Date: November 27, 1995
Case No.: 94-CER-1
In the Matter of
M.C. TUCKER
Complainant,
v.
MORRISON & KNUDSON
Respondent
Richard W. Roachell, Esq.
Travis M. Creed, Jr.
For the Claimant
Charles Nestrud, Esq.
For the Employer
Before: EDWARD TERHUNE MILLER
Administrative Law Judge
RECOMMENDED DECISION AND ORDERStatement of the Case
This case involves a claim under the employee protection
provisions of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9610
("CERCLA" or "the Act"), and the Resource Conservation and Recovery
Act ("RCRA"), also known as the Solid Waste Disposal Act,("SWDA"),
at 42 U.S.C. 6971. The regulations promulgated at 29 C.F.R., Part
24, apply expressly to RCRA. In the absence of comparable
regulations applicable to CERCLA, Part 24, is deemed applicable by
analogy to proceedings involving that statute, at least insofar as
there is no apparent prejudice or inconsistency. Jurisdiction is
not in issue. It is undisputed that Morrison Knudsen ("MK" or
"Employer") is an employer subject to CERCLA and RCRA, and that the
Complainant, M.C. "Buck" Tucker ("Tucker" or "Employee"), was at
all relevant times an employee entitled to invoke the employee
protections provided by CERCLA and RCRA upon a proper showing.[1]
Tucker, an employee of MK at the Vertac Superfund Site in
Jacksonville, Arkansas, filed a timely complaint with the
Department of Labor ("DOL") on March 24, 1994, alleging that he was
terminated from employment by Employer in retaliation for activity
protected under the Act. By letter dated May 2, 1994, Tucker was
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notified by the District Director, Employment Standards
Administration, Wage and Hour Division, that the DOL "investigation
did not verify that discrimination was a factor in the actions
comprising [his] complaint." By telegram dated May 6, 1994, Tucker
appealed the District Director's decision and requested a hearing
by the Office of Administrative Law Judges. The parties were
represented by counsel at the denovo hearing which
was conducted in Little Rock, Arkansas, on November 14-16, 1994.[2]
The parties have submitted briefs addressing the issues.
The findings and conclusions which follow are based upon my
observations of the appearance and demeanor of the witnesses who
testified at the hearing as they affect the credibility of those
witnesses, and upon an analysis of the entire record, including the
testimony and documentary evidence, in light of the arguments
presented, the statutory law and applicable regulations, and the
applicable case law. Any evidence in the record which has not been
discussed specifically has been determined to be immaterial, or to
be insufficiently probative to affect the outcome of the decision.
I find that the Complainant did engage in certain activities
that would qualify as protected under CERCLA and RCRA, and that his
Employer, MK, took adverse action against him. However, the
evidentiary record does not establish a causal relation between the
protected activities and the adverse action. I find, therefore, as
explained below, that the complaint should be dismissed.
Issues
1. Which, if any, of the activities cited by the Employee
qualify as protected activity under CERCLA or RCRA?
2. Which, if any, of the Employer's actions qualify as
adverse actions which might be causally related to protected
activities?
3. Did the Employer discriminate or retaliate against the
Employee because he engaged in any protected activity?
4. Did the Employer have a sufficient legitimate business
motive for reassigning the Employee, or terminating the Employee's
employment, or taking any adverse action so that it can be found to
have acted notwithstanding any protected activity in which the
Employee might have engaged?
Tucker contends that he engaged in various protected
activities under CERCLA and RCRA, which included raising both
internal and external safety concerns to government officials and
within the company concerning the operation and management of the
Vertac site. He contends that as a consequence of those protected
activities, MK took adverse actions against him which resulted in
reassignments to less prestigious, and less rewarding positions and
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which led to to his unlawful termination on March 1, 1994, all in
retaliation for his protected activities. Tucker contends that the
pattern and chronology of MK's behavior towards him provide
circumstantial evidence of the Employer's retaliatory motive, and
thus establishes the requisite causal connection between his
protected activity and the Employer's adverse action against him.
Tucker contends, in substance, that his promising career at
MK, which began in July 1990, deteriorated after the May 13, 1993,
salt release incident, in part because of statements he gave to
various government and private investigators, testimony he gave,
and the subpoenas to which he responded in relation to proceedings
connected to that incident. He contends that prior reprimands had
not seriously affected his performance evaluations, but that
subsequent to that incident, he received demotions and was
terminated, because he was considered a whistleblower. He contends
that his various earlier protected activities consisting of unusual
incident reports, oral reports to supervisors, interoffice
communications, and other activities contributed to management's
distrust of him and to its suspicion that he had been and could
again be a whistleblower.
MK contends that Tucker has failed to establish a primafacie case that he was retaliated against for engaging in
protected activity. In the alternative, MK contends that it proved
legitimate reasons for its actions against Tucker unrelated to
protected activity, and that in either event Tucker's complaint
should be dismissed. MK concedes that Tucker engaged in certain
protected activities, but contends that some of the incidents which
Tucker has identified as the basis for the alleged retaliation were
not protected activities. MK also contends that Tucker has not
presented evidence that he was retaliated against as the result of
any of the protected activities that he has identified, or that
there is any nexus between those activities and any alleged
retaliation.
MK contends that there were legitimate business reasons for
Tucker's reassignments and Tucker's termination, as well as any
other actions which Tucker claims to have been discriminatory. MK
contends that Tucker was disruptive, would not follow rules, used
poor judgment, was not trusted at the site, and was not a team
player. MK contends that Tucker, though a talented professional,
was unable to learn from his mistakes, and that attempts at
remedial action only led to further confrontations. MK contends
that these deficiencies were unrelated to, independent of, and not
causally connected to protected activities in which Tucker engaged.
Findings of Fact
1. The Complainant Employee, Tucker, was employed by MK at
the Vertac Superfund Site ("the site") from July 2, 1990, until
March 1, 1994. (ALJ-1; Tr. 36) After initial work with an
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electrical subcontractor, Tucker was hired by MK with a job
classification of Senior Electrical Designer/Assistant Control Room
Operator. He was trained to operate the incinerator, which was
designed to burn dioxin-contaminated hazardous waste at the site.
(Tr. 38, 53) His responsibilities from 1990-93 varied, but Tucker
was still a Control Room Operator until May 1993. His last
position was that of Outside Operator, which he held on March 1,
1994. (ALJ-1)
2. At all relevant times, MK was engaged in the incineration
of hazardous waste at the Vertac site in Jacksonville, Arkansas.
Hazardous waste at the site included 2,4-dichlorophenoxyacetic acid
(2,4-D, known as "D-waste"), and 2,4,5-trichlorophenoxyacetic acid
(2,4,5-T, known as "T-waste"). (Tr. 863)
3. The parties stipulated that Tucker engaged in the
following acts protected pursuant to 42 U.S.C. 610(a):
(a) On June 13, 1993, Mr. Tucker gave a statement to EPA
criminal investigators.
(b) On July 1, 1993, Mr. Tucker was available to provide
testimony in litigation encaptioned Arkansas Peace
Center, et al. v. Arkansas Department of Pollution
Control and Ecology, et al., LR-C-92-684 in which VSC
(MK and MRK, a joint venture) was a party Defendant.
(c) On August 20, 1993, Mr. Tucker provided testimony to
an appeals referee of the Arkansas Unemployment Security
Division in the hearing encaptioned Chris J. DuJardin
v. Morrison Knudsen, ESD No. 93-BR-01734.
(d) On November 11, 1993, Mr. Tucker provided deposition
testimony in a Department of Labor proceeding before the
Office of Administrative Law Judges in the matter
encaptioned Chris J. DuJardin v. Morrison &
Knudsen, (sic), No. 93-TSC-3. (Tr. 32; ALJ-1)
4. In addition, in various submissions of record Tucker
identified several other incidents of "whistleblowing," that he
characterized as complaints regarding the safety of operations at
the site and asserts qualify as protected activities. He asserts
that they caused retaliatory or discriminatory action by the
Employer.
