Complainant started working for respondent in September, 1999 through a temporary employment agency (TR 138). He testified that from the start he worked full-time (id.); but Bernstein, Steve Bennett (respondent's general manager and Josh's supervisor) and Michelle Shaw (respondent's comptroller) all testified that complainant worked part-time for the first 90 days with Palco, at which time he became a Palco employee and began full-time work (TR 335, 410-12, 503). He was hired to work in operations and in dispatching, but because he had problems with the computer system and seemed to know about safety he was asked to work on safety issues instead (TR 21-22, 335, 411). In effect, he became respondent's safety coordinator. In this job, he worked with Department of Transportation files, maintained drivers' drug and alcohol test records, scheduled all driver training and did some of the training himself, and played a large role in the hiring of new drivers (but did not decide who to hire) (TR 22-23, 26; CX 1).

   In mid-April, 2000, shortly after respondent moved its headquarters to Saco, complainant was made maintenance supervisor in addition to his other duties (TR 414-15). Bernstein determined that the safety position no longer took up a full week's work, and told complainant that he had to take the maintenance supervisor duties or he would be cut back to only 25 hours a week (TR 337, 415; CX 6). Bernstein testified that complainant took on the added duties reluctantly even though it included a promotion into management (TR 27, 415-16, 337). Complainant's duties as maintenance supervisor included making sure the company's vehicles were properly maintained and the garage was safe, ordering parts and supervising the company's mechanics (TR 27-28; CX 2). Although at the time he became maintenance supervisor the Saco facility had not been completed, and he had been working in a trailer, he was told that he would be moved into an office adjacent to the garage when that office was constructed (TR 142, 416; see also RX 1). According to Bernstein, the facility was completed in the middle of May, 2000 (TR 416-17), at which time complainant moved into the new office. The only entrance into that office was through the garage.

   Complainant complained about potential exposure to fumes in this office even before he moved into it (TR 143; CX 12), and within a week or two of moving in he was complaining about excessive exhaust fumes in his office (TR 565-66). In addition, he complained that his office did not have a window looking out into the garage (TR 145) and that it did not have a separate door providing a direct entrance into the administrative offices (TR 145-46). Complainant alleged that OSHA regulations required his office to have a second door (TR 432). In a short time a window was put in, but Bernstein refused to put in another door to complainant's office (id.). In regard to the exhaust fumes, complainant testified that he complained to Josh, Bennett and Bernstein about the lack of ventilation in the garage (TR 36). He further testified that he contacted a company called Airtemp to obtain a bid on an exhaust system for the garage (TR 151, 199).

   Complainant continued to complain about fumes in his office, prompting Bernstein to write a memorandum to him on June 6 or June 8 (CX 8, 9). In this memorandum, Bernstein complained that complainant had not previously informed him that he had an unusual sensitivity to fumes, and reiterated that he was willing to make reasonable changes to improve the environment in complainant's office but he would not make drastic changes because of the sensitivity of one person. He went on to state that "[i]f you feel that is not good enough then you should resign from your position ...." Complainant did not resign.

spoke to two people there who told him to put his concerns in writing and send it to them (TR 57). Then Bernstein left his office, followed by Josh who told him "you don't know what you just did." (Id.) Bennett stayed in his office while complainant typed up a letter to a Mr. Coffin of OSHA (CX 12), and remained there until complainant faxed it off (TR 58).

   Complainant stated that sometime later that day, after the OSHA telephone call, Bernstein came into his office and threw the memorandum dated June 16, 2000 mentioned above onto his desk (TR 62-63). He did not discuss this memorandum with Bernstein on June 16 (TR 65). Moreover, on June 16 Bernstein did not show him a proposal by Airtemp to install a ventilation system in the garage (TR 199).

   Although the two versions of the occurrences on June 16, 2000 are very different, the differences are not significant in regard to the disposition of this case. For the parties agree that complainant made a complaint to OSHA on that day, and there is no disagreement that complainant was told by Bernstein or, at the least, by Bennett or Josh in Bernstein's presence and without contradiction by Bernstein, to go ahead and call OSHA.

