Complainant, while working at P.S. 3, was an employee of VECO, but received little supervision from VECO. Mr. Steven T. Read, electrical instrumentation design tracking supervisor for VECO, was Complainant's supervisor from 1996 through 1997. As such, Mr. Read provided administrative supervision in duties pertaining to VECO, such as performance reviews and financial issues. Mr. Read described himself as the "functional supervisor," which issued day-to-day work and made sure that the schedules were met. Mr. Read was not informed of how much work Complainant was doing, although he did complete her performance reviews. In fact, in the entire time Complainant was stationed at P.S. 3, Mr. Read only visited one time. (TR 586) The day-to-day work activities were overseen by an Alyeska supervisor, however, Mr. Read stated this person "really wouldn't be a supervisor." (TR 666)

The drafting side of her job involved up-dating engineering drawings, so that the drawings reflected the actual field condition of the facilities.

   In addition to drafting work, ATL Haines initially assigned Complainant to perform design work on "minor modification packages." (TR 129) This involved minor adjustments or changes to systems which could not be repaired or maintained with "in-kind" (e.g., substantially identical) part replacements. As much as half of Complainant's time, prior to October of 1996, was spent working as a minor modification designer. (TR 799) Complainant's minor modification work required her to work closely with pump station engineers, including D. Greg Kinney, Jerry Jost, Paul Butter and Kevin Scheele, who had the final authority to designate and approve minor modification packages. (TR 123-26)

    As noted, Alyeska was facing a crisis in backlog work at all pump stations, while trying to maintain its current design and drafting needs. At P.S. 3, for example, Complainant was the only Senior Drafter and had no alternate to work the two weeks she was on R&R. Further, one half of her time was spent on minor modifications, so that only one week a month was available to reduce the back log problem. (TR 801-02) In response to this need, in early to mid-1996, the ATLs invited the Drafting Update Program (DUP) to work at the pump stations. (TR 798-802) The DUP team arrived at P.S. 3 in September of 1996, and was

(TR 137-138) The agreement was that the ATLs would have a key to the lock in the drawer in their office. She testified that she did not have a proprietary interest in her office equipment and that it belongs to Alyeska. (TR 1367) Subsequently, Complainant was informed by Mr. Read on January 8, 1997 that all locks were being removed from all offices in the NBU. (CX 9)

might become a whistleblower, which Mr. Read took to mean that Complainant might be on "the hunt for evidence to impeach Alyeska engineering." (TR 977) Additionally, Mr. Jost and Complainant had some significant disagreements over what was required by the Quality Program.

limited as far as the work she had been doing for the PM-2001 requirements, the PIP's requirements and the Quality Assurance manual. (TR 416-417, 426) At the conclusion of the meeting, Complainant was asked whether she agreed with the decision, and she responded to Mr. Kinney, "whatever." (TR 967) After she was removed from minor modification work, she continued to perform some of the drafting work. (TR 1357)

   After the October 15 meeting, the workplace dynamic with Complainant changed, as did Complainant's attitude. Where she had previously been "vivacious and interactive," she had become "glum," "withdrawn" and "subdued." (TR 820, 830) ATL Haines and Complainant did not really talk after that, and Complainant stopped attending shift change meetings, as well as, DUP team meetings. (TR 820-21; 1189-90) Complainant described her working relationship with Mr. Butter, Mr. Scheele and Mr. Kinney as "edgy," and attributed this to her being too honest about quality concerns. (TR 411-13, 429-30)

NICET certification. (TR 143) Several of these concerns resulted in conflict with Engineer Scheele which occurred in February, 1997, and shall be summarized below.

   In late 1996, Alyeska indicated to VECO's supervisors that it did not believe that VECO was providing close enough supervision to its employees on the pipeline.

   Mr. Read and Mr. Rooney next met with Julie Stinson, the DUP team leader at P.S. 3. (TR 1182) Ms. Stinson raised the following concerns: the drawings were not hung and rolled; that the working relationship was strained; that Complainant lacked initiative; and that there were "gross discrepancies" in the red-line log book. (TR 1187) She also stated that Complainant was not attending the shift change meetings, and the excuse was that she was attending the DUP meetings, however, Ms. Stinson stated that she was not attending the DUP meetings either. (TR 1190) Generally, Ms. Stinson described the difficulties and conflicts she and the DUP team had faced with Complainant, including the padlock and password issues. She also indicated that it was easier to work around Complainant, than to work with her. (TR 1186) Finally, Mr. Read's notes of the meeting reflect that Ms. Stinson indicated to him that Complainant "misrepresents things to auditors." (TR 675; CX 60) When questioned on this statement, Ms. Stinson stated that she does not know what that was referring to. (TR 1189)

   Mr. Read and Mr. George Rooney also met with Complainant to discuss, among other things, the procedures that were not being followed on the red-lining of the pump station master drawings, the lack of engineering resources previous to the arrival of the DUP Team and the password to Complainant's computer. (TR 154, 263) Complainant confirmed the statements that she was not attending the shift change meetings and stated that the reason was that she was "working with Julie Stinson's crew." (CX 60) Mr. Rooney and Mr. Read also asked Complainant if there were any issues or concerns that she had, and she responded there were not. (TR 593; CX 21) Mr. Read asked Complainant for her password, but she refused and instructed him to speak with Karen Chamberlain, as previously discussed. (CX 21; CX 60; TR 154, 598-99, 691-92)

   On December 10, 1996, John Hilgendorf was off-site, and accordingly, Mr. Read contacted him on December 14, 1996. (APSC 33 at 8). Mr. Hilgendorf has worked, at pertinent times, as an ATL at both P.S. 4 and P.S. 3. (APSC 33 at 4-5) He was an ATL at P.S. 3 at the same time that Complainant was working there, and served as an alternate with Betsy Haines. (APSC 33 at 5) At P.S. 3, ATL Hilgendorf stated that he had very limited contact with Complainant. (APSC 33 at 7)

   ATL Hilgendorf testified that Mr. Read contacted him in regard to issues concerning Complainant and her performance. (APSC 33 at 9) He stated that Complainant was technically capable of performing her duties, but had interpersonal conflicts. (APSC 33 at 10) ATL Hilgendorf testified that the P.S. communities were "very small little social microcosms that you need to really pay attention to conflict and how it's dealt with." (APSC 33 at 11) ATL Hilgendorf's concerns at the time were that Complainant was "becoming burdened with a series of conflicts that I didn't see her able to . . . deal with herself." (APSC 33 at 12) He said that while her work was good, her interpersonal problems, such as the password issue, created problems. He also noted that some engineers were complaining about difficulties dealing with Complainant, such as Paul Butter and Greg Kinney. (APSC 33 at 13-15, 20-21) He also alluded to "a little bit of cat fighting between [Complainant] and Julie Stinson." (APSC 33 at 14) Finally, ATL Hilgendorf informed Mr. Read in his interview that Alyeska would be removing the lock from the door and the passwords from the computer. (TR 696)

   Mr. Rooney discussed the results of this field investigation with Mr. Read upon their return to Anchorage, the two decided there was a problem and that something had to be done, however, there were no steps taken to verify the complaints about Complainant. (TR 643)

   Following the December interviews, Mr. Read decided to hold a "performance meeting" with Complainant prior to her return to work in early January. Alyeska's role in requiring this meeting is a question of fact which has been clouded by contradictory evidence. First, Mr. Read testified that ATL Haines requested him to meet with Complainant and indicated that she would not be allowed to return to P.S. 3 without an agreement to change her behavior to be more of a "team player." (TR 705, 947-48) ATL Haines, however, denied ever making this request. (TR 822)

