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 11 33, 1140-41 (6th Cir.
1994); McCuistion v. TVA, Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 18,
citing Malhotrav. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989).
7We 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 tofollow 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 StatesDep'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.
14Nichols 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 isnot 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.