1The statutes
include the Solid Waste Disposal Act, 42 U.S.C. §6971 (1988);
Federal Water Pollution Control Act, 33 U.S.C. §1367 (1988);
Toxic Substances Control Act, 15 U.S.C. §2622 (1988); and Safe
Drinking Water Act, 42 U.S.C. §300j-9(i) (1988).
2We grant Odom's
unopposed motion to file a brief that exceeds the page limitation
and have considered all pleadings in full.
3It is undisputed
that Moss used profanity in referring to Odom's August 10 letter
when he told Calvert to investigate the issues raised. T. 371-72.
However, there is no indication that Moss influenced Nichols or had
any input in the termination decision. See also T. 74-75.
4Envirowash is a
solvent that Anchor used to loosen labels and clean reusable
containers. See T. 928; Respondent's Exhibit (RX) 38.
5Company policy
was to "stick" or measure the tanks twice daily to gauge
inventory. T. 1092.
6We have
considered whether these earlier personnel actions were
retaliatory, even though they were discrete incidents that occurred
outside the limitations period, since they formed a basis in part
for Odom's termination and "shed light on the true character
of matters occurring within the limitations period." See
Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1140-41 (6th
Cir. 1994); McCuistion v. TVA, Case No. 89-ERA-6, Sec. Dec.,
Nov. 13, 1991, slip op. at 18, citingMalhotra v. Cotter
& Co., 885 F.2d 1305, 1310 (7th Cir. 1989).
7 We note that
Odom's failure to establish with specificity some of the dates
relevant to his claims also undermines his case.
8Nichols did
argue with the inspector about a training issue citation which she
believed was incorrect. See T. 776-77. Anchor ultimately
settled the entire matter for $5,050. RX 1.
9Of course, an
employer may not, with impunity, fault an employee for failing to
follow the chain-of-command in raising safety or environmental
issues. Saporito v. Florida Power and Light Co., Case No.
89-ERA-7, 17, Sec. Decs., June 3, 1994, and Feb. 16, 1995; Pogue
v. United States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir.
1991).
10We agree with
Anchor that Odom's allegation that Nichols precluded him from
reviewing the reports after May 1994, is specious. His daily notes
for June 8 contain the following entry as work accomplished that
day: "reread closure report." CX 121. Compare T.
570, 889 with T. 1264-65.
11At some point
Odom claimed that Nichols told him not to put anything in writing,
but he later testified that he communicated his concerns to her
orally and through written memoranda and that he had the
opportunity to include concerns in his monthly reports. T. 828.
12Basically, Odom
does not disagree. He indicates that it was his "memory" or
"understanding" that the soil was contaminated. T. 778, 790, 803. In any event, the
ALJ properly credited the testimony of Nichols and Masters. Masters had considerable experience
and direct involvement in Anchor's underground storage tank project, T. 932, and his opinion on
this subject was based on his perceptions. The ALJ could, therefore, credit his opinion as
testimony by a lay witness. See 29 C.F.R. §18.701. The ALJ was not required
to find Odom's opinion conclusive, even though Odom was proffered and qualified at the hearing
as an expert witness on the subject of underground storage tanks. T. 494; see United States
v. Jackson, 19 F.3d 1003, 1007 (5th Cir. 1994), cert. denied, 513 U.S. 891
(1994). The issue became one of witness credibility. Even though Odom was qualified as an
expert, it is clear from the transcript that his knowledge of Anchor's project was limited. See
T. 803, 815, 796 ("possibly" part of his duties to update himself on that
project).
13We reject
Odom's argument that Nichols destroyed this internal environmental
audit and her 1994 calendar after receiving Odom's complaint and
that, therefore, the most unfavorable inferences should be drawn
and Nichols' testimony on events in 1994 should be discredited.
The record does not show that Anchor refused to comply with any
requests for production of documents or deliberately destroyed any
potential evidence. T. 1382.
14 Nichols began
taking corrective measures immediately. See T. 742, 1281-87; RX 34 at 4-2a. We
also reject, as contrary to the evidence, Odom's argument that Nichols was resentful and
unreceptive to his concerns about storage drums, bungs, and triple rinsing. See,
e.g., T. 211-12; RX 34 at 4-2a and 4-3, RX 8-9.
15It is not
believable that Nichols risked her reputation and gave Odom short deadlines for retaliatory
reasons. Nichols' schedule was controlled by International Paper.
16We also
specifically agree with the ALJ's conclusions that Odom's tasks of filling sandbags and drawing
"fetid" water were not retaliatory. R. D. and O. at 10. Nor was his office relocation
motivated by retaliation for protected activity. Its purpose was to allow him to improve his
performance. T. 1313.