(1) Reporting on October 10, 1992, to Apa and to John Martin
Gillette, a site environmental inspector, that rod ports on
the baghouses or spray dryers were intentionally opened to
artificially influence the oxygen level in the stack ("the rod
port incident");
2) Reporting on December 23, 1993, by verbal complaint to
[Page 5]
Robert Lang regarding improper operation of thermal destruction
unit due to unburned materials found in residual ash ("the residual
ash incident");
(3) Reporting to Apa the violation of the federal court order
to cease burning "T-waste" at the site as of midnight, October
31, 1992, after burning potentially T-waste contaminated
liquid organic waste after the midnight deadline ("the T-waste
incident");
(4) Reporting on February 15, 1994, to Milton Smith, the
safety technician on duty at the Vertac site, to the safety
manager at the Vertac site, and to Apa, regarding certain
safety violations by Lang that were witnessed by Tucker. (Tr.
138-44)("the Lang incident");
(5) Being subpoenaed into Federal Court to testify about the
May 13, 1994, salt release incident. Related to this was
providing statements to EPA investigators on June 23, 1993,
concerning the May 13, 1993, buildup of salt and salt release
at the incinerator at the site ("the salt release
incident").[3] Tucker allegedly answered questions about the
May 13, 1993, salt release posed by Ricky Carr, out of MK's
Denver office, who led the MK internal investigation, by
Langlois and Kearney of the EPA Criminal Investigation
Division, by Ehrhart and Massimino, other EPA officials, and
by Apa. (Tr. 89)
5. Tucker also cited a November 1, 1993, report to Lang
concerning misapplication of equipment to introduce caustic into
scrubber system at site. MK contends that there is no material
evidence of record relating to this report. I find that there is
insufficient evidence of this alleged incident to have any effect
upon the outcome of this case.
The Rod Port Incident
6. Tucker initially reported to Apa, as site superintendent,
and Pettiette, Apa's supervisor, that the incinerator at the site
was being operated improperly with its rod ports open, presumably
to manipulate the amount of oxygen present in the stack gases. (Tr.
169-71, 267-68, 913, 951) Apa told Tucker to close the rod ports,
and, to Tucker's knowledge, the incident did not recur. Tucker was
satisfied with the Employer's response. (Tr. 170) Gillette and Apa
corroborated Tucker's description of the handling and disposition
of the problem. (Tr. 267-68, 870-71) MK contends that, although
Tucker made such a report to Apa, the site manager, and to
Gillette, the inspector for Arkansas, MK officials were not aware
of Tucker's report to Gillette. MK contends that it did not
retaliate against Tucker because of either the internal or the
alleged external report. Since there is no evidence that MK
personnel knew that Tucker told Gillette of the problem, and since
[Page 6]
the problem was treated routinely and resolved internally, there is
no evidence which reasonably supports an inference of retaliation.
The Residual Ash Incident
7. In early December 1993 Tucker observed unburned material
including Tyvek and visquene in the incinerator ash. He told the
Control Room Operator on duty, who told him that Employer was aware
of it. (Tr. 186) Tucker informed Lang, the production supervisor
at the site, approximately two weeks later. Lang told him that the
problem had already been discovered and resolved. (Tr. 186-87)
8. Apa testified credibly that URS Consultants, a
subcontractor to EPA, inspected certain drums and advised Apa that
they found tyvek and unburned material in some of the drums. The
drums were immediately identified and incinerated, within the
purview of the inspectors. Employer subsequently did an internal
investigation, discovered the cause, and effected a remedy. Apa
testified credibly that to his knowledge Tucker was not involved in
the discovery or handling of the incident. (Tr. 882-83) I find
that Tucker made his report after the problem had been discovered
and remedied, that it had no material effect on his status, and
that it engendered no adverse action against him by the Employer.
The T-Waste Incident
9. In October 1992, a federal court issued an injunction
authorizing incineration of T-waste on October 29-31, 1992. On
October 31, 1992, Tucker was involved in an incident which involved
burning T-waste in violation of the court ordered midnight
deadline. (Tr. 76-77, 181, 814, 817-18, 878-79) Tucker maintains
that he reported that T-waste was burned after midnight on October
31, 1992, in violation of the injunction. However, there is no
record in evidence of such a report by Tucker.
10. Apa wanted to burn as much of the T-waste solids as
possible before the October 31, 1992, midnight deadline. He
instructed Tucker, as Control Room Operator, to stop burning T-
waste solids at 11:45 p.m., to insure compliance with the court
order. (Tr. 76, 287-92, 816) Gillette, an on site Arkansas
Department of Pollution Control & Ecology (PC&E) Inspector,
corroborated the fact of Apa's instructions after refreshing his
memory with a state inspector's report. (Tr. 287) Apa thought that
Tank 402 contained D-waste which might permissibly be burned after
the court ordered deadline. He so stated in the presence of Tucker
to an Arkansas state inspector, Jenkins, working on site. Apa
instructed Tucker to commence burning organic (liquid) waste from
Tank 402 after 11:45 p.m. (Tr. 813, 817, 875)
11. Tucker contends that he was unsure about what type of
organic waste was in Tank 402, even after reading the transfer log,
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and he was not privy to the contents of the court order. (Tr. 76-
77, 80-81, 256) He asserts that he assumed Apa had made an
informed decision, and that he did not want to embarrass Apa in
front of a state inspector. (Tr. 77, 256) Gillette testified that
there was a general concern at the site regarding disclosure of
compliance issues in the presence of an inspector. (Tr. 303)
12. Tucker, however, testified at the hearing and previously
at DuJardin's unemployment hearing and on deposition that he did
know that Tank 402 contained T-waste when Apa gave him the
instructions. (Tr. 181-85, 255-57, 259-61, 876) I find, on the
basis of the circumstances, Tucker's impeachment, and his demeanor,
that his assertion that he did not know the tank contained T-waste
is not credible. Apa should have consulted the Control Room's tank
transfer logs, which established that Tank 402 contained T-waste.
(Tr. 302, 817-18) But Tucker's excuse for inaction, that he was
concerned about disclosing compliance issues with inspectors
present, is not credible under the circumstances. I find that
Tucker knew that Tank 402 contained T-waste, and knew that Apa was
mistaken, but did not attempt to correct Apa.
13. Tucker testified that he advised Apa of the error and
requested instructions on how to deal with it the next day,
November 1, 1992. (Tr. 75-76, 178-79). MK contends that Tucker
never reported this incident, and never subsequently discussed this
incident with Apa. The State Inspector's report and gate logs
confirm that Apa was not on site the next day, when Tucker contends
he met with Apa and reported the incident. Apa had no recollection
of Tucker reporting the incident. (Tr. 878-79)(Employer's Reply
Brief at 2, 7-8) I find that Tucker did not make the report as
alleged.
14. Apa, corroborated by Gillette, testified credibly that he
was informed on Sunday afternoon, the next day, November 1, 1992,
by a telephone call from Mark McCorkle, who advised him that
Gillette had reviewed the transfer logs, which disclosed that T-
waste was in Tank 402, and that remedial action was required.
Remedial action was taken on Apa's telephoned instructions, and the
matter was dealt with on site on Monday morning. The fact that the
T-waste was burned after October 31, 1992, was disclosed,
investigated, and documented, by Employer and government agencies
prior to the time Tucker allegedly made his report. The incident
was investigated and remedied without involvement by Tucker. (Tr.
268-70, 300-01, 879-82) There is no evidence of retaliation
against Tucker stemming from this alleged report.
The Lang Incident
15. On February 15, 1994, Tucker observed Lang enter the kiln
at the site during a scheduled production shut down. (R-13) Lang's
entry violated several safety rules applicable at the site. Lang
later admitted the violations, and was reprimanded. (Tr. 137-41,
[Page 8]
728, 789) MK concedes that Lang violated the safety regulations on
February 15, 1994, and that Tucker reported the violations.
16. Tucker did not prevent the known safety violation when he
observed it, and did not immediately notify his superiors as
required by company procedures. (Tr. 820) Tucker immediately
reported the violation orally to the safety-technician on the
shift, Smith. Smith was also reprimanded for not following the
proper safety procedures and not doing his part in preventing the
violation. (Tr. 141, 513, 516; C-16, 38) Tucker notified the
safety manager when he arrived on site later. Tucker did not
formally report the incident as required by company procedures
until twenty-four hours later when he transmitted a written
memorandum to Apa, the site manager. (R-13; C-13; Tr. 142-43)
17. Tucker was given a written reprimand by Apa because of his
inaction at the time of the violation of the safety regulations,
and because of his delay in reporting the violation to proper
authority. (Tr. 148, 820-21; C-7; R-7) I find, therefore, that the
reprimand was not retaliation for reporting the incident. I find
Tucker's assertion in his response to the reprimand, that he did
not stop Lang because he was concerned about retaliation, to be
self-serving and incredible under the circumstances. There is
credible evidence, and I find, on the other hand, that Tucker's
failure to stop Lang's unsafe entry, and Tucker's delayed report,
were motivated by personal animus toward Lang. (Tr. 145, 628, 675,
677; C-38) Tucker asked at least two credible individuals to bear
witness regarding the Lang incident, though he denied having done
so. (Tr. 146, 628, 638-39, 657, 674-75; C-31) Tucker also gloated
in the presence of several credible witnesses that he had caught
Lang in a violation. (Tr. 629, 657, 674-75) There is no evidence
that this disciplinary action by MK against Tucker was motivated by
a discriminatory purpose or intent to retaliate for protected
activity.
