DATE: September 22, 1994
CASE NO. 88-SWD-00004
IN THE MATTER OF
GAYLAND A. DODD,
COMPLAINANT, [1]
v.
POLYSAR LATEX,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Complainant alleges that on May 26, 1988, Respondent fired
him from his job as a process engineer in violation of the
"whistleblower" provisions of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), 42 U.S.C.
§ 9610 (1988), and the Solid Waste Disposal Act (SWDA), 42
U.S.C. § 6971(a) (1988). [2] Respondent contends that it
fired Complainant because of his inadequate work performance and
poor attitude.
Following an evidentiary hearing, the Administrative Law
Judge (ALJ) ruled in favor of Complainant. As provided in 29
C.F.R. § 24.6 (1993), the ALJ forwarded the record and his
Recommended Decision (R.D.), dated November 16, 1989, to the
Secretary for review. After reviewing the entire record and the
parties' briefs filed in response to the ALJ's R.D., I disagree
with some aspects of the ALJ's decision, but I agree that
Complainant is entitled to relief.
APPLICABLE LAW[PAGE 2]
The ALJ correctly recognized that the burdens of production
and persuasion in whistleblower cases were laid out in Dartey
v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Dec., Apr.
25, 1983, slip op. at 7-9, and are based on the framework applied
under Title VII of the Civil Rights Act of 1964. R.D. at 2-3.
The employee must first make a prima facie showing that protected
activity was the likely motivation for the employer's decision
to take adverse employment action. A prima facie case is
established by showing (1) that the employee engaged in conduct
protected by the statute; (2) that the employer was aware of that
conduct and took some adverse action against the employee; and
(3) that an inference is raised that the protected activity was
the likely reason for the adverse action. Williams v. TIW
Fabrication & Machining, Inc., Case No. 88-SWD-3, Sec. Ord.,
June 24, 1992, slip op. at 3-4; Larry v. The Detroit Edison
Co., Case No. 86-ERA-32, Sec. Dec., June 28, 1991, slip op.
at 5, aff'd, No. 91-3737 (6th Cir. Apr. 17, 1992).
SeealsoMoon v. Transport Drivers, Inc.,
836 F.2d 226, 229 (6th Cir. 1987).
The employer may rebut the prima facie case by producing
evidence that the adverse action was motivated by legitimate,
nondiscriminatory reasons. If the employer satisfies its burden
of production, the employee then must carry his ultimate burden
of persuasion that the proffered reasons are a pretext.
SeeSt. Mary's Honor Center v. Hicks, 113 S. Ct.
2742, 2756 (1993); Dartey, slip op. at 8.
If the employee shows that the employer's adverse employment
decision was motivated by both prohibited and legitimate reasons,
then the dual motive doctrine applies. Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989); Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984);
Dartey, slip op. at 8-9. In such a case, the employer may
avoid a finding of liability only by proving that it would have
made the same decision even in the absence of the protected
conduct. Hopkins, 490 U.S. at 244-45; Dartey, slip
op. at 9. The employer bears the risk that the influence of
legal and illegal motives cannot be separated. Mackowiak,
735 F.2d at 1164.
FINDINGS AND CONCLUSIONS BELOW
The ALJ found that Complainant engaged in activities
protected under the SWDA and the CERCLA, of which Respondent was
aware, and that protected activities were, in fact, an integral
part of Complainant's duty assignments. [3] In particular, the
ALJ found that Complainant engaged in protected activities when
he: (1) expressed concerns to his managers, in a memorandum dated
March 24, 1988, about Respondent's need to obtain permits for
waste disposal ponds; (2) communicated his concerns to officials
from the State of Tennessee Department of Health and Environment
(Tennessee Department of Health); (3) raised with his managers in
[PAGE 3]
April and May, the possibility that Respondent had improperly
dumped hazardous materials into its sludge lagoons and repeatedly
questioned them concerning whether the dumping should be reported
to federal authorities; and (4) advised his managers, in a
memorandum dated May 23, 1988, that he had confirmed with
officials from the Environmental Protection Agency (EPA) that
Respondent also needed to federally report butadiene (B/D) stack
emissions. [4]
In determining the causal element, the ALJ focused on Robert
Newman, Respondent's director for North and South America.
