Wettstein v. Conway Central Express, 1999-TSC-3 (ALJ Mar. 1, 2000)

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Wettstein v. Conway Central Express, 1999-TSC-3 (ALJ Mar. 1, 2000)

U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
(415) 744-6577
(415) 744-6569 (FAX)
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DATE: March 1, 2000

CASE NO. 1999-TSC-3

In the Matter of

DANIEL W. WETTSTEIN
Complainant

CONWAY CENTRAL EXPRESS
Respondent

Appearances:
Daniel W. Wettstein,
Pro se

Mitchell S. Allen, Esq.
James F. Smith, Esq.
For the Respondent

Before: ALFRED LINDEMAN
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

A hearing in this matter under the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §§ 2622, was held on December 8, 1999, in Kansas City, Missouri, on the complaint of Daniel W. Wettstein. Complainant alleges that he was unlawfully terminated from his employment as a truck driver and sales representative for the Respondent because he made several reports to his superiors of a toxic paint spill in which someone had poured toxic paint onto cardboard, which then ran off the cardboard and soaked into the soil. Complainant thus seeks reinstatement with full benefits owed, back pay with all applicable pay increases, and a purging of all negative items from his personnel file since January 1999.¹

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Findings of Fact

It is undisputed that the respondent, Con-Way Central Express, is a general commodity carrier which is part of a larger company, CNF Transportation, and that it is subject to the whistleblower provisions of TSCA. Complainant started working with the respondent in March of 1996 as a driver and sales representative based at the Kansas City service center. It is also apparent that complainant had established a good work record up to the fall of 1998. TR 31.² However, on September 21, 1998, he received an "incident report" for failing to properly "block in" a shipment. EX 12. At this point, according to the testimony of Jeff Vukovich, the service center manager at the Kansas City facility where complainant worked, his work attitude began to change and he became very disruptive. TR 199.

On February 18, 1999, the employer issued a second incident report to complainant for a so-called "K-Tag violation," because he failed to return a tag that was used to charge highway tolls to the employer. EX 13. When Vukovich and complainant discussed the matter, Vukovich told him it was only a minor disciplinary incident that he needed to "accept and move on." TR 219-220. Vukovich testified, however, that complainant's disruptive behavior only increased after the incident. TR 220.

Complainant testified that at some point in February of 1999,³ he went to Paul Moneymaker, the employer's regional manager, and told him that there was a hazardous material paint spill in the yard of the Kansas City facility that needed to be cleaned up.⁴ TR 38-39. According to complainant, the spill had been there since the fall or early winter of 1998, at which time he talked to an associate, Bill Hampshire, about it, and then brought it to the attention of Vukovich, the service center manager for the Kansas City Facility. TR 39, 81- 82.⁵ Complainant also explained that he had waited two or three months before reporting the spill to Moneymaker because he wanted to give Vukovich a chance to clean it up, and while the cardboard and paint cans were cleaned up, no one ever cleaned up the paint on the ground. TR 39, 82.

According to Moneymaker, the same day that complainant talked to him, Moneymaker contacted Jim Reid, the personnel manager at the facility, and asked him to walk out and investigate a paint spill that complainant had reported. TR 77-78, 149, 166-167, 172. Reid testified that he was accompanied by Mike Lewis, the safety supervisor at the facility, and that they inspected and found a paint spill in the northwest corner of the yard, TR 173, 183, and that when he saw the paint spill he knew right away it was not hazardous; however, he still returned to the office and traced the paint to its shipper, and pulled the Material Safety Data Sheets (MSDS) sheets to verify that it was not hazardous. TR 174; EX 2. That afternoon, Reid reported back to Moneymaker that they had found the spill, that it was non-hazardous, and that they were having it cleaned up. TR 166-167. Moneymaker testified that he then instructed the operating manager, Rick Batulo, to clean up the paint spill and put down fresh gravel. TR 150.

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The record establishes that at some point after he made his initial report to Moneymaker, complainant had a conversation with Reid, in which Reid told complainant that he had checked into the spill and it turned out to be non-hazardous. TR 175-176. Complainant then told Reid that he disagreed, that the spill he was talking about was hazardous. TR 79-80, 175-176. Reid apparently thought complainant was talking about the same paint spill, and was arguing that it was hazardous. TR 175-176.