The Salt Release Incident
18. Tucker contends that by the beginning of 1993 subtle
pressures for increased production adversely affected the
correction of problems and safety, and ultimately caused the May
1993 salt release. (Tr. 81) Although Tucker gave statements and
testimony concerning the salt release incident, there is no
credible evidence of the substance of these communications, or that
Tucker complained, or made statements in manner or substance so in
conflict with MK's perceived interests with respect to these more
general alleged concerns that a motive to retaliate would have been
engendered.[4]
19. On May 13, 1993, there was a pressure buildup in the
spray dryer of the incinerator at the site. Tucker was on duty as
Control Room Operator, and knew of the pressure build up in the
[Page 9]
incinerator's spray dryer. Tucker also knew that the incinerator's
scrubber was not filled with water during maintenance, and that the
incinerator should not have been started in such condition. Tucker
expressed concerns to Fuller, his supervisor, regarding the
accumulation of salt as blockage after Fuller removed the
protective "interlock" related to the spray dryer. Tucker warned
Fuller that if there was blockage, burning more solid waste in the
system as Fuller had ordered would compound the blockage problem.
However, Fuller instructed Tucker to proceed with the burning.
(Tr. 82-83, 86-87)
20. Tucker followed those instructions, but had an Outside
Operator examine the system. The pressure buildup damaged the
incinerator's scrubber, and caused a salt release at the site. The
Outside Operator saw pipes protruding through the side of the
scrubber box and reported this to Tucker, who stopped the flow of
waste. However, two salt releases from the baghouses, a salt
release through the stack and ducts, and structural damage to some
equipment had already occurred. (Tr. 82-89, 219-25, 898)
21. Several current and former Control Room Operators,
including Frank Anderson, Robert Thorton, Ricky Ponson, Dale Allen,
and William Carr, testified at the hearing. Thorton, Ponson, and
Allen stated that under federal regulations, Control Room
Operators, and not their supervisors, are responsible for the
operation of the incinerator. (Tr. 395, 416, 459) Thorton,
Ponson, Allen, and Carr testified that as Control Room Operators
they could refuse to carry out orders by supervisors that they
considered unsafe, and could confer with Apa. (Tr. 397, 416, 459,
535) Thorton testified that no retaliation followed his refusal to
carry out an order by Lang because of safety concerns. (Tr. 395)
Anderson, Ponson, Allen, and Carr testified that they would have
refused to start the incinerator or would have contacted Apa under
the circumstances Tucker confronted on May 13, 1993. (Tr. 366, 416,
459, 535) Tucker's assertion that he "had two choices: follow
Fuller's instructions or walk off the site," is thus not credible.
(Complainant's brief at 8)
22. Tucker testified that he did not attempt to contact Apa,
who was apparently off site, prior to starting the incinerator
under these circumstances, because "my instructions from Mr. Apa
was to do as that man [Dan Fuller] tells us to do." (Tr. 88, 222)
As a result of this incident, Fuller was removed from the site at
PC&E's request because he had given the direction to turn on the ID
fan. Apa offered to resign. (Tr. 275-76, 893-95) I find that
Tucker's acceptance of the instructions by Fuller, his immediate
supervisor, to start to burn solid waste when there was a salt
build up causing blockage in the system was reasonably viewed by MK
as an error in judgment. Tucker obviously had strong reservations
about Fuller's directive, because he understood the potential
adverse consequences, and he had the ability and implicit
responsibility to avoid them. (Tr. 85-88)
Investigation of the Salt Release Incident; Tucker's Transfer
23. PC&E was notified of the incident on May 13, 1993. The
agency investigated the incident with Employer's cooperation,
approximately two weeks later or around the end of May. There is no
evidence that Tucker had any role in that investigation, which was
conducted primarily through Gentry & Associates, a contractor. The
investigation also involved McCorkle and Gillette. (Tr. 894-97) MK
conducted an internal investigation of the incident. EPA also
conducted an investigation in late June or July 1993. Tucker gave
statements to various investigating officials. (Tr. 89-91, 172,
895) On June 23, 1993, Tucker gave a statement relating to the
incident to EPA investigators. He subsequently gave testimony in
related litigation regarding the incident. (Tr. 90, 98-100)
24. On July 6, 1993, Apa questioned Tucker about statements
he made to EPA officials. Tucker responded to the first of Apa's
three questions presented at the meeting that he had been
misquoted, but did not have enough information to respond to the
other two. Tucker indicated that Apa's asking him these questions
made him uncomfortable. Apa testified credibly that he questioned
Tucker concerning his statements to EPA because an EPA
representative had disclosed an erroneous impression from Tucker
about how the waste feed mechanism was being operated. Apa said
that Tucker cleared up the misunderstanding, but that EPA's and
Tucker's versions of the operation were totally different. (C-39;
Tr. 91-96, 172-73, 848-49) There is no credible evidence of
retaliation against Tucker with respect to Tucker's statements to
the EPA officials or Apa's inquiry.
25. After the salt release incident Tucker was placed in a
cross-training program, and transferred out of the Control Room.
MK contends that in connection with the May 13, 1993, salt release
incident, Tucker and Fuller, his supervisor, each made a serious
judgment error. MK contends that these actions were not
retaliation by MK for any subsequent statements either might have
made. (Employer's Reply Brief at 12) Tucker was neither
reprimanded nor removed from the site because he was following
orders. (Tr. 91-92)
26. Apa testified credibly that his loss of confidence in
Tucker's judgment as a Control Room Operator was based on multiple
factors, and was partly attributable to this incident. He
testified that he made the decision to make Tucker one of the first
candidates for cross training to get him off the Control Board.
(Tr. 838-39, 843) I find this explanation more credible than
Tucker's allegation that his transfer from the position of Control
Room Operator to Drum Handling Building Supervisor was a demotion
that was the first step of a retaliatory process that led to his
[Page 10]
termination. (Tr. 21-22, 100-07) Indeed, Tucker had previously
testified that he did not believe his transfer was a retaliatory
action. (Tr. 197) I find that the transfer was motivated by
Tucker's deficient professional conduct in the Control Room and in
other instances, and that any statements he might have given or
other protected activity in which he might have engaged did not
influence that action.
27. An MK employer named DuJardin had complained to PC&E that
production at the site was overriding safety at all times.
DuJardin had resigned from the Vertac site the day of the May 13,
1993, salt release, allegedly because of concerns about safety.
Tucker was subpoenaed to testify at DuJardin's unemployment hearing
in July or August 1993. (Tr. 99-100) Apa knew about Tucker's
testimony in the several legal proceedings involving DuJardin,
because Apa handed out most of the subpoenas or knew of the list of
subpoenas because of the way that process was handled. Apa
testified credibly that he had no reason to believe that Tucker had
not testified truthfully, as he was told to do. (Tr. 895-97)
28. Tucker was transferred from the Control Room to the Drum
Handling Building ("DHB") during the summer of 1993. According to
Apa's credible testimony, in addition to his objective of getting
Tucker off the Control Board, Apa effected the transfer as part of
a planned program to cross train employees. Apa's plan, if
implemented, would have affected all of the site's Control Room
Operators. Apa testified that he had wanted to implement such a
training program for some time, but had been prevented by a lack of
personnel. The plan was implemented in part when Lang, who became
the production supervisor, assumed responsibilities at the site.
However, changes in site management implemented by Lang after
Tucker's transfer included expanding the DHB operation. That
change required additional supervisors, and prevented the quarterly
rotations or changes in personnel that Apa contemplated. (Tr. 100-
01, 106-07, 767, 838, 843-44, 899-900) Because I find Apa's
testimony to be credible in this regard and the circumstances
plausible, I find that the cross training plan, even though it
apparently was never fully implemented, was a reasonable and
appropriate exercise of management prerogative, and not a pretext
for a retaliatory demotion.