Although Newman approved the decision in May, he insisted that he
already had determined from an interview with Complainant on
April 13, before he was aware of any protected activities, that
Complainant could not continue successfully at the plant.
Transcript (T.) at 264. The ALJ discredited Newman's position as
follows:
If the decision that Gayland Dodd could not continue in
his present capacity had been made as early as
April 13, 1988, and the final decision to terminate him
in May, as was testified by Mr. Newman, it is not
reasonable that he should have been designated to
attend environmental conferences at the expense of his
employer, including the Chicago Spills conference
within two weeks of his termination.
R.D. at 14. Rather, finding both the timing of Complainant's
firing and the timing and pendency of a multimillion dollar
acquisition of Respondent by BASF Corporation to be highly
significant, the ALJ concluded that Respondent's proffered
reasons of poor job performance and attitude were a mere pretext
for the precipitous termination shortly after his return from the
Chicago conference and just three days after the May 23 memo.
The ALJ was particularly persuaded by Complainant's reference in
the May 23 memo to his earlier agreement not to "rock the boat"
with the BASF acquisition pending. In conclusion, the ALJ found
that Complainant's termination was primarily and unlawfully
motivated by his protected activities and by Respondent's need to
silence him before he ruined the pending acquisition by BASF
Corporation. R.D. at 14.
The ALJ alternatively determined that even under a dual
motive analysis Respondent failed to meet its burden. R.D. at
14-15. In his judgment, Respondent's burden under the dual
motive analysis was even more difficult because Complainant's job
responsibilities specifically included protected activities.
As a remedy the ALJ recommends that Complainant be awarded
[PAGE 4]
lost wages and compensatory damages, with interest, and that
Respondent's records be expunged. R.D. at 16. The ALJ denied
Complainant's request for punitive damages. R.D. at 17.
DISCUSSION
Relying on Brown & Root, Inc. v. Donovan, 747 F.2d
1029 (5th Cir. 1984), Respondent first argues that purely internal
complaints are not protected. I agree with the ALJ, however,
that reporting safety and environmental concerns under the CERCLA
and the SWDA internally to one's employer is protected activity.
SeeWilliams, slip op. at 4-5; Pogue v. United
States Dep't of Navy, Case No. 87-ERA-21, Sec. Ord., May 10,
1990, slip op. at 49, rev'd on other grounds, 940 F.2d
1287 (9th Cir. 1991); Willy v. The Coastal Corp., Case No.
85-CAA-1, Sec. Ord., June 4, 1987, slip op. at 3-7 and Sec. Ord.,
June 1, 1994, slip op. at 13. The Secretary continuously has
maintained that Kansas Gas & Electric Co. v. Brock, 780
F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011
(1986); and Mackowiak, 735 F.2d at 1159, rather
than Brown & Root, set forth the appropriate resolution of
the internal complaint issue. Recently, another court of appeals
has agreed. SeePassaic Valley Sewerage Comm'rs v.
United States Dep't of Labor (Passaic Valley), 992
F.2d 474, 478-80 (3d Cir. 1993). Furthermore, the United States
Court of Appeals for the Sixth Circuit, whose decisions are
controlling in this case, has followed Kansas Gas, not
Brown & Root. SeeJones v. Tennessee Valley
Authority, 948 F.2d 258, 264 (6th Cir. 1991).
As explained in Passaic Valley, the whistleblower
provisions share a broad, remedial purpose of protecting
employees from retaliation taken against them by management to
discourage or to punish employee efforts to bring the company
into compliance with the statutes' safety and quality standards.
The protection would be largely hollow if it were restricted to
the point of filing a formal complaint with the appropriate
external law enforcement agency. Passaic Valley, 992 F.2d
at 478. An employee's internal complaints are the first step in
achieving the statutory goal of promoting safety. [5]
With one exception discussed in footnote nine below, I agree
that Complainant engaged in the protected activities delineated
by the ALJ. Certainly by March 24, 1988, Complainant was raising
protected internal concerns about whether Respondent needed to
obtain permits for its surface impoundments and waste ponds and
was suggesting further consultation, testing, and core sampling.