   Second, Mr. Read indicated that ATL Hilgendorf stressed the need for VECO to counsel Complainant about her poor attitude, and he indicated that if Complainant were willing to acknowledge the problem and move forward with a better attitude, then she would be "welcomed back with open arms." (CX 60 at 25-26; TR 703-05, 948-50, 918) Mr. Hilgendorf testified that he did not ask Mr. Read to have a performance meeting with Complainant, but he understood that one was scheduled. (APSC 33 at 16-17) He does not

remember instructing Mr. Read to tell Complainant not to come back to P.S. 3 unless she had a performance discussion and she agreed to change her attitude. (APSC 33 at 19) Further, he stated that ATL Haines never said to him that Complainant should be removed if she did not change her attitude or attend a performance discussion. (APSC 33 at 20)

   While Complainant testified that she raised several complaints at the January meeting (TR 1398-99), there are only limited notes about the EP-004 issue in VECO's summary and Ms. Takes-Horse's notes. (CX 9; CX 58) For example, Complainant testified that she told Mr. Read and Ms. Eaton that a hostile environment was brewing at P.S. 3, (TR 160-61; CX 9) however, there is no record of her voicing hostile work environment concerns at the meeting.

be checked out for over 200 days, in violation of EP-004, which limits the check out times to one person to 90 days. (TR 1084-85)

demotion in position level and pay. (TR 633) Accordingly, Mr. Ebersole directed Mr. Read to post the down-graded position openings to allow for applications by interested parties. (TR 879, 1125)

EX 100) Mr. Pomeroy testified that he found nothing strange about the timing, and said that some vacancies were open while waiting for the new-hire "to get free and get put in that position." (TR 1251) He also commented that he heard that the positions were filled, and received names, but at different times. (TR 1253) Finally, in a March 11, 1997 change out note to Mr. Pomeroy, Complainant left specific instructions for the people who "are" replacing her, (EX 37) although she continued to assert that she did not know as of March 11 that she was being replaced. (TR 423-424)

maintenance advisors engineering budget and because of the massive backlog of drawings, and he indicated that Complainant's position would be affected. Mr. Kinney testified that he was uncomfortable with that decision because he believed the expertise of a designer would be needed because of the ongoing need for design work. (TR 990) Mr. Kinney did not, however, want Complainant to remain as the designer at P.S. 3 because after the October 15, 1996 meeting the communication by Complainant had degenerated and there was no movement on her side to resolve the problems. (TR 991)

   Mr. Ebersole testified that he was only made aware that Complainant was not selected when he was asked to sign her termination slip. He stated that at that time, he was only aware that Complainant had filed a complaint regarding her salary and gender discrimination with the ECP. (TR 1128-29) Mr. Ebersole was not aware that Complainant had raised any technical issues, nor was he aware that she had contacted JPO. (TR 1126-28) In fact, he testified that he first learned of the JPO complaint when he was contacted by Mr. Keiling, one day following Complainant's termination. (TR 1127) Finally, he stated that they did not follow the general layoff format because they did not anticipate that anyone would be laid off, since VECO "felt that [it] had enough opportunities in the organization that [it] would not be laying off any of the individuals." (TR 1149)

   Ms. Stinson was asked about the reorganization at the hearing, and she testified that she did not have any input into the decision. She stated that she never attempted to have Complainant removed from the station. (TR 1194) Further, she had never heard Betsy Haines, John Hilgendorf, Glen Pomeroy or Joe Dwyer make comments about wanting to remove Complainant. (TR 1194-95)

   Complainant also testified to her experience and thoughts about the events that transpired in late 1996 through March 1997. She testified that she felt the reorganization, and reduction of her position from Senior Designer to Senior Drafter, was discriminatory and directed at her. (TR 1347) She also alleged other evidence of discrimination, such as: when Paul Butter stated to Kevin Scheele that Complainant had a mental problem. (TR 1356) Regarding the comments that she is not a "team player" Complainant testified that she understood that to mean that she should stop raising safety concerns and just follow the orders of the engineers. (TR 1371)

   After being laid-off, Complainant attempted to find employment through the want ads and word of mouth. (TR 189-96) She submitted applications to listings she found through the want ads and she had one interview, but declined because she would have had to move. She also continued to try and obtain employment with VECO. (CX 1)

(CX 2)

   On June 30, 1997, Ms. Otto responded that VECO did not have a re-hire policy. (CX 3) The letter also indicated that all positions are posted whenever possible. (CX 3; TR 192) Further, Ms. Otto noted that Complainant's "requirements" would seriously impact her ability to be rehired. Nevertheless, Ms. Otto stated that there was a position posted in VECO's June 27 position announcement that may fit Complainant's requirements and stated that her resume had been forward to the hiring supervisor. (CX 3) Generally, however, Ms. Otto stated, "It is not our practice to commit to an individual, current employee or otherwise, that we will submit their resume for every position that they might be interested in. . . . While we know you are still interested in resuming your employment relationship with VECO Engineering we will continue to consider your resume only for those positions in which you specifically indicate an interest." (CX 3)

   On July 10, 1997, Complainant responded to Ms. Otto's letter and noted that her "requirements" were negotiable. She also stated: "What I was looking for was a field rotation position and I realize that for me, there are not many opportunities within VECO. Therefore, I am willing to accept a lesser salary than was stated in my June 27, 1997 letter." (CX 5) At the hearing, Complainant also noted that she was looking for a pump station position, and did not indicate to VECO that she was available in other available positions. (TR 340, 1417) Further, Complainant informed Ms. Otto that she wanted to be considered for any positions that were not being posted. (TR 196; CX 5) Ms. Otto responded that in order to be considered for a position, the applicant had to identify the specific recruitment number. If a job was not posted, however, there was no specific recruitment number. (TR 196-197)

   Mr. Read testified that during this time, from March to August 1997, he would not have considered Complainant for any remote pump station position she applied for with VECO, because he felt that she needed to be more closely supervised. (TR 765-77)

   Complainant compiled a list of positions for which she applied after being laid-off. (VECO 51) Additionally, Complainant, in her second complaint, alleged that she was not selected for thirty-five (35) positions, based on VECO's position announcements from March 24 through August for principal designers, senior designer and designer positions. Respondents, however, point out that Complainant had only applied for two positions with VECO, despite being instructed by Ms. Otto, that Complainant should apply to individualized postings of interest.

serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. U.S.P.S. v. Aikens, 460 U.S. 711 (1983); Roadway Express v. Dole, 929 F.2d 1060, 1063 (5th Cir. 1991); Carroll v. Bechtel Power Corp., 1991-ERA-46 (Sec'y Feb. 15, 1995), aff'd sub nom. Carroll v. United States Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996). With that in mind, this Administrative Law Judge shall consider whether, viewing all of the evidence as a whole, the Complainant has shown, by a preponderance of the evidence, that she was discriminated against for engaging in protected activity. See Adjiri v. Emory Univ., 1997-ERA-36 (ARB July 14, 1998); Boudrie v. Commonwealth Edison Co., 1995-ERA-15 (ARB Apr. 22, 1997); Boytin v. Pennsylvania Power and Light Co., 1994-ERA-32 (Sec'y Oct. 20, 1995); Marien v. Northeast Nuclear Energy Co., 1993-ERA-49/50 (Sec'y Sept. 18, 1995). To carry that burden, Complainant must prove that Respondents' stated reasons for terminating and subsequently failing to rehire the Complainant are pretextual, i.e., that they were not the true reasons for the adverse actions and that the protected activity was. Leveille v. New York Air Nat'l Guard, 1994-TSC-3/4 at 4 (Sec'y Dec. 11, 1995); Hoffman v. Bossert, 1994-CAA-4 at 4 (Sec'y Sept. 19, 1995). It is not sufficient that Complainant establish that the proffered reasons were unbelievable; she must establish intentional discrimination in order to prevail. Leveille v. New York Air Nat'l Guard, 1994-TSC-3/4 at 4 (Sec'y Dec. 11, 1995).