Due to complainant's complaint, an OSHA Compliance Officer, John Newton, conducted an unannounced inspection of respondent's Saco facility on June 21, 2000 (TR 167-68). Newton

   Another problem arose on June 19 or June 20, when Bernstein walked into the garage and found that a truck could not be put into service because respondent was out of a part needed to service the vehicle a lube filter (TR 525, 75). Also, he was told by Kenny Palmer, respondent's mechanic, that the vehicle's inspection had expired on June 1 (TR 526). Bernstein immediately wrote a memorandum to the complainant pointing out these shortcomings, which Bernstein blamed on the complainant. As Josh stated, ordering parts was complainant's responsibility (TR 378). Bernstein ended his memorandum as follows: "Please pay more attention to performing your job better. Anymore [sic] such failures on your part will result in immediate termination." (CX 15A, 16). Complainant's testimony regarding this incident was an exercise in obfuscation. He testified three times that, contrary to Bernstein's impression, there were four of the lube filters in stock, and that Bernstein's memorandum was "falsified" (TR 79; see also TR 73, 76, 269). Then he blamed the problem with the filters on Kenny Palmer, stating that Palmer failed to prepare a parts requisition (TR 79), and blamed the failure to get the truck inspected on Shaw, Bennett, Palmer and the truck's drivers (TR 80; CX 19, at 1). In response to my questions in which I attempted to reconcile what I perceived to be inconsistencies in his testimony, he first testified that he did not run out of filters (TR 269), then very reluctantly admitted that he did (TR 270). Complainant's attempt to hide the fact that respondent ran out of lube filters, and his further attempt to pass the blame for this mistake onto other people, does not speak well for him.

   Complainant also had trouble getting along with some of his colleagues. According to Shaw, complainant was at least partly responsible for the resignation of Laurie Carr, a long-time Palco employee (TR 502). Shortly after complainant came to work for respondent, Carr had to work with him on the drivers' logs (TR 479). Carr complained to Shaw, who was her supervisor, that complainant belittled her, and she could not work with him (TR 479, 502). She quit Palco in December 1999 (TR 502). Shaw further testified that complainant and a mechanic working for respondent during complainant's tenure there, Mike Dickinson, engaged in two verbal altercations. The first, which she described as a "screaming match," took place while respondent was still in Scarborough; the second occurred in Saco (TR 490-91). Shaw testified that Dickinson told her that, in the Saco facility, complainant worked too close to him, since complainant's office was adjacent to the garage where Dickinson worked, and he was going to look elsewhere for a job (TR 492). In fact, Dickinson did resign his position at Palco (TR 491). Shaw stated that she informed Bernstein about Carr and Dickinson's problems with complainant (TR 479-80, 491-92).

   Shaw had her own problems with the complainant. As was discussed above, because complainant fell way behind in inputting data into the computer system, Shaw was drafted to help (TR 482-84). After a while, she resented doing complainant's work as well as her own, and she told Bernstein if she had to continue doing it she might quit (TR 485). She also told Bernstein that Tina Larose, who worked for Shaw, might leave with her (TR 485-86).

he had taken care of everything. So complainant went into his office to catch up on his own work, since he had been out for three days (TR 112). Complainant stated that sometime later he went back to the garage to speak to Palmer, who told complainant he had a call into the GMC dealer because he believed the broken part referred to by both Palmer and complainant as a "pig" may be covered by a warranty. Complainant added that Palmer had already called a truck parts company to find out about getting a new pig , and was quoted a price of $2500 (TR 114). Complainant also stated that Palmer did not ask him for assistance in repairing truck 91 at any time on July 7.