Complainant's Exhibit (CX) 8. In his March monthly report to his
supervisor, Bill Bornhoeft, Complainant complained as follows:
I would like to know why we are exempt from RCRA
reporting. I need to know. It is likely we will have
some problems. Bob Rosen [Respondent's Manager for
Safety, Health and Environment who reports to Newman,
[PAGE 5]
T. at 267, 274] and I discussed my letter on this subject. There
is a desire not to "rock the boat" until after the acquisition.
CX 9. [6] Concerns such as these that "touch on" the
environment and statutory compliance are protected. [7]
Scerbo v. Consolidated Edison Co., Case No. 89-CAA-2, Sec.
Dec., Nov. 13, 1992, slip op. at 5;Aurich v.
Consolidated Edison Co., Case
No. 86-CAA-2, Sec. Dec., Apr. 23, 1987, slip op. at 4-5.
On April 26, during a meeting attended by the plant manager,
Tom Mann; Bornhoeft; Newman; and others; including employees from
BASF, Complainant raised the additional issue of whether
Respondent had dumped hazardous materials improperly and whether
the dumping and associated findings should be reported. The
meeting was called because, in inspecting the plant prior to
purchase, BASF had tested Respondent's sludge lagoons and the
tests returned positive for the characteristic of
ignitability. [8] The lagoons were a treatment facility, not
intended for ignitable, hazardous waste, and all were concerned.
See T. at 208, 215-16, 224-25. During the meeting
Complainant presented his theory and added that the situation
should, or probably should, be reported to the EPA or a state
agency. T. at 55-57, 197-200. Thereafter, Complainant pressed
this issue on several other occasions, including by written
memorandum to Mann and Bornhoeft on May 13. T. at 67-68, 202,
355-56; CX 5. These complaints are grounded in conditions
constituting reasonably perceived violations of the environmental
acts and are protected. Abu-Hjeli v. Potomac Electric Power
Co., Case No. 89-WPC-1, Sec. Dec., Sept. 24, 1993, slip op.
at 11-12; Johnson v. Old Dominion Security, Case Nos. 86-
CAA-3/4/5, Sec. Dec., May 29, 1991, slip op. at 15. Even though
Respondent disagreed with the test results and with Complainant's
theory of why the ponds tested flammable, Respondent does not
show that Complainant's position was unreasonable. T. at 224.
Respondent admits that Complainant "truly . . . believed" that
the drum situation was reportable. T. at 202. And Complainant's
pressing the issue was protected conduct, even though he may have
been tentative and uncertain about the law. SeePassaic Valley, 992 F.2d at 479-80 (all good faith
intracorporate allegations of perceived discrepancies are fully
protected); seealsoYellow Freight Sys., Inc.
v. Martin, 954 F.2d 353, 357 (6th Cir. 1992) (protection of
internal complaints under the analogous Surface Transportation
Assistance Act is not dependent on actually proving a violation).
Similarly, Complainant engaged in protected activity when he
raised and clarified his concerns about the reportability of B/D
emissions in the May 23 memorandum. T. at 75; CX 6. As noted by
the ALJ, the May 23 memorandum documents in its opening sentence
that Complainant discussed the B/D emissions problem with EPA
officials, see R.D. at 5, 14, and therefore, Complainant
also
[PAGE 6]
engaged in protected activity by communicating his concerns
externally to the EPA. SeeWilliams, slip op. at
4-5. [9]
After carefully reviewing the hearing transcript and other
evidence of record, I am convinced that Complainant engaged in
several other particular and significant protected activities.
First, I find that Complainant raised protected complaints as
early as March 2, in his "self-evaluation report," which was
reviewed by Bornhoeft and Mann. Respondent's Exhibit (RX) 4;
T. at 362. Complainant was complaining about what he perceived
as Respondent's unwillingness to take legally required and
prudent steps toward evolving a plan for closure of the ponds,
i.e., core sampling. Seealso T. at 44-48.
