1. Complainant was first employed with Co-op on August 5, 1996. He was employed by A. H. Aikens, the plant manager, to work as a right of way worker at a starting salary of $11.00 per hour.

   2. As a right of way worker, Complainant was responsible for clearing brush from under power lines maintained by the Co-op. To perform such work, Complainant would alternate between using a chain saw and driving a tractor and bush-hog. His immediate supervisor was Lindon Miller who was in charge of the Co-op's right of way workers. Complainant also worked under Mark Stockton who was the line foreman in charge of the crew that builds and maintains lines. Oscar McCulloch, Jr. was the Co-op's union steward.

   3. When the Co-op hired Complainant, he received no employee handbook, written work rules, nor written safety rules to describe his job functions or the expectations of Co-op. The only written rules were those contained in the collective bargaining agreement between the Co-op and the International Brotherhood of Electrical Workers, Local Union 558, however, because the Co-op placed new employees on a six-month probationary period, this prevented new employees from becoming members of the union until the lapse of that probationary period.

   4. Complainant worked on a right of way crew with Wayne Black. Mr. Black has been an employee of the Co-op for approximately nine years. Complainant and Mr. Black worked together on a daily basis clearing the right of way. On almost a daily basis, Mr. Miller would stop by the site where the two men were working. On at least three occasions during Complainant's employment with the Co-op, Mr. Aikens accompanied Mr. Miller to the job site.

   5. On Friday, October 11, 1996, Mark Stockton asked Complainant and Mr. Black to work at the warehouse across the street from the Co-op's office. There were three barrels of transformer oil on the site, and Mark Stockton asked that Complainant and Mr. Black assist in burying the barrels of oil on Co-op property. Mark Stockton, Mr. Aikens, Mr. Miller, and another employee, James Ghoston, were present.

   6. Complainant observed that the barrels were covered in a light film of oil. In Complainant's opinion, the barrels were leaking as evidenced by the film of dust sticking to the exterior of the barrels.

   7. Another Co-op employee was operating equipment to dig a hole in which to place the barrels of oil, and Mark Stockton asked Complainant to drive a pick-up truck loaded with the barrels to the hole and then roll the barrels into the hole.

   9. Upon alerting Mark Stockton that burying oil was a potential violation of federal law, Mr. Stockton conferred with Mr. Aikens and Mr. Miller regarding burying the oil. Upon returning to the potential burial site, Mr. Stockton stated that the oil would be stored for disposal by Bowman & Bowman, a hazardous waste disposal company, who would remove the oil.

   10. Monday, October 14, 1996, was a holiday, and the next regular workday fell on Tuesday, October 15, 1996. Complainant worked a full day, but at the end of the day, Mr. Aikens informed Complainant that he was dismissed. Upon inquiring why the Co-op was firing him, Mr. Aikens did not give a reason.

   11. Complainant also asked Mr. Miller why the Co-op was firing him, but Mr. Miller likewise did not give a reason. Complainant inquired whether the discharge was due to his refusal to work overtime on two occasions. Both Mr. Aikens and Mr. Miller stated that it was not.

   12. Mr. Aikens testified at the hearing that Complainant was not terminated because he refused to bury the oil barrels. He said he was not pleased with Complainant's overall performance on the job. Mr. Aikens stated that upon observing Complainant's work on the tractor and bush-hog, Complainant appeared to be a slow worker. In addition he said Complainant had previously cut a tree that touched a three-phase power line, knocking out power to many customers. He also referred to occasions when Complainant refused to work overtime.

   13. Mr. Aikens additionally testified about meetings that he had with Mr. Miller, Mr. Stockton and Mr. McCulloch regarding Complainant, and his dissatisfaction with Complainant's performance. Mr. Aikens stated that on August 20, 1996, he told Mr. Miller that he was not pleased with Complainant's work performance. On August 26, 1996, Mr. Aikens was on the job-site after one of the line crewmen ran over a breather on a gas line. While the gas line was being repaired, Complainant was operating the tractor and Mr. Aikens stated he observed Complainant and he was slow. Mr. Aikens discussed with Mr. Miller and Mark Stockton the fact he was considering firing Complainant. Mr. Aikens stated he subsequently discussed Complainant's work performance with Oscar McCulloch and told him he was dissatisfied with Complainant's employment. On September 27, 1996, Mr. Aikens again said he spoke with Mr. Miller about Complainant. On October 7th, Mark Stockton asked that Mr. Aikens give Complainant more time before terminating him.

   14. Although Mr. Aikens testified he discussed his dissatisfaction with Complainant's work with other Co-op employees, neither he nor any one else on behalf of Co-op gave Complainant a written or verbal warning or discipline regarding his work habits or attitude.

   15. Although Mr. Aikens testified he discussed his dissatisfaction with Complainant's work on five separate occasions with other Co-op supervisors, Mr. Aikens did not

terminate Complainant until the next regular work day after Complainant complained about the Co-op's potential violation of federal law by burying drums of oil.

