The Wage and Hour Division, on February 5, 1988, issued its notification of findings letter stating that Complainant was a protected employee engaging in a protected activity under the Solid Waste Disposal Act and that prohibited discrimination was a factor in the discharge. It was further found that the following information supported that determination:

Interviews of witnesses and interested parties demonstrate that Ms. Melva Monteer was terminated eight days after stating her intention to notify the Environmental Protection Agency of the strong odor of gasoline at the store. The evidence indicates that Ms. Monteer was a satisfactory employee who was employed by the firm for five months and was promoted to store manager after three months. Casey's General Stores, Inc. as the employer, has not satisfactorily demonstrated or offered evidence that Ms. Monteer would have been discharged had she not stated her intention to file a complaint with EPA.

   On February 12, 1988, Respondent timely filed a telegraphic request for a formal hearing. (ALJX 2).

   At the formal hearing in Jefferson City, Missouri, each party was offered full opportunity to present evidence and argument. Post hearing briefs were filed by both parties and were considered by me in reaching my findings and conclusions. Based upon the entire records including my observation of the witnesses and their demeanor, I made the following:

   The primary facts involved in this case are not in dispute. Melva Monteer began her employment with Casey's General Stores, Inc. in June 1987 as a cashier at the Eldon II store. (Tr. 20). In mid-August she was promoted to store manager with Jan Hines her supervisor. Her training consisted of a one day in store training session with Hines, who in August 1987 had been promoted from a store manager to supervisor of six stores. As a supervisor Hines would visit each store one or two times a week.

   The store manager has the duty to personally take a morning gasoline stick reading prior to the opening of the store. It is

also her obligation to insure that the night cashier takes a night stick reading upon closing the store. Moreover each store manager is responsible for the accurate and timely completion of a daily gasoline tank record. These stick readings and record keeping were designed as an aid to detect any gasoline tank leakage. For example, if a night stick reading is taken as required and there is a variation between the night reading and the morning reading, a tank must be leaking. (Tr. 314 and 348). In late August, Hines became aware that Monteer was not completing the gasoline tank inventory record. monteer stated that the previous manager had told her that it was not important. Hines told Monteer that it was important and that as of September 1st, Monteer must do them. (Tr. 184 & 185). Hines went back within a week to check the store and found out that Monteer was not taking the inventory. On this occasion Monteer explained that she didn't understand and needed Hines' help. (Tr. 187). When Hines inquired as why Monteer was not obtaining night stick readings, Monteer said she could not get her employees to do them. (Tr. 190). Hines told her that they must be taken. Monteer's testimony differs slightly from Hines in that Monteer testified that Hines "told me that we should start taking night stick readings." Moreover Monteer did not interpret it as a mandatory order. (Tr. 83). Later; during the early part of September, Hines again checked Monteer's records and found a large discrepancy in the gasoline inventory. When she confronted Monteer about getting night stick readings, Monteer said her employees didn't want to do them, Hines explained the importance of the readings and told her "we're going to have to." (Tr. 194). At a store meeting of the employees Hines told them that they would have to take the night stick readings. (Tr. 90 195).

   The company's records disclose that during the months of September and October# only one night stick reading was taken, namely October 1st. (Tr. 196; RX 1 and 2).

   On October 21, 1987, the District Manager Gary Kaliher came to the Eldon store to inquire into the problem of a reported odor in the store. When Kaliher examined Monteer's store records he found that only the one night stick reading had been taken (October 1st) and that the gas inventory records were inaccurate and incomplete. Kaliher testified that he told Monteer "that she bad to get these up-to-date and keep them up-to-date, and do night stick readings and complete these like they're supposed to

bet like she had been told by her supervisor previous to that." (Tr. 302). Monteer testified that she didn't remember Kaliher being at the store around October 21st. (Tr. 101). Kaliher testified that no mention was made by Monteer about EPA or anyone calling any agency about the odor. (Tr. 303).

   Kaliher then met with Hines and told her that Monteer's gasoline inventory records were not filled out and told Hines to keep in contact with Monteer in order to correct the problem. (Tr. 232). On October 22, Hines checked' the records and found them completed only through the 19th. She confronted Monteer and told her that the records must be completed. (Tr. 200).

   It was on this October 22nd visit to the Eldon store that for the first time Hines detected the very strong pungent odor. She called service twice to advise them of the seriousness of the problem. Hines next visited the Eldon store on October 27th, Service personnel were there investigating the odor. Hines testified that Monteer was certain that it was a gasoline leak and rementioned casually that someone should call the EPA." (Tr. 205).

   Monteer testified that after October 20th she stopped filling out the gasoline tank inventory records because she was told by Hines that she could complete them later since Monteer was sick. On October 26, Hines told Monteer to take off from work and go see a doctor. (Tr. 98). Kaliher next visited the Eldon store on October 29th as a follow-up to his October 21st visit. After examining Monteer's records Kaliher was angry because nothing had been done by Monteer as to keeping the gasoline records up-to-date. He made his determination to fire Monteer at that time. (Tr. 308). Monteer did not mention the EPA or her contacting any other agency. Kaliher made his decision to fire Monteer fort "Not following the company policies, not following my directives." (Tr. 314).