29. Tucker considered the transfer to DHB supervisor a
demotion because he considered DHB supervisor to be below control
room operator in the site hierarchy. He also considered himself
out of the "information loop." As DHB supervisor he felt he had
less responsibility and knowledge about how the unit was running.
(Tr. 103, 105; C-44) Apa, on the other hand, testified credibly
that he did not consider Tucker's transfer from Control Room
Operator to Drum Handling Building Supervisor under these
circumstances a demotion, because it was part of an effort to
broaden understanding of the whole plant. However, he admitted
that some would consider it a professional demotion. Other
[Page 11]
employees did not. (Tr. 371, 440, 844) Both positions were
supervisory; both required shift duty; no salary reduction was
involved. (Tr. 843-44) Whether or not the transfer was in any
respect a demotion, I find that it was not instigated because
Tucker had testified or been prepared to testify in any proceeding,
or because of any statement or report he had made, or because of
any other protected activity, as opposed to professional
deficiency, in relation to the salt release incident or otherwise.
Tucker's Performance Evaluations and Written Reprimands
30. Tucker asserts that his early performance evaluations by
his MK supervisors, beginning in December 1991, and continuing
through December 1992, as approved by Robert P. Apa, the Site
Superintendent and Vertac project manager, and until after the Salt
release incident, were favorable, but that they were less favorable
after his protected activity following the salt release incident.
Certain incidents were identified by Tucker as reflecting
retaliatory actions by MK or as pretextual bases for Tucker's
reassignments and termination by MK. I find that MK's actions did
not reflect a discriminatory motive, and that the incidents were
not inappropriate bases for Tucker's reassignments and, ultimately,
his termination by MK.
31. Tucker received several reprimands for inappropriate
conduct while he was a supervisor. Such reprimands were unusual
for supervisors. (Tr. 398-99, 422-24, 426, 460) These related to
the improper burning of organic waste, when he was Control Room
Supervisor, without proper testing in violation of 40 CFR 264.13
(R-1; Tr. 68-70, 218); allowing a crane to be operated in a
nonemergency situation by an employee whose crane operator's
license had been revoked (C-19; Tr. 53-57); leaving the site while
he was Control Room Operator; and failing to report timely the
safety violations related to the Lang incident in timely fashion.
(Tr. 70-73; C-1; R-1; C-22)
32. In fact, the record regarding Tucker's performance
evaluations is mixed. (Tr. 79) It tends to show a technically
proficient but erratic and manipulative employee. Tucker's first
performance evaluation of record was made on July 22, 1991, by a
supervisor named Henderson, who recorded the middle of five rating
choices, "Effective." Tucker made a lengthy and detailed defense
to an oral critique which he indicated had identified a number of
particular "potential weaknesses." (C-21)
33. On December 14, 1991, Fuller gave Tucker the next higher
of the five possible ratings, "Excellent," recommending leadership
and other training, but noting Tucker's good leadership skills and
effective shift management; promotion of training of his
subordinates; adherence to regulatory parameters and project
guidelines; promotion of safety, but with a need for improvement
with shift subordinates; good job understanding and attitude, as
[Page 12]
reflected in selection of Tucker as one of two individuals to
perform operations though the Trial Burn Period, though refinement
of skills and knowledge was to be encouraged. (C-20) Five days
later, on December 19, 1991, Fuller issued a written reprimand to
Tucker for a violation of safety rules when Tucker allowed an
employee to operate a crane after his license had been revoked. (C-
19; R-20)
34. Apa reprimanded Tucker on August 11, 1992, for a
violation of waste disposal requirements. (C-18, 33; R-19) Tucker
departed from the site and his assigned duties during an evening
shift in October 1992, when he was Control Room Operator in charge
of the site. His departure left an unqualified employee monitoring
the incinerator's controls. (Tr. 218) Apa's written reprimand for
the violation was not dated. (C-22; R-23) MK regarded this action
as a serious judgment error; indeed, it was so serious, Apa
testified, that he would have terminated Tucker then, but for the
intervention of Fuller. (Tr. 852) Tucker admitted the seriousness
of the incident. (C-22; Tr. 70-73) Fuller again rated Tucker
"Excellent" on December 11, 1992; the evaluation apparently
included no material comments, or they are not of record. (C-17)
The quality of Fuller's judgment is somewhat questionable, however,
because he was forced off the site some months later because of his
role in the salt release incident of May 13, 1993.
35. Lang evaluated Tucker's performance for the first time on
December 22, 1993, nearly six months after the EPA investigation of
the salt release incident. Lang rated Tucker as "Good-", or just
below the middle, and between Good and Marginal on the five
category scale. He cited the need to "rebuild trust with peers,
subordinates and management." Apa, as reviewer, commented, "As
operator individual has made several major decisions which
[illegible] lack of judgement and individual has refused to accept
responsibilities required of [illegible] lead operator - has stated
'He was following orders' - instead of raising questions." (R-18)
36. Lang credited Tucker with more than acceptable planning
and execution capabilities, and as one of the most qualified and
thorough I/E (Instrumentation and Electronics) personnel on site.
But he also noted that Tucker lacked "a teamwork approach to
management of everyday operations" and had "a damaged relationship
of trust with his peers"; that Tucker "has shown at times that he
does not believe that some rules and requirements apply to him."
Tucker characterized the evaluation as subjective due to the short
time Lang had been on site. "The negative areas mentioned are
based on my peer's personal feelings rather than objective
consideration. I've broken only one rule..." (R-18) I find Lang's
concerns to be reasonable. Tucker's response is consistent with
management's concerns with Tucker's unwillingness to cooperate or
accept criticism, and, under the circumstances, is not persuasive.
I find that any deterioration in MK's relations with Tucker
contemporaneous with or following the salt release incident was not
[Page 13]
attributable to protected activities in which Tucker may have
engaged. The performance evaluations give no credence to Tucker's
assertion that his career was adversely affected by a perception on
MK's part that he was a whistleblower after that incident.
Tucker's PIP
37. In October 1993 Tucker was offered a job with MK in
Thailand. He went to Thailand in December 1993, but the project
was delayed and he returned to the site as DHB Supervisor. (Tr.
115-16) Lang had become site operations manager by the time Tucker
returned. Tucker had already been transferred to DHB Supervisor
when Lang arrived at the site. Lang and Tucker did not get along
from the start. (Tr. 112-14, 718-19, 722) Lang's observations of
Tucker were so unfavorable that Lang imposed a personal improvement
program ("PIP") upon Tucker on February 11, 1994, and transferred
him from the position of DHB supervisor to the position of Outside
Operator assigned to Allen's crew. Tucker lasted one day in that
position. (Tr. 199, 711, 723-24, 761-63, 782, 788-89; C-8, 10, 13,
16; R-17) Lang categorically denied being involved in the
decision to terminate Tucker, however. (Tr. 793)
38. The PIP was effected pursuant to inter office
correspondence dated February 11, 1994, from Lang to Tucker. The
document cited Tucker's unimproved performance after an "Effective
minus" performance review, and ordered DHB crews to cooperate with
TDU Operations, to improve cleanup and performance standards, to
improve crew attendance and timeliness. Although Lang recognized
Tucker's qualifications in instrumentation and electronics, he
considered Tucker's "teamwork approach to management of everyday
operations" deficient. Lang perceived a need for Tucker to
"rebuild the trust with peers, subordinates and management." The
contentious peer trust issue had been discussed by them on several
occasions. (C-10; Tr. 734, 734-38, 740) Tucker formally responded
to the PIP in writing on February 15, 1994. (C-2, C-2a; Tr. 133-34,
136, 149-50, 779-84) The PIP set a date in the near term for
Tucker's transfer to the duties of Outside Operator under another
supervisor, Allen. This initial version of the PIP was internally
criticized for lack of specificity, and was rewritten. (Tr. 122-25;
C-8, 12, 16)
39. The revised PIP dated February 21, 1994, cited a number
of particulars, with which Tucker also takes issue. Lang cited
these instances to justify Tucker's PIP and transfer to Outside
Operator. Lang had criticized Tucker after a number of complaints
that Tucker had left the DHB building messy for oncoming shifts.
Lang accused Tucker of refusing to help the operations crew burn
trash, which had upset Thornton, when he was the Control Room
Operator. Tucker claimed that his crew had spent so much time
burning trash that it had not completed sweeping floors as
required. (Tr. 117, 383-84, 724) Lang considered Tucker
uncooperative with other crews and unwilling to follow directions.
