Carter was employed by ED2 from July 2, 1984 until his termination on August 3, 1992. At all relevant time period of this case, he had two supervisors, Tom Martin, ED2's general manager, and Jim Rotz, ED2's superintendent. Martin came to this Job in July of 1989; his predecessor was Bob Metheny.

Apparently Metheny promised Carter that he would get a pay raise to the equivalent of a lineman's wage. As shown below, this resulted in a wage dispute, a critical issue in this case.

    From 1984 to approximatley December 3, 1991 Carter was regularly promoted with accompanying pay raises and responsibilities. He also worked Independently with little supervision. Throughout this period he only received one reprimand on June 24, 1985 for withholding information on the cause of a circuit outage (D2). However three other employees were similarly reprimanded and Carter te career path was not hampered.

   In October of 1990 Tom Martin sent Carter to a seminar to be trained for PCB compliance. After the seminar Martin told Carter that he would be ED2's environmental complaince officer, with responsibilities toward record keeping, disposal and testing of PCB materials. This was a new position since previously ED2 had no formal environmental compliance program. Additionally, Carter was assigned responsibility in purchasing (T30-31).

   ED2 is a small employer with only 18 employees, including 4 employees working in the office (T315). Martin and Rotz, ED2 management, stated that Carter with these responsilites was a trusted employee. Martin stated that in order to do his 'Sob properly Carter not only was sent to training seminars but was given a free hand to seek information and make recomendation and implementation regarding environmental complaince (Martin deposition at 9-10). Martin stated that when he first came to ED2 he knew the company had no formal complaince program but was keeping records for dlepo~al of capacitors removed in the past. (Id. at 7). Martin also knew that after change of law, capacitors with PCB could no longer be used as they must be disposed of and replaced by noncontaminated capacitors. Martin stated that after coming to ED2 he made proper inquiries and ascertained that the law has been complied with (Id. at 11).

   Carter stated that after taking over his new job he discussed with Martin and Rotz on the need to start a compliance program. He stated that since the discussion was unfruitful he wrote a memo on February 19, 1991 informing Martin and Rotz on what he learned in the seminars and his recommendations to formalize an environmental compliance program (T36; P1)

   Carter stated that since Martin and Rotz did not respond to his memo and he was responsible for environmental compliance he initiated a survey and found 13 oil leaking transformers on ED2 property. He stated that he wrote a memo to Martin regarding these transformers which were unlabeled and untested end may contain PCB. He stated that Martin responded

suggesting Carter to make the necesary tests (T36).

    Carter stated that in June of 1991 he received a call from Rich Berguist who was doing an environmental survey for investors interested in purchasing a mobile home park in Casa Grande, on which some tranaformers were located. Berquist asked for ED2 documentation to show whether or not the transformers were PCB contaminate. Carter stated that he discussed the request with Martin and Rotz and Rotz after some delay did provide a lineman to make the investigation and ED2 was able to supply the documentation to Berquist (T41).

   Carter stated that in the first week of July, 1991 he did another survey of leaking transformers in other mobil home parks. As result he prepared and delivered a memo dated July 5, 1991 to Martin and Rotz, and Martin responded allowing Carter to test the transformers (T41).

   According to Carter's allegation, on July 16, 1991 he discussed the possibility of buried capacitors on ED2 property with Martin, based on what learned from fellow employees, Daryl Ford in May of 1991 and Dewayan Christian in June of 1991. Carter alleged that Martin's response to this potential environmental hazard was, "I don't want to hear about this. I don't want to know anything about it. And I don't want you to talk about it anymore." (T42-47).

   According to Carter's allegation, because of Martin 'a negative response on the previous day, he delivered a memo dated July 17, 1991 to Martin. Carter alleged that he did not address the memo to Rotz because Rotz was clearly aware of the buried capacitors (T47-49). The alleged memo, the existence of which is in dispute, reads: "This memorandum's purpose is to confirm your knowledge of the burial of PCB materials by district employees following the instruction of managment from the year 1977 through the year 1984...In my opinion, it would be advantageous to the District to undertake an investigative effort to locate and exhume any many capacitors as possible for the purpose of proper disposal according to 40 CFR 761 in order to inhibit any effort on the part of any disgruntled employees to do financial damage to the District and possibly destroy your career as a manager..." (emphasis added) (P6).

