DATE: July 25, 1995
CASE NO. 92-TSC-2
IN THE MATTER OF
ROBERT K. SCOTT,
COMPLAINANT,
v.
ALYESKA PIPELINE SERVICE COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
The Administrative Law Judge submitted a Recommended
Decision and Order (R. D. & O.) in this case arising under four
of the environmental whistleblower laws. See Clean Air
Act, 42 U.S.C. § 7622 (1988); Solid Waste Disposal Act, 42 U.S.C.
§ 6971; Toxic Substances Control Act, 15 U.S.C. § 2622;
and the Water Pollution Control Act, 33 U.S.C. § 1367
(WPCA), (the Acts) recommending dismissal for a number of
reasons. The ALJ held that the complaint was untimely, that
Complainant failed to prove an essential element of the claim,
and that Respondent Alyeska proved it would have taken the same
action even if it was motivated in part by Scott's protected
activity. R. D. & O. at 48. Scott filed a brief with the Secretary in
opposition to the R. D. & O., [1] Alyeska filed an opening brief, and
each party filed a reply brief. Complainant also moved for leave to
file a rebuttal brief. The motion is DENIED. For the reasons
set out below the R.D. and O. is accepted.
Background
The facts are set forth in great detail in the R. D. &
O. at pp. 2-27. Respondent Alyeska Pipeline Service Co.
(Alyeska), a consortium of seven major oil companies, operates
the Trans-
[PAGE 2]
Alaska pipeline that transports crude oil from the North Slope of
Alaska to its terminal in Valdez, where tankers transport it to
other destinations. R. D. & O. at 2. Complainant Robert Scott
began working for Alyeska in 1977 and was a level 3 technician in
a number of different positions. Beginning within months of his
employment in 1977 and continuing repeatedly until he was fired
in October 1990, Scott had a record of failure to perform
assigned tasks, absenteeism and behavior disruptive of the work
place which the ALJ described as "disdainful and contemptuous" of
co-workers, "vulgar," "bigoted," "deliberately abusive to women,"
[2] "harassing co-workers," and "fomenting dissent," so that "no
one wanted to work with him." R. D. & O. at 6; see
Respondent's Exhibit (R) 168, Scott's disciplinary file. Alyeska
fired Scott on October 24, 1990, after three more incidents of
misconduct in June and September 1990. Complainant's Exhibit (C)
12, termination letter.
Beginning in July 1985, Scott began a series of regular
contacts with Charles Hamel, an individual involved in a number
of disputes with Alyeska including complaints before government
agencies about Alyeska's alleged violation of environmental
regulations. R. D. & O. at 18. Scott made many telephone calls
to Hamel and later provided him with Alyeska documents, including
internal memos and correspondence, and an operating manual for
part of the Valdez terminal. Id. at 19. Hamel turned
over or showed many of these documents to Alaska state officials
and U.S. Environmental Protection Agency officials. Id.
at 20.
Alyeska believed its internal documents were being provided
to outside entities and individuals and conducted several
investigations from the mid-1980s to 1990 to determine the source
of the documents. Id. at 20-21. When Alyeska learned in
January 1990 that excerpts from one of its internal legal
memoranda had been shown on a foreign television program, it
engaged The Wackenhut Corporation to investigate. Id. at
22. The goals of the Wackenhut investigation were to determine
what information was being leaked; to identify who was leaking
the information; to retrieve Alyeska documents; and to take
appropriate legal action. T. 137; 387. Among other things,
Wackenhut conducted surveillance of Alyeska employees, including
analyzing telephone records, collecting and searching trash,
following Scott, conducting a background check on him, and
setting up a fictitious environmental organization to induce
Hamel to reveal the names of his Alyeska sources. R. D. &
O.at 24-25. Knowledge of the Wackenhut investigation was
strictly limited within Alyeska; even the General Counsel did not
know about it until July 1990, two months before it ceased. R.
D. & O. at 23.
Scott was fired on October 24, 1990 but did not file this
complaint until September 5, 1991. He claimed he did not learn
[PAGE 3]
that the reasons given by Alyeska for firing him were not true
until his name was mentioned in a newspaper article about the
Wackenhut investigation that appeared on September 5, 1991.