Thereafter, no one else contacted complainant about the spill and, after a week or two, he placed an anonymous call to Rick Trott, the Director of Human Resources for the respondent at their central office in Ann Arbor, and reported a toxic spill at the Kansas City site. TR 44, 46, 100. Trott testified that he spoke to Vukovich about it the next morning, and that Vukovich told him that the spill had been found and was being cleaned up. TR 309-310. After another couple of weeks, complainant also made another anonymous call to Doug Stotlar, a vice-president with the respondent, and reported the spill to him. TR 46-47, 100.⁶

Vukovich testified that on February 25, 1999, when he returned to the facility, he determined that complainant was mocking his supervisors, not accepting discipline, and causing everything to become very disruptive. TR 226. Based on such declining behavior, Vukovich decided to issue a "Letter of Instruction" which he hoped would resolve the matter, and having also talked to Trott, who agreed that a letter of instruction should be sent, TR 227, on March 2, 1999, the Letter of Instruction was issued to complainant. EX 4. The letter stated that despite a counseling session following the K-Tag incident report and instruction in proper discipline, "recent behavior indicates that you have failed to conduct yourself in a manner consistent with acceptance of this instruction." Id. Vukovich also wrote that "I have observed and heard of your snide comments to other employees and to your direct supervisors as it relates to the discipline you received, these comments along with the non-productive time spent disturbing the work environment with your actions and comments is a violation of our conduct policy." Id. Finally, the Letter of Instruction cautioned that "failure to correct your insubordinate behavior immediately, or a continuance of this insolence, that has resulted in a disruption to the work place and lost productivity will result in more disciplinary action up to and including termination." Id.

Also on March 2, 1999, because he had been informed that the general office had received a call from an anonymous person reporting a hazardous spill in the yard of the Kansas City facility, Moneymaker sent an e-mail to the respondent's president, Dick Palazzo. TR 151; EX 32. The e-mail stated: "the paint spill was actually determined to be a small amount of ink concentrate that when [it] gets wet expands to a bigger area. Mike Lewis and myself investigated this and had a contractor come in and scrape the area to rid it of this substance and then re-rock. This area is not the employee parking lot but it is the far north east corner of the trailer parking lot. It is mud and holes and does need rock added. The rock has been delivered and the contractor will be back to spread and level." EX 32.

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On March 3, 1999, complainant got into a confrontation with a member of the warehouse crew while making a pick-up at one of the respondent's top customers, First Brands Corporation, which resulted in the warehouse manager, Jimmy Garrett, requesting that complainant not be sent there for pick-ups anymore. EX 5. According to Vukovich's testimony and an incident report prepared by Vukovich and signed by Garrett, when Garrett called in an order to the Respondent's office, he told the customer service representative that he did not want complainant to be sent to his warehouse anymore because he, complainant, upset the warehouse crew and they refused to load him. EX 5; TR 229-230. As the representative's note to Vukovich stated: "Do not send Dan Wettstein. He pissed off the warehouse crew and they refuse to load him." EX 8.

According to Vukovich's testimony, after hearing that First Brands refused to have complainant come to their warehouse, Vukovich called Garrett that morning to investigate, and then spoke with Steve Maddox, the warehouse loader who had the confrontation with Complainant. See EX 5; TR 232-233. Maddox told him that there had been an argument over the order in which to load the shipment, but that no matter how he loaded the truck complainant was unhappy, and that complainant told him: "Just load it like I tell you." Id. Vukovich then talked to complainant to get his side of the story and complainant stated that Maddox had tried to load the skid in an improper order and with one skid two cartons short. Later that morning, Vukovich, visited First Brands and saw Garrett in person to apologize and compare complainant's story with Garrett's. According Vukovich, Garrett disagreed with complainant's version of events and stated that Maddox had tried to load the shipment properly. Id. He then told Vukovich about another incident with complainant four to five weeks earlier, in which complainant had argued with Garrett and others in the warehouse over whether to mark a package "crushed" or "creased," an apparent meaningless difference, and had told Garrett, "you're not my boss." Garrett then told him that it was his opinion that complainant had a bad attitude and was disruptive to their operation, that there had been two occasions in which he had been difficult to deal with, that he was frustrating to the work crew, and that if he was allowed back into the facility the frustration could escalate into an incident of a verbal or physical nature. Therefore, Garrett requested that complainant not be allowed back. Id.