   Carter's next memo on environmental compliance was on August 7, 1991 wherein he alerted Martin of the possible requirement for ED2 to obtain an EPA Permit for storm water discharges (P7). The complete memo includes the following handwritten response from Martin" "Walter, please keep me advised on the status of this." (emphasis added) (P7). It is noteworthy that Carter's counsel initially offered into evidence the incomplete memo and only after voir daire examination by ED2's counsel did Carter admit that the

complete memo included Martin's response (T53-56).

   Carter's next memo on environmental compliance to Martin and Rotz was dated November 1B, 1991. This memo, stored under the heading "fuels." in a computer Carter and Rotz shared, was inadvertently discovered by Rotz on December 2, 1991, a Monday after the Thanksgiving weekend. Martin saw the memo either the some day or the next day. The memo reads in part, "after several attempts to gain substantial support of the managment at ED-2 in correcting a situation that could easily prove costly I have decided to take more positive action. I am certain that a large number of mineral oil filled transformers and PCB power capacitors are buried (out of regulatory compliance) on ED-2 property as well as at various other locations around to district. ...My recommendation to you, the managment, is that we first gain from our employees as much information as possible concerning the approximate locations of these units, hire an independent enviromental assessor to determine their precise location and then take the time to exhume the units and dispose of them properly. I am placing my own employment security at risk by making these recommendations but it is likely in my opinion that the company is at great financial risk due to negligence exhibited thus far by our management and it would seem reasonable to remedy the situation as soon as possible." (emphasis added) (D4). Carter claims that he did not immediately deliver the memo to Martin and Rotz because it was incomplete. He claims a completed memo was delivered by his wife to Martin on December 4, 1991 (P10). However, a comparison of the two copies indicate they are virtually identical.

   Contrary to Carter's allegation, Martin stated that he never had a discussion with Carter about buried capacitors on July 16, 1991 and that he never saw Carter's alleged memo dated July 17, 1991. He stated that he first learned about the possibility of buried capacitors from Carter's November 1 8 , 19 9 1 memo. He stated that if indeed there were buried capacitors on ED2 property, it would be "catatrophe" since it would mean violation of law and potential penalties against ED2 (Martin deposition at 19-20; 30). Martin stated that before the discovery of the November 18, 1991 memo Carter was a trusted employee, but after discovery he could no longer be bunted. Contrary to Carter's allegation, Rotz stated that he first learned of the buried capacitors on ED2 property was on December 2, 1991 when he inadvertently discovered Carter's November 18, 1991 memo (Martin deposition at 24). Rotz also stated that before discovery of the November 18, 1991 memo Carter was a trusted employee and was relied upon for up-to-date information on environmental compliance (Id. at 30-31).

   It is noteworthy that November 18, 1991, the date of Carter's memo, was also the date of his wage dispute hearing. The hearing was not completed until December 4, 1991, on

which date ED2's Board of Directors denied Carter's wage demand, finding ED2 was not bound by its former general manager's promise (D5). During the wage dispute, Martin recalled that Carter tried to Justify his wage demand by going through trash to get confidential payroll records. He passed himself off as a representative of the district who was a member of the National Rural Electrical Company Association. It's an industry trade group that puts out compensation surveys and he called them up and said whatever he said, but got himself his own copy. He is not authorized to have his own copies of that. (Martin deposition at 44). Although no reprimand was issued for Carter's unauthorized action, the Board of Directors discussed the matter and expressed its displeasure to Carter (Id. at 68).

   Carter stated that on December 6, 1991 he consulted with a lawyer-regarding his wage dispute and at the lawyer's request he contacted EPA regarding ED2's potential environmental violations. (T290). On February 4, 1991 Martin wrote a memo, stating in part, The content of the (Carter's November 18, 1991) memo was never previously made known to me either verbally or in writing. I can only assume that it was meant for the EPA in retaliation for Mr. Carter's failure to obtain the wage he believed he was entitled." (p7).

