DATE: JAN 21 1992

CASE NO: 91-SWD-00001

In The Matter Of

ERNEST A. OLIVER,
    Complainant

    v.

HYDRO-VAC SERVICES, INC.,
    Respondent

Appearances:

Mark T. Light, Esq.
    For the Complainant

William G. Colvin, Esq.
    For the Respondent BEFORE: ROBERT M. GLENNON
    Administrative Law Judge

    This case concerns a complaint of discrimination filed by Ernest A. Oliver pursuant to the employee protection provisions of the Solid Waste Disposal Act of 1982, as amended, 42 U.S.C. § 6971, the Federal Water Pollution Control Act of 1972, as amended, 33 U.S.C. § 1367, and the implementing regulations at 29 C.F.R. Part 24 (1991). The Acts prohibit covered employers from discharging any employee who has engaged in protected activities as defined by the Acts.

    Ernest Oliver is a former employee of Hydro-Vac Services,

Inc. (hereinafter referred to as "Hydro-Vac"). On September 24, 1990, Complainant filed a complaint of discrimination against Hydro-Vac. See Complainant's Exhibit 7. The complaint alleges that Hydro-Vac violated the employee protection provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1367, the Safe Water Drinking Act, 42 U.S.C. § 300j-9(i), the Solid Waste Disposal Act, 42 U.S.C. § 6971, and the Toxic Substances Control Act, 15 U.S.C. § 2622, when it dismissed Complainant from its employ on August 27, 1990.

    On October 26, 1990, following an investigation, the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, concluded that Complainant had not been discriminated against. See Complainant's Exhibit 8. Although the complaint invoked the employee protection provisions of the Federal Water Pollution Control Act, the Safe Water Drinking Act, the Solid Waste Disposal Act, and the Toxic Substances Control Act, the finding indicates that it was made under only the Federal Water Pollution Control Act, 33 U.S.C. 1367, and the Solid Waste Disposal Act, 42 U.S.C. § 6971. This finding was appealed by the Complainant.

    A hearing was held on January 23 and 24, 1991, by W. Ralph Musgrove, Administrative Law Judge. Complainant represented himself. The hearing was conducted under the provisions of the Federal Water Pollution Control Act and the Solid Waste Disposal Act. Post-hearing briefs were submitted by both parties.

    Judge Musgrove passed away, after the hearing. The case was then reassigned to this administrative law judge on September 20, 1991. By this time, Complainant had obtained counsel, and, on July 16, 1991, made a Motion to Reopen Evidence. By a notice and order dated October 9, 1991, I notified the parties of the reassignment and denied Complainant's motion. I also instructed the parties that the formal record in this proceeding would be deemed closed if no objection was received by October 25, 1991, and the matter would be submitted for a decision and order on the merits of the complaint. Respondent responded on October 25, 1991 with no objection to closing the record. No objection was received from Complainant.

    Citations to the hearing transcript will be referred to as "Tr." and followed by the page number. Exhibits introduced by the Complainant will be referred to as "CX," followed by the

exhibit number, Respondent's exhibits as "RX," and joint exhibits as "JX."

I. Identity and Background of the Parties

    Hydro-Vac Services, Inc., is a nonhazardous waste treatment facility located in Chattanooga, Tennessee. Tr. 390, 525. It does not handle waste that is classified as "hazardous waste." Tr. 14, 390. It handles "special waste," a classification pertaining to nonhazardous solid waste. Tr. 390-391.

    A significant part of Hydro-Vac's business consists in treating latex wastewater, generated by carpet mills as a by- product from carpet manufacturing. Tr. 528, see Tr. 14. Latex is extracted from the water, then dried and solidified for eventual disposal in a landfill. Tr. 14, 526. The water is treated, primarily removing zinc, and then discharged into the sewer system. Tr. 14.

    Oil reclamation comprises another segment of Hydro-Vac's business operations. Used oil from industrial presses is treated and transformed into a marketable petroleum product. Tr. 528. Part of this operation consists in taking oil and water mixtures and separating the oil from the water. Tr. 528.

    The President and owner of Hydro-Vac is Bill Foxworth. Tr. 483. For seventeen years, he has owned and operated a Roto- Rooter sewer and drain service company in Chattanooga, primarily engaging in septic tank pumping and restaurant grease trap pumping. In the latter part of 1988, in light of stricter landfilling laws, Foxworth decided to establish his own nonhazardous waste treatment facility, which would handle the waste generated from his Roto-Rooter business. Tr. 525. However, after recognizing the potential demand by other industrial generators of nonhazardous waste for nonhazardous waste treatment facilities, he decided to establish Hydro-Vac as a commercial nonhazardous waste treatment facility. Tr. 526-28.

    To this end, having its own laboratory facility was very important. To determine or verify a specific type of waste and to monitor its treatment, laboratory analysis is performed on samples of incoming and outgoing waste. Initially, Hydro-Vac

relied on outside laboratories to perform its analytical work, but was in the process of establishing its own in-house laboratory. Tr. 15, see Tr. 494. According to Bill Foxworth, having its own in-house laboratory was "[o]ne of the keys, necessary that would establish Hydro-Vac as a successful commercial treatment facility. Tr. 494.

