DATE: February 27, 1991

CASE NO. 88-SWD-1

IN THE MATTER OF

MELVA MONTEER,
    COMPLAINANT,

    v.

CASEY'S GENERAL STORES, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   This case is before me for review of the Recommended Decision and Order (R.D. and O.) of Administrative Law Judge (ALJ) Richard D. Mills, issued on March 22, 1989, pursuant to the whistleblower provision of the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1988). The ALJ found that Complainant failed to establish unlawful retaliatory discrimination and, therefore, recommended that the complaint be dismissed. Although the parties were afforded the opportunity to file briefs in support of or in opposition to the ALJ's decision, neither party responded. Both parties, however, filed briefs before the ALJ following the evidentiary hearing, which was held on May 17, 1988.

   Complainant alleges that on October 30, 1987, she was unlawfully discharged from her position as a store manager because she had made internal complaints and threatened to report an underground gasoline leak to the Environmental Protection Agency (EPA). Respondent contends that the complaint is untimely and inadequate and, moreover, that the Secretary lacks jurisdiction over the case. Substantively, Respondent argues

that Complainant failed to establish either protected conduct or the causal connection necessary for a prima facie case of retaliatory discharge. Respondent further maintains that Complainant was discharged for failing to follow instructions and company policy to keep accurate gasoline inventory records, for which she would have been discharged regardless of any protected conduct.

   The ALJ first found that the complaint was timely filed. Without addressing Respondent's remaining procedural arguments, the ALJ concluded not only that Complainant failed to establish a prima facie case, but also that Respondent's reasons for Complainant's discharge were not pretextual.

   I agree that the complaint was timely filed and I also find that Respondent's arguments challenging the Secretary's jurisdiction and the adequacy of the complaint are without merit. Furthermore, based on a review of the full record, I adopt the ALJ's findings of fact, see R.D. and O. at 2-4, as supplemented hereinafter, and agree ultimately that Complainant failed to meet her burden of proof.

Jurisdiction

   Initially, I note that this case is properly before me pursuant to the whistleblower provision of the SWDA since the complaint involves a release or suspected release of petroleum from an underground storage tank. See 42 U.S.C. § 6971; 29 C.F.R. § 24.1 (1990); see also 42 U.S.C. §§ 6916(f), 6991 (1988); 40 C.F.R. §§ 280-10, 280.12, 280.50 (1989).

Timeliness

   Respondent argues that the complaint is untimely because it was received by the Department of Labor on December 4, 1987, more than 30 days after the alleged violation on October 30, 1987, and because there is no evidence of record showing that it was mailed within the 30-day limitation period as required by 29 C.F.R. § 24.3(b).¹ Finding that no evidence was adduced as to the actual date of mailing, the ALJ applied the regulation at 29. C.F.R. § 18.4(c) and concluded that the complaint was timely filed by adding five days to the prescribed 30-day period.

   I conclude, however, that the complaint is timely for a different reason. The Secretary has held that where a complaint is mailed on the thirty-first day after the alleged violation and the thirty-first day is a Monday, the complaint is timely filed. See 29 C.F.R. § 18.4(a); Stokes v. Pacific Gas & Electric Co., Case No. 84-ERA-6, Sec. Order of Remand, February 19, 1987. The record in this case contains a copy of an envelope attached to

   Respondent argues that the Wage and Hour Administrator erred in going beyond the facts alleged in the complaint, and that because the complaint is demonstrably false and technically inadequate under the applicable regulations, 29 C.F.R. § 24.3(c), the preliminary determination should be set aside and the case dismissed. Respondent contends that Complainant's failure to plead her case accurately and specifically impaired its ability to defend, in violation of due process of law. First, Respondent misconstrues the nature of a complaint filed pursuant to 29 C.F.R. Part 24. The complaint is an informal pleading filed for the purpose of initiating an investigation by the Wage and Hour Division on behalf of the Secretary of Labor. See Richter v. Baldwin Associates, Case Nos. 84-ERA-9, 10, 11, and 12, Sec. Dec. and Order of Remand, March 12, 1986, slip op. at 9. Development of the elements which establish a violation of the SWDA typically occurs during this investigation. See Richter, slip op. at 10-11. Complainant's failure to precisely set forth in her complaint all elements which establish a violation is, therefore, not a valid basis for dismissal. See also Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Dec. and Order of Remand, July 30, 1987, slip op. at 12 n.3; Willy v. Coastal Corp., Case No. 85- CAA-1. Sec. Dec. and Order of Remand, June 4, 1987, slip op. at 2-3. Furthermore, the preliminary findings of the Wage and Hour Administrator afforded Respondent ample notice of the allegations against it and, thus, adequate opportunity to prepare for the case presented at the hearing.²

The Merits

   The ALJ found that Complainant engaged in protected conduct by stating to her supervisor, Janice Hines, that "someone should call the EPA" about the gasoline odor in the store. He concluded, however, that Respondent's district manager, Gary Kaliher, never received any information about this protected conduct and since Kaliher alone made the decision to discharge Complainant, she failed to establish the causal inference necessary for a prima facie case. I agree that, in the specific circumstances of this case, Complainant's statement involving the EPA is protected under the SWDA, see H.R. Rep. No. 1491, 94th

   Kaliher was justified in concluding that Complainant failed to follow explicit directives to maintain an accurate inventory of the gasoline reserves at her store. moreover, even if Kaliher was mistaken in believing that Complainant unjustifiably failed to follow supervisory instructions, he did not violate the SWDA by discharging her based on that belief, because the critical focus is his knowledge and subjective perception of the circumstances. See Jefferies v. Harris County Community Action Assoc., 615 F.2d 1025, 1036 (5th Cir. 1980); Ertel v. Giroux Brothers Transportation, Inc., Case No. 88-STA-24, Sec. Final Dec. and Order, February 16, 1989, slip op. at 26. Furthermore, the significance of Complainant's failure to accurately maintain the records, over a period of several months, in relation to the severity of the problem encountered by Kaliher, is obvious. Had Complainant properly maintained the records, the precise nature of the problem would have been detected sooner and with fewer consequences. Respondent's explanation for Complainant's discharge is, therefore, entirely reasonable. Inasmuch as there are reasonable grounds for Complainant's discharge, and the credible evidence, and rational inferences from the evidence, fail to prove that Kaliher's decision was motivated in any way by retaliatory animus, the discharge was not unlawful under the whistleblower provision of the SWDA.³ See Lockert v. U.S. Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989); Pogue, slip op. at 51, 52; Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Dec. and Final Order, April 25, 1983, slip op. at 6-8.⁴

¹ Section 24.3(b) provides that "[a]ny complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing."

² I additionally note that the hearing before the ALJ was conducted de novo; since Respondent objected to the findings of the Wage and Hour Administrator, they carried no weight before the ALJ or me. See 29 C.F.R. §§ 24.4(d)(3)(i), 24.5(e)(2), 24.6(a) and (b)(1).

³ There is no evidence that Kaliher treated Complainant dissimilarly from other store managers. Significantly, however, as pointed out by the ALJ, another district manager for Respondent credibly testified at the hearing that he had previously discharged an employee for failing to complete the inventory forms, under circumstances similar to those presented here. See Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 339 (5th Cir. 1980).

⁴ Since Complainant has not prevailed on her claim, I need not consider her arguments pertaining to damages.