   I note, however, that in the present case, Respondents have not only presented evidence of legitimate, non-discriminatory reasons for their actions, but they have also argued that Complainant failed to prove by a preponderance of the evidence the basic elements of a so-called whistleblower claim; namely, that Complainant has failed to prove that she engaged in protected activity, that the Respondents knew of said protected activity, that she was subject to adverse action, and that Respondents discriminated against her because she engaged in protected activity. See Dartey v. Zack Co. of Chicago, 1982-ERA-2 (Sec'y Apr. 25, 983). I pause to note, that unlike the requirement that Complainant present a prima facie case, this inquiry is whether or not Complainant proved the elements of her claim by a preponderance of the evidence. Accordingly, I shall first address the Respondents' challenges that Complainant failed to meet the essential elements of her claim, and I shall then address Respondents arguments based on legitimate, non-discriminatory reasons for their actions.

   The Respondents first argue that Complainant has failed to prove that she engaged in protected activity.

   In a whistleblower claim, the first element which a complainant must prove is that he or she engaged in protected activity. Under the cited statutes, protected activity can encompass bringing an action under the specifically named Act, testifying in such proceeding, or taking other action to carry out the purposes of the Act. See Toxic Substances Control Act, 15 U.S.C. § 2622(a); Federal Water Pollution Act, 33 U.S.C. § 1367(a); Solid Waste Disposal Act, 42 U.S.C. § 6971(a); Clean Air Act, 42 U.S.C. § 7622(a). Reporting safety or environmental concerns under the named statutes intentionally to a regulatory or enforcement agency constitutes protected activity. Additionally, the Secretary of Labor has held that internal complaints about possible violations of the Acts should be regarded as protected activities. Dodd v. Polysar Latex, 1988-SWD-4 (Sec'y Sept. 22, 1994); Scerbo v. Consolidated Edison Co., 1989-CAA-2 (Sec'y Nov. 13, 1992). This interpretations has been sustained by six courts of appeal, including the Ninth Circuit, under whose jurisdiction this case arises. See Passaic Valley Sewerage Comm. v. Department of Labor, 992 F.2d 474 (3d Cir.), cert. denied, 510 U.S. 964 (1993); Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991); Couty v. Dole, 886 F.2d 147 (8th Cir. 1989); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505, 1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986); Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2d Cir. 1982). The Secretary of Labor has held that an employee's concerns that "touch on" the environment can be protected activity, and that it is not necessary that the complaints have a direct effect on nuclear safety. Dodd v. Polysar Latex, 1988-SWD-4 (Sec'y Sept. 22, 1994).

1996 through March of 1997. (TR 133-43) These issues involved concerns about minor modification packages, fire systems and NICET certificates, the lack of adherence to engineer Professional Engineering certification requirements, and issues based on engineers not properly signing off on red-line documents. (TR 133-43) Second, Complainant raised these same complaints to individuals at JPO in November of 1996 and early 1997. Third, Complainant argues that the filing of her initial complaint with the Department of Labor on April 4, 1997, constitutes protected activity under the Acts. McCuistion v. Tennessee Valley Authority, 1989-ERA-6 (Sec'y Nov. 13, 1991). Finally, Complainant argues that her concerns involved potential violations of the named statutes, as the pipeline carries toxic substances, and that her concerns focused on improper and inadequate quality control measures which she viewed as a reasonable threat to the environment, and in violation of the named Acts.

   Respondents, on the other hand, challenge the existence of protected activity, through the testimony of several witnesses who stated that Complainant's concerns were administrative issues, and in no way involved quality concern issues.

   Based upon the totality of this closed record, I find and conclude that Complainant has proved by a preponderance of the evidence that she engaged in protected activity. Specifically, I find that Complainant engaged in protected activity under the relevant Acts, by raising quality control and safety concerns regarding: minor modification packages, red-line signatures and fire protection issues both internally to VECO and Alyeska, and externally to JPO and the Department of Labor. First, Complainant expressed her concerns to several employees of Alyeska in the NBU. The ATLs and engineers were aware of her concerns and her conflicts with Mr. Butter and Mr. Scheele regarding the minor modification packages and red-line signatures were well known. Further, Mr. Read and Mr. Rooney of VECO were informed of these concerns in December of 1996 through their interviews with Complainant, and several Alyeska employees.

   In addition to her internal complaints, Complainant also raised these same issues externally, between November, 1996 and March, 1997, to the JPO and the Department of Labor. I must clarify, however, that while I find and conclude that Complainant's filing of her initial complaint is clearly protected activity, this finding is limited to Complainant's second complaint (non-selection issue). The filing of the April 4, 1997 complaint, however, does not constitute protected activity as to the allegations in that complaint, due to the fact that there is no evidence that Respondents knew she filed with the Department of Labor prior to the date of Complainant's lay off.

   I also reject Respondents' argument that Complainant's concerns were merely administrative, and not quality or safety concerns. I conclude that Complainant's concerns involved safety issues. This finding is supported by, among other evidence, the fact that Complainant raised her complaints not just to the ATLs and Engineers, but also to quality

control officials at both VECO and Alyeska. Further, ATL Haines testified that she viewed Complainant's concerns as safety issues, and spoke to a quality control generalist about Complainant's concerns. (TR 819-20)

   Finally, I conclude that the record adequately demonstrates that Complainant had a reasonable belief that her complaints involved potential violations of the named statutes. Complainant had undergone training for her position, and was aware of several of the requirements and regulations that governed the activity at the pump station, especially concerning minor modification packages. Complainant's concerns go to the heart of environmental safety at the P.S. 3 and her concerns that the perceived statutory violations constituted a safety and fire threat not only to the pump station, but to the surrounding ecosystem as well. Therefore, I reject Respondents' arguments that Complainant failed to meet her burden as to the existence of protected activity.

   Respondents next argue that they were unaware of Complainant's protected activity.

   A complainant must establish by a preponderance of the evidence that the respondents had actual or constructive notice of his or her protected activities. Morris v. The American Inspection Co., 1992-ERA-5 (Sec'y Dec. 15, 1992); Adjiri v. Emory Univ., 1997-ERA-36 (ARB July 14, 1998). The ARB has held that knowledge of protected activity cannot be imputed to higher management absent proof. Mosley v. Carolina Power & Light Co., 1994-ERA-23 (ARB Aug. 23, 1996) Thus, the managers who affected a complainant's discharge must have had knowledge of the protected activity. Scott v. Alyeska Pipeline Serv. Co., 1992-TSC-2 (Sec'y July 25, 1995). Further, as is obvious, a respondent's knowledge of protected activity must precede any adverse employment action, otherwise, the complaint is "doomed." See Varnadore v. Oak Ridge Nat'l Laboratory, 1992-CAA-2/5; 1993-CAA-1 (Sec'y Jan. 26, 1996) (and cited cases).