    Hydro-Vac's general manager, who assumed this position on July 24, 1990, is Tom Cochran. Tr. 388-89. Cochran has had prior experience in the field of environmental compliance at hazardous waste treatment facilities and was the operations manager at one hazardous waste facility. Tr. 385-87. Complainant, Earnest Oliver, was employed at Hydro-Vac in March, 1990, and terminated on August 27, 1990. Complainant is a toxicologist. See Oliver, Tr. 575. Prior to working for Hydro- Vac, he had no significant experience in testing environmental waste; that is, his background did not involve analysis of materials to determine their classification under EPA regulations as hazardous waste or nonhazardous solid waste. Oliver, Tr. 594- 95. Rather, his experience related primarily to conducting drug tests, blood and alcohol analysis, and urine screenings for state agencies and private employers, as well as operating a mass spectrograph at Michigan State University. According to Complainant, he analyzed "over 500" drug cases and testified as a toxicologically expert in lover 300 cases, while employed at the Tennessee Department of Public Health. Tr. 575. In one such case, Oliver claims that a pharmacist's license was revoked "due to my testimony and my analysis." Tr. 575. He then was employed by the Michigan State Police, and primarily analyzed street drugs in connection with police investigations. Tr. 576; RX-4.

    In 1977, he avers, he was discharged from his employment with the Michigan State Police "for blowing the whistle for improper operation of the laboratory." Tr. 576. He frequently spoke to other employees at Hydro-vac about his whistleblowing role against the Michigan State Police, and would show them his check stub he received from a judgement in that case. See Smith, Tr. 70-71; Hall, Tr. 265; Cochran, Tr. 416-17; Oliver, Tr. 599.

    According to Complainant, he was then hired "to be in charge, of [the] Department of Mass Spectrometry" at Michigan State University. Oliver, Tr. 579; RX-4. It should be noted, however, that Complainant agreed with Respondent's counsel, on

cross examination, that no such department was listed by Michigan State University's graduate study catalogue for the relevant period, nor did the catalogue mention Complainant as being head of any department. Oliver, Tr. 595-97.

    Complainant was then hired to work at Hydro-Vac. Oliver asserts that he was hired at Hydro-Vac as a "Laboratory Scientist for the purpose of profiling solid and liquid waste Complainant's Final Argument, p. 2. Oliver described his position as follows:

[T]o supervise the scientific aspects of the company. Such duties would include: lab director, safety officer, scientific advisor, as well as being responsible for implementing the federal, state and local regulations which govern our daily activity.

CX-1, p. 1.

    Testimony by Foxworth contradicts Oliver's asserted scope of authority. Foxworth testified that he hired Oliver "to be my lab director and get my new lab established" and that was "all I hired [him] for." Tr. 505. Foxworth specifically denied that Oliver was hired to act as safety officer. Tr. 529. And while he was not sure exactly what Oliver meant by "scientific advisor," Foxworth stated that "by being in charge of the lab, [Oliver] basically would have been in charge of the recordkeeping [sic]., Tr. 529. Further, Foxworth stated that responsibility for implementing federal, state and local environmental laws was "[n]ot necessarily, part of Oliver's job duties. Tr. 529.

    Besides having the responsibility of managing the lab, though, Complainant also thought of himself as the de facto manager of the company: "I considered myself, until Mr. Cochran come in, the manager, because I was expected to do everything and people took orders from me." Oliver, Tr. 599. Complainant supports this assertion of authority with testimony from Guy Moose, the Regional Field Office Manager of the Tennessee Division of Solid Waste Management at Chattanooga. Moose stated his impression that, in a meeting with Foxworth and Oliver on July 3, when he first met Oliver, Oliver was introduced to him as Hydro-Vac's facility manager. Moose, Tr. 208-09, 234. But Oliver himself could not recall if Foxworth had actually introduced him as the facility manager (Tr. 599-600.), and

Foxworth categorically denied it, stating:

Q: Okay. Then why did you tell Mr. Guy Moose that I was your facilities manager:

A: I did not tell Mr. Guy Moose that you [were] my facility manager. Apparently Mr. Moose misinterpreted or -- I'm sure that's been a good while ago -- I have never told anybody -- anybody -- that I can recollect that you were my facility manager because you never w[ere] my facility manager.

Foxworth, Tr. 505.

    Despite this disagreement between Complainant and Respondent as to the scope of Complainant's responsibilities, both parties agree that Oliver's role was to be in charge of the laboratory and that it was his responsibility to establish the procedures for the laboratory to conform with EPA testing requirements. See Foxworth, Tr. 505; Oliver, Tr. 601. As lab director, Oliver's role was important in establishing Hydro-Vac as the professional nonhazardous waste treatment facility that Foxworth envisioned; as stated above, establishing an in-house analytical laboratory was lone of the keys, to this goal. Foxworth, Tr. 494.

    According to Oliver, during his course of employment at Hydro-Vac, a series of illegal dumping activities occurred. In particular, Complainant alleges that oil was illegally emptied into the sewer system beyond a discharge monitor; that latex was allowed to run into a ditch and then into a nearby creek; that latex waste was commingled with oil sludge and petroleum fuel contaminated ("PFC") soil, which was then landfilled (Tr. 192); that PFC soil was placed on a concrete pad and allowed to leach benzene into the ground during several periods of rain, and that this soil was illegally landfilled. See Complainant's Final Argument, pp. 4-6; Respondent's Post-Hearing Brief, pp. 16-17.