When Vukovich returned to the facility, he talked to Trott on the phone about the incident, after which Trott, who is the party responsible for making such decisions, made the decision to terminate complainant. TR 240. A conference call was then held between Trott, complainant and Vukovich. TR 241. During this conference, they talked about complainant's disruptive behavior over the past several months at the service center and the recent incident at First Brands and then complainant was told he was terminated. TR 240-242. On March 5, 1999, complainant was officially terminated from his job. EX 6.

Also on March 5, 1999, Vukovich prepared a handwritten note regarding complainant's spill report, which stated: that the spill was found and was a "20 by 30 area" of a non-hazardous "earth dry" pigment; that it was identified by safety supervisor Mike Lewis and the shipper as a non-regulated, water-soluble material; that the spill was scooped, hauled away, and disposed of by Vance Brothers; and that the area was refilled. EX 10.

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At some point in March of 1999, a representative from the Missouri Department of Natural Resources ("DNR") came to the Kansas City site to investigate a report of a hazardous spill. William Buglio, the safety supervisor for Con-Way Central Express for over ten years, testified that he accompanied the representative on his inspection of the facility and that the representative went through the entire facility, the maintenance shop, the dock area, and around the trailers. TR 109, 113-114. Buglio testified that the representative told him that he did not find any violations. TR 121.⁷

On March 8, 1999, the decision to terminate complainant was upheld by respondent's Employee Termination Review Board, an independent review board made up of three corporate officials who were unrelated to any of the incidents with complainant and unfamiliar with his activities regarding the paint spill. EX 9; TR 305.

Complainant then filed his complaint with OSHA the next week, TR 56-57, as well as with the NLRB (National Labor Relations Board) on March 18, 1999. NLRB notified complainant in April that it could take no action. TR 59-60. On June 8, 1999, the Secretary of Labor issued findings that complainant's termination was not a violation of the TSCA. As of the date of the hearing, complainant had recently returned to work as a driver with a new company, earning a slightly lower hourly rate (i.e., $11/hour compared to $15/hour) than he had earned working for the respondent. TR 61.

Conclusions

Under TSCA, covered employers are prohibited from, among other things, discharging or otherwise discriminating against an employee who has engaged in any activity protected by the Act. 15 U.S.C. §§2622(b)(1). Based on the record established in this case, I find that complainant had a good faith belief that the spill he reported was a covered toxic substance and that the "temporal proximity" of his report and his termination are sufficient to raise an inference of discriminatory motivation. See Adornetto v. Perry Nuclear Power Plant, 1997-ERA-16 (ARB, March 31, 1999). I also find, however, that the evidence establishes that respondent had legitimate, non-discriminatory reasons for terminating complainant, and that complainant has failed to meet his burden of proving by a preponderance of the evidence that these legitimate reasons for his termination were a pretext. See Carroll v. Bechtel Power Corp., 1991-ERA- 46, slip op. at 9-11 (Sec'y, Feb. 15, 1995), aff'd Carroll v. U.S. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996).

Evidence of legitimate reasons for terminating complainant

I find that the respondent had legitimate reasons for terminating complainant based on the evidence of his confrontation with the employer's fifth largest customer, which banned him from future contact, and the evidence of previous incidents and his general disruptive behavior.

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As recited above, Trott, the person who actually made the decision to terminate, testified that he decided to fire complainant because of the several confrontations he had with the First Brands customer, because that customer had asked that complainant not return, because of the two incident reports, because of his snide remarks about his supervisors, and because he saw a general deterioration in complainant's work attitude that was spilling over to the customers. TR 297-298. There is ample record evidence to support Trott's decision.

First there is evidence of two previous incident reports involving complainant.⁸ Second, respondent offered credible testimony that complainant's behavior in the workplace had become very disruptive. For instance, Vukovich testified that while complainant was a very good driver, his one shortcoming was an inability to accept criticism or to accept disciplinary action, and that after the initial incident report of September 21, 1998, complainant's behavior in the workplace became very disruptive. TR 201, TR 206-207. Vukovich also testified that after complainant received his incident report for the K- Tag violation his disruptive behavior increased further and that he was disrupting almost the entire terminal by mocking Vukovich as a supervisor, reporting minor infractions of company rules and policies to supervisors on an almost continuous basis, and spending so much time looking for infractions that he was disruptive to the work place and not as productive in his job. TR 206-207, 220-221. Vukovich's testimony is supported by a handwritten note of Carl Gustafson stating that on February 24, 1999, complainant was repeatedly saying that employees needed incident reports, asking who loaded what truck, who broke what, and who picked up what. EX 14. Also, it is noted in this regard that complainant never offered any testimony from himself or any other employees that his behavior was not disruptive.⁹