   Complainant alleges that both Alyeska and VECO had knowledge of her quality control issues, prior to the adverse actions which were taken against her. Complainant cites to the change out notes (CX 43), especially her final note on March 10, 1997 (TR 177; CX 19), as proof that Alyeska was aware of the safety concerns Complainant raised. Complainant alleges that her concerns were well known to the Alyeska Engineers and other ATLs, because they were passed along, either through Alyeska employees, or directly from Complainant, to Mr. Read and Rooney at VECO.

   Respondents, on the other hand, argue that they were unaware of any quality control issues until learning about the impending JPO investigation the day after

Complainant was laid-off. VECO also argues that only Alyeska employees had knowledge of Complainant's alleged activity since Complainant was the only VECO employee stationed at P.S. 3. Further, VECO argues that the concerns only involved inter-personal conflicts, and not safety or environmental concerns.

   Finally, I note that assuming Respondents only learned of the JPO investigation after Complainant's lay off, that would still qualify as adequate knowledge of protected activity as to Complainant's second complaint, based on blacklisting/failure to hire grounds.

   Respondents next challenge Complainant's claim that she was subject to adverse action, on a number of grounds.

   Essential to all whistleblower claims is evidence that a Complainant was subject to adverse action by the Respondents. Dartey v. Zack Co. of Chicago, 1982- ERA-2 (Sec'y Apr. 25, 1983). In Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997), the Eleventh Circuit defined an adverse action as "simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Id. at 1573. Several actions have been held to be "adverse actions," such as:

• blacklisting, or "distinguishing in the treatment of employees by marking them for avoidance." Leveille v. New York Air Nat'l Guard, 1994-TSC-3/4 (Sec'y Dec. 11, 1995);
• demotions, or reductions in salary. Carter v. Electrical Dist. No. 2 of Pinal County, 1992-TSC-11 (Sec'y July 26, 1995);
• Discharge or lay off. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984); Emory v. North Bros. Co., 1986-ERA-37 (Sec'y May 14, 1987)
• Failure to hire, or non-selection. Frady v. Tennessee Valley Authority, 1992-ERA-19/34 (Sec'y Oct. 23, 1995); Samodurov v. General Physics Corp., 1989- ERA-20 (Sec'y Nov. 16, 1993).
• Harassment and Ridicule. Saporito v. Florida Power & Light Co., 1990- ERA-27/47 (Sec'y Aug. 8, 1994); Nichols v. Bechtel Constr., Inc., 1987-ERA-44 (Sec'y Oct. 26, 1992).

   In the present case, Complainant alleges that she was subject adverse action in the form of being laid off, blacklisted and not selected for employment, and harassed.

Lay Off

   Alyeska argues that it is not an "employer" under the language of the applicable statutes, and therefore, that it cannot be held liable in this case. Alyeska stresses that it had no involvement, either direct or indirect, with VECO's termination and selection decisions, and that the facts do not present a situation where both VECO and Alyeska can be found to be "joint employers." Rather, Alyeska argues that Complainant is requesting that this Court hold it jointly and severally liable, in strict liability, for the independent acts of the independent contractor.

   Complainant, on the other hand, argues that the facts present a situation where Alyeska had sufficient control over Complainant to qualify as a joint employer, and that Alyeska actually engaged in adverse action against her.

   I find and conclude that Respondent Alyeska qualifies as an Employer under the Acts, and therefore, can be held liable for engaging in adverse action against Complainant.

See id. (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989).

   The ARB in Stephenson v. National Aeronautics & Space Admin., 1994-TSC-5 (ARB Feb. 13, 1997), held that a respondent can be held liable for retaliating against 'any employee' if it had acted as a employer with regard to the employee, e.g., "by establishing, modifying or interfering with an employee of a subordinate company regarding the employee's compensation, terms, conditions or privileges of employment." The Board went on to state:

in a hierarchical employment context, an employer that acts in the capacity of employer with regard to a particular employee may be subject to liability under the environmental whistleblower provisions, notwithstanding the fact that that employer does not directly compensate or immediately supervise the employee. A parent company or contracting agency acts in the capacity of an employer by establishing, modifying or otherwise interfering with an employee of a subordinate company regarding the employee's compensation, terms, condition or privileges of employment. For example, the president of a parent company who hires, fires or disciplines an employee of one of its subsidiaries may be deemed an "employer" for purposes of the whistleblower provisions. A contracting agency which exercises similar control over the employees of its contractors or subcontractors may be a covered employer.

Id. (emphasis in original). On reconsideration of the Stephenson decision, the ARB upheld its prior ruling and again stressed the importance of analyzing the "employment relationship," and noted: "The employment relationship may exist between the complainant and the immediate employer. In the appropriate circumstances, however, protection may extend beyond the immediate employer." Stephenson v. National Aeronautics & Space Admin., 1994-TSC-5 (ARB Apr. 7, 1997)

   Similar issues arise in situations of joint employment. In Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), the Secretary of Labor delineated a number of criteria to determine whether or not two entities are joint employers: (1) inter-relation of operations; (2) common management; (3) centralized control of labor unions; and (4) common ownership. The Secretary, adopting the reasoning of the Administrative Law Judge, noted that the most important concern is the interrelation of operations. Id. It is not enough, however, to impose liability for an entity to merely be deemed a "joint employer," rather that employer must knowingly participate in the alleged adverse actions. In Carrier Corp. v. NLRB, 768 F.2d 778 (6th Cir. 1985), the Sixth Circuit Court of Appeals held that an independent contractor cannot be held liable for an unfair labor practice of a perpetrator, unless the independent contractor knowingly participated in the discriminatory practice. Therefore, if the independent contractor is entirely "innocent and unconscious" of the activity, it will be spared liability. Id. at 783 (quoting NLRB v. Glueck Brewing Co., 144 F.2d 847 (8th Cir. 1944)).

decision to hire was in December 1, 1996, and after that its hands are clean of any action involving Complainant. I find this statement hollow for several reasons. First, despite claims that the decision was finalized on December 1, 1996, on December 10, 1996, Ms. Haines was still inquiring of VECO supervision with Respodent to the differing costs for differing staffing levels. (CX 21) Therefore, I conclude that no finalized decisions were made at that time. Further, through December to March, Alyeska Engineers and ATLs acted with discriminatory motive to influence VECO's non-selection and removal decisions involving Complainant. Many of the complaints alleged by Alyeska employees were rooted in the October 15, 1996 Alyeska meeting, of which VECO had no knowledge at the time, where Alyeska employee's stripped Complainant of her minor modification duties. The Alyeska employee's statements were heavily relied upon by Mr. Read and VECO in deciding to not select Complainant for the downgraded positions, and laying her off in March of 1997. Further, Mr. Read testified that Alyeska supervisors requested that he counsel Complainant before allowing her to return to P.S. 3 in early January, 1997. (TR 701-02) Finally, I must note the testimony of Mr. Read who acknowledged, quite clearly and most candidly, that VECO does what Alyeska wants. (TR 704, 729) Therefore, I find and conclude that the factual record presents ample evidence of Alyeska remaining active in determining Complainant's fate as a VECO employee, at the Alyeska work- site, far beyond the date of December 1, 1996. Further, I find and conclude that this action constitutes adverse action against Complainant, for which both Respondents can be held liable, provided Complainant satisfies her burden of proving that Respondents took this actions in retaliation for her protected activity.