   According to Palmer, when complainant arrived at work on July 7, Palmer was under truck 91working on removing the pig from the rear end housing. Complainant asked him if he was having a problem, and Palmer replied that he was. Complainant then went into his office. After Palmer removed the pig, he stated that he copied the make, serial number and gear ratio of the pig from a tag on the rear end housing, and went into complainant's office so that complainant could order a replacement part. He then left to clean up, and went back to complainant's office to see if he had ordered the part, but he had not. Rather, according to Palmer, complainant told him he was writing a letter. See TR 445-46.

   Palmer went back into the garage, and saw Bernstein going to his car. He testified that he went up to Bernstein and told him he was tired of working with someone "who was lazy and couldn't do their [sic] damn job.... I had it right up to here. I was ready to throw in the towel." (TR 446) He returned to work on other things, then later that afternoon he called the GMC dealer to see if the part for truck 91 was covered by warranty. He testified that complainant did not contact any vendors in connection with the repair of truck 91 at any time that day (TR 447).

   Bernstein testified that he came to work at 9:00 a.m. on July 7 (TR 543). He remained at the Saco office for two to three hours, at which time he left to play golf (TR 544). While he was in the office he was busy doing routine administrative tasks because Shaw and Tina Larose were not working that day (id.). As he was leaving the office to go to the golf course, Palmer was coming towards him and Bernstein said he looked like he was upset. Palmer complained that he could not work with the complainant any more, that he "doesn't help me one bit and I'm really getting fed up with it." (TR 545) Bernstein testified that since their other mechanic, Mike Dickinson, had quit, Palmer had been terribly overworked, and that on July 4th Palmer drove to respondent's Portsmouth, New Hampshire location on his own time to bring a truck that needed servicing back to Saco (TR 546). He believed respondent was indebted to Palmer for his hard work. Further, he understood that Palmer was threatening to quit if Bernstein did not do something about complainant, and since Palmer was their only mechanic, if he quit respondent would be in a very difficult position.

   Bernstein testified that, while driving to the golf course, he realized that Dickinson had quit because of complainant, and Laurie Carr had complained about him, and he decided he did not want to lose Palmer also because of him (TR 546-47). At 12:45 p.m., after completing the first hole, Bernstein called Josh on his cell phone and told him that he was sick and tired of getting complaints about the complainant and he was going to fire him (TR 398, 547-50; CX 39). Josh tried to defend complainant, but Bernstein was adamant (TR 398-99). Bernstein was not aware that complainant had filed a complaint with the Maine Human Rights

Commission when he decided to fire complainant (cf. TR 363, 400). He asked that Josh and Bennett be present at about 6:00 p.m., after his golf game, when he was going to inform complainant of his termination (TR 551-52). When Bernstein returned, the meeting took place, and complainant was fired (CX 33). Both Bernstein and Josh testified that, when informed that he was fired, complainant stated "something to the effect that you guys finally fell into my trap that my attorney and I had set for you." (TR 552, 379). Complainant testified that, at this meeting, none of the three respondent's officials mentioned his writing a letter to the labor board as a reason for his termination; nor did they mention anything about truck 91 (TR 121).

   After being informed of his termination, complainant testified that Bernstein, Josh and Bennett would not let him take his personal belongings out of his office, so immediately afterwards he went to the Saco Police Department; but the police would not help him (TR 120). On July 8, 2000, complainant wrote another letter to OSHA stating that he was terminated at 6:15 p.m. on July 7 because he had filed a complaint with OSHA on June 16 (CX 32). Then on July 10, 2000, Bernstein wrote a memo to complainant stating:

You were terminated due to continued poor work performance. On friday [sic] you ignored your responsibility as maintenance supervisor by failing to involve yourself in a problem with [the] rear end in truck 91. You did not ask any questions of [sic] the truck with Kenny. Your only conversation to him was that you were writing a letter to the labor relations board.

Since you have worked here we have had problems with employee morale, insubordination, lack of productivity, misrepresented qualifications and many other specific deficiencies already brought to your attention.

(CX 33).

