 1995, slip
op. at 6. This interpretation of the statute has been endorsed by
various courts, including the Third Circuit.  See Passaic
Valley Sewerage Com'rs v. Dept. of Labor, 992 F.2d
474, 478-80(3rd Cir. 1993).

   The instant case differs from the common situation in this
respect, that the complaint was not made directly to a manager
or. supervisor.  But, given the broad remedial purpose of the
statute, there is no apparent justification for a construction of
the statute that would permit an employer to retaliate against an
employee who discloses possible violations of the statute, solely
because the president of the company learns of the disclosure
indirectly, through another employee.  See Carter v.
Electrical District No.2 of Pinal County, Case No. 92-
TSC-11, Sec. Dec., July 26, 1995, slip. op. at 21 (contact with
the press protected activity).  Finally, contrary to Respondent's
contention, the fact that Complainant's motive in drafting and
distributing the
leaflet was to organize a union does not take him out of the
statute's protection, so long as his environmental concerns were
grounded in conditions constituting reasonably perceived
violations of the statute.  Id at 18.

   Accordingly, I conclude that Complainant's distribution of the
leaflet at the picnic was protected activity under the WPCA.

    6-     The Discharge.
    
I believe that Complainant has failed to carry his burden of
proving by a preponderance of the evidence that his discharge was
a reprisal for his protected activity.  On the contrary, I
believe that Respondent has proved that the discharge-was
motivated by legitimate, work-related reasons.

Complainant is certainly correct in asserting that unlawful
motive may be proved by circumstantial evidence.  It is not
common to find direct evidence of an intention to violate the
law.  I also agree that ordinarily proximity in time between a
decisionmaker's awareness of an employee's protected activity and
adverse personnel action against the employee is sufficient, 
[PAGE 9]
standing alone, to raise and inference of causation.  See, e.g.,
Carson v. Tyler Pine Co., supra, at 9. But this is not an
ordinary case, because here the protected activity, disclosure of
environmental problems, was intermingled with disclosure of other
concerns that have nothing to do with the WPCA.

Complainant's purpose in distributing the leaflet was to urge
Respondent's employees to join the Teamsters Union.  Before the
picnic, Complainant had discussed his intentions with a vice
president of Teamsters Local 355, and had got union cards which
he did not distribute, having decided instead to address a letter
to the employees who would gather at the picnic.  RX 2
(Complainant's affidavit to NLRB at 2-3).  More significantly,
this purpose is expressed in the letter.  Thus, the more natural
inference to be drawn from the distribution of the letter, the
angry reaction of Mr. DiMondi, and the termination of employment
five days later, considered by themselves, would be that the
discharge was due to the organizational activity.  And this is
the interpretation that Complainant put on the events and stated
to the NLRB and OSHA.  RX 1, 3, 6.

At any rate, Respondent has adduced ample evidence that
Complainant's employment was terminated for legitimate business
reasons, primarily on account of customer complaints with regard
to his work performance and conduct.  The decision to terminate
Complainant was made by Mr. DiMondi about ten days before the
picnic, and was announced to Respondent's managers at a
supervisors' meeting held on July 21, 1993, as shown by the
minutes of that meeting.  Tr. at 355, 357, 361-62; RX 18.  The
incidents that gave rise to the complaints are well documented.

On July 7, 1993, Complainant was the second driver to deliver
ready mix concrete to a customer, Mr. John Mahetta, for the
purpose of pouring a foundation for a house.  Complainant was
unable to positioned the truck in accordance with Mr. Mahetta's
instructions, with the result that the previous driver had to use
an extension chute in order to make the delivery.  Moreover,
Complainant refused to assist in moving the chute, on the ground
that it was not his job.  According to Complainant's testimony,
Mr. Mahetta was "furious".  Tr. at 544.  Complainant's
supervisor, Mr. Fluharty was also mad about the incident.  RX 2
at 14.  Mr. Mahetta told Mr. DiMondi he did not want Complainant
to deliver concrete to his jobs again.  Tr. at 436.

There were two additional delivery incidents that resulted in
customer complaints.  On July 13, 1993, Complainant again was the
second truck driver to arrive at a construction job located in 
[PAGE 10]
Preston, Maryland.  He discharged a large amount of concrete at
an improper degree of liquidity, with the result that another
driver and two customers had to shovel the concrete around the
foundation.  The delivery was observed by Mr. Greg English, the
manager of another plant of Respondent located in Maryland.  Mr.
English was concerned about this problem because the customer was
fairly new, and reported the incident to Mr. Fluharty in the hope
of avoiding a repetition.  Tr. at 494-96.  The other incident
occurred on July 22, 1993, when Complainant covered the customer
with concrete.  Tr. 435-36.  Again, the customer was angry and
complained to Complainant's supervisor.

Complainant argues that Respondent's failure to call Mr.
Fluharty and other members of the management as witnesses not
only undermines the credibility of its justification for
Complainant's discharge, but requires an inference to be drawn
that those employees, if called to testify, would have given
testimony unfavorable to Respondent.  I think it is enough to
point out that the testimony concerning the three delivery
incidents and the consequent customer complaints is sufficiently
corroborated by a sworn affidavit which Complainant gave to NLRB
on October 1, 1993, when his memory was fresh.  See RX 2. This
affidavit also corroborates that on four occasions Complainant
became tired and was unable to continue working without a
substantial break, another reason why Mr. Fluharty was
dissatisfied with Complainant's performance.  RX 2 at 10.

    In sum, I find that Respondent discharged Complainant for
legitimate reasons.  The customer's complaints discussed above
provided a sufficient reason for terminating a new employee
during his probationary period.  Moreover, the fact that the
decision was made before the disclosure of Complainant's
environmental concerns at the picnic precludes a finding that the
decision was in retaliation for that disclosure.  This conclusion
makes it unnecessary to discuss the discrepancies that Mr.
DiMondi discovered in investigating Complainant's employment
history, which provided additional reasons for the discharge.

7- Conclusion

    By reason of the foregoing, I recommend that the complaint
herein be dismissed because it is untimely and lacks merit.

RECOMMENDED ORDER

    The complaint of discrimination filed by Mr. Henry Immanuel
under §507 of the Water Pollution Control Act is dismissed.

                                                                  
                       Nicodemo De Gregorio
                                                                  
                       Administrative Law
Judge