Harassment

   Complainant has alleged that she has undergone adverse action in being harassed by co-workers, in the form of unfair performance criticism, ridicule, removal for minor modification responsibilities, being subject to harassing phone messages, and having to undergo meeting which were disciplinary in nature.

   I find and conclude that Complainant has met her initial burden regarding this claim, for the previously stated reasons. The actions of removing Complainant from minor modification work, as well as the interpersonal criticisms, are forms of adverse action. The record contains many such examples, including when Mr. Butter called Complainant mentally ill, in response to the minor modification issues she raised. (TR 1356; CX 92(a)) I do not, however, view the phone messages during December 1996, and January 1997, as a form of harassment, since Complainant did not return the calls and the messages indicated that a response was time- sensitive. Further, upon listening to audiotapes of some of the calls, I do not find Mr. Read's tone or language in any way indicative of harassment.

Blacklisting/Failure to Hire

   Complainant contends that the Respondents' failure to hire her for a position between March 24, 1997 and August 17, 1997, constituted a continuing adverse employment action motivated by her protected activity. In the present claim, Complainant filed a second complaint on August 1, 1997, alleging that she was subject to a continuing violation of the acts, as she "diligently sought" 35 positions, for which she was qualified, through VECO on the Alyeska Pipeline and had "repeatedly been denied consideration." (CX 13; TR 220-21) Complainant also relies upon the testimony of Mr. Read who testified that between March and August of 1997, he would not have hired Complainant for any positions, because she needed closer supervision. (TR 765)

will continue to consider your resume only for those positions in which you specifically indicate an interest." (CX 3) Despite this instruction, Complainant failed to file specific applications, with the exception of two openings.

   Initially, I find and conclude that Respondents did not have any obligation to consider Complainant for any positions, absent a specific application, as expressly and clearly instructed by VECO. Complainant's letters relaying her general requirements for a position fail to rise to the level of applications for the 35 positions listed in the second complaint, because those correspondences were not specific job inquires. Further, Complainant has presented no evidence as to why she did not file specific applications.

   Complainant also argues that she was discriminated against because she could not apply to the positions which were not posted by VECO. Initially, I note that VECO is not required to post all job openings. Further, I find and conclude that Mr. Read and Mr. Ebersole clearly and adequately testified to the reasons and circumstances that prompt VECO to post, and not post, certain openings. Therefore, I find and conclude that Respondents were not obligated to consider Complainant for any position for which she did not apply. Accordingly, the only way for Complainant to establish by a preponderance of the evidence that she was subjected to adverse action in the form of blacklisting and failure to be hired, is to prove that she applied for positions for which she was qualified, was not chosen, and that Respondents either chose a non-protected individual, or that the position remained vacated after the application was rejected. See Holtzclaw v. United States Environmental Protection Agency, 1995- CAA-7 (ARB Feb. 13, 1997). I find and conclude that Complainant has failed to do that.

   As previously noted, Complainant has shown that she engaged in protected activity and that she suffered adverse employment action when she was laid off in March of 1997. Complainant must now establish by a preponderance of the evidence, that the protected activity was the likely reason for the adverse action. See, e.g., Haubold v. Grand Island Express Inc., 1990-STA-10 (Sec'y Apr. 27, 1990); Stack v. Preston Trucking Co., 1986-STA-22 (Sec'y Feb. 26, 1987); Dartey v. Zach Co. of Chicago, 1982- ERA-2 (Sec'y Apr. 25, 1983). Proximity in time between protected activity and an adverse action is solid evidence of causation. White v. The Osage Tribal Council, 1995- SDW-1 (ARB Aug. 8, 1997); see also Goldstein v. Ebasco Contractors, Inc., 1986- ERA-36 (Sec'y Apr. 7, 1992).

   Complainant has argued that all of the adverse action taken by Respondents, including harassment, reorganization, non-selection and layoff, were due to her raising of quality concerns. Both Respondents, however, have submitted evidence of legitimate, non-discriminatory reasons for their actions. Therefore, in order to conclude whether or not Complainant met her burden as to the ultimate question of liability, I must now turn my analysis to Respondents' proffered reasons for subjecting Complainant to adverse action, and whether or not Complainant has proved those reasons pretextual.

   As Complainant has proved the elements of her case, Respondents have the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory reasons. See Morris v. The American Inspection Co., 1992-ERA-5 (Sec'y Dec. 15, 1992). Significantly, the Respondents bear only a burden of production, as the ultimate burden of persuasion of the existence of intentional discrimination results with the Complainant. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); Dartey v. Zack Co. of Chicago, 1982-ERA-2 (Sec'y Apr. 25, 1983). An employer's discharge decision is not unlawful even if based on mistaken conclusions about the facts, however, a decision will only violate the Acts if it was motivated by retaliation. Dysert v. Westinghouse Electric Corp., 1986-ERA-39 (Sec'y Oct. 30, 1991).

   Respondents contend that Complainant was not selected for a downgraded position and laid off from her employment for legitimate, non-discriminatory reasons. Specifically, Alyeska argues that its December reorganization decision was due to severe budgetary constraints, and the need to address the issue of drawing backlogs. Alyeska asserts that Complainant's name was never brought up during those decisions. VECO argues that the non-selection and layoff were all valid. First, VECO argues that Complainant was offered a position in Anchorage, and that it was only after she refused this offer that she was laid off.

Further, Respondents argue that Complainant was not chosen for the down-graded positions because of her negative attitude, and inability to get along with co-workers. This is because: she was hostile, could not resolve conflicts, locked her office, kept a password on her computer, was combative with engineers, refused to return calls, refused to make red-line changes, and was withdrawn and difficult to work with a the remote site. VECO also argued that Complainant required closer supervision, and therefore, she was not selected for a remote position where there was little VECO supervision for fear of jeopardizing its relationship with Alyeska.

   I note that inter-personal friction caused by a complainant's inter-personal style may be a valid, nondiscriminatory reason for termination. See Jarvis v. Battelle Pacific NW Laboratory, 1997-ERA-15 (ARB Aug. 27, 1998) Nevertheless, I conclude that Respondents have not set forth any legitimate reason for not selecting Complainant for the downgraded position, and for her eventual layoff.

   I must again restate my rejection of Alyeska's claim that its actions were limited and confined to the December 1, 1996 decision to reorganize the NBU. Despite Alyeska's claims, the record shows that ATL Haines continued to inquire about the plans after that date. Further, while ATL Haines testified that Complainant's name was never brought up in connection with the reorganization decision, her notes contradicted her testimony. In fact, ATL Haines's note for December 10, 1996, specifically mentions both Complainant name and the down-graded positions, while writing about possible changes due to the reorganization. (CX 18 at APSC 0404) Finally, I find that Alyeska Employees provided negative information to VECO and requested that VECO meet with Complainant prior to her return to P.S. 3 in January, 1997. Alyeska ATLs and Engineers then relayed complaints to VECO officials about Complainant, which stemmed from her protected activities. It is extremely significant to note that Alyeska Engineers had a good working relationship with Complainant until she started to raise quality concerns about the minor modification packages and the red-line signatures, after which the relationship deteriorated.

   I also find and conclude that the reasons offered by VECO for not selecting Complainant for a down-graded position are illegitimate and pretextual because they either involved resolved issues, or arose out of, and were intertwined with, Complainant's protected disclosures. Mr. Read's testimony clearly reflected a candid admission that Complainant was not chosen because she was difficult to work with. All of the reasons for Mr. Read's conclusions can be divided into three separate categories: previously resolved issue, the Anchorage issue and opinions tied to protected activity.