[Page 14]
Tucker allegedly did not provide assistance to another crew in
cleaning "sumps" when he felt he was shorthanded and his crew had
an inordinate amount of urgent work, including repairs, to do. MK
contends that the nonemergency repairs in issue were not Tucker's
responsibility, and that the regularly assigned work should have
had priority. (Tr. 118-22, 543, 552, 558, 650, 655) Tucker
operated the shredder in manual rather than automatic mode,
contrary to Lang's orders, and bent a ram. (Tr. 763-64) Lang also
criticized Tucker because of poor attendance records of his crew.
Lang referred to Tucker's repeated personal attacks on Lang's
decision to rehire an employee, which were made during a team
building seminar, in a confrontational and insubordinate manner,
and which had proved wrong when the employee proved to be
exemplary. (Tr. 711, 713-17, 719, 721-24, 734, 737-38, 740, 754-
755, 757, 761-65, 770-71, 776, 779-86)
40. Tucker asserted at the hearing that he had never seen the
revised PIP. (C-8, 16; Tr. 126) MK disputes Tucker's assertion
that he never received the revised PIP or that it was
"surreptitiously placed in his file" to create a paper trail. Lang
testified credibly that he thought he had personally delivered the
revised PIP to Tucker, and that he, Apa, and Henry met with Tucker
on February 25, 1994, to advise him that he was being placed on a
PIP and that he was being moved to Outside Operator, and why. (Tr.
793) Even if Tucker did not receive the revised version of the
PIP, there is no proof that he was disadvantaged by such an
omission, or that the alleged omission was otherwise material. I
find that the imposition of the PIP on Tucker was not in
retaliation for any protected activity by Tucker, and that it was
reasonable and apparently legitimate personnel action by MK which
reflected MK's multifold concerns with Tucker's job performance.
41. Lang professed to be interested in rebuilding morale at
the site, turning the site into a maintenance driven operation, and
focusing site personnel on team work. Lang credibly identified
numerous instances when Tucker used poor judgment, did not
cooperate with other employees, and violated MK's rules, as a basis
for concluding that Tucker was not a team player and was not
trusted by his peers. Lang caught Tucker violating MK's policies
on a number of occasions. He caught Tucker smoking in the control
room. (Tr. 770) He found Tucker in the DHB supervisor's office
smelling of smoke and appearing to have just awakened. (Tr. 771)
Scott Fleming, David Miller, and Gary Wilson testified credibly
that they witnessed Tucker asleep in the control room, leaving an
unqualified employee to operate the controls of the incinerator.
Tucker denied that he slept in the Control Room. (Tr. 954-55).
42. While Tucker was a DHB supervisor, he slept on the job,
and allowed his crews to sleep on the job to an inappropriate
extent, apparently inconsistent with the practice of other DHB
Supervisors in dealing with the problems of heat exhaustion of
employees exposed to work in the very hot DHB. (Tr. 321, 323, 339,
[Page 15]
343, 938) MK contends that Tucker's practices were grossly out of
line with those of the other Drum Handling Building crews, and
caused Tucker's crew to fall behind in its work, including its
ability to assist other crews as requested. (Tr. 649; Employer's
Reply Brief at 26) The conflicting contentions of the parties
notwithstanding, it is clear that these disputes in the workplace
were wholly unrelated to any protected activity by Tucker, and the
context makes it clear that the disputes were not pretextual. I
find that these incidents, in context and viewed as a whole,
support a reasonable perception by MK that Tucker was not a
cooperative employee, without regard to any protected activities in
which Tucker might have engaged.
43. Tucker called a number of witnesses who testified that
they trusted and respected him: Jack Davidson, Jackson, Martin,
Miller, Anderson, Thornton, Hall, Young, Smith, Carr, Moses, Randy
Davidson. (Tr. 308, 319, 334, 348-49, 363, 368, 388-89, 484, 501,
512, 529, 545, 690-91) He claimed to have been frustrated in his
attempts to confront those accusing him of untrustworthiness or
lack of cooperation. (Tr. 114, 117) However, whatever the relative
validity of Lang's assessment and Tucker's dissent and the
assessments of Tucker's peers, it is clear that Lang's assessment
was not unfounded. Lang claimed that several supervisors had told
him they could not trust Tucker. (Tr. 710-11) Lang claimed to have
support from other supervisors when he confronted Tucker for taking
unauthorized overtime. (Tr. 765-66) The problem was also manifest
in the refusal of a crew under Joey Moses, Instrumentation and
Electrical Supervisor at the site, to accept Tucker for a vacancy
in the crew. (Tr. 551) There is no persuasive evidence that this
conflict between Lang and Tucker was contrived by Lang, or was
motivated by any purpose of discrimination, or that it reflected a
retaliatory response to any protected activity by Tucker.
44. When Tucker was put on the PIP, he filed an internal
complaint early in March 1994 that he was discriminated against by
Lang because he was a Vietnam-era veteran. (Tr. 151) The complaint
resulted in an investigation at the site which resulted in a
finding of no merit. The investigator suspected that the complaint
related to "the on going performance issues" between Lang and
Tucker. (R-3) Tucker admitted that the claim had no merit, and
that it was filed to get attention to his concerns. (Tr. 151-52,
252-53) MK contends that this was an example of Tucker's attempts
at harassment of the Employer. (Employer's Reply Brief at 23)
Likewise, given his level of experience and expertise, Tucker's
demand for training as Outside Operator was reasonably viewed by MK
in the same light. (Id. at 23-24) I find that these activities by
Tucker reflected an attitude of Tucker and workplace tensions to
which MK reacted reasonably within a context wholly independent of
any protected activities in which Tucker might have engaged.
The Tape Recorder Incident - Tucker's Termination
45. After Tucker's transfer to the position of Outside
Operator, which was effective February 22, 1994, Tucker brought a
tape recorder to the site. This incident created a disruption and
led to his abrupt termination. (C-4,5,6) Tucker claimed that he
took the tape recorder to the site for training purposes, because
he had not received a training plan for his new position. He could
not use the tape recorder, he claimed, because the noise level was
too high. (Tr. 155-57; Claimant's brief at 21) Tucker contradicted
himself by stating at different times that the tape recorder was
for training purposes, for a stress management tape, and to tape
conversations with Apa and other management. (Tr. 156, 457, 561)
Tucker did not need significant training as Outside Operator, since
as Control Room Operator he had been responsible for supervising
Outside Operators. Tucker clearly had comprehensive and detailed
knowledge of operations at the site. (Tr. 808-09, 811, 845) Thus,
his request for training and his conflicting statements regarding
his purported need for the tape recorder on site are not
convincing. Tucker established no plausible appropriate purpose
for bringing the tape recorder on site.
46. The circumstances under which the tape recorder was
utilized, Tucker's inconsistent explanations, and his interactions
with other employees was reasonably deemed by Apa and others to
have been provocative and to have caused significant disruptions on
the site, in part because of the perception of some employees that
their comments about Lang or others were being recorded. (Tr. 156-
58, 160, 435, 444, 446, 453-55, 457-58, 469, 473-74, 519, 521-22,
561, 564, 701-03, 901-05; C-5, C-6) MK plausibly contends that
Tucker's coworkers feared that he was involving them in his
confrontation with management. (Employer's Reply Brief at 25) I
find that, under the circumstances, Tucker could have foreseen, and
did, in fact, foresee the disruptive effects his bringing the tape
recorder on site would have.
47. Although the parties drew conflicting conclusions from
the pattern of interlocks that occurred on that night shift, the
evidentiary picture is one of significant disruption caused by
Tucker's calculated actions. (C-47; Tr. 158-60, 467, 903-06)
Although Tucker denied taping conversations and engaging crew
members in conversations about Lang, at least two witnesses
testified that they were engaged in conversations that evening with
Tucker concerning Lang or other employees. (Tr. 563-65, 703) The
gist of MK's contention is that Tucker used poor judgment in
bringing the tape recorder to the site where it was subject to such
potentially disruptive concerns. I find that the incident was
reasonably perceived as disruptive. It was, in effect, the straw
that broke the camel's back. It was unrelated to any protected
activity by Tucker. It established an independent basis for
[Page 16]
Tucker's termination, given his employment history, that was
unrelated to any protected activity in which Tucker might have
engaged, and was not merely a pretext for Tucker's termination by
MK.