    One alleged incident in particular is significant in that it appears to have triggered a series of events culminating in

Complainant's discharge. In early July of 1990, gasoline contaminated (PFC) soils from an underground gasoline storage tank site were brought onto Hydro-Vac and placed on a concrete pad for aeration. Tr. 485. After aeration, the soil would then be disposed in a landfill. Tr. 485. Foxworth had instructed Oliver to run a chemical analysis of the soil "because the procedure would be to take the analysis, do some aeration on the dirt and few weeks later or days later, take some more analysis until the dirt was remediated to the point that it could either be landfilled or find another alternative for it." Foxworth, Tr. 485.

    Oliver performed the sample analysis on or about July 6, 1990. See CX-1. According to Oliver's analysis, the soil contained "160 times the allowable limit" of benzene. CX-1. This concerned him, especially since, according to Oliver, the gasoline contaminated soil was neither covered nor surrounded by a containing wall, and some of the soil was placed on the ground, thus allowing benzene to leach out, when it rained, into the ground or into a nearby latex pit. See CX-1, p. 2.

    It should be noted, as an abide, that this allegation of environmental wrongdoing, along with the other allegations, is denied by both Foxworth and Cochran. Both Foxworth and Cochran contend that there was nothing improper about the way the PFC soil was handled; and further, that state and local officials knew about it and sanctioned the way Hydro-vac was treating the soil. Cochran Tr. 345-47; Foxworth Tr. 498.

    Nevertheless, because Oliver believed that the soil was being improperly handled, he called for a meeting with Foxworth. Tr. 485. Foxworth recalled that, as he walked into Oliver's office, Oliver "went in a rage on me about the dirt from Golden Gallon." Tr. 485. According to Foxworth:

. . . [Oliver] started accusing me of poisoning half of everybody in Chattanooga, dumping deadly benzene in the river and all these off-the-wall type things. And, you know, I tried to explain to [Oliver] that the dirt that the state knew the dirt was there, there was no problem with the dirt being there, [but Oliver] just wouldn't hush.

Tr. 486.

    This incident apparently prompted Oliver to write a letter to Foxworth, handing it to him the following Monday, July 16, 1990. See Foxworth, Tr. 486; CX-1.

    The July 16, 1990 letter first states Oliver's understanding of his job duties as "lab director, safety officer, scientific advisor as well as being responsible for implementing the federal, state and local regulations . . . .1 CX-1. The letter then states that he has spent "no less than 10 hours per day" during the past four months of employment researching and studying the federal, state and local environmental compliance regulations. It states that he is working under conditions of "total chaos" for a company "bent on self-destruction," yet:

On the other hand, to the outside world, thanks to my expertise, credentials, integrity, appearance, bearing and professionalism, persons such as Guy Muse [sic], George Kurz . . . all think Hydro-Vac Services is state-of-the-art and operating in compliance with all regulations.

Guy Muse [sic] is so impressed he suggested I be allowed to self-regulate. George Kurz's people are so pleased that they did not see the need to monitor our discharge.

CX-1.

    It should be noted that both Kurz and Moose denied that they made such representations. Kurz had not had any contact with Oliver as of July 16, 1990, and, moreover, Kurz denied that he considered discontinuing monitoring Hydro-Vac's discharge. Kurz, Tr. 165-166. Likewise, Moose denied that he suggested that Oliver be allowed to self-regulate. Moose, Tr. 209, 231. Moreover, he denied that he had ever made a statement to the effect that he thought Hydro-Vac was operating in compliance due to Oliver's expertise, etc. Moose, Tr. 210.

    Oliver's July 16 letter also expresses a complaint about the improper disposal of waste; namely, that "unprofiled" wastes were landfilled along with "profiled" wastes during the previous few months and that false information was filed regarding the

waste. CX-1, p. 1. Oliver also specifically cited an incident occurring on July 10, 1990, where he alleges that 40,000 gallons of water with excessive zinc levels were illegally dumped into the city sewer by another employee, Ray Dunn. (This turned out not to be the case, and Oliver apologized for accusing Dunn of this. See Foxworth, Tr. 531; Dunn, Tr. 642, 645-46.) He also expressed his concern about the petroleum fuel contaminated soil, stating that a soil sample showed an excessive level of benzene, and that the soil "has now been rained on from three different days of thunderstorms, and is presently leaching deadly benzene into the Tennessee River . . . ." CX-1, p. 2. Oliver also alleged that some benzene ran into a pit filled with latex waste and was then illegally landfilled along with the latex. CX-1, p. 2.

    In concluding the July 16 letter, Oliver made the following statement:

In order for me to continue with this company, I will require the following:

1) A detailed description of my duties, in writing, that charge me with responsibilities of Lab Director, Safety Officer, Discharge Officer, and officer in charge of implementing and enforcing the federal, state and local regulations required for the proper operation of this company.

2) A posted notice to all employees of my duties and that I have the absolute authority to summarily dismiss any employee, including Ray Dunn, for violation of any federal, state or local regulation regarding the handling of all wastes.

3) An employment agreement between me and Hydro-Vac Services, to be drafted immediately, that protects my interests and the security of my position.

Due to the requirements expected of my position as mandated by the federal, state and local regulations, I shall require an answer from you with respect to the contents of this letter no later than Friday, July 20, 1990.

CX-1 (emphasis in original).