He stated that although he had obtained five bids for the core
sampling project and had made recommendations, no management
action had been taken. He complained that he had been left
"trying to explain the inadequacy of our environmental effort,"
and he added:
Regulations are becoming much more strict. I despair
of being able to meet them with our management attitude
regarding costs. . . . Environmental sampling and
testing is a little more involved than our plant
laboratory setup. This area is also very much a
sellers market as many plants must scramble to meet the
regulatory requirements. . . . Hopefully management is
going to realize the cost of environmental compliance
and become more amenable to spending money on
environmental projects.
RX 4 at 3. I find Complainant's perception reasonable because it
comports with the testimony of the plant manager, Tom Mann, T. at
207-208, and is inherently probable considering the plant's
financial situation. Seealso R.D. at 6, 12.
I also find that Complainant raised protected concerns
personally with Mann on May 13. That morning Mann held a plant
meeting and presented his views on a new "open" management style.
T. at 70. Afterwards, Complainant approached Mann, and according
to Complainant, asked Mann if the openness policy would include
his being able to make the federal reports that he considered
necessary to comply with environmental laws. T. at 70. Mann
testified that the incident was a major conversation about
Complainant's poor March evaluation, nothing more, and he denied
that Complainant mentioned anything about the reportability
issues. T. at 180-81, 226. [10] Complainant's version,
however, is more credible because it is more consistent with the
evidence, particularly Respondent's own accounts of the exchange.
Bornhoeft explained that the gist of Mann's meeting was "that
everybody is an expert in the field, and that we have an open
attitude towards listening." T. at 347. Bornhoeft testified
that while Mann was giving his presentation, Complainant confided
[PAGE 7]
to him, "this is so different from the way Tom [Mann] really
acted, . . . to the effect that he had been screwed, or something
like that, and he just didn't agree that that was Tom's
attitude." T. at 347-48. Mann's account contains similar
language. See T. at 182. Both accounts at least support
an inference that Complainant was complaining that Mann already
had retaliated against him for being "open" with management.
Considering that Complainant and Mann had been at odds over
environmental issues since early March; that Complainant had
received a poor evaluation at the end of March; that
Complainant's questions about reportability issues were
persistent and progressively pointed; it follows that Complainant
would seize this face-to-face opportunity to once again press his
complaint that Respondent should be reporting under the SWDA and
CERCLA. Further, I am persuaded that the memorandum Complainant
wrote on that date, apparently immediately after the incident, reflects his prior conversation with Mann. The memorandum
bluntly and singularly raises the reportability issue.
Finally, it is uncontradicted that on May 17, Complainant
telephoned Bornhoeft from the Chicago spills conference and
reported that he had confirmed that Respondent's butadiene
emissions should be reported under CERCLA. T. at 73, 357-58.
Complainant claims that during that telephone call he also
advised Bornhoeft of his contacts with EPA officials, and I find
his testimony most likely. T. at 73. Bornhoeft admits receiving
the call, and does not deny being told about the EPA contacts.
T. at 358.
Temporal proximity between a complainant's protected
activity and his termination may be sufficient to raise an
inference of unlawful retaliation and establish the prima facie
case. SeeCouty v. Dole, 886 F.2d 147, 148 (8th
Cir. 1989); Moon, 836 F.2d at 229. Accordingly, I agree
with the ALJ's legal conclusion that timing is significant, but I
do not rely on Complainant's May 23 protected memorandum to
establish the causal connection. There is evidence, which the
ALJ did not fully address, that the decision to terminate
Complainant was made by Mann and Bornhoeft on May 18, and
approved by Newman on or about May 20. T. at 193, 203-204, 263,
367-68. Thus, the ALJ may have erred in inferring that the
termination decision was made after and because of Complainant's
May 23 memorandum. In any event, even accepting that the
termination decision was made on May 18, I agree with the ALJ's
finding that the decision was motivated by retaliatory animus.
As discussed above, Complainant made a number of protected
complaints during the three months prior to May 18, including
those made the day before in a telephone call to Bornhoeft, and
those made on May 13 during the incident with Mann. This
evidence overwhelmingly establishes the prima facie
[PAGE 8]
case, and ultimately, unlawful retaliation.