    On December 9, 1991 Carter received a written reprimand from Martin for his act of insubordination to Rotz on December 3, 1991 when Carter refuse to give Rotz the pen sword to the company owned computer (Rotz deposition at 28; D9). Carter's explanation was that he gave Rotz a secondary password so he would have full assess to the computer. Carter admitted he did not release the primary password for fear that Rotz may destroy or delete files (T302). Martin believed what Carter did was an act of insubordination (Martin deposition at 27).

   On or about December 4, 1991 Carter was removed from his environmental compliance function and purchasing function, both positions are positions of trust and Martin and Rotz believed Carter could no longer be trusted. Carter was assigned to a newly created position of warehouseman. Martin and Rotz believed in the new position Carter could be closely supervised (T309-310; Martin deposition at 31; Rotz deposition at 32).

   After the discovery of the November 18, 1991 memo ED2 through its legal counsel formalized written environmental compliance guidelines on December 6, 1991 (D6). Based on the guidelines counsel interviewed employees to collect information to implement environmental compliance. The information gathered from the interviews were analyzed and a plan was prepared for compliance purposes (Martin deposition at 36). In late December of 1991 and early 1992 Martin contacted various environments] consultants who had expertise in environmental compliance record keeping and search and discovery of buried

capacitors. Then metal detectors were secured and ED2 property wee gridded, in preparation for search (Id. at 37). In February of 1992 an E.P.A inspector came and interview ED2 employees. After the inspection, ED2 management discussed with its consultants on whether an immediate search should begin. The opinion on this matter was divided, but ED2 finally decided to do the search (Id. at 38-40).

   On March 6, 1992 Carter had a work-related in Jury from which he was off work for about 16 weeks. On May 26, 1992 Martin wrote to Carter expressing concern as to when he would return to work and informing him if he did not return by July 2, 1992 his Job would be filled by someone else (Pll). Carter returned to work on July 1, 1992 but complained that his return to work was against his doctor's advice (T256) . I note, this complaint is unsupported by medical evidence since his treating physician did release him to "full" duty work on July 1, 1992 (D27). Martin further stated that when he gave Carter a deadline for returning to work he was shorthanded and did not know whether or not Carter would ever return to work (Martin deposition at 43).

   After returning to work on July 1, 1992 Carter spent the first week doing digging and searching for buried capacitors on ED2 property. He complained that he was being singled out to work alone, without much help under hot sun, because he contacted EPA for ED2 enviornmental compliance violations (Dll). However, Rotz denied that Carter was ever being singled out, explaining he only had 14 employees: 8 were linemen who at the time worked on transformers; 4 were meterman; and 1 mechanic and then Carter. (Rotz deposition at 45-46).

   In the first week of July 1992 the Board of Directors met and performed their annual wage review of employees. After the review was concluded Carter called Linda Miller, the officer manager, to find hi. current hourly wage. After learning he had a reduction of hourly wage of $3.40 (16.53 - 13.13), Carter said to Miller, "I figured they would do something like this" and "I know you are only doing what you are told so you don't have to worry about me shooting at your house." (emphasis added) (D12).

   Miller reported this incident to Martin. On July 10, 1992 Martin called Carter and Miller into his office. On the same date Martin delivered a written warning to Carter informing him that words like shootings are taken seriously and further instances of intimidating or threatening language would be considered grounds for dismissal (D16).

   On July 9, 1992 Carter delivered a memo to Martin alleging among other things that ED2 reduced his wage In retaliation of his contact with EPA (D13). However Martin denied

the allegation. Martin stated that Carter was paid meterman's wage when he had responsiblities of environmental complaince and purchasing but after his removal from these responsibilities there was no longer Justification for paying the meterman's wage. Martin stated that after the removal no immediate wage reduction was made because the Board of Director perform wage review only once a year in July (D1, Page 8-9, Martin's statement dated August 6, 1992 taken by the Department of Labor investigator).