Discussion and Conclusions of LawDiscrimination Claim - The Applicable Law
Section 9610(a) of CERCLA[5] provides that:
No person shall fire or in any other 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 provided information to a State or to
the Federal Government, filed, instituted, or caused to
be filed or instituted any proceedings 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.
The regulations pertaining to employee complaints under RCRA, and
by analogy to CERCLA, provide at 29 C.F.R. 24.2:
(b) Any person is deemed to have violated the particular
federal law and these regulations if such person
intimidates, threatens, restrains, coerces, blacklists,
discharges or in any other manner discriminates against
any employee who has:
(1) Commenced, or caused to be commenced, or is
about to commence or cause to be commenced, a proceeding
under one of the Federal statutes listed in 24.1 or a
proceeding for the administration or enforcement of any
requirement imposed under such Federal statute;
(2) Testified or is about to testify in any such
proceeding; or
(3) Assisted or participated, or is about to assist
or participate in any manner in such a proceeding or in
any other action to carry out the purposes of such
Federal statute.
To prove his discrimination claim under CERCLA and RCRA,
Tucker must demonstrate that:
1. Employer is an employer subject to CERCLA and/or RCRA;
2. As an employee, Tucker engaged in protected conduct;
3. Employer took some adverse action against him; and
4. The protected conduct was the likely reason for the
[Page 17]
adverse action. SeeDeFord v. Secretary of
Labor, 700 F.2d 281, 286 (6th Cir. 1983)
The last of these elements, the causal nexus, is the element
primarily in dispute in this case, although the extent of the
protected conduct and the extent of the Employer's adverse action
are also in issue.
Prima Facie Case
To establish a primafacie case of
discrimination under CERCLA, a complainant employee qualified as
such under CERCLA must show (1) that he engaged in protected
activity; (2) that the respondent employer who is subject to CERCLA
was aware of such activity; (3) that the respondent employer took
some adverse action against the employee; and (4) that there is
evidence sufficient to raise an inference that the adverse action
was motivated at least in part by the protected activity.[6]
SeeDartey v. Zack Co. of Chicago, 82-ERA-2 (Sec.
Dec. Apr. 25, 1983, slip op. at 7-8); accord, Mackowiak
v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th
Cir. 1984); Kenneway v. Matlock, 88-STA-30 (1989).[7]
The presence or absence of a retaliatory motive is provable by
circumstantial evidence even if witnesses testify that they did not
perceive such a motive. SeeEllis Fischel State Cancer
Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert.
denied, 450 U.S. 1040 (1981). Circumstantial evidence may
raise the inference that a protected activity was the likely reason
for an adverse action, "i.e. 'proof that the discharge followed the
protected activity so closely in time as to justify an inference of
retaliatory motive.'" Schweiss v. Chrysler Motor Corp., 987
F.2d 548, 549 (8th Cir. 1993)(quoting Rath v. Selection
Research, Inc., 978 F.2d 1087, 1089 (8th Cir. 1992).
If Tucker has established a primafacie case, MK
must introduce evidence in rebuttal which, if believed by the trier
of fact, would suggest a finding that a legitimate
nondiscriminatory reason was the cause of the adverse employment
action. SeeSt. Mary's Honor Ctr. v. Hicks, 113 S.
Ct. 2742, 2747 (1993); Carroll v. Bechtel Power Corp., 91-
ERA-46 (Sec. Dec. Feb. 15, 1995) slip. op. at 9-12; Dartey v.
Zack Co. of Chicago, 82-ERA-2 (Sec. Dec. Apr. 25, 1983) slip
op. at 7-8.
If the Employer has produced evidence of a legitimate,
nondiscriminatory reason for the termination, it has satisfied its
burden of production, and "the rebuttable presumption created by
the prima facie showing drops from the case," and "the answer to
whether the plaintiff presented a prima facie case is no longer
particularly useful." SeeCarroll v. Bechtel Power
Corp., supra, slip op. at 11 (citing Texas Dept. of
Community Affairs v. Burdine, 450 U.S. at 255, n. 10);
St.
[Page 18]
Mary's Honor Ctr., 113 S. Ct. at 2748; Goldman v. First
Nat'l Bank, 985 F.2d 113 (1st Cir. 1993).
MK has produced substantial evidence of nonretaliatory causes
for its actions. Consequently, the presumption is rebutted, and the
primafacie issues are moot. The Complainant,
therefore, must present evidence that shows either that the
proffered reason for the adverse action was pretextual, or that MK
had a dual motive for the adverse action, in that MK was also moved
to retaliate against Tucker because of his alleged protected
activity. SeeMackowiak v. University Nuclear Systems,
Inc., 82-ERA-8 (Sec'y, Apr. 29, 1981), remanded on other
grounds, 735 F.2d 1159 (9th Cir. 1984). If reasons other than
retaliation may account for Tucker's termination, MK must prove by
a preponderance of the evidence that it would have terminated
Tucker even if Tucker had not engaged in protected activity.
SeePassaic Valley Sewerage Com'rs v. DOL, 992 F.2d
474 (3d Cir. 1993)
What Were Tucker's Protected Activities?
The Secretary of Labor has consistently held that an employee
who makes internal safety complaints, as well as those who make
external complaints to government officials, is protected under the
whistleblower provisions of environmental statutes. SeeMackowiak v. University Nuclear Systems, Inc., 82-ERA-8
(Sec'y, Apr. 29, 1983), aff'd 735 F.2d 1159 (9th Cir. 1984);
Couty v. Dole, 886 F.2d 147 (8th Cir. 1989). But not all
internal complaints to management are to be considered protected
activity under the environmental statutes. An employee's concerns
must be based on incidents which are "reasonably perceived
violations of the environmental acts." SeeMinard v.
Nerco Delamar Co., 92-SWD-1 (Sec'y, Jan. 25, 1994). The
expression of general safety concerns, as opposed to environmental
concerns, would not be protected activity. SeeMinard, supra, slip. op. at 3. The allegedly
protected activities must be assessed for possible retaliatory
action, regardless of Tucker's motives for engaging in those
activities. A complainant's selfish agenda does not negate
protected activity. SeeCarter v. Electrical District
No. 2 of Pinal County, 92-TSC-11 (Sec'y, July 26, 1995).
Tucker's activities which involved statements to official
investigators and testimony in certain legal proceedings related to
or arising out of the salt release incident were stipulated to be
protected activities. (Findings of Fact, Paras. 4, 5(5), 18, 23-29)
The evidentiary record discloses little, if any, of the substance
of either statements or testimony.[8] Consequently, the fact that
the statements and testimony were given, and the fact that Tucker
was available or was called to testify, constitute the proof of
protected activities in this respect. Proof of any causal
relationship between the statements or testimony and any adverse
[Page 19]
action by MK against Tucker would depend upon the fact that the
statements and testimony were given, rather than upon their
substance as proved on this record.
In addition to the four stipulated activities, Complainant
cited four other specific instances of allegedly protected activity
that allegedly generated the allegedly retaliatory adverse actions
by MK. These were the rod port incident, the residual ash
incident, the T-waste incident, and the Lang incident.
The rod port incident involved Tucker's report on October 10,
1992, to Apa and to an environmental inspector of an unsafe or
inappropriate status of spray dryers. The condition was promptly
remedied, and there is no suggestion that MK considered Tucker's
report inconsistent with its interests. There is no credible
evidence that MK personnel knew of Tucker's report to the inspector
at any time material to his claim. Similarly, Tucker's report to
Lang on December 23, 1993, regarding the residual unburned
materials related to a condition which was quickly remedied when
discovered and involved no conflicts between the interests of
Tucker and MK. In neither case was there an apparent basis for
retaliation. (See Findings of Fact, Paras. 5(1) and (2), 6-8)
The T-waste incident involved the allegation by Tucker that he
made a report concerning an environmental violation which MK denies
he made. MK denies that Tucker had any involvement in the
discovery or prompt remedy of the violation. Assessment of the
significance of the incident is complicated by the fact that Tucker
inappropriately withheld information from Apa which, had it been
known and acted upon by Apa, probably would have prevented the
violation. Nevertheless, whether Tucker reported the problem as
alleged, Apa and MK recognized the problem, with or without
Tucker's involvement, and acted promptly and overtly to remedy it.