Although Respondent's witnesses denied that the May 13
incident involved protected activity, they admitted that it led
to Complainant's termination. According to Bornhoeft, Mann
considered firing Complainant instantly and stated, "I have just
about had it with that kind of an attitude, his negativism, and
insubordination." T. at 348-49. Mann told Bornhoeft that if
Bornhoeft thought Complainant should remain at the plant, then
"make your case for that." T. at 192.
Bornhoeft claims that he recommended termination after
considering Complainant's deteriorating relationships, attitude,
and performance, but his testimony taken as a whole shows that he
recommended termination solely because of Complainant's conflict
with Mann over Complainant's protected complaints. T. at 353-54.
Bornhoeft was well aware of the escalating tension between
Complainant and Mann, and it was obvious that Mann was anxious
to fire Complainant. Mann had warned Bornhoeft that it would be
"very difficult" for him to continue to work with Complainant.
T. at 190. If anything, Bornhoeft finally cast his "straw"
because he anticipated greater conflict to result from Complainant's May 17 telephone call raising even more problematic
protected complaints. T. at 367.
Furthermore, in view of the broad scope of Newman's job
description, I do not believe that his final "yea" was anything
more than pro forma approval. T. at 261. Newman confessed that
he did not "get close to the nitty-gritty of what is going on at
every plant." T. at 287. And even if Newman actually relied on
his impression from the April 13 career interview to approve the
termination decision, Newman's negative impression also was based
simply on Complainant's personality conflict with Mann.
See T. at 282. [11]
Complainant's conflict with Mann, and Complainant's alleged
negative attitude and insubordination, were nothing more than the
result and manifestation of his protected activity. SeePassaic Valley, 992 F.2d at 481 (employee's "personality"
problem reducible to the inconvenience caused by his pattern of
complaints); Pogue v. United States Dep't of Labor, 940
F.2d 1287, 1290 (9th Cir. 1991) (employee's "insubordinate"
behavior resulted from her reaction to employer's failure to
respond to her protected whistleblower reports);
Mackowiak, 735 F.2d at 1164 (employee's "bad attitude" may
arise from persistent protected activity). The conflict had been
building since Complainant's March 2 self-evaluation report,
which Respondent refers to as a "letter of gripes." Brief at 4.
Even though the report contains both protected and unprotected
complaints, the overriding "gripe" is Complainant's
dissatisfaction with management's lack of commitment to
environmental concerns. Mann was extremely
[PAGE 9]
irritated by the report and thought that an employee with that
"attitude" should not continue working for Respondent.
See T. at 176-78. Bornhoeft explained:
Tom was very upset [after the May 13 incident]. Of
course, this was, this followed the area of what, two
months, I guess, from this performance review meeting
that -- well, before the performance review, but the
yellow letter [Complainant's self evaluation report],
what we had talked in Tom's meeting with Gayland, and
he said I said it to him in that last meeting that he
can get fired for these kind of things . . . .
T. at 348.
In the interim Mann was further agitated by Complainant's
comments at the April 26 meeting. As soon as the meeting was
over, Mann took Complainant aside and said, "you are making some
negative comments and you are insinuating some things have been
done wrong, and if you want to make those comments, speak for
yourself, don't speak for me, because as far as I am concerned,
we would do the same thing tomorrow." T. at 199. In my view,
Mann ignored Complainant's subsequent requests to consider
reporting the drum dumping and pond ignitability problem because
reporting could implicate him, specifically, and Respondent,
generally, in wrongdoing, and because he feared government
involvement and regulation. Cf. T. at 208-209.
Although Mann viewed Complainant's behavior during the
May 13 incident as insubordinate and negative, see T. at
349, the facts and the law are not supportive. The right
to engage in statutorily protected activity permits some leeway
for impulsive behavior, which is balanced against the employer's
right to maintain order and respect in its business by correcting
insubordinate acts. A key inquiry is whether the employee has
upset the balance that must be maintained between protected
activity and shop discipline. SeeAsst. Sec. and
Lajoie v. Environmental Management Sys., Inc., Case No. 90-
STA-31, Sec. Dec., Oct. 27, 1992, slip op. at 10-11, and cases
cited therein, appeal dismissed, No. 92-2472 (1st Cir.