   Complainant testified that when he was fired by respondent he was "devastated"(TR 122). For he testified that he loved the kind of work he was doing for respondent, and financially he was still strapped from being unemployed for more than a year prior to starting with respondent (TR 122-23). He also complained that, because he worked nights for A.M.A., he could not spend any time with his wife or son (TR 125). He added that this put an emotional strain on his wife, causing her to file for divorce (TR 125-26). The problem with this testimony is that Mrs. Nilsen filed for divorce on August 10, 2000, which is either before complainant started working for A.M.A or at most a few days after, which means that complainant's working nights for A.M.A. could not yet have significantly impacted their relationship. An alternate version of what led Mrs. Nilsen to file for divorce on August 10 was that complainant's termination from Palco and his resulting unemployment left him disinterested in everything (TR 125-26, 304-06). But it is hard to believe that someone would seek to dissolve a 20 year marriage so quickly for this reason. In any event, Mrs. Nilsen did not pursue the divorce, electing to try counseling instead (TR 307-08). Finally, It should be noted that in a June 20, 2000 doctor's report it states that complainant is "presently taking both Paxil and Pepcid ...." (CX 52). The report goes on to state that the Paxil had been prescribed to treat depression and fatigue, and the Pepcid for reflux esophagitis with gastritis (id.). As Mrs. Nilsen admitted, complainant's depression preceded his employment at Palco, although she stated it got worse in mid to late June, 2000 (TR 312-14).

Discussion

   Complainant's burden under the Act, as under similar statutes protecting whistleblowers, is to prove by a preponderance of the evidence that: (1) he engaged in conduct protected by the Act; (2) respondent took an adverse employment action against him; and (3) the adverse employment action was caused all or in part by the protected activity. BSP Trans, Inc. v. U.S. Department of Labor, 160 F.3d 38, 46 (1st Cir. 1998; Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). Since this case proceeded to a full hearing on the merits, no purpose would be served by determining whether the complainant has established a prima facie case. Boytin v. Pennsylvania Power & Light Co., 94-ERA-32 (Sec'y Oct. 20, 1995). The relevant inquiry is whether, looking at the evidence as a whole, complainant has shown that the disciplinary action was taken because he engaged in protected activity. E.g., id.; Boudrie v. Commonwealth Edison Co., 95-ERA-15 (ARB Apr. 22, 1997). To meet this burden, complainant must prove that disciplinary action was taken, and that respondent's stated reasons for the disciplinary action taken are pretextual, that they were not the true reasons for the adverse action. Scott v. Roadway Express, 98-STA-8 (ARB July 28, 1999); Leveille v. New York Air National Guard, 1994-TSC-3, 4 at 4 (Sec'y Dec. 11, 1995).

   In regard to weighing the testimony in this case, I find that neither the complainant nor Bernstein were particularly credible witnesses. As is illustrated above, both of their testimonies are full of inconsistencies, self-serving statements and, in the case of complainant, outright lies. In addition, both appear to have rather inflated egos which color their perception of events. Without corroboration from other witnesses or documentary evidence, neither of their testimonies can support a controverted finding of fact. On the other hand, I particularly credit the testimony of Josh, Bennett and to a lesser extent Shaw. Josh and Bennett both like the complainant, and frequently stood up for him. Moreover, they seemed to believe he was a valuable employee despite his shortcomings (see, e.g., TR 398-99). Shaw also appears to have no axe to grind against complainant despite her annoyance with his failure to get caught up with inputting the data into their computer system as well as the friction he created with his co-workers. During her testimony she was very respectful of the complainant, and did not seem at all antagonistic towards him even when she was criticizing him.

Complainant's Contentions

   Complainant makes two separate arguments here. Complainant's principal contention is that he was fired by respondent because on June 16, 2000 he complained to OSHA regarding respondent's health and safety practices. In regard to this contention, respondent does not contest that the complainant engaged in protected activity when he filed his complaint with OSHA, that it knew about the protected activity, and that it took an adverse employment action against him when he was fired on July 7, 2000. But respondent argues that complainant cannot meet the last criterion, i.e., that the adverse employment action was caused by the protected activity. I agree.