   16. Specifically, while Mr. Aikens allegedly discussed Complainant's performance with others on five occasions, he never discussed his concerns with Complainant in an effort to allow Complainant to correct any of the his perceived shortcomings. Oddly though, the next regular workday following Complainant's refusal to bury the barrels of oil, Mr. Aikens fired Complainant.

   17. Complainant has not been gainfully employed since his termination on October 15, 1996, and seeks reinstatement, back pay and costs and expenses of litigation, including attorney's fees.

   18. To the extent hereinafter discussed, Complainant is entitled to the relief and damages he seeks.

   In a case such as this, the burden is on the Complainant to prove by a preponderance of the evidence that retaliation for protected behavior was a motivating factor in his termination. The requirements for establishing a prima facia case are that (1) the Complainant engaged in protected activity; (2) the Respondent was aware of such conduct; and (3) the Respondent took some action adverse to the Complainant which was more likely than not the result of the protected activity. See Dean Dartey v. Zack Co., 82-ERA-2 (1983). Once Complainant establishes a prima facia case, then Respondent has the burden of producing evidence that the adverse action was motivated by legitimate, non-discriminatory reasons. If Employer is successful, Complainant, as the party bearing the ultimate burden of persuasion, must then show that the proffered reason was not the true reason, but a pretext for retaliation.

   Regarding refusals to perform certain work, the Secretary held in Pensyl v. Catalytic, Inc., Case No. 83-ERA-1, Sec. Dec. and Ord., January 13, 1984, slip op at 7:

A worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable [person] in the circumstances with the employee's training and experience.

   In other words, to be protected under the Act the Employee is not required to be correct about a perceived violation of law if his concerns are otherwise reasonable. In this

discussed any job problems with Complainant. Mr. Stockton also agreed it would probably have been wrong to bury the oil in the manner planned.

   Respondent's final witness, A. H. Aikens, the plant manager has worked for the Co-op for 39 years. He hired Complainant and knew his family. A few weeks after Complainant's employment, Mr. Aikens testified he found the Complainant to be a slow worker and talked to others about letting Complainant go, but never talked to Complainant himself about his job being in jeopardy.

   As to the October 15 termination, Mr. Aikens testified he did not really know why he chose that date to terminate the Complainant, but just decided to let him go because of his work performance and refusal to work overtime, though he agreed the declination of overtime work by Complainant had only occurred on two occasions. Mr. Aikens also testified the Co-op had never buried oil before in the manner which was proposed on October 11, and that it was a bad decision on Mr. Stockton's part. He testified however, that the oil episode had no bearing on Claimant's termination. He explained the Co-op was a service company and the crew had to work together to serve the public even if it meant working overtime.

   Proximity between the protected activity and the adverse employment action is sufficient evidence to create an inference of causation. Certainly that exists in this situation as does the fact that Mr. Aikens offered no other plausible reason for choosing the day he did to terminate Complainant. Even assuming Mr. Aikens was concerned about Complainant's work performance and unwillingness to work overtime (concerns never made known to Complainant) why choose the next regular working day after Complainant's protected activity to terminate Complainant? To my thinking, the answer is rather obvious. Complainant was not the team player Mr. Aikens was seeking and when Complainant refused to bury the oil barrels this was the last straw.

   It is my finding that, at least in part, the reasons for Complainant's termination offered by Mr. Aikens amount to a pretext when coupled with the fact that Complainant was not terminated until after his refusal to bury the barrels of oil on October 11. No stretch of the imagination is needed to make this determination. Had Complainant been previously disciplined or warned of poor job performance or unsafe work habits, perhaps the reasons offered by Mr. Aikens would not be so transparent, but the proximity of the two crucial events are too close to ignore.

   Relying upon Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995), Respondent argues that the Complainant was not engaged in protected activity and/or that such activity was not a factor in Respondent's decision to terminate Complainant. Respondent's reliance upon Bechtel puzzles me, however, because the factual scenario in that case as well as the law applied to those facts are surprisingly similar to this the situation.

   In Bechtel, the employee voiced safety concerns about certain procedures with contaminated tools. His concerns were made to his superiors based upon his understanding of what was proper procedure. Subsequently, the employee was laid off because he was "too slow," a complaint which had never been voiced to him. He then filed an unlawful discrimination action and the Secretary of Labor agreed with his allegations. On appeal, the 11th Circuit affirmed the Secretary's findings (1) that the employer's questioning of the tool handling procedure was "tantamount" to a complaint that safety procedures were not being obeyed, (2) that employer's reasons for the employees lay off "were not believable" and (3) that the employee had sustained his burden of persuasion "that the real reason was his protected activity."

   In Bechtel, like the Secretary, the appellate court too found that when an employee makes informal internal complaints, as it was here done, such acts constitute protected activity. The 11th Circuit also held that "proximity and time is sufficient to raise an inference of causation," and that even if the employer shifts the burden back to the employee by showing a legitimate, non-discriminatory reason, that based upon the Supreme Court's holding in St. Mary's Honor Center, et al v. Melvin Hicks, 113 S.Ct. 2742, 2749 (1993) that "rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination."