Feb. 23, 1993); Kenneway v. Matlack, Inc., Case No. 88-
STA-20, Sec. Dec., June 15, 1989, slip op. at 6-7. Here, that
balance weighs heavily in Complainant's favor. Even if the May
13 incident involved the use of intemperate language by
Complainant, the incident was private, was far from egregious,
was not indefensible in the context of the escalating conflict,
and thus did not remove Complainant from statutory protection.
CompareLajoie, slip op. at 13 and Kenneway,
slip op. at 10-13 with Sartain v. Bechtel Constructors
Corp., Case No. 87-ERA-37, Sec. Dec., Feb. 22, 1991, slip op.
at 15-16.
[PAGE 10]
Thus, I conclude that Complainant's termination was based
solely on his "attitude," which in this case was a manifestation
of his protected complaining. Even if the decision also was
based in part on Complainant's performance and/or some legitimate
attitudinal problems, Respondent failed to prove that it would
have fired Complainant in the absence of his protected activity
on May 13. [12] See T. at 231. It is apparent that
neither Bornhoeft nor Newman would have instigated or recommended
this termination absent Mann's reaction to Complainant's May 13
protected activity. [13] Well over a month had passed since the
April 13 interview and Newman had not taken any formal steps to
change the status quo, nor would he have in the absence of Mann's
resolve. Accordingly, I agree that
Complainant prevails.
THE REMEDY
Complainant does not seek reinstatement. Upon review I find
that the ALJ's determination of lost wages is supported by the
record, T. at 166, and, therefore, Respondent shall pay
Complainant $3,166.00 with interest. Contrary to the ALJ's
order, however, the interest shall be calculated at the rate
specified in Section 6621 of the Internal Revenue Code, 26 U.S.C.
§ 6621 (1988). SeeWilliams, slip op. at 15.
Respondent shall also expunge Complainant's personnel file of any
references to
his discharge.
Compensatory damages are allowable pursuant to 29 C.F.R.
§ 24.6(b)(2), seeGuttman, slip op. at 23
n.19, and I accept the ALJ's award of $10,000.00 as unchallenged
by Respondent and appropriate under the particular facts of this
case. See T. at 81, 83-87, 379-82; Lederhaus v. Donald
Paschen & Midwest Inspection Service, LTD., Case No. 91-ERA-
13, Sec. Dec., Oct. 26, 1992, slip op. at 10-14. I further agree
with the ALJ that Complainant is not entitled to punitive
damages. R.D. at 16. Neither the CERCLA nor the SWDA provide
for such a remedy, and the Secretary has held that punitive
damages are not allowable absent express statutory authorization.
Guttman, slip op. at 23 n.19. Although I have considered
Complainant's arguments that the authorization should be
considered implicit, I am not persuaded. My holding is more
consistent with the essentially remedial purpose of these acts
and with case law decided under comparable employment
discrimination provisions of the NLRA and Title VII. SeeRepublic Steel Corp. v. NLRB, 311 U.S. 7, 10-12 (1940)
(NLRA is essentially remedial and does not authorize the Board to
devise punitive measures); Williams, slip op. at 13-14,
citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975) (like Title VII, SWDA remedy is "make whole," intended to
restore victims to the positions they would have occupied were it
not for the unlawful discrimination). In view of my holding that
the Secretary is not authorized to award punitive damages in this
[PAGE 11]
case, it is unnecessary to address, and I do not accept, the
ALJ's gratuitous ruling concerning the sufficiency of
Respondent's actions to sustain an award of punitive damages.
Accordingly, I accept items 1, 2, and 5 of the ALJ's
Recommended Order, R.D. at 16-17.
Fees, expenses, and interest were assessed in the ALJ's
Recommended Supplemental Decision for Attorney Fees and Order
Denying Motion for Reconsideration, issued May 15, 1990, however,
the parties have not briefed the appropriateness of this
assessment. A period of 10 days from receipt of this order is
granted for any briefing on this issue. Arguments made before
the ALJ will be considered by the Secretary and should not be
repeated in any briefs submitted pursuant to this order. Counsel
for Complainant also is permitted a period of 10 days in which to
submit any petition for fees and expenses incurred in review of
the ALJ's R.D. before the Secretary. Respondent thereafter may
respond to any petition within 10 days of its receipt.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The caption is modified to conform with 29 C.F.R. §
18.2(l) (1993).