Further, there is ample evidence that complainant had an angry confrontation with a customer, which conduct was against company policy. Complainant apparently argues that the First Brands incident was not a legitimate reason for his termination because it was his responsibility to ensure a shipment was loaded properly. However, both Vukovich and Trott testified that relations with the customer, and avoiding confrontations with a customer, are more important than proper loading of a shipment. For instance, while Vukovich admitted that a driver is responsible for loading the shipment correctly, he also testified that drivers are taught not to anger a customer while doing it, and that there is a point where, because of the importance of customer service, a driver is supposed to back off and do it the way the customer wants and then report the incident at the service center later. TR 253-254. Vukovich's testimony in this regard is supported by several company publications for its drivers that emphasize the importance of customer relations. See CX 1, EX 20. Indeed, a complainant's exhibit, a copy of respondent's publication, Notes of the Week for March 12, 1997, states that if a driver runs into trouble packing a load he should "politely suggest better packaging. DO NOT ARGUE with the customer, Call dispatch or Jeff." CX 1 (emphasis in original). Vukovich also testified that this was the first

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time in his experience that a driver was asked not to return to a shipper. TR 240. In summary, therefore, I find that this confrontation between complainant and the respondent's important customer, in combination with the other disruptive incidents and behavior, provided ample legitimate reasons for the decision to terminate his employment.

Lack of evidence that the reasons for the termination were pretextual and in retaliation for protected activity

Complainant must prove by a preponderance of the evidence that the proffered reason for his termination is a pretext and that the real reason for the adverse action was retaliation for his protected activity. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Zinn v. University of Missouri, 93-ERA-34 (Sec'y Jan. 18, 1996); Leveille v. New York Air Nat'l Guard, 1994-TSC-3/4 (Sec'y Dec. 11, 1995); Haubold v. Grand Island Express Inc., 1990-STA-10 (Sec'y Apr. 27, 1990). The finding that there is an illegitimate motive requires direct evidence "showing a specific link between an improper motive and the challenged employment decision." See Carroll v. Bechtel Power Corp., 78 F.3d at 357; Eltzroth v. Amersham Medi-Physics, Inc., 1997-ERA-31 (ARB Apr. 15, 1999). Complainant must establish intentional discrimination in order to prevail. Leveille v. New York Air Nat'l Guard, supra at 4.

Complainant relies primarily on his own testimony to argue that the incident reports, the Letter of Instruction, and the respondent's actions after the incident at First Brands were all an attempt to build a case against him and establish a pretext for his termination. For instance, he testified that when he told Moneymaker about the spill, Moneymaker basically "blew him off," apparently felt threatened by him, and that he received repercussions for complaining to the Ann Arbor office, e.g., that he was made to do hustling, an assignment which is usually given to someone who complains about the way trailers are put out. TR 43, 87. Complainant also testified that during his termination conference, he told Trott that he believed there was a lot more to his termination than the incident at First Brands, but that he was ignored, TR 56; that he signed the letter of instruction not because he believed it was valid, but because he feared he would be fired if he did not, TR 54; and that he was singled out for the K-Tag incident while others were not punished for similar incidents, TR 85. In contrast, however, Moneymaker testified that he never felt threatened by complainant, and that complainant never suffered any repercussions for his activity. Also, both Moneymaker and Trott testified that at no point did complainant indicate that his activity regarding the paint spill was related to his termination. TR 152, 153. I also found Trott credible when he stated that the decision to fire complainant had nothing to do with his complaint about the paint spill, that he had little knowledge about the paint spill incident, and that he did not even know that it was complainant who was complaining about it. TR 309. Similarly, I found Vukovich entirely credible when he also testified that the paint spill report played no role at all in the decision to fire complainant and that as far as everyone who viewed it was concerned, the spill involved a non-hazardous substance that had been cleaned up and forgotten. TR 242-244.