    After reading the letter, Foxworth called Oliver to his office. Foxworth testified that:

I called you [Oliver] up to my office and I told you, I said "Ernie, I don't know what you're trying to do," but I said, "this is crazy." I said, "You have absolutely no business writing no letter lik 486-87.

    This incident angered Foxworth, but he did not then plan to fire Oliver. To the contrary, he indicated a willingness to continue employing Oliver. Foxworth recalled then saying to. Oliver:

"I don't like what you've done at all . . . and fact of the business, I'm probably as mad as I've ever been in my life . . . . Putting that point aside, I'm a businessman and I'm willing to let business be business and my personal feelings toward you, you know, be put to the side."

Foxworth, Tr. 539.

    The following Friday, the deadline set by Oliver in his July 16, 1990 letter, Foxworth refused to give Oliver the authority and the conditions demanded, stating that he "had hired a man that would be in there Monday [who] basically would be in this position." Foxworth, Tr. 487. Apparently, he was referring to Cochran, who assumed the position as facility manager on July24. See Foxworth Tr. 487; Cochran Tr. 388. Oliver did continueto work as an employee of Hydro-Vac even though his Friday deadline was not met.

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V. Complainant's Management of the Laboratory

    For several months prior to July 16, 1990, Foxworth had noted slow development in the progress of the laboratory, stating:

I spent thousands of dollars in trying to get this laboratory set up and I had week after week after week and months went by and I weren't getting anything out of it -- absolutely nothing out of it. All I seen you [Oliver] do was sit in that office reading books.

Foxworth, Tr. 494. Consequently, when he hired Cochran, he emphasized to Cochran that he was "very concerned about the lab," and that he wanted Cochran to "get with Ernie and find out exactly where he was at . . . because I [was]n't getting any answers or getting anything out of it." Foxworth, Tr. 540-41.

    In Cochran's view as well, "the primary thing at this point was to get this laboratory operational." Tr. 316, 391. He understood that he was hired,,[p]rimarily to come in and get the lab up and running, get our people designated and get some sort of rhyme and reason -- straighten the operation out just as general manager., Cochran, Tr. 389. He and Oliver met and talked about the status of the laboratory. According to Cochran, " . . . it was obvious that you [Oliver] were having trouble getting this lab up." Tr. 313-14.

    Cochran found various problems with Oliver's management of the laboratory. There were backlogged customer samples that were awaiting analysis. Tr. 314. It also appeared to Cochran that Oliver was not familiar with Environmental Protection Agency regulations governing the procedures for testing solid and hazardous waste. In particular, Cochran testified that Oliver did not seem familiar with an "SW846," an EPA-prescribed standard of procedure for testing solid and hazardous waste. Tr. 316. Such an "SW486" notebook was "one thing, upon an inspection, that any laboratory has to have." Tr. 395. Also according to Cochran, there was no equipment to run several needed tests; namely, a biological oxygen demand ("BOD") test and a total suspended solids ("TSS") test. Tr. 392. In addition, the laboratory was set up wrongly; it contained two kinds of equipment -- a gas chromatograph and a "Plasma 40" -- which were not supposed to be set up in the same room together, otherwise

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they would "cross contaminate" each other. Tr. 317. Cochran also noted used glassware which were "not EPA clean." Tr. 320- 21. After Oliver was dismissed, water discharge records, which Oliver had responsibility to maintain, were found stacked in a pile of Oliver's office. See Cochran, Tr. 268-69, 391. He also testified that Oliver admitted to him that testing solid and hazardous waste was something new for him. Cochran, Tr. 395.

    Testimony from Peggy Smith, a biologist who assisted Oliver in the laboratory, corroborates Cochran's concerns. She testified that the BOD test was not performed because Oliver disputed the need for certain chemicals and seeds and did not order them; but from BOD training she received from a treatment plant, the chemicals were necessary to calibrate the BOD test. See Tr. 65, 518-19, 521-22. Smith said that there was equipment to conduct the TSS tests, but it just was not done. Tr. 523. She also said that some of the equipment, which Oliver had ordered, was not appropriate for the kind of tests that were supposed to be run. Tr. 70. Additionally, she stated that Oliver would not reorder glass tubes, which were supposed to be replaced after each use. Tr. 79.

    Oliver disputes these allegations. For example, placing the two cross-contaminating instruments together in the same room was not his mistake, but the equipment supplier's, who set up the equipment. Oliver, Tr. 590. Oliver also maintained that some of his purchase orders, e.g. a $100,000 mass spectrometry machine, were denied by Foxworth, and this was the reason why the lab was not equipped. See Foxworth, Tr. 530; Complainant's Final Argument, p. 19. Similarly, he maintained that the lab was not equipped because purchase orders were not being delivered due to credit problems with Hydro-Vac creditors, a contention denied by Foxworth. See Foxworth, Tr. 530. In particular, Oliver stated that the appropriate chemicals to run the BOD tests were not purchased because of credit problems Hydro-Vac had with its suppliers. See Smith, Tr. 521.

