DATE: February 22, 1991
CASE NO. 88-WPC-2

IN THE MATTER OF

RAYMOND IVORY,
    COMPLAINANT,

    v.

EVANS COOPERAGE, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. and O.) of Administrative Law Judge (ALJ) Kenneth A. Jennings, issued November 30, 1988, in this case arising under the employee protection provisions of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1367 (1988).

   The ALJ recommended that the complaint be dismissed because Complainant failed to establish a prima facie case that he was discriminatorily discharged in retaliation for engaging in protected activity. Assuming arguendo that Complainant had established a prima facie case, the ALJ further found that Respondent (also referred to herein as Evans), provided evidence of legitimate, nondiscriminatory reasons for Complainant's discharge, and that Complainant failed to demonstrate that Respondent's proffered reasons were pretextual. The parties were given an opportunity to submit briefs in support of or in opposition to the ALJ's recommended decision. Respondent filed a brief in support of the ALJ's decision. Complainant submitted no filing.

   A review of the entire record supports the following factual

findings. Complainant worked for Respondent from May 17, 1982, until his discharge on December 1, 1987. He worked as a laborer until he was promoted to acting leaderman, effective September 2, 1987. On November 19, 1987, he was suspended by his supervisor, and later that same day he made a complaint to the Jefferson Parish Sheriff's Office about alleged water pollution by Respondent. Less than two weeks later, on December 1, 1987, Complainant was discharged. Complainant filed a complaint with the Wage and Hour Division of the U.S. Department of Labor on December 15, 1987, alleging that he was discharged by Respondent because he was engaged in protected activity.

   A hearing was held before an Administrative Law Judge on March 24, 1988. At the hearing, the Complainant and Respondent's witnesses, including Complainant's supervisor and the supervisor's secretary, the owner of respondent company, and the Respondent's personnel manager, testified as to the chronology of events leading up to Complainant's suspension and discharge.

   The incidents leading up to Complainant's suspension and subsequent termination occurred after Complainant was promoted to acting leaderman. Complainant's supervisor, Horace Williams, testified that he received complaints from employees that Complainant was not properly sharing forklifts; and further testified to having four or five discussions with Complainant about the unacceptability of such problems. Tr. at 85-87.

   Then, on November 13, 1987, Complainant engaged in a physical fight with another employee over this issue, and was placed on a two week probation by his supervisor as a result. Tr. at 89-90. During this probationary period Complainant's behavior did not improve. The final incident which led to Complainant's indefinite suspension began on November 18, 1987, when Complainant left a job of cleaning sludge from a storage tank incomplete, causing a potential environmental problem for Respondent. Tr. at 64, 90-92. When Complainant was questioned about this situation by his supervisor, on November 19, 1987, he was uncooperative, and he walked out of his supervisor's office during the course of the conversation. His supervisor followed, explaining to Complainant that this behavior reflected the continuing problems Respondent was having with Complainant's conduct. In response, Complainant threw down his work clothes and used profanity about the job. Tr. at 92-93, 112-113. Considering this to be a major act of insubordination, the supervisor told Complainant to "punch out" and suspended him indefinitely with the intent of recommending his discharge. Tr. at 93-95, 97.

   It is undisputed that Complainant made the water pollution complaint against Respondent later that same morning, and that investigators responding to the complaint arrived at the Respondent's premises on that same day, alerting Respondent to the complaint. Subsequent to Complainant's suspension, the supervisor recommended Complainant's discharge to the personnel manager, who in turn discussed the situation with Mr. Evans, Respondent's owner and President. On December 1, 1987, Mr. Evans signed a personnel action form discharging the Complainant for unsatisfactory work performance, insubordination towards his supervisor, and combative behavior with employees. See Ex. JE-1; Ex. C-3; Tr. at 35, 41, 71-72, 94-95. Both the supervisor who suspended Complainant and Mr. Evans knew about the water pollution complaint at the time of Complainant's discharge.

   Generally, in order to establish a prima facie case under the employee protection provisions implemented by 29 C.F.R. Part 24 (1990), a complainant must show that he engaged in protected activity of which the respondent was aware and that respondent took some adverse action against him. In addition, a complainant must present evidence sufficient to at least raise an inference that the protected activity was the likely motive for the adverse action. Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision and Final Order, April 25, 1983, slip op. at 5-9.

   Contrary to the ALJ's conclusion, I find that Complainant proffered sufficient evidence to establish a prima facie case of discriminatory discharge under the FWPCA.¹ Complainant has shown that he engaged in protected conduct under the FWPCA, by filing a complaint against Respondent for alleged water pollution; and that Respondent was aware of this protected conduct when it took adverse action in discharging him. Furthermore, considering that Complainant was discharged shortly after his complaint to the sheriff's office, his discharge raises the inference that his protected conduct was the likely motivation for the adverse action. See Couty v. U.S. Department of Labor, 886 F.2d 147, 148 (8th Cir. 1989).

   Nevertheless, I conclude that Complainant's discharge was not in retaliation for making a water pollution complaint. Once a prima facie case is established, the burden of production

   Moreover, even were I persuaded that Respondent's adverse action was motivated by animus towards Complainant's protected conduct as well as legitimate reasons, this complaint would still fail under the dual motive doctrine.² See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977); Dartey slip op. at 8. The dual motive doctrine is implicated when it is found that respondent's adverse action was

motivated by both prohibited and legitimate reasons. See Mt. Healthy, 429 U.S. at 287. In such instances, respondent has the burden of showing by a preponderance of the evidence that it would have reached the same decision as to complainant's dismissal even in the absence of the protected conduct.³

   In the instant case, Respondent has established that it would have legitimately discharged Complainant for his misconduct even in the absence of his protected activity. Respondent established that Complainant's supervisor had warned Complainant about his misconduct on several occasions prior to his suspension, and that the discharge process had been set in motion when Complainant was suspended by his supervisor, which occurred prior to the water pollution complaint to the sheriff's office against Respondent. Furthermore, Respondent demonstrated that other employees had previously been discharged for similar incidents of misconduct.

   Accordingly, the complaint is DISMISSED.

   SO ORDERED.

       LYNN MARTIN
       Secretary of Labor

Washington, D.C.

¹ I specifically reject the criterion asserted by the ALJ, that to establish a prima facie case, a complainant must demonstrate that his work was satisfactory prior to his complaint.

² In the interest of judicial economy, I will address the dual motive issue, despite my conclusion that Complainant has failed to establish that Respondent's proffered nondiscriminatory reasons for discharging him were pretextual. See Couty v. United States Department of Labor, 886 F.2d 147, 148-149 (8th Cir. 1989).

³ The Supreme Court has affirmed this approach to the dual motive analysis in Price Waterhouse v. Hopkins, 490 U.S. 228, 245-247 (1989).