   Since I do not credit complainant's testimony or written statements, and respondent has not admitted either directly or circumstantially that complainant was fired because of his protected activity, the only basis complainant has for a finding that he was fired because of his June 16, 2000 complaint to OSHA is temporal proximity. Complainant argues that the temporal proximity between his termination and his complaint to OSHA he was fired three weeks after he complained to OSHA creates an inference of causation; and there is a significant body of case law holding that such a period between the protected activity and the alleged retaliation may create such an inference. But based on the facts in this case, I find that temporal proximity does not create an inference of causation. For one thing, Bernstein is neither reflective nor subtle; if he is going to do something he usually does it immediately, shooting from the hip. This is illustrated by his numerous memoranda to complainant, which in most cases were written shortly after the occurrence of the precipitating event. It appears to be much more in Bernstein's character to discipline an employee immediately after the event, as he contends he did when he decided to terminate the complainant only a couple of hours after Palmer complained to him, rather than to wait three weeks to do so. In addition, as was indicated above, if Bernstein was looking for an excuse to fire complainant for filing a complaint with OSHA, he could have done so on June 20 or 21 when, due to complainant's error, respondent ran out of lube filters, preventing Palmer from completing a repair on a truck. But he did not fire complainant at that time. Under these circumstances, I find that the three week period between the OSHA complaint and complainant's termination does not create an inference of causation.

   But even if complainant was entitled to an inference of causation due to the temporal proximity of the OSHA complaint to his termination, I find that the evidence of record would overcome that inference. First, I credit Palmer's testimony regarding the events of July 7 over that of the complainant, and Palmer's testimony supports Bernstein's testimony that he was afraid Palmer would quit if he did not take any action against complainant. Since Palmer was respondent's only mechanic at that time, Bernstein could not have afforded to take the chance that he might quit. Further, Josh testified that when Bernstein called to tell him he was going to fire complainant, Bernstein was upset because complainant had not helped Palmer on truck 91 (TR 378). Therefore, I find the reason given by Bernstein for firing complainant was not a pretext.

   Further, as the preceeding summary of the evidence shows, complainant's performance at Palco left a lot to be desired. Bernstein's problems with complainant covered several different issues, and the ensuing critical memoranda appear to have been well-deserved from Bernstein's prospective, not pretextual. In fact, what is notable about these incidents, other than complainant's refusal to admit that he might have been at fault in any of them, is Bernstein's forbearance. Despite being unhappy with complainant's job performance in several different respects, Bernstein did not fire him or seek to replace him before July 7. Accordingly, even if the various memoranda Bernstein sent to complainant criticizing his job performance could be held to constitute adverse actions and there is considerable question concerning whether some or all of these memoranda had any tangible job consequences which could be considered adverse (see, e.g., Davis v. Town of Lake Park, Florida, 245 F.3d 1232 (11th Cir. 2001; Shelton v. Oak Ridge National Laboratories, Case No. 98-100, OALJ Case No. 95-CAA-19 (ARB March 30, 2001) they were not in retaliation for protected activity. Rather, they were responses by Bernstein to complainant's job performance and complaints about the alleged problems with his office.

   In regard to complainant's work hours being changed, complainant has not indicated why this change was adverse. Moreover, Bernstein's explanation of why the change was made to have someone in maintenance to whom the drivers could report problems after Kenny Palmer's shift ended (TR 539-40) makes too much sense to be questioned. Likewise, complainant does not provide a reason why his being required to punch a time clock is an adverse action, and does not refute Bernstein's statement that Kenny Palmer told him that complainant was not coming in on time (TR 597).

   In sum, I find that respondent did not retaliate against the complainant because he filed complaints with OSHA or complained to respondent's management about health or safety issues. Accordingly, it is recommended that the complaint be denied.

   It is recommended that the complaint be denied.

      JEFFREY TURECK
      Administrative Law Judge