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Apart from complainant's contradicted assertions, the only evidence that could be used to support a finding that his firing was motivated by his activity regarding the paint spill is the proximity of time between his termination and his reporting of the (allegedly) toxic spill to his superiors. It is true that "[p]roximity in time between protected activity and an adverse action is solid evidence of causation,"and where an adverse action closely follows protected activity, the inference of causation may be sufficiently established when establishing a prima facie case. See, e.g., White v. The Osage Tribal Council, 95-SDW-1, slip op. at 4 (ARB Aug. 8, 1997); Jackson v. Ketchikan Pulp Co., 93-WPC-7 and 8 (Sec'y Mar. 4, 1996); Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985). However, while proximity in time may be sufficient to establish a prima facie case, it is only one factor to consider in deciding whether a complainant has proved by a preponderance of the evidence that retaliation was a motivating factor in the adverse action and that alone is insufficient to establish by a preponderance of the evidence that the employer did not fire him for solely legitimate reasons. Jackson v. Ketchikan Pulp Co., 93-WPC-7/8 (Sec'y Mar. 4, 1996); Hadley v. Quality Equipment Co., 91-TSC-5 (Sec'y Oct. 6, 1992).

Here, while the record does indicate that complainant was terminated in the same period that he was making allegations of a hazardous paint spill to his superiors, there is considerable credited evidence to support a finding that the respondent terminated him for legitimate reasons that were not pretextual. First, it is clear that several of the incidents that led to complainant's termination occurred before his initial activity regarding the paint spill; for example, there were two incident reports for improper work activity in September 1998 and February 1999. ¹⁰ See EX 12, 13. The respondent also offered credible testimony that even before complainant's activity regarding the spill began, his behavior in the workplace had become very disruptive; e.g., Vukovich testified that after the initial incident report of September 21, 1998, complainant's behavior in the workplace became very disruptive, TR 201, 206-207, that after complainant received his incident report for the K-Tag violation his disruptive behavior increased further,¹¹ TR 221, and that by February 25, 1999, shortly after complainant made the report to Moneymaker, but before he made his phone calls to higher members of the respondent's management, complainant was mocking his supervisors, not accepting discipline, and being generally very disruptive. TR 226.

Next, I find that the clear weight of the record evidence establishes that the employer was not motivated by complainant's report of a toxic spill; rather, respondent's personnel all believed that the investigated spill was determined to be non- hazardous, that appropriate action was taken to resolve complainant's concerns, and that they considered the incident to be a closed matter. See TR 150, 155- 160, 223-224, 310. Specifically, Reid testified that he believed he had found the spill reported by complainant, that he had ascertained that it was non-hazardous, and that it was being cleaned up. TR 175-176. I find it particularly significant in this regard that complainant admitted he knew that respondent had cleaned up a paint spill immediately after he expressed his concern to them, that he never returned to tell anyone that the wrong spill had been

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cleaned up, TR 88, and that the spill which respondent found and cleaned up was in the northwest corner of the yard, the same location where complainant testified the spill was located, and of the same size. See TR 48, 91-92. It is also noted that there is substantial evidence that despite repeated inspections, no other spill besides the one the employer cleaned up has ever been found, seen, or reported by anyone. See TR 110-111, 113-114, 121, 159, 183, 186, 188, 211-212, 215, 243, 263; EX 11, 31.¹² Accordingly, while a complainant does not have to prove an actual violation to have his activity protected under TSCA, I find that in this case, based on the absence of any other spill than the one observed, the employer had little, if any, reason or motivation to terminate complainant for making his reported complaint.

Finally, the record establishes that the termination of complainant was effectuated after respondent followed its three-stage process for disciplining employees (i.e., a verbal discussion, an incident report, and a letter of instruction); that it was reviewed by the "Employee Termination Review Board," a body of supervisors unfamiliar with complainant's activity in reporting the possible hazardous spill, during which process complainant was allowed to present additional information or to disagree with the decision; that complainant did not offer any new evidence or allege that his termination was related to his paint spill report; and that, consequently, all three members agreed that complainant should have been terminated and a decision was made to uphold the termination on March 8, 1999. TR 202, 305-306; EX 9.¹³

Based on the totality of the record evidence in this case, therefore, I find that the decision to terminate complainant's employment was a disciplinary action dictated by legitimate, non-prohibited considerations and was not in retaliation for his expression of concerns regarding a hazardous paint spill. Thus it is concluded that complainant was not discriminated against under TSCA, and the complaint must be DISMISSED.

SO ORDERED.

ALFRED LINDEMAN
Administrative Law Judge

San Francisco, California
AL:pa

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, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 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).