There is no proof that MK had any reason to retaliate against
Tucker for having reported the problem or having otherwise acted in
a protected capacity. (Findings of Fact, Paras. 5(3), 9-14)
The Lang incident involved certain admitted violations of
safety procedures by Lang which were observed by Tucker and others
and reported internally by Tucker. MK contends that only internal
safety procedures, and not the requisite "reasonably perceived
violations of environmental acts," were involved in the incident,
so that no protected activity occurred. SeeMinard,
supra. It seems illogical that an internal complaint
relating to a violation of an internal environmental safety
regulation would not be a reasonably perceived violation of an
environmental act or a protected activity. Employer's cited
authorities are inapposite. Safety regulations to protect
personnel charged with effectuating the purposes of environmental
legislation such as that involved in this incident should be deemed
an integral component of the law and its implementation process.
Even the fact that an internal report is routine does not negate
[Page 20]
its status as a protected activity. SeeJopson v. Omega
Nuclear Diagnostics, 93-ERA-54 (Sec'y, Aug. 21, 1995).
Assessment of this incident is complicated, however, by
Tucker's antagonism toward Lang, Tucker's failure to intervene to
prevent the violation, and the reprimand which Tucker received for
tardy reporting of the incident two weeks before he was terminated.
(Findings of Fact, Paras. 5(4), 15-17) Nevertheless, I find that
Tucker's reports of Lang's violations were protected activities,
but that MK's responses, including Tucker's reprimand, were not
retaliatory or otherwise discriminatory against Tucker for such
protected activities. That the act of making the report was
protected does not insulate Tucker from disciplinary action for
failure to comply with applicable requirements in making the
report.
What Qualifies as the Adverse Action by MK Against Tucker?
Tucker's termination was indisputably an adverse action. Only
its motive is in issue. Tucker contends that the two job
reassignments, first to DHB Supervisor, and then to Outside
Operator, were also adverse actions by MK against him. That
contention is disputed by MK. Any of the reprimands given to
Tucker during the course of his employment would also have been
adverse actions, but remoteness of time and circumstance, and the
specified reasons for the reprimands do not suggest a
discriminatory motive for any of them, with the possible exception
of Tucker's reprimand associated with the Lang incident, which is
separately assessed. Tucker admits as much by claiming that he was
receiving favorable performance evaluations until after the Salt
Release Incident.
Apa testified that his decision to transfer Tucker from the
Control Room was based on a variety of specified business reasons
related largely to Tucker's deficient conduct on the job. MK
contends that the transfers were not technically demotions, because
they did not involve reduced pay or benefits. Tucker's claim that
they involved reduced status is plausible, because the Control Room
Operator, in effect, was in operational control of the site during
his shift. Because the transfers could plausibly be perceived as
adverse actions, the motive for the transfers must be assessed for
indications of retaliatory motive. However, since Apa's plan for
cross training anticipated similar treatment for similarly situated
employees, any perceived loss of prestige or responsibility was be
inconsequential.
The reassignments in a training context also reflected, in
part, a loss of confidence by Apa and others in Tucker's judgment
and performance capacity. That loss of confidence stemmed from a
sequence of performance deficiencies quite apart from any
activities alleged to be protected under CERCLA or RCRA, although
they arose from related circumstances. SeeViracon,
Inc.
[Page 21]
v. NLRB, 736 F.2d 1188, 1193 (7th Cir. 1984); Airborne
Freight Corp. v. NLRB, 728 F.2d 357, 358 (6th Cir. 1984). No
other instances of allegedly adverse actions have been identified
with sufficient specificity or plausibility to require discrete
assessment.
Was There a Causal Nexus Between Protected Activities and
Adverse Actions?
There is no direct, or, indeed, any credible circumstantial,
evidence that substantive aspects of Tucker's statements or
testimony regarding the salt release incident gave any incentive
for MK to retaliate against Tucker, or that they caused MK to
retaliate against Tucker. Any inference of causality that might be
drawn from the circumstantial evidence of temporal proximity
between allegedly protected activity and allegedly adverse action
in this case is refuted by evidence of cause unrelated to the
protected activities. It is also refuted by the preponderance of
evidence that Tucker's increasingly negative assessments by MK
occurred because MK not unreasonably considered many of his
activities to be job related errors or omissions, to reflect poor
judgment or misconduct, or to reflect personal antagonism or poor
interpersonal relations with his subordinates and with his
supervisors.
There is no credible evidence that Tucker's statements or
testimony were, or would have been, perceived by MK to be contrary
to the interests of MK. There is no credible evidence that the
statements or testimony were a direct or indirect motive for the
negative assessments of Tucker or his performance. To the extent
that Tucker pointed out undeniable problems, they were recognized
by MK, and remedies were promptly undertaken. Apa's query to
Tucker concerning statements he had given to EPA investigators
resulted in a partial explanation by Tucker to Apa regarding an
alleged misunderstanding by the EPA investigators. There is no
evidence that Apa was dissatisfied with Tucker's explanation
regarding his statements. There is no credible evidence of any
adverse action by Apa or anyone else which was linked to Tucker's
interaction with the EPA investigators or other statements or
testimony.
There is no credible evidence which traces or explains how any
of the activities which Tucker alleged were protected, whether
stipulated or alleged, led to any of the allegedly adverse actions
taken by MK against Tucker. In effect, Tucker contends that the
mere fact that he made statements and gave testimony labeled him as
a whistleblower in the eyes of MK personnel and created an
environment which generated a persistent motive by MK to retaliate
against him as a whistleblower in a series of incidents of a
disciplinary or disapproving nature which culminated in his
termination. That case is not inherently convincing, or
convincingly made. Although Tucker's relations with MK's
[Page 22]
supervisory management deteriorated over the relevant time period,
neither an attitudinal change, nor the manifestations of such a
change, disclose any retaliatory or discriminatory motive on MK's
part related to any protected activity.
MK contends that certain alleged protected activities did not
take place as alleged, and thus could not have created a motive to
retaliate. In this regard, MK proved that Tucker did not make the
report to Apa, as he alleged, on the day following the burning of
T-waste pursuant to Apa's direction in violation of the court order
because Apa was not on the site at the times Tucker claimed to have
made the report. MK also proved either that Tucker did not report
the problem of tyvek in the residual ash, which MK contends was
discovered by the inspectors under contract with EPA and remedied
without Tucker's involvement, or that, if he did, Tucker reported
the problem after it had been discovered and remedied. It follows,
MK contends, that the element of retaliation would be absent.
Cf.Quinton v. DOT, 808 F.2d 826 (Fed. Cir. 1986).
However, although the fact that a report is made by an employee
after remedial action has been taken by the employer would not
ipsofacto preclude retaliation, the likelihood of
retaliation is virtually eliminated, and convincing proof of
retaliation is absent in this case.
Assuming that Tucker's reports of safety violations related to
the Lang incident involved protected activity, I find no plausible
indication of retaliation. Tucker's failure to prevent or stop the
violation probably related to Tucker's personal animosity towards
Lang. However, Tucker, Lang, and Smith, the safety technician,
were all reprimanded for the violations of site policy that
occurred in relation to this incident. Insofar as Tucker's report
might have generated a disapproving response by MK other than the
reprimand for failure to take timely and appropriate action, and
Tucker's delay in filing the requisite report, I find no indication
that MK perceived the report as protected activity adverse to its
interests, or the manner and circumstances of its filing to be
other than a clear-cut violation of company policy. Consequently,
I find no convincing proof of retaliatory action against Tucker
with respect to the Lang incident.
There was no protected activity involved in the incident
involving the tape recorder which led to Tucker's termination.
There is ample credible evidence that Tucker's conduct involving
the tape recorder he brought on site was widely and reasonably
perceived to be provocative and disruptive. Thus, in regard to
that incident, MK's adverse action in firing Tucker was not
unreasonable, and I find that the tape recorder incident was not a
pretext for adverse action related to any protected activity.
I thus find that Tucker has not proved that there was any
retaliatory action by MK which related to any instance of protected
activity. Tucker has not proved that any of MK's actions were
[Page 23]
pretextual or that they were generated by the discriminatory
component of a dual motive. I also find that Tucker has not
identified any instances of protected activity other than those
which have been discussed with respect to which the possibility of
retaliatory or discriminatory action by MK against him need be
discretely assessed.