   On July 13, 1992 Carter delivered a memo to Martin in which Carter insinuated Martin and Linda Miller had an "intimate relationship" which led Carter to suspect "debauching. (D17). Martin showed this memo to Miller. Miller stated that she is married and Carter's insinuation is untrue. Miller felt she is defamed. (T370-372).

   From October of 1991 to the date of his termination on August 3, 1992, Carter made the following remarks to his coworkers:

   Dale Cassity stated that in October of 1991 Carter asked to borrow $200 to buy a voice activated tape recorder to bug the Board of Directors room. Initially Cassity thought Carter was joking, but after Carter's second request, Cassity reported the entire episode to Martin (T357). Cassity also stated that on December 4, 1991, after the Board of Directors wage demand, Carter said that if he had enough C4 (explosive) he could take care of the Board of Directors problem (T355,360). Casssity also stated that in December of 1991 he asked Carter to sign a receipt for a copy of ED2's enviornmental compliance guidelines, and Carter's response was, "fuck Tom." (T358-359). Cassity also stated that in 1991 Carter brought a pistol to work, and Carter was known as proficient with firearms. Cassity also saw Carter brought paramilitary magazines, such as Soldiers of Fortune, to work. Cassity stated that because of Carter's attitude, his guns and magazines, he was very worried that Carter might go off the "edge." (T361-362). Cassity also stated that during Carter's 16 weeks leave, the employees' morale improved considerably, but after his return to work employees, morale went to "hell.. (T362). Cassity stated he reported Carter's behavior pattern to Martin (T364).

   Bevin Jennings, an employee for 11 years, stated that on July 7, 1992 Carter said that he wanted to start his own business and would use his lawsuit against ED2 as his "lottery." (T380).

   Scott Nelson stated on July 10, 1992 Carter said that he was writing a memo to ED2 everday just to irritate the management, so he could be fired and start his own business (T350-351).

   Kenny Satterfield, an employee for 11 years,

saw Carter brought guns to work and was sufficiently expert in repairing guns. Satterfield stated that when Carter was on the 16-week leave, ED2 employees, morale improved and after his return to work their morale got worse. (T390)

   On July 15, 1992 Casa Grande Dispatch published an article entitled, "EPA Probes Electrical District No. 2" after Carter had spoken to Steve Wallace, a reporter of the newpaper. The article reads in part, "Carter...learned about the possible dumping of PCB-contaminated capacitors from other employees... t Carter) said he began sending off dozens of memos recommending to the District managment take actions to remove the contaminated capacitors. Carter said after a year of writing memos, little was done. So, he contacted the EPA.." (P15). On July 24, 1992 the same newspaper published a response from Martin, which reads in part, "Mr. Carter did not notify the District of his concern about buried capacitors. Instead, in early December his supervisor discovered a memo written on November 18, the some day he appeared at the grievance hearing seeking dramastically increased wages. This memo was provided to District management only after Mr. Carter was confronted with a copy of it on December 4. It was some time subsequent to this that he contacted the EPA... (P15A). On July 28, 1992, the same newpaper published Carter's reply (P15B).

   On July 15, 1992 Martin informed Carter in writing that since he made serious charges of harassment and retaliation by ED2, an independent investigator, not associated with ED2, would be appointed to verify these charges (D20). The investigation was conducted by Paul Ehler, a certified senior human resources specialist (T166). At the hearing Ehler stated he has extensive experience in his field, including serving 6 years (now Chairman) on the City of Scottsdale Personnel Commission to hear and resolve employees' grievances (T166). Ehler stated that in accepting his assignment, he wan given no restrictions as to how to conduct his investigation and who to interview (T169-170). Ehler stated that he interviewed some 14 employees, including Carter and Martin, but before the interviews he prepared a set of questions to elicit objective answers from the interviews. Ehler was questioned by Carter's counsel regarding his qualifications, experience and objectivity. Furthermore, Ehler's interview notes were offered to Carter's counsel for private viewing. Based on his investigation, Ehler found no harassment or retaliation by ED2 as result of Carter's contact with EPA. Instead, Ahler found Carter's complaint was a "pretext" for his wage demand. In support of his finding, Ehler described with specificity three financial options Carter proposed to settle his charges" "Option one is reinstate him at the journeyman rate, give him a four-year employment contract, compensation for back wages at journeyman rate to reduce the impact of taxes on his settlement. Or option number two, accept termination, waive litigation rights in exchange for four year's worth of pay at the Journeyman rate for damage. to his foot.... And option three