   First, Respondents point to a number of troubled circumstances during Complainant's career with VECO where interpersonal problems arose, such as Complainant's missing of training, and her refusal to provide time cards. The testimony of Mr. Read, however, clearly stated that these conflicts were resolved prior to Complainant's promotion to Senior Designer in the summer of 1996. (CX 19; VECO 39). Further, ATL Haines testified that the issues regarding computer passwords and locks were resolved prior to the December, 1996

interviews with Mr. Read and Mr. Rooney. (TR 827-38) Thus, Alyeska employees were attempting to influence VECO to remove Complainant based, in large part, on already resolved claims.

   Second, I reject Respondents' argument that Complainant was laid off only after she rejected the Anchorage position. Both Mr. Read and Mr. Ebersole testified that an offer was made. Complainant, however, testified that she was never offered the Anchorage Job and that she would have accepted it had it been offered.

   I find and conclude that there is insufficient evidence that a position in Anchorage was offered to Complainant. I find it significant that despite the fact that VECO's Human Resources department requested Mr. Read to keep detailed notes of contact with Complainant, he was unable to present any evidence that the position was offered. Further, I find that Mr. Read's assertion is not supported by the evidence. Mr. Shipley, who Mr. Read said knew of the offer, did not testify. Mr. Ebersole testified in a contradictory manner and unconvincingly about this matter. Additionally, VECO's report to Alyeska's ECP on the reason for Complainant's termination contained no reference to a rejection of an Anchorage offer as a reason for the lay off. Additionally, according to Mr. Kinney's testimony, in December of 1996, Mr. Rooney commented that moving Complainant to Anchorage was not possible and that he was "directed not to do that." (TR 985, 1041-42) Further, I reject Respondents' argument that the comment made by Earl Hall in January, stating that anyone who was not selected for a remote site position would be reassigned to a position in town (CX 42 at JS 0050), should have put Complainant on duty to inquire about such positions, in absent of it being offered prior to her lay off. Thus, I conclude, in light of all the surrounding circumstances, that Mr. Read's testimony is insufficient to prove that a job in Anchorage was offered and rejected. Accordingly, I find that Complainant's alleged rejection of the "Anchorage offer" is not a legitimate reason for her termination.

   Finally, I reject Respondents' claim that Complainant's inter-personal problems, and need for supervision, constitute legitimate, non-discriminatory reason for not selecting her for a down-graded position and laying her off. Respondents' concerns, and specifically Mr. Read's belief, that Complainant required a great deal of supervision, was formed as a result of the December interviews with Alyeska employees and DUP team members. The complaints regarding Complainant that were raised were directly related to her protected activity. The Respondents allege that Complainant was uncooperative, but their basis for this opinion is that she refused to compromise her safety concerns. The animosity which resulted led several Alyeska employees to refer to complainant as: having a "chip on [her] shoulder," not being a "team player," being an "800-pound elephant in the living room," and most significantly, a "whistleblower." Accordingly, I conclude that the Respondent's propounded "legitimate, non-discriminatory reason" for not selecting Complainant for a down-graded position and laying her off, is actually tainted, as the basis for these "legitimate" reasons was really in retaliation for her engaging in

protected activity. I find this situation closely analogous to Passaic Valley Sewerage Commissioners v. United States Dep't of Labor, 992 F.2d 474 (3d Cir.), cert. denied, 50 U.S. 964 (1993), where the Third Circuit held, where there was "no evidence that the Complainant's alleged personality or professional deficiencies [in interpersonal relations] arose in any other context outside his complaint activity," the Respondent's conclusion that the Complainant had a personality problem or deficiency of interpersonal skills was reducible in essence to the problems of the inconvenience the Complainant caused by his pattern of complaints. Id. at 481; see also Dodd v. Polysar Latex, 1988- SWD-4 (Sec'y Sept. 22, 1994) (concluding that what respondent viewed as poor attitude was nothing more than the result and manifestation of the Complainant's protected activity). I agree that this case presents a situation where all of Respondents' alleged "legitimate" reasons, are essentially complaints about the inconvenience and difficulties caused by Complainant raising safety concerns. Therefore, I find and conclude that Respondents have failed to produce a legitimate, non-discriminatory reason for subjecting the Complainant to adverse action, and as a result, Complainant has met her claim for intentional discrimination and is entitled to damages. If, however, a reviewing authority concludes that Respondents have provided legitimate, non-discriminatory reasons for their actions, then I find and conclude that Complainant has proven that any such reasons are pretextual, as shall now be discussed.

   I find and conclude that Complainant has presented adequate evidence to prove not only that the Respondents' proffered reasons for any adverse action pretextual, but also that the Complainant was harassed and laid off in retaliation for engaging in protected activity. Leveille v. New York Air Nat'l Guard, 1994-TSC-3/4 (Sec'y Dec. 11, 1995). Respondents allege that Complainant was not selected for a downgraded position and laid off because she was not a team player, and required more supervision than was available at any of the remote pump stations. I find and conclude that Complainant has proven that those reasons are invalid, as the real motivation concerned her protected activity. Further, I conclude that Complainant has proven that Respondents intentionally discriminated against her for engaging in protected activity.

   Initially, I note that the Board has held that a supervisor's use of the expression "team player" was reasonable and non-discriminatory where the supervisor's basis for using the phrase was due to the complainant's uncooperative and disrespectful attitude. See Odom v. Anchor Lithkemko, 1996-WPC-1 (ARB Oct. 10, 1997). Further, I am cognizant of the fact that engaging in protected activity does not permit an employee to be absolved from any abuses by "overstepping the defensible bounds of conduct." Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986); see also McDonald v. University of Missouri, 1990-ERA-59 (Sec'y March 21, 1995); Lopez v. West Texas Utilities, 1986-ERA-25 (Sec'y July 26, 1988). Nevertheless, I find that Respondents' allegations are invalid and merely disguised their true discriminatory intent.

clarification of any of the concerns raised by Alyeska employees. I find this disregard for the factual basis of these complaint evidence that they served as pretext for removing Complainant from her position. Further, Mr. Read, in both the December and January meetings with Complainant, never gave her instructions on what she could do to smooth over the conflict with the Engineers and become more of a team player. Complainant, consequently, reasonably believed that the only way she could be more of a team player, was by silencing her safety concerns. Therefore, I find and conclude that Respondents' arguments that Complainant was difficult and "not a team player" was really the manifestation of their frustration that Complainant was engaging in protected activity, and I further conclude that Complainant has successfully proven intentional discrimination.

   I similarly reject Respondents' "supervision" arguments, and I agree with Complainant that this was an illegitimate motive and evidence of intentional discrimination. While Respondents highlight Complainant's need for supervisor for the reason she was not selected for the down-graded positions and eventually laid off, I find that several uncontested facts exist. First, Mr. Read testified that he learned of the need for increased supervision of Complainant in December of 1996. At no point between December 1996 and March 1997, however, was Complainant afforded greater supervision at P.S. 3. Further, in August of 1997, Complainant was rehired to a position at remote Pump Station 7. In that position, Complainant was not provided with direct supervision until May of 1998. (TR 1280- 81) Finally, I note that the basis for Mr. Read's opinion that Complainant needed greater supervision were the complaints made by the Alyeska employees; the same complaints I have previously rejected as being based on illegitmate, discriminatory motives in retailiation for Complainant's engaging in protected activity. Thus, I find and conclude that the Respondents' proffered reason for not selecting Complainant for the down-graded positions to be pretext.

settled, as grounds for actions taken in 1997. The complaints about the Complainant were tightly tied to her protected activity, and rather than displaying examples of a difficult or combative employee apart from protected activity, the complaints served as expressions of annoyance of having to deal with Complainant's safety concerns. Complainant's inability to be a "team player," was nothing more than a manifestation of her safety concerns, i.e., she would not go along with drafting because what they were doing was not safe, and I find and conclude that this is indicative of illegitimate motive.