The Independent Bases for MK's Adverse Actions
There is clear and convincing proof of a reasonable business
motive on MK's part which provides independent grounds for the
allegedly adverse actions which were taken, without regard to any
protected activity. MK contends that Tucker was transferred twice
to different positions and eventually terminated because of his
disregard for company policy, inability to cooperate with
management, and poor management skills. These deficiencies were
reflected in several early incidents cumulatively reflecting what
MK asserts constituted poor judgment when Tucker was a supervisor
and used inappropriate judgment. Tucker was reprimanded for
allowing the improper burning of organics without testing them in
violation of 40 CFR §264.13, for allowing a crane to be
operated by a nonqualified person whose license had been revoked to
operate a crane in a nonemergency situation, and for leaving the
site while he was on duty as Control Room Operator. He also
violated MK's prohibition against smoking on several occasions, and
later failed to report immediately the safety violations by Lang as
required by established company procedures. Reprimands of
supervisors like Tucker were rare, but the record reflects
accommodation by MK, rather than retaliation in the process as it
was applied to Tucker. There were also less clear-cut situations,
such as Tucker's allowing his DHB crew to sleep on duty, and his
reluctance to assist other crews upon request. These situations
were perceived by MK as problematical, but did not result in direct
reprimands. They were cited, however, as the basis for his PIP.
MK also contends that the incident involving the burning of T-
waste in Tank 402 in violation of the court order reflected
inappropriate conduct by Tucker, because Apa's directive was given
under the obvious misapprehension that the tank contained D-waste.
Tucker knew that Apa was mistaken, and yet he allowed the violation
to occur when he should have corrected Apa's mistake. MK contends
that Tucker's poor judgment was also evidenced by his continued
operation of the incinerator on May 13, 1993, when, as Control Room
Operator, he knew it was unsafe to do so, and the incinerator was
damaged as a consequence. MK's contention that "following orders"
would not excuse defective judgment when remedial action was
obviously required is reasonable.
The fact that Tucker might later have reported such instances
as environmental violations, or testified or made statements to
investigating officials about them, would not insulate him from
unrelated consequences of his failures to act appropriately as a
[Page 24]
matter of professional responsibility. There is no convincing
proof that Tucker's transfers from the position of Control Room
Operator to DHB supervisor to the position of Outside Operator were
linked to his protected reports or statements rather than to
demonstrably deficient conduct, or to a business motivated transfer
of personnel for training or similarly legitimate purposes. MK
maintains that it transferred Tucker from Control Room Supervisor
for cross training, and also because Apa had lost confidence in him
and his judgment as a Control Room Operator because of his
inappropriate attitude. These justifications are plausible.
Whether the transfers from Control Room Operator, first to be DHB
supervisor, and then to Outside Operator, were actually demotions,
I find that they were independently justified. The transfer to an
outside crew pursuant to the PIP was reasonably justified as an
appropriate corrective personnel action for an employee whose
performance was assertedly deficient in specified respects.
Tucker's termination after what was perceived by MK as a disruptive
and irresponsible action following a history of difficulties with
Tucker was not unreasonable under the circumstances. I find it was
unrelated to any protected activity.
The propriety of the management decisions regarding Tucker's
job assignments, discipline, and employment is in issue only to the
extent that such actions might have been retaliatory or otherwise
discriminatory responses to protected activity. Patently
unreasonable actions by MK would obviously be circumstantial
evidence of a discriminatory motive on MK's part. I find neither
patently unreasonable actions nor other indicia of a discriminatory
motive on this record.
There is evidence that MK officials, Lang in particular,
concluded that Tucker did not have the trust and respect of his
peers and subordinates, and that this conclusion figured in
Tucker's transfers out of the Control Room to the DHB and Outside
Operator positions, as well as his PIP. Tucker contends, in
effect, that the complaints that led to these allegedly adverse
actions against him were pretextual. Although he called several
witnesses to testify that they trusted and respected him, there is
ample testimony that at least some personnel with whom Tucker
interacted did not trust him. Indeed, some of his own witnesses
were reticent. Even if the alleged lack of trust were a
misperception by MK, there is no suggestion of bad faith. I find
that neither the alleged lack of trust, nor the perception that
Tucker was not a team player, was the product of protected
activities, or a pretext for retaliation or discrimination against
Tucker.
Thus, I find that MK has established an independent,
legitimate, and controlling business motive, wholly unrelated to
any protected activity by Tucker, which independently justifies
MK's termination of Tucker's employment. To the extent that the
several transfers which Tucker experienced from and to different
[Page 25]
positions within the organization were significant adverse actions,
I find that they were justified by business considerations wholly
unrelated to Tucker's allegedly protected activities, and that
they, as well as Tucker's termination, would have occurred without
regard to those allegedly protected activities. The factual
record, viewed as a whole, compels the conclusion that it was
Tucker's deficient conduct with respect to his regularly assigned
duties, and not any reports, statements, or other allegedly
protected activities which caused his reprimands, his
reassignments, and, ultimately, his termination by MK. SeeWall v. National R. R. Passenger Corp., 718 F.2d 906, 909
(9th Cir. 1983)(Even assuming that an employee could establish a
primafacie case, employer may discipline an employee
based upon poor performance and attitude.) That being the case,
Tucker is entitled to no relief, and his complaint should be
dismissed.
RECOMMENDED ORDER
The complaint of M. C. Tucker under CERCLA and RCRA is
dismissed.
_________________________
EDWARD TERHUNE MILLER
Administrative Law Judge
[ENDNOTES]
[1] It has recently been held that there is jurisdiction under
RCRA at the Vertac site. SeeHermanson v. Morrison
Knudsen Corp., 94-CER-2 (ALJ Recommended Decision, Mar. 24,
1995) Neither party
(Footnote 1 continues) has demonstrated that additional rights or
remedies would be available to the Complainant under RCRA that
would not be available under CERCLA. Therefore the complaint under
RCRA is not treated separately from, and is subsumed, usually
without express mention, in the analysis which follows under
CERCLA.
[2] Citations to the transcript of the proceedings are designated
"Tr."; Complainant's exhibits are designated "C-"; Employer's
exhibits are designated "R-." Because Complainant's exhibits were
admitted first, and because many of Employer's exhibits duplicate
Complainant's exhibits, reference is hereinafter made to
Complainant's designations, unless otherwise required or indicated.
(Tr. 7-12, 15-17) By agreement of the parties, the time constraints
applicable to whistleblower cases were waived. Submission of post-
hearing briefs required waiver of 29 C.F.R. 24.5(a), 24.6(a) and
(b). Seealso 42 U.S.C. 9610(b). (Tr. 4)
[3] Stipulated to be protected activity pursuant to 42 U.S.C.
9610(a). (ALJ-1)
[4] In describing part of the aftermath of the salt release
incident, Tucker testified in a manner that lacked both specificity
and substance,
A I gave Mr. Carr[, an internal investigator,] a lengthy
statement, detailing from the time I went on shift to the
events that happened that day, and I probably also said that
I felt like that production was taking the place of safety.
Q What was his response to that?
A Well, I'm not for sure what his response was. I don't think
he said, "I agree with you." He may have said, "Umm," or
something to that effect, but I'm told by--Well, a lot of
people had the same concern out there.
(Tr. 89; see also Tr. 229-30, 239-41, 951-52) This testimony also,
at most, describes an expression of general safety concerns, as
opposed to an environmental concern. SeeMinard v. Nerco
Delamar Co., 92-SWD-1 (Sec'y, Jan. 25, 1994)
[5] 42 U.S.C. 9610(a). CERCLA's slightly broader protection
under 9610(a) provides explicit coverage if the complainant "has
provided information to a State or to the Federal Government."
RCRA contains otherwise similar employee protection provisions.
See 42 U.S.C. 6971(a). The applicability of RCRA is not contested
by Employer, since it is viewed as "substantially identical" in its
relevant provisions to CERCLA (Employer's Reply Brief at 1)
[6] MK's qualifications as an employer subject to CERCLA and
RCRA, its employee protections, and Tucker's status as an employee
entitled to those protections under CERCLA and RCRA are not in
issue. (ALJ-1)
[7] Tucker is not required to establish that Employer was
motivated in its actions by Tucker's protected activities at this
stage of his proof. To establish the requisite primafacie case, he needs to produce only enough evidence to
raise the inference that the motivation for the adverse action was
his protected activity. SeePillow v. Bechtel Constr.,
Inc., 87-ERA-35 (Sec. Dec. Jul. 19, 1993), slip op. at
13, n. 9.
[8] SeeFn. 4, supra.