    Whatever the case, even though Cochran found problems with Oliver's lack of familiarity with solid and hazardous waste testing, he still felt that oliver was "completely capable of being able to do it." Tr. 395. In a conversation between Cochran and Oliver, which was surreptitiously recorded by Oliver, Cochran told Oliver, "The one thing, I need you here. I expressed that earlier and if I wanted to get rid of you, Ernie,

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I would have done it the very first day.'" Tr. 308 (quoting from a tape recorded conversation, Exhibit CX-20, played at the hearing). Cochran had also spoken to Foxworth about Oliver: "And I talked to Mr. Foxworth, and to be honest, Bill said, 'Can he do it?' And I said, "Yes, he can do it, all he needs is someone to come in here and go through the system." Tr. 395. Cochran also stated to Oliver at the hearing, ". . . I wasperfectly willing to work with you any way possible." Tr. 313.

    Foxworth too recognized that Oliver was unfamiliar with solid waste testing but, likewise, felt that Oliver had the capabilities to successfully operate the laboratory:

And whenever I first realized that I had a problem was when I went in and I talked to you [Oliver] one day and I talked to you about the TCLP that was going into effect. And you absolutely knew nothing of what I was talking about -- knew nothing. Didn't even know what it meant. I knew then that I had a problem, but I was still willing to try to help you. In fact, even went out and even took you with me on a couple of occasions and went out and got literature and everything, trying to bring you up to date on what was going on.

Foxworth, Tr. 495; see also Tr. 540.

    Foxworth approved Cochran's suggestion to bring in a consultant to "work[] with Ernie and see[] where we're at." Foxworth, Tr. 541. Foxworth's recollection is that Oliver had no objection to the idea. Tr. 542. But according to Cochran, Oliver felt that he was being replaced -- Cochran testified that he had to keep "reiterating [to Oliver] that this man is here to help you [Oliver], and that "there was no intent on my part or Mr. Foxworth's part to fire Ernie . . . . " Cochran, Tr. 396. on a portion of a tape recorded conversation played at the hearing, Cochran is heard telling Oliver:

"Dave Wessinger is coming in. Do not under any circumstances think that that is a threat to your position.

. . . .

. . . you've got everything that this man is going to have available to you, and I highly suggest you take advantage of it because he's here to help you, not hurt you."

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Cochran, Tr. 349-50, CX-20.

VI. Complainant's Unauthorized Threats Of Firing Of Other Employees

    During this same period of time, Complainant told several yard employees that they were about to be fired, without knowledge or permission by Foxworth or Cochran. See Cochran, Tr. 300, 309-10. In Oliver's direct examination of Cochran, Oliver asserted that he only told the employees that they "could be fired if you don't do the best job possible." Tr. 309; Cochran disputed this version, recalling that Oliver "had stated to Mr. Danny Magnuss that he was going to be fired on a Friday; not could be, not possibly, that he would be fired on Friday." In addition, at least three other employees were told by Oliver that they were about to be fired. See Foxworth; Tr. 537. For example, Foxworth testified:

Q: Did employees come to you on more than one occasion reporting that Mr. Oliver had said they were going to be fired?

A: Yes, they did.

Q: Besides the Blevins, who else did that involve?

A: Danny Magnuss was one of them, Ray Dunn on more than one occasion. I think Mr. Oliver told him, you know that he was firing him, on more than one occasion.

Foxworth, Tr. 537-38.

    Complainant's explanation for his behavior was that "Mr. Cochran had told me that he was going to cut the waste out there, and I thought it was the responsible thing for me to do to let them know that they had better shape up." Oliver, Tr. 599. Similarly, while questioning Mr. Cochran, Complainant maintained that it was "responsible for me to tell that person, hey, you might be fired or you're going to be fired for doing something . . . ." Tr. 313.

    This created a strain between management and the employees.

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According to Cochran, Oliver's behavior was "totally disrupting" to the company. Cochran, Tr. 416. When Cochran later admonished Oliver, Cochran stated:

"I don't need Ernie going out on the yard telling guys out here Monday is his last day and everybody is being fired. I had three people come in Friday afternoon wanting to take their vacations as of today."

Cochran, Tr. 336 (recorded conversation from CX-20).

    Foxworth also testified to the interference these "firing" incidences caused: "I mean when you've got employees that don't know from one day to the next day that they're going to have a job, it's bound to disrupt operations." Foxworth, Tr. 538.

    Oliver also had run-ins with other employees. Oliver complained about another employee deliberately taking his parking space, despite the fact that there were no assigned parking spaces. See Smith, Tr. 54-55; Foxworth, Tr. 536-37; Oliver, Tr. 621. According to Foxworth, Oliver went about "ripping and raving about this fellow taking his parking space" and that "the next day it was the same thing." Foxworth, Tr. 537; see Tr. 54- 55, 262. Oliver also got after other employees for making idle chitchat. Tr. 55.

VII. The Events on August 22

    Shortly after the "firing" incidences, an argument erupted between Cochran and Oliver on or about August 22, 1990. See Respondent's Post-Hearing Brief, p. 7. Cochran recalled that Oliver called him to his office, handed Cochran a copy of the July 16 letter, and said, "Well, remember the statement you made to me in regard to if I ever gave you a letter like that, you'd fire me? Well here's your letter." Tr. 397. According to Cochran, Oliver then accused him of poisoning the State of North Carolina, and Alabama, and was now "hired to come in and poison the State of Tennessee." Tr. 398. Ultimately, the argument boiled down to the proposition that "one of the two of us was going to go and had to go, and it was not going to be him [Oliver]." Tr. 398, 477. In addition, Cochran said that Oliver claimed that Cochran did not have the authority to fire him. Tr. 477.