[2] The SWDA also is known as the Resource Conservation and
Recovery Act, or RCRA. See 42 U.S.C. § 6901 Short
Title.
[3] In 1987, Complainant was designated to spearhead
environmental issues and awareness at Respondent's PLC-2 plant,
and then in January 1988, Complainant assumed a "major
responsibility" on all environmental issues. R.D. at 3;
Complainant's Exhibit (CX) 3; Transcript (T.) at 43.
[4] Complainant discussed this matter with EPA officials while
he was attending a "spills" conference in Chicago, Illinois, from
May 16 through May 19, 1988. R.D. at 5; T. at 72.
[5] The SWDA is a "standard employee protection provision."
H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976), reprinted
in 1976 U.S.C.C.A.N. at 6245. Its language as it relates to
protected activity is virtually identical to that in the Water
Pollution Control Act, which was at issue in Passaic
Valley. The pertinent language of the CERCLA provision is
even broader.
Both the SWDA and the CERCLA contain extensive cross-
references to the Clean Air Act, see, e.g., 42
U.S.C. § 9601(10), (14); 42 U.S.C. § 6901(b)(3), which
was the model for the environmental whistleblower laws.
Willy, June 1, 1994, slip op. at 22; seePoulos
v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec.
Ord., Apr. 27, 1987, slip op. at 5. The whistleblower provision
of the Clean Air Act was patterned after similar provisions in
the National Labor Relations Act and the Federal Coal Mine Health
and Safety Act of 1969, both of which had been interpreted
broadly to protect employees who had not been in contact with a
government entity. Kansas Gas, 780 F.2d at 1511;
Poulos, slip op. at 8-9. Contrary to Respondent's
argument, the amendment contained in the Federal Mine Safety and
Health Act of 1977 expressly extending coverage to internal
complaints does not undermine the Secretary's reasoning.
"Congress included such express language in the 1977 Mine Safety
and Health provision 'not because its intent [in the 1969 Mine
Safety provision] had changed but because this intent had been
incorrectly perceived by certain courts.'" Kansas Gas, 780
F.2d at 1511-12; Poulos, slip op. at 9 n.4. Similarly,
Brown and Root effectively was overruled when, on October
24, 1992, the statute under which it arose, the Energy
Reorganization Act of 1974, 42 U.S.C. § 5851 (1988), was
amended to provide express coverage for internal complaints.
[6] The ALJ incorrectly referred to this as Complainant's April
report. R.D. at 4.
[7] Respondent does not dispute that Complainant's work
involved environmental issues covered substantively under the
CERCLA and the SWDA, or RCRA. Cf. T. at 91-92.
[8] BASF had a negotiable period of time of discovery, to
determine exactly what it would be purchasing. T. at 269.
[9] I agree with Respondent that there is no specific evidence
that Complainant expressed his concerns to the environmental
specialist of the Tennessee Department of Health before he was
fired. While the ALJ's inference that Complainant communicated
his concerns to the specialist during an on-site meeting is not
unreasonable, any error would be harmless because neither the ALJ
nor I rely on the inference in deciding this case.
[10] On March 24, 1988, Complainant received a "less than fully
satisfactory" performance evaluation for the period January 1987
through December 1987. CX 7.
[11] In reaching this conclusion I have thoroughly considered
Newman's various explanations, but I find Complainant's
"problems" with Mann to be the recurring, and probable, reason.
T. at 251, 282. I note that Newman's testimony at one point,
that the decision "was all based on performance," T. at 265,
contradicts Respondent's own position and is damning, not
convincing.
[12] The ALJ's reasoning under the dual motive analysis is
unclear, but to the extent that he implies a different burden of
proof based on the employee's job responsibilities, I disagree.
[13] For example, Bornhoeft had placed Complainant on a "Three-
month Goal" that ran from March 22, 1988, through June 30, 1988,
and Complainant was fired on May 26, a month before that plan was
concluded. See RX 5.