is continue at his current wage and he would pursue it in court... (T203-204). Based on Carter's proposal to settle, Ehler stated, Wit appeared to me that it was being manipulated for personal gain in that situation and that EPA would fall out of the picture in a hurry if the financial amount of payment was there. (T204). Ehler's report dated July 29, 1992 is a part of the record (D23).

   On July 29, 1992 Carter was hand delivered a memo written by Martin placing him on paid administrative leave from July 29 through July 31, 1992. Martin gave three reasons for taking the action: First, Carter failed in his environmental compliance function by not immediately reporting the buried capacitors on ED2 property. Carter distributed false information regarding his role in addressing ED2 environmental issues. Second, Carter distributed false information regarding how ED2 is addressing all the environmental compliance issues. Three, Carters behavior at the work place was increasingly disruptive to other employees, hampering ED2's ability to conduct itself business effectively (P16). On August 3, 1992 Martin terminated Carter's employment in writing (P17).

   In Carter's brief, he begins with the allegation that on July 16, 1991 he discussed the possibility of buried capacitors on ED2 property with Martin, who allegedly expressed utter disregard to this potential environmental hazard. Carter's next alleges that he prepared and delivered a memo dated July 17, 1991 to Martin to "confirm" Martin's knowledge of this potential hazard. Carter next alleges that since the management was still Inattentive to this hazard, he wrote a memo dated November 18, 1991 to Martin and Rotz stating the management new about the potential hazard and was negligent in not taken any proper action to address this problem. Carter next alleges that after discovery of the November 18, 1991 memo, Martin and Rotz suddenly became worried about an EPA inspection and their liability for environmental compliance violations. According to Carter, this worry was manifested in Martin's February 4, 1992 memo (P10) in which Martin suspected Carter's November 18, 1991 memo was meant for EPA, and Martin's statement to the Department of Labor's investigator, stating, around December 9, Jim Rotz was going through the computer file looking for the EPA because he was sure the EPA would be coming out.. (D1). According to Carter, the sudden implementation of a formal environmental compliance program few days after discovery of the November 18, 1991 memo was further indication of ED2's worry about potential violations after Carter contacted the EPA.

    Finally, Carter alleges that because of his contact with EPA he was harassed and retaliated in the following actions taken by ED2s First, on December 4, 1991 he was removed from environmental compliance function and reassigned to

a lesser job without his consent. Carter alleges his removal was unjustified because his work history up to that point was good. Two, on December 9, 1991 he was reprimanded for insubordination when he refused to release passwords to Rotz, his supervisor, to the company-owned computer. Three, during his 16-week leave of absence caused by a work-related injury, he was given a deadline to return to work contrary to medical advice, end furthermore when he returned to work he was given work not within hin Job description. Five, on July 8, 1992 his hourly wage was unjustifiably reduced. Finally, on July 29, 1992 he was placed on administrative leave and on August 3, 1992 he was terminated without given specific reasons for the termination.

   Contrary to Carter's allegation, Martin denied having a discussion with Carter on July 16, 1991 regarding possible buried capacitors on ED2 property and ever seeing or reading Carter's alleged memo dated July 17, 1991. Martin stated that he first learned about the possibility of buried capacitors was from reading Carter's November 18, 1991 memo. Martin further stated that if indeed there were buried capacitors on the property, this would be a "catatrophe" and he surely would have remembered Carter's alleged memo. While Carter asserted Rotz knew about the the possibility of buried capacitors all along, Rotz denied such knowledge before reading Carter's November 18, 1991 memo.