   Granted, while such an inference does not compel a judgment for Complainant, who always bears the ultimate burden of persuasion, in this instance when coupled with my disbelief of Respondent's proffered reasons for determination and the prima facie case put on by Complainant, it is my conclusion that the Complainant has met his burden.

   I find that Complainant was engaged in protected activity under the Act, that Respondent knew of that activity and that the actions taken against him, "termination", were motivated, at least in part, by Complainant engagement in that activity.

   29 C.F.R. §24.6 provides the Secretary of Labor with the authority to require affirmative action to abate the violation, to order payment of back wages and where appropriate compensatory damages as well as the expense of litigation including attorney's fees. In this instance Complainant is seeking reinstatement, back pay and a reasonable attorney's fee as damages for his wrongful termination.

   As to reinstatement, I agree with Complainant that absent extraordinary circumstances this is a basic remedy in this type of proceeding, and I find Complainant is entitled to be fully reinstated with Respondent to the position and hourly wage which he enjoyed on the day of his termination, October 15, 1996. In this regard, I also find that Complainant is entitled to have expunged from his personnel records any reference to his wrongful termination on October 15, 1996. In returning Complainant to his previous status he shall be credited with the time he previously

worked with Respondent from August 5, 1996, until October 15, 1996, as it applies to completion of his six month probationary period, his eligibility to become a union member and any pay scale that is based on length of employment.

   Turning to back pay, I find this the most difficult element of damages to accurately assess. While Complainant would conceivably not have lost his salary in the weeks and months following October 15,1996, had it not been for the unlawful termination, I cannot ignore the principle that Complainant here had a duty to mitigate his damages during this period of unemployment by using reasonable diligence to seek other suitable employment.

   Complainant testified at the hearing that at the time of his termination he was earning $11.00 per hour. He testified that once terminated he filled out job applications at two local unions, earned $518.87 cutting lumber and otherwise used his time on constructing a new house for his family. He testified "if a good job had come along where I could make money, I would have took the job and hired someone to finish my house." (Tr. 48).

   Based on this evidence, it is my finding that Complainant has not been as diligent as he could have been in searching for employment and mitigating his loss of wages from the Co-op. For that reason it is my finding that 8 weeks (approximately 2 months) of back pay is a suitable remedy in this instance because I believe that within that period Complainant, with diligence, could have located suitable alternative employment.

   Complainant is obviously a versatile man. He was raised on a farm, can operate heavy equipment, has electrical experience and is skilled enough to participate in the building of his own house. I believe that had he wanted to work elsewhere, within a 8 week period he could have found employment. Consequently, using $11.00 per hour and a 40 hour work week, I find Complainant is entitled to $440.00 per week for 8 weeks.

   In order to establish expenses of litigation, an attorney must submit a fee petition detailing the work performed, the time spent, the hourly rate as well as an itemization of the costs incurred. In this instance, Complainant's counsel submitted such a petition itemizing in detail 25.6 hours of work at an hourly rate of $125.00 per hour, as well as detailing expenses of $83.50. To this petition, Respondent's attorney objects stating

the fee is not reasonable in that the action did not require the amount of time and labor expended by counsel for the issues involved. I do not agree.

   In my opinion, Complainant's attorney performed a worth while service in this case. He entered the case at the 11th hour, did not seek to postpone the litigation, offered both evidence and argument in a succinct but thorough fashion, submitted a brief that accurately addressed the facts, issues and law involved and most importantly, achieved good results for his client. I find nothing excessive about Mr. Grey's time and charges. In fact, I find the fee rate to be

reasonable this day and time as regards this type of litigation, and I find the time spent reasonable for a case of this nature. Consequently, I recommend Respondent be liable for Complainant's attorney's fees and costs incurred in the amount of $3,283.50.

   It is my recommendation that Complainant should prevail on his complaint as it pertains to his termination on October 15, 1996, and a final order should issue reinstating Complainant to the position and hourly wage which he enjoyed on the day of his termination. Additionally, I recommend that Respondent be ordered to expunge from Complainant's personnel records any reference to his termination on October 15, 1996, and in returning Complainant to his previous status that Complainant be credited with the time he previously worked for Respondent from August 5, 1996, until October 15, 1996, as the time applies to the completion of his six month probationary period, his eligibility to becoming a union member and any pay rate that is based on length of employment. Regarding money damages, I recommend that a final order issue awarding Complainant $3,520.00 for 8 weeks of back pay at an hourly rate of $11.00 an hour based on a 40 hour work week. Finally, I recommend that as regards costs and expenses of litigation, Complainant be awarded fees and costs on behalf of his attorney, Kevin Gray, Esq., in the amount of $3,283.50.

   So ORDERED this 25th day of August, 1997, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge

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NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board, U.S. Dept. Of Labor, Room S-4309, Francis Perkins Bldg., 200 Constitution Ave., NW, Washington, DC 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.Reg. 13250 (1990).