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    After this argument between Cochran and Oliver on August 22 concluded, Oliver tried to call Guy Moose, the Regional Field Manager of the Tennessee Department of Health and Environment, Division of Solid Waste Management, in order to "do something about . . . some serious violations." Moose, Tr. 204 (Complainant's comment). Moose placed a call back to Complainant at Hydro-Vac but did not reach him. He asked the answering secretary to have Oliver call him back. Tr. 203-04; see CX-17. Complainant contends that he was paged by Guy Moose. See Tr. 50. However, no employee, particularly Denica Hawkins, the answering secretary, had any recollection of Complainant being paged to call Mr. Moose. See Hawkins, Tr. 49-50; Cochran, Tr. 415.

    That same day, Cochran called Foxworth, who had been out of the office during these latest events. Tr. 542. Foxworth remembered that Cochran said to him, "/This thing with Ernie has just come to a head.'" Foxworth, Tr. 542. Foxworth then came over to meet with Cochran and recalled:

When I got over, I was informed that (Oliver) had been out in the yard telling the employees that they was going to be fired, creating all kinds of havoc with employees out there and Mr. Blevins -- the two Mr. Blevins, the elder Mr. Blevins and Randall, was the two main ones. I called them up to my office and basically assured them that they was not going to be fired . . .

Tr. 483. Cochran stated to Foxworth that he could not run the company "with this chaos going on every day." Foxworth, Tr. 543.

    Foxworth testified that it was at this point that he made the decision to fire Complainant:

    And so I told Tom [Cochran], I said, "Well, you know, then I have to -- I guess I'm put in a position" -- and up until this time we had not one time ever, ever discussed or even talked about getting rid of Mr. Oliver. But I told him, I said "Well, I guess I've been put in a position that I've got to make a decision," and I said, "You know, I don't have but one decision I can make." My lab's not up and running, I'm not any closer apparently, and I think it's proven that out afterwards, than what I was almost the day I got

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the equipment installed. I made the decision, and it was strictly my decision, to terminate Mr. Oliver's employment.

Tr. 543. Foxworth testified that he decided to fire Oliver because the "company was being totally disrupted on almost a daily basis" and because of the slow progress with the laboratory. Tr. 493, 539, 543.

    Foxworth planned to discharge Oliver that afternoon but first spent it "putting out wildfires in my company where Mr. Oliver had gone out and just literally tore up the whole place." Tr. 543. He and Cochran assured the employees, whom Oliver had told were going to be fired, that their jobs were secure. See Jack Blevins, Tr. 20-22; Randall Blevins, Tr. 94. By the time this was finished, however, Oliver had departed on leave for the rest of the week, and Foxworth would be out of town the following Monday.

VIII. The Termination Letter

    Foxworth thus drafted a letter to Oliver discharging him as of August 27, 1990. The termination letter, dated August 27, 1990, states in part:

    Due to recent developments and the continuing lack of progress within the facility laboratory, I have no alternative at this time but to relieve you of all duties which you are presently involved with within this company.

We regret this situation, but it is obvious that you are not content with this organization and we cannot allow the present atmosphere to continue.

If you have need of references in the future, we will be more than happy to furnish a recommendation upon request.

CX-2.

IX. The Meeting between Hydro-Vac Management and Moose

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    In the meantime, however, on August 23, Foxworth and Cochran informed Guy Moose of the situation with Oliver and showed Moose the July 16 letter. Oliver's whistleblowi ke you had done in that office, just go ballistic and then go off half- baked --

Q: Half-baked.

A: -- and not have all the facts. We felt like it was going to occur.

Q: Okay. Is this the reason why you and Mr. Foxworth went over and took my letter to Mr. Moose because --

A: We met with Mr. Moose for various reasons, that being one of them, and yes, we did explain that situation to him.

Cochran, Tr. 371-72; see Tr. 421. Moose composed a memorandum of that meeting, dated September 11, which states in part:

. . . The discussion involved the previous facility manager, Ernest Oliver and his alleged accusations about Hydrovac [sic] and their improper disposal of waste material. Bill Foxworth also gave me a letter in which Ernest Oliver stated his concerns over the management of the facility. Bill stated that they were going to fire Mr. Oliver on Monday, 1990.

CX-4. At the hearing, Mr. Moose could not recall anything specifically said at this meeting. Tr. 232.

    Complainant's first contact to report alleged violations to the government was on August 27, 1990, the day he was officially terminated from Hydro-Vac. Oliver visited Guy Moose of the Tennessee Department of Health and Environment, Division of Solid Waste Management, at his office, and reported that violations had occurred at Hydro-Vac. Moose, Tr. 188-89. The follow-up investigation and testing by the state's solid waste office revealed no physical evidence that hazardous waste had been handled at Hydro-Vac. Tr. 223-24.

    Complainant also contacted the city water quality enforcement agency on September 6, 1990, reporting his concerns to Mr. Kurz, the city's system engineer. Tr. 130. Kurz initially found reporting violations in which Hydro-Vac had failed to timely submit discharge monitoring reports. Tr. 131. Later, an inspection team found what Kurz referred to as "housekeeping problems, (Tr. 151): a lapse in the filing of discharge reports, discharge of wastewater into the sewer through a line which bypassed a monitoring chamber, an open drain valve, and no sump pump in a storm water catch basin. Tr. 142, 171-72; see JX-11.