[ENDNOTES]

¹Complainant also requests relief that is beyond this jurisdiction, including ordering respondent to clean up the alleged spill, assessing fines and penalties for the spill, and ordering respondent to discontinue its "K-Tag policy."

² E.g., he received several "excellent" service reports earlier in 1998. See CX 4; EX 23.

³ The exact date of this meeting is uncertain. Complainant testified it was in early February, soon after the K Tag incident report. TR 83. Moneymaker testified it was in mid-February. TR 165. Vukovic's testimony would place the meeting on February 23, 1999, when he called into the office from out of town and talked to Mr. Batulo, who stated that complainant had informed Moneymaker earlier that day about a hazardous spill in the yard. TR 222-224.

⁴ Complainant and Moneymaker offer conflicting testimony on exactly how complainant described the spill. See TR 38-39, 149-150, 155-158. However, the testimony of both indicates that, at the very least, complainant described some type of hazardous paint spill in the yard. Id.

⁵ Complainant also testified that in early January 1999 he talked to someone at the federal EPA about the spill, who referred him to the Missouri State Department of Natural Resources. TR 41-42.

⁶ According to complainant, he tried to call Mr. Stolar another time, but because Stolar was out of the office, he spoke to Dan Egglar, the respondent's legal counsel. TR 101.

⁷The Missouri DNR came to the yard a second time, after complainant's termination, on which occasion they were accompanied by Reid. TR 187. According to Reid's testimony, they told him they were following up on a complaint of a toxic spill and searched everything in the Kansas City service center, even the barbecue grill, without finding a spill or any other violations. TR 187-188. Further record evidence regarding this issue is that on November 3, 1999, VATC associates, a professional environmental inspection company that was retained by Vukovich to visually inspect the facility, particularly the northwest corner, found no signs of contamination anywhere in the service center. EX 31.

⁸ While the first of these, the incident report of September 21, 1998, for failure to properly block in a shipment, is apparently fairly common, the second incident report, for a violation of the K-tag policy, is more unusual: i.e., complainant was one of only five employees to be cited from December 4, 1998, when the new K-Tag policy became effective, until April 1, 1999. See TR 178-179, 205, EX 12, 19.

⁹ Even assuming that complainant's disruptive behavior occurred while he was engaged in protected activity, i.e., because he believed he was voicing legitimate safety concerns, the Administrative Review Board has held that "[a]n employee's insubordination towards supervisors and coworkers, even when engaged in protected activity, may be justification for termination." Abraham v. Lawnwood Regional Medical Center, 96-ERA-13 (ARB Nov. 25, 1997); see also Couty v. Arkansas Power & Light Co., 87- ERA-10 (Sec'y Feb. 13, 1992) (finding legitimate reasons for discharge such as complainant's abusive, disruptive, erratic behavior, even if he had demonstrated that the employer was motivated in part by his protected activity); Hale v. Baldwin Associates, 85-ERA-37 (Sec'y Sept. 29, 1989), adopting ALJ, Oct. 20, 1986) (finding no statutory violation where employee discharged for not accepting assignments and for disrupting the work place); Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993) (finding that incidents of shouting at the workplace, insubordination and erratic behavior were sufficient for termination); Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995) ("That employees are protected while presenting safety complaints does not give them carte blanche . . . certain forms of "opposition" conduct, including illegal acts or unreasonably hostile or aggressive conduct, may provide a legitimate, independent, and nondiscriminatory basis for adverse action").

¹⁰ While the exact date when complainant first reported the spill to Moneymaker is not precisely specified by the evidence, see supra note 3, it is established that it occurred after the K-Tag incident. TR 84-85, 172.

¹¹ Indeed, complainant admitted that he was angry about the K-Tag incident report when he went to talk to Moneymaker about the spill. TR 84-85.

¹² While complainant argues that he is very experienced with hazardous materials and there is no way he could mistake a hazardous paint spill with a non- hazardous one and that he recognized this spill as hazardous because the paint labels had red diamonds with a number three on it, which means it is hazardous, TR 41, there is still no evidence other than complainant's unsubstantiated assertions that such a second spill ever existed.

¹³ It is also noted that Vukovich testified that employees had been terminated for similar situations in the past, and distinguished some cases where an employee was not terminated. TR 265; see also TR 152, 177, 266, 273, 290, 300-305.