   I, very briefly, wish to touch upon the issue of dual motive analysis. Under dual motive analysis, a Respondent must establish, by a preponderance of the evidence, the existence of a legitimate reason for the taking of adverse employment action against a complainant, and that the Respondent would have taken the same action even if the employee had not engaged in protected conduct. See Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Martin v. The Dept. of the Army, 1993-SDW-1 (Sec'y July 13, 1995).

   This Judge only reaches the dual motive analysis if I determine there is a legitimacy to the Respondents' stated reason for the adverse employment action, a conclusion which I have specifically rejected for the aforementioned reasons. Even so, I find and conclude the Respondents have failed to present sufficient evidence that they would have taken the same action if Complainant had not engaged in protected activity, because the evidence establishes that Respondents' actions and positions were motivated entirely in response to Complainant raising quality concerns.

   I have found that Respondents Alyeska and VECO violated the employee protection provisions of the Toxic Substances Control Act, the Solid Waste Disposal Act, the Clean Air Act, and the Water Pollution Control Act. The Secretary of Labor is therefore empowered to order all appropriate remedies, including injunctive relief, compensatory damages, exemplary damages, and attorneys' fees and costs. In the present case, Complainant requests an award of lost wages, a cease and desist order, expungement of employee records, compensatory damages for emotional distress, exemplary damages, and attorney fees and costs.

Back Pay Liability

   Complainant requests an award of back pay totaling $32,175.65 for the period from her lay off, on March 24, 1997, until commencement of her P.S. 7 position on August 15, 1997. Further, Complainant seeks reimbursement of $818.88 in COBRA payments made during this same period in order to continue her health insurance.

   The "goal of back pay is to make the victim of discrimination whole and restore him to the position that he would have occupied in the absence of the unlawful discrimination." Blackburn v. Martin, 982 F.2d 125, 128 (4th Cir. 1992). Thus, an award of back pay is computed by determining the compensation that a complainant would have received had the respondent continued his or her employment and by offsetting this amount by any amounts earned in replacement jobs. Johnson v. Old Dominion Security, 1986-CAA-3 (Sec'y May 29,1991). Under the Ninth Circuit's standard in E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994) (citing Galindo v. Stoody Co., 793 F. 2d 1502, 1517 (9th Cir. 1986)), premiums Complainant paid for a former employee's COBRA plan are reimbursable, as this was an "actual expense incurred" by the complainant. Once the plaintiff establishes the gross amount of back pay due, the burden shifts to the defendant to prove facts which would either negate the existence of liability or which would mitigate that liability. NLRB v. Browne, 890 F.2d 605, 608 (2nd Cir. 1989); West v. Systems Applications Int'l, 1994-CAA-15 (Sec'y Apr. 19, 1995).

   Respondents argue that because Complainant has failed to mitigate her damages, her back pay award should be cut off or reduced. Specifically, Respondents argue that by rejecting the Anchorage offer, all liability for back pay ceases. Second, Respondents argue that between March and August of 1997, Complainant did not adequately seek alternate employment, and therefore did not mitigate her damages appropriately. Finally, Respondents argue that any award must be reduced to account for the two weeks of severance pay Complainant received. I shall now address each of these arguments individually.

   First, Respondents argue that Complainant's rejection of the Anchorage offer prevents any recovery for back pay. As a general rule, an employee's rejection of an employer's offer of restatement ends liability for back pay or reinstatements. Williams v. TIW Fabrication & Machining, Inc., 1988-SWD-3 (Sec'y June 24, 1992) ("Refusal of an unconditional offer of reinstatement to a substantially equivalent position constitutes a breach of the obligation to mitigate damages.") The Secretary has held, "Absent special circumstances, employee's rejection of employer's reinstatement offer ends liability for back pay or reinstatement." Blackburn v. Metric Constr., Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991) (citing Giandonato v. Sybron Corp., 804 F.2d 120, 124 (10th Cir. 1086).

   The key issue here is the factual determination of whether or not Complainant was offered, and turned down, a job in Anchorage. I have already found that Respondents have failed to present convincing evidence that Complainant was offered, and rejected, any such position. Thus, I conclude that absent sufficient proof of an Anchorage offer, I cannot eliminate Respondents' back pay liability.

   Respondents next argue that Complainant did not adequately mitigate damages in her pursuit of alternate employment between March and August of 1997. I disagree.

   The record contains evidence that Complainant sought employment, both with VECO at Alyeska sites, and with other employers during the relevant time period, yet received no offers. (VECO 51) I have found that Complainant's general letters dated June 18, 1997, June 27, 1997 and July 10, 1997, did not constitute applications for a wide range of position. Rather, I find that the record only contains evidence that Complainant only applied to two individual position. Nevertheless, I find and conclude that Complainant took sufficient steps during this period to seek alternate employment, and therefore, reasonably and adequately sought to mitigate her damages. Therefore, I will not reduce Respondents' liability for back pay on this ground.

   Finally, Respondent VECO argued in its post-hearing filing, that any award for lost wages and back pay, must be reduced by the amount of severance pay Complainant received for the two weeks she worked during the VECO inspection. Specifically, VECO notes that Complainant completed a calendar log which indicated the hours Complainant lost due to her lay off. (VECO 56) In this exhibit, Complainant computed lost wages, excluding the period where she received severance pay, and thus the total for lost wages and overtime totals $28,023.81. (VECO 56) Accordingly, VECO argues that Complainant's request for $32,175.65 should be reduced by $4,151.84, representing the straight time plus overtime for the two weeks, based on the records Complainant kept. (VECO 56)

   It is well settled that interim earnings at a replacement job are deducted from an award of back pay. See Willy v. The Coastal Corp., 1985-CAA-1 (Sec'y June 1, 1994); Williams v. TIW Fabrication & Machining, Inc., 1988-SWD-3 (Sec'y July, 24, 1991). I agree, and hereby reduce Complainant's request by that amount. I find and conclude Complainant is entitled to an award of back pay totaling $28,023.81, plus $818.88 for reimbursement of COBRA payments made between March and August of 1997 to continue her health insurance.

Interest on Back Pay

   Back pay awards are designed to make whole an employee who has suffered economic loss as a result of an employer's illegal discrimination. The assessment of prejudgment interest is necessary to achieve this end. Prejudgment interest on back wages recovered in litigation before the Department of Labor is calculated, in accordance with 29 C.F.R. § 20.58(a), at the rate specified in the Internal Revenue Code, 26 U.S.C. § 6621. The employer is not to be relieved of interest on a back pay award because of the time elapsed during adjudication of the complaint. See Palmer v. Western Truck Manpower, Inc., 85-STA-16 (Sec'y Jan. 26, 1990) (where employer has the use of money during the period of litigation, employer is not unfairly prejudiced). Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). Accordingly, I hereby recommend that Complainant be awarded prejudgement interest on the award of back pay, as calculated under 26 U.S.C. § 6621.