    The Federal regulation implementing the employee protection provisions of the Solid Waste Disposal Act and the Federal Water Pollution Control Act provides as follows:

§ 24.2 Obligations and prohibited acts.

    (a) The several statutory employee protection provisions listed in § 24.1, provide that no employer subject to the provisions of the Federal statute of which these protective provisions are a part may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in paragraph (b) of this section.

    (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.

29 C.F.R. § 24.2 (implementing, among others, the employee protection provisions of the Solid Waste Disposal Act, 42 U.S.C. § 6971, and the Federal Water Pollution Control Act, 33 U.S.C. § 1367).

    In this case, there is no dispute that Complainant is an employee of Hydro-Vac, and that Hydro-Vac is subject to 29 C.F.R. § 24.2.

    The requirements for establishing a prima facie case were enunciated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981), and Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S. Ct. 568 (1977), and adopted by the Secretary of Labor in Dartey v. Zack Co., 82- ERA-2 (Secretary's Decision and Final Order issued April 25, 1983). In Dartey v. Zack Co., the Secretary sets forth the basic allocation of burdens and order of presentation of proof to be applied in whistleblower cases. The complaining employee initially must present a prima facie case consisting of a showing (1) that he engaged in protected conduct, (2) that the employer was aware of that conduct and (3) took some adverse action against him, and (4) that the evidence is sufficient to raise the

inference that the protected activity was the likely reason for the adverse action. If the employee establishes a prima facie case, thereby giving rise to the presumption of disparate treatment, the employer has the burden of going forward to rebut the presumption with evidence of legitimate, nondiscriminatory reasons for his action. If the employer successfully rebuts the prima facie case, the employee still has the opportunity to demonstrate that the proffered reasons were not the true reasons, but a pretext for discrimination. Significantly, the employer bears only a burden of production; the ultimate burden of persuasion, by a preponderance of the evidence, remains at all times with the complaining employee.

    There is a split of authority among the Circuit Courts of Appeals on the issue of whether the filing of purely internal safety complaints is protected activity. The Ninth and Tenth Circuits have held that the filing of internal safety reports or complaints with an employer is protected activity. Mackowaik v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985), cert. denied 478 U.S. 1011, 106 S. Ct. 3311 (1986); contra, Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The Secretary of Labor's interpretation of the scope of protected activity coincides with the majority rule. See S.M.A. Hasan v. Nuclear Power Services Inc., 86-ERA-24 (Sec'y June 26, 1991); Bivens v. Louisiana Power & Light, 89-ERA- 30 (Sec'y July 26, 1988); Willy v. The Coastal Corporation, 85- CAA-1 (Sec'y June 4, 1987).

    Viewed in context, Complainant's July 16 letter essentially makes a bold demand for carte blanch authority and power within the company, far beyond the reasonable parameters of Complainant's position as laboratory director. It demands three things: 1) that Complainant's job position encompass that of laboratory director, safety officer, discharge officer and officer in charge of implementing federal, state, and local waste treatment regulations; 2) that his duties be posted on the premises, along with a statement to the effect that he has the authority to fire any employee for violating any waste treatment regulation; and 3) that his position be secured by a contract. It further demands that these conditions be satisfied within one week. The letter could reasonably be characterized as an

ultimatum.

    Nonetheless, part of the letter expresses Oliver's concerns about various p acie case of disparate treatment is not onerous." 101 S. Ct. at 1094, 450 U.S. at 253. In accordance with Burdine, I am of the view that this part of the letter constitutes an internal safety report or complaint and thus is protected activity.

    In other words, Complainant "assisted or participated . . . in any manner . . . to carry out the purposes of such Federal statute." 29 C.F.R. § 24.2

    Since it is clear from the record that Foxworth received the July 16 letter, then it is equally clear that Respondent was aware of Complainant's engagement in such protected activity.

    Although not dispositive of this case, I note that Complainant argues that his attempted telephone contact of Mr. Moose on August 22, the day the decision to terminate Complainant was made, is protected activity. The evidence shows that Mr. Moose was called by Oliver on August 22 and that Moose placed a return call to Oliver. Complainant asserts that he placed the call to Moose for the purpose of blowing the whistle, and, for this reason, the attempted phone call counts as protected activity. I have little doubt that Complainant attempted to contact Moose to complain about perceived waste treatment violations, given his confrontations with Foxworth and Cochran concerning perceived safety violations. However, under the facts of this case, I hesitate to characterize such an attempted phone call as protected activity because no other evidence in the record supports the assertion that it was made for the purpose of blowing the whistle. Even so, assuming arguendo that it is protected activity, there is no evidence that Foxworth or Cochran were aware or knew that Oliver tried to call Moose for the ostensible purpose of blowing the whistle, nor is there evidence that any employee had any recollection that Moose called and

paged Oliver. Thus, even assuming the attempted phone call is protected activity, there is no evidence that Respondent's employees had any awareness of the attempted phone contact or even that it played any part in Complainant's termination.

    In sum, I find that the preponderance of the evidence establishes that Complainant has met the first three prongs of a prima facie case; namely, that he engaged in protected conduct, that Respondent was aware of that conduct, and that adverse action was taken against Complainant. The remaining issue is whether this protected activity was the likely reason for the adverse action.