   Since the existence of the alleged July 17, 1991 memo is a critical question, I must determine Cater's credibility versus Martin's and Rotz's crebility. I note, before the alleged memo, Carter delivered several memoranda on environmental compliance matters to Martin and each time Martin responded positively authorizing Carter to take action. Also, after the alleged memo Carter delivered the August 7, 1991 memo on environmental compliance and again Martin responded positively with his handwritten remark: "Walter, please keep me advised on the status of this." Since Martin expressed positive interest on compliance matters before and after the alleged memo, it is unlikely that he would have responded negatively on the subject of possible buried capacitors if this subject was brought up by Carter on July 16, 1991. In my view, Carter's credibiity is suspect since his counsel initially offered into evidence the August 7, 1991 memo without Martinis handwritten response and only after voir dair examination did Carter admit the complete August 7, 1991 memo to include Martin's handwritten response. This episode leads me to believe Carter deliberately gave his counsel the incomplete memo to distort facts. At the hearing Carter asserted that almost immediately after taking over the environmental compliance function he was used as a "scapegoat" (T347). Carter gave no specifics to support his allegation and I find none. Also, at the hearing Ehler described three specific financial options Carter proposed to settle his charges against ED2. After Ehler left the hearing, Carter on redirect examination asserted that it was Ehler who

made the proposal (T343). The assertion is incredible.

   Rotz stated that before his removal Carter was responsbile for keeping records of contaminated capacitors collected and removed from ED2 property and that after his removal an unsuccessful effort was made to find these records. Rotz stated that finally these records were found in a vault (Rotz deposition at 72-73). Martin further stated that after discovery of the November 18, 1991 memo he interviewed ED2 employees and found Carter may have learned about the buried capacitors as early as 1990 and no later than May of 1991. Martin suspected Carter "fabricated" the alleged July 17, 1991 memo to protect himself (Martin deposition at 22-23). The facts leads me to believe that Carter was a trusted employee before the discovery of the November 18, 1991 memo and after the discovery Martin and Rotz believed Carter could no longer be trusted. From this distrust, it is understandable why only few days after the discovery ED2 started a comprehensive compliance program.

   From October 1991 through July 1992 Carter made remarks to his fellow employees that he wanted to bug the Board of Directors room, that he wanted to use explosive to correct his problem with the Board of Directors, that he wanted to be fired and use his lawsuit against ED2 as his "lottery, that he wrote a memo everday Just to irritate the management so he could be fired. In a written memo to Martin, Carter also suggested there was debauchery between Martin and Linda Miller. Carter's remarks clearly are the expressions of a disgruntled employee and not the expressions of a whistle blower being harassed and retaliated for his contact with EPA. I note, in the July 15, 1992 newspaper article Carter basically reported the same allegations as in this case, which I find to be untrue. The fact that Carter brought a handgun to work further supports a conclusion that Carter's words and deeds were intended to intimidate and disrupt ED2's work force. Under these circusmtances, I can readily understand why the employees' morale improved during Carter's 16-week absence and their morale deteriorated after his return to work. Carter relied on the fact that he had a good work record up to December 4, 1991 in support his allegation that ED2's subsequent actions were in retaliation for his contact with EPA. However, I note, on December 4, 1991 the Board of Directors rejected Carters wage demand and before the rejection Carter had no reason to be disruptive. In Carter's brief, Martin is faulted for not giving specific reasons for his termination. However, the facts made it abundantly clear that Carter wanted a confrontation so he could

be fired and collect his "lottery." In my view, Martin had every reason to avoid the trap. For Carter to prevail in this case, ED2's actions must be shown in retaliation of Carter's contact with EPA. I find no such showing has been made. Instead, I find the actions taken by ED2 were in response to Carter's disruptive behavior after he lost his wage demand.

   Carter's complaint is hereby dismissed.

      VICTOR J. CHAO
      ADMINISTRATIVE LAW JUDGE