Other Equitable Relief

   Complainant also requests that Respondents, specifically VECO, cease from further retaliation and discrimination, and that negative reference in her employment record be expunged. Further, Complainant requests that the Respondents be ordered to post this decision and order. In support thereof, Complainant alleges that both Mr. Ebersole and Ms. Johnson have made incriminating statements in which Complainant is criticized for bringing this actions.

   VECO argues that the allegations concerning Mr. Ebersole and Ms. Johnson are based on double hearsay, and provide no proof of any on-going retaliation, and therefore any order to cease further discrimination is unwarranted. Alyeska argues that these claims directly involve VECO, as they concerns statements made by VECO employees and Complainant's VECO employment records.

   I conclude that it is not necessary to pass on the existence of any potential continuing or future discrimination at this time, as such a claim is not before this Judge. Nevertheless, it goes without saying that both Respondents should both cease, and refrain from engaging in, any discriminatory conduct against Complainant because of her protected activity. Further, I find that it is permissible to recommend that the Respondent's be ordered to post the Secretary's Decision and Order for a period of sixty (60) days. Finally, I recommend that Respondents be ordered to expunge from their records all negative memoranda or references to any of Complainant's activities found to be protected activity. See McMahan v. California Water Quality Control Bd., 1990-WPC-1 (Sec'y July, 16, 1993).

Compensatory Damages

   Complainant requested $50,000 in compensatory damages in light of her high blood pressure, anxiety and depression. (TR 241)

   Compensatory damages may be awarded for emotional pain and suffering, mental anguish, embarrassment and humiliation. See generally Deford v. Secretary of Labor, 700 F.2d 281, 283 (6th Cir. 1983) (decided pursuant to the ERA); Nolan v. AC Express, 1992-STA-37 (Sec'y Jan. 17, 1995) (decided pursuant to an analogous provision of the STA). Where appropriate, a complainant may recover an award for emotional distress when his or her mental anguish is the proximate result of respondent's unlawful discriminatory conduct. See Bigham v. Guaranteed Overnight Delivery, 1995-STA-37 (ALJ May, 8, 1996) (adopted by ARB Sept. 5, 1996); Crow v. Noble Roman's Inc., 1995-CAA-8 (Sec'y Feb. 26, 1996). See also Blackburn v. Metric Constructors, Inc., 1986-ERA-4 (Sec'y Oct. 30, 1991). Complainant bears the burden of proving the existence and magnitude of any such injuries; although, as a caveat, it should be noted that medical or psychiatric expert testimony on this point is not required. Crow v. Noble Roman's, Inc., 1995-CAA-8 (Sec'y Feb. 26, 1996); Lederhaus v. Paschen, 1991-ERA-13 (Sec'y Oct. 26, 1992); Jones v. EG&G Defense Materials, Inc., 1995- CAA-3 (ARB Sept. 29, 1998).

had suffered from high blood pressure prior to the alleged discrimination, her blood pressure and anxiety increased due to the Respondents' actions. (TR 241-43) Further, Complainant testified that she has undergone treatment for depression during this period. (TR 241-42) Complainant did not present any medical evidence or the testimony of friends or family members to support her own testimony, however, this is not necessary. Rather, I conclude that Complainant's testimony alone is sufficient for a claim of compensatory damages to be upheld. I do note, however, that the present facts do not support Complainant's claim for $50,000 in compensatory damaged. Complainant's actual discrimination, and the evidence of her emotional pain and suffering, lack the severity found in those cases where an award of $20,000, or more, was granted. Instead, I find that Complainant's condition and circumstances are more in line with those cases limiting an award of compensatory damages to approximately $10,000. See McCuistion v. Tennessee Valley Auth., 1989-ERA-6 (Sec'y Nov. 13, 1991).

Exemplary Damages

   Complainant requests an award of exemplary damages of, at least, $50,000, in order to punish the conduct of Respondents in this matter.

   The Toxic Substances Control Act provides for an award of exemplary damages "where appropriate." 15 U.S.C.§2622(b)(2)(B)(iv). An award of punitive damages is appropriate where "the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). Once the requisite state of mind has been found, "the trier of fact has the discretion to determine whether punitive damages are necessary, 'to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future.'" Rowlett v. Anheuser-Busch, Inc., 832 F. 2d 194, 205 (1st Cir. 1987) (citing Smith, 461 U.S. at 53-54); see also Johnson v. Old Dominion Security, 1986-CAA-3 (Sec'y May 29, 1991).

   Complainant argues that exemplary damages are warranted in this situation, based upon an alleged history of discrimination by Respondent VECO, and the statements of current VECO employees threatening further discrimination. VECO challenges the validity and relevance of past claims of discrimination, and also questions the alleged statements regarding further discrimination. Alyeska notes that all allegations cited to by Complainant in support of an award of exemplary damages concern actions and statements by VECO employees. Accordingly, Alyeska argues that it should not be liable for any exemplary damages, absent a showing that Alyeska engaged in willful, wanton or reckless conduct.

   Additionally, on December 23, 1998, Attorney Garde, Complainant's former counsel, requested time to file a fee petition. (ALJ EX 118) This Judge granted this request on December 23, 1998, permitting Attorney Garde to file her fee petition on either December 30, 1998, or within two weeks of the issuance of this Recommended Decision and Order. (ALJ EX 119) Attorney Garde, apparently, has decided to file her fee within two weeks of this order. Counsel for both Respondents have requested an opportunity to respond to Attorney Garde's fee. Accordingly, Attorney Garde is hereby ORDERED to file her attorney fee within two weeks from receipt of this Recommended Decision and Order. Thereafter, Counsel for Respondents are granted two weeks from receipt of Attorney Garde's petition to respond.

   This Administrative Law Judge will then issue a Supplemental Recommended Decision and Order in which I shall award appropriate attorney fees, and address all the arguments of counsel.

   Based upon the foregoing findings of fact, conclusions of law and upon the entire record, this Judge RECOMMENDS the following PRELIMINARY ORDER:

1) Respondents, Alyeska Pipeline Service Company and VECO Engineering, shall pay to Complainant an award of $28,023.81 in back pay, plus $818.88 in reimbursement for COBRA payments. Further, I recommend that Complainant be awarded prejudgement interest on the award of back pay, as calculated under 26 U.S.C. § 6621.

2) Respondents shall immediately expunge Complainant's personnel file of any negative inferences related to her protected activity.

3) Respondents shall post on all bulletin boards, where Respondent's official documents are posted, a copy of the Secretary of Labor's Decision and Order for a period of sixty (60) days, ensuring it is not altered, defaced or covered by other materials.

4) Respondents shall pay Complainant compensatory damages in the amount of $10,000.00.

5) Each Respondent shall pay Complainant exemplary damages in the amount of $2,500.00.

It is FURTHER RECOMMENDED that

6) Complainant's second complaint, alleging a blacklisting/failure to hire claim, be DENIED.

   Finally, I hereby ORDER all Counsel for Complainant to file a response to Respondents' attorney fee objections within two weeks of receipt of this Recommended Decision and Order. Further, Attorney Garde is hereby ORDERED to file her attorney fee within two weeks of her receipt of this order. Counsel for Respondents, upon receipt of Complainant Counsels' objections and Attorney Garde's fee petition, shall then have two weeks to respond. A Supplemental Recommended Decision and Order addressing the appropriate attorney fee shall be issue shortly thereafter.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:pte

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).