    In order to establish a case of discrimination, Complainant does not have to prove that his protected activity was the sole, or even major, reason for Respondent's action that resulted in his loss of employment. It is sufficient to prove that those actions were motivated at least in part by his protected activity. See Deford v. Secretary of Labor, 700 F.2d 281, 287 (6th Cir. 1983); Mackowaik v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162-63 (9th-Cir. 1984). In this case, Complainant has proffered no credible evidence that Respondent was motivated by retaliatory animus, and there is no basis for inferring a connection between Complainant's protected activity and his discharge. I am of the view that the preponderance of the evidence clearly establishes that the sole motivation for Respondent's discharge of Complainant was the cumulation of Complainant's disruptive behavior and his record of mismanagement of the laboratory.

    Complainant contended in his opening statement that the causal connection between his protected activities and discharge is demonstrated by the meeting between Respondent's President, Bill Foxworth, and the facility manager, Tom Cochran, on the one hand, and Guy Moose, of the state solid waste office, on August 23, 1990. See Tr. 13. This contention is not substantiated. First, the evidence indicates that the decision to terminate Complainant was made by Foxworth the day before, on August 22. Second, the uncontradicted testimony by Cochran indicates that Foxworth and Cochran met with Moose in order to head off an

impulsive and unwarranted allegation of waste treatment violations. Given Complainant's recent outbursts and accusations that Cochran and Foxworth were poisoning the environment, and given that Complainant flouted his role as a whistleblower in Michigan, it does not appear that Foxworth and Cochran acted unreasonably in explaining the situation to Moose.

    As stated by Foxworth at the hearing, and memorialized in the August 27 termination letter, one basis for the decision to discharge Complainant was his mismanagement of the laboratory. The record supports this basis. The preponderance of the evidence establishes that, under Complainant's management, the laboratory was not properly equipped, lacked the proper procedural standards, and was not able to operate in conformance with EPA testing requirements. Testimony by Cochran, the facility manager, and Peggy Smith, the laboratory assistant, which I find credible due to their substantial consistency with each other, describe a laboratory with backlogged customer samples, mismatched or inappropriate equipment, a lack of certain chemicals to run needed tests to conform to EPA testing requirements, used glassware, and sloppy record keeping. Testimony from Foxworth, which I also found consistent and credible, also describes a lack of progress with the laboratory. Foxworth testified that weeks went by with little progress in the development of the laboratory, which was crucial to the success of Hydro-Vac. Moreover, the evidence shows that one of the primary reasons Cochran was hired was to organize the laboratory.

    Complainant asserted that the laboratory problems resulted from credit problems, equipment supplier's error in setting up the equipment, or on Foxworth's refusal to buy equipment. However, no testimony or other evidence in the record corroborates this contention, and, therefore, I do not accord it persuasive weight.

    Moreover, the evidence is clear that the Complainant lacked familiarity with solid and hazardous waste testing, especially in regard to EPA testing requirements. His experience did not include significant laboratory experience in this area, but related primarily to drug testing.

    It is also important to note that the uncontradicted

testimony indicates that both Cochran and Foxworth were, at least initially, willing to allow Complainant to head the laboratory, despite the problems with his lack of familiarity with solid and hazardous waste testing, poor management of the laboratory, and Complainant's engagement in protected activity. Realizing that Complainant was not that familiar with solid and hazardous waste testing, Foxworth bought literature to update Complainant. Significantly, even after receiving the July 16, 1990 demand/internal complaint letter from Complainant, Foxworth was willing to "let business be business" and continue with Complainant as laboratory director. Cochran, too, wanted Complainant to continue as laboratory director, believing that Complainant was "completely capable" of fulfilling this position, but wanted to hire a consultant to bring Complainant up to speed on the appropriate testing methods. In sum, even in the face of Complainant's demand letter and the problems with his management of the laboratory, Hydro-Vac's management still made the effort to accommodate Complainant within the company.

    The second basis for Complainant's discharge, as stated by Foxworth, was Complainant's disruptiveness. The record clearly demonstrates that Complainant engaged in disruptive behavior. Complainant, acting far beyond any reasonable scope of authority for his position in the company, took it upon himself to tell other employees that they were going to be fired. I do not credit Complainant's explanation for this behavior as "the responsible thing for me to do," as he characterizes that behavior, when it wa ees over such things as parking spaces.

    In sum, the evidence establishes that the cause of

Complainant's discharge was not his protected activity, but the combination of his mismanagement of the laboratory and his disruptive behavior. Failing to establish the causal link between his protected activity and his discharge, I therefore find that Complainant has failed to meet his initial burden to establish a prima facie case.

    Assuming, arguendo, that a prima facie case had been established, I am persuaded that Respondent's explanation for the termination is legitimate and not pretextual. An employer may discharge an employee who has engaged in protected conduct as long as the employer's decision to discharge the employee is not motivated by retaliatory animus and the employer has reasonable grounds for the discharge. Lockert v. U.S. Department of Labor, 867 F.2d 513l 519 (9th Cir. 1989). As discussed above, the preponderance of the evidence establishes that Hydro-Vac's management acted reasonably and legitimately in discharging an employee who performed poorly at his job and who disrupted the organization.

    By reason of the foregoing, I find (1) that Complainant engaged in protected activity, but (2) that Respondent had legitimate and nondiscriminatory reasons to discharge Complainant. Accordingly, I recommend the complaint in this case be dismissed.

    The complaint of Ernest Oliver is dismissed.

       ROBERT M. GLENNON
       Administrative Law Judge

RMG/EWH