   I fully credit Kaliher's testimony over Monteers. I found Kaliher to be a much more credible witness since be was forthright, consistent and candid in his answers compared to Monteer. I found her testimony inconsistent especially in regard to recalling what she and Hines and Kaliher said to each other at the various meetings. Monteer in her direct testimony stated that she told Kaliher she was going to report the gasoline leak to legal authorities stating "And I told him I was going to turn

them in." (Tr. 44). She further testified that he told her to keep quiet. It would cost her her job. Yet in her deposition monteer stated that she had not made such a statement to Kaliher. In answer to the following question, "With regard to the conversation about you sayings 'I'm going to call somebody." or similar statement; you never made such a statement to Mr. Kaliher?" Monteer's answer was "No, ma'am. I didn't." (JX 2, p.2). I credit the testimony of both Kaliher and Hines over that of Monteer.

   Thereafter Kaliher called Hines and told her to fire Monteer due to Monteer's non-completion of the reports after she had been given directives to complete them. Hines notified Monteer the next day of the termination.

   1. Was complaint timely filed?

   Under the Regulation at 20 C.F.R. § 24.3(b), a party shall file said complaint within 30 days after the occurrence of the alleged violation. Complainant was terminated on October 30, 1987. The regulations also state that for the purposes of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

   In this matter Complainant's letter was dated November 27, 1987. At the hearing, no proof was adduced as to the actual date of mailing. However under the rules of practice and procedure before the Office of Administrative Law Judges when documents are filed by mail# five (5) days shall be added to the prescribed period 29 C.F.R. 18.4. In the instant case since the Department of Labor received the letter on December 41 19871 I find the complaint was timely filed# since it was received 35 days after the discharge of Melva Monteer.

   2. Did the Complainant's alleged statements to her superior constitute protected activity?

   Respondent contends that the Act requires affirmative action on the part of Complainant prior to termination rather than an internal complaint. In the case at hand the alleged protected activity is Melva Monteer's expressing to a supervisor an intent to call the EPA. I agree with Complainant that the whistleblower

statutes must be interpreted broadly to encompass employee activities in which employees have made complaints only to their employers, thereby effectuating the legislative intent of broad employee protection. See Kansas Gas & Electric Company v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied 106 S.Ct. 3311 (1986); Consolidated Edison Company v. Donovan, 673 F.2d 61 (2nd Cir. 1982); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984); and Wheeler v. Caterpillar Tractor Company, 485 N.E.2d 372 (Ill. 1986), cert. denied 106 S.Ct. 1641 (1986).

   I therefore find that Complainant's activity was protected under the Act.

   Was Complainant's protected conduct the cause for the Respondent's discharge?

   The requirements for establishing a prima facie case of discrimination in a whistleblower case has been set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The three requirements are (1) that the employee engaged in protected activity; (2) that the employer was aware of such conduct; and (3) that the employer took some action adverse to the employee which was more likely than not the result of the protected conduct. In the event the Complainant establishes a prima facie case and there is evidence of both legitimate and improper motives for the adverse action against Complainants then in that event the "dual motive" test is applied, which shifts the burden of proof to the employer to show that it would have discharged the employee even in the absence of the protected conduct. I find that Complainant has failed to establish a prima facie case and therefore "dual motive" does not apply to this case.

   In the instant case, requirements one and two have been established since I find that Monteer engaged in protected activity by her action of stating to her supervisor Hines that someone should call EPA about the odor at the store. I also find that since Hines had knowledge of the protected activity Complainant has satisfied the second requirement since Hines was

a supervisor for Respondent.

   A remaining issue is the question of whether this protected activity prompted Monteer's termination on October 30, 1987. Complainant contends that the timing of the discharge supports their argument that Kaliher fired her because of the protected activity, I disagree, I find that Respondent's basis for the termination was not pretextual. The evidence presented at the hearing overwelmingly proved that Monteer had been repeatedly told by Hines and Kaliher to complete her gasoline tank inventories and to have her employees perform night stick readings. Monteer failed to perform those required duties. Moreover the Respondent proved that this failure resulted in great difficulty in assessing the gasoline leakage problem. I further find that in giving credit to the testimony of Respondent's witnesses, Hines and Kaliher over Monteer, Hamilton and Whittle I discredit Whittle's testimony that she overheard monteer tell Kaliher that if he didn't do something about the odor she would turn it into the EPA. (Tr. 163). I find that this testimony is not consistent with Monteer's testimony as to her conversation with Kaliher. The Respondent established that Monteer's statement that someone should call EPA was only casually mentioned to Hines and that Kaliher never received any information about this protected activity. Since Kaliher solely made the decision to terminate Monteer? the protected activity played no part in the discharge. Monteer has not established the required causal relationship between her statements and her termination. Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977).

   Respondent also presented credible evidence to show that Complainant did not receive harsher treatment than employees who had engaged in protected activity. Respondent discharged another store manager in 1986 for not obtaining night stick readings. (Tr. 350). In the case of Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 339 (5th Cir. 1980), the court states that "a company can best show that improper motives did not move it to discharge a complaining employee by adducing proof that other employees were discharged for the same reason that the complaining employee was discharged when there is not suggestion that the other employees were discharged for an improper motive." I find that Respondent produced such evidence in the instant case.

   In conclusions Complainant has failed to prove her claim of illegal discharge on the part of Respondent. There having been no violoation of the Act, Complainant's claim should be dismissed.

       RICHARD D. MILLS
       Administrative Law Judge