T. 1952-53. Scott complains Alyeska fired him for disclosure of
documents which contained evidence of its violation of
environmental laws.
The ALJ Recommended Decision and Order
The ALJ held that Scott's complaint, filed on September 5,
1991, more than ten months after he was fired on October 24,
1990, was untimely. R. D. & O. at 27. Scott argued that
equitable tolling applies because he filed the complaint within
30 days of when he became aware that Alyeska fired him for
illegal reasons. The ALJ held that, even if equitable tolling
applies here, Scott had knowledge of facts sufficient to support
a complaint at least by August 4, 1991 and his complaint was two
days late. Id. at 33.
The ALJ also addressed the merits of Scott's complaint,
assuming it was timely, and held that Scott's activities were
protected under the environmental whistleblower statutes. R. D.
& O. at 38. However, he found that Scott did not establish a
prima facie case because he did not present evidence
raising the inference that his termination was motivated, at
least in part, by his protected activities. Id. Alyeska
made the decision to fire Scott at a Management Committee meeting
on October 22, 1990. With the exception of James Hermiller,
President and Chief Executive Officer of Alyeska, none of the
managers present at the meeting was aware of the Wackenhut
investigation or that Scott had been identified as a probable
source of Alyeska documents to outside parties.
Id. at 39. All the other managers at the meeting
who addressed the issue recommended that Scott be fired for
repeated misconduct and poor performance, id. at 40, and
the ALJ held that Mr. Hermiller simply ratified their
recommendation. Id. at 41.
The ALJ also rejected Scott's claimed direct evidence of
discrimination, notes from two meetings of Alyeska owners'
representatives, finding that this evidence did not show intent
to fire Scott for protected activity and that none of the owners'
representatives was involved in the decision to fire Scott.
Id. at 42; 45. Finally, the ALJ held that, even if
Scott's protected activities in part motivated Alyeska's action,
"Alyeska would have made the same decision even in the absence of
the protected activity." The ALJ found therefore, that Alyeska
carried its burden of proof under a dual motive analysis and
recommended dismissal of the complaint. Id. at 47-48.
Discussion
Although I generally agree with the ALJ's analysis of the
timeliness of this complaint, in view of my findings discussed
[PAGE 4]
below, I will assume without deciding that the complaint was
timely. In addition, I agree with the ALJ that providing
information to a private person for transmission to responsible
government agencies, or for use in environmental lawsuits against
one's employer, is protected activity under the statutes involved in this case. SeeSimon v. Simmons Indus., Case
No. 87-TSC-2, Sec'y. Dec. April 4, 1994, and cases discussed
therein at 4-5.
Scott urges me to adopt a "per se rule" against
covert employer surveillance of employees engaged in protected
activities, that is, that such surveillance is "inherently
discriminatory" and proof in and of itself of illegal motive.
Scott's Opening Brief at 10-11. Scott relies on cases under the
National Labor Relations Act holding that surveillance of
employees' union organizing or other concerted activity is an
unfair labor practice. Scott notes that the environmental
whistleblower laws were modeled after the NLRA. Id. at 12
and n.19.
I find no basis in the environmental whistleblower laws, the
regulations, or the case law to establish a per se rule of
retaliatory conduct. Each statute requires proof of intent by
the employer to discriminate against an employee "because" or "by
reason of the fact that" the employee engaged in protected
activities. See Clean Air Act, 42 U.S.C. § 7622(a)
(1988); Solid Waste Disposal Act, 42 U.S.C. § 6971(a); Toxic
Substances Control Act, 15 U.S.C. § 2622(a); and the Water
Pollution Control Act,
33 U.S.C. § 1367(a) (WPCA).
The Acts under which this case is filed, as well as related
statutes administered by the Department of Labor--the Energy
Reorganization Act of 1974, as amended, (ERA), 42 U.S.C. §
5851, and the Surface Transportation Assistance Act of
1982, (STAA), 49 U.S.C. § 31105, require proof of
discriminatory intent by the employer. See, e.g.,
Passaic Valley Sewerage Comm'rs v. U.S. Dep't of Labor,
992 F.2d 474, 481 (3d Cir. 1993), cert. denied 114 S.
Ct.439 (essential element under Clean Water Act is proof adverse
action was taken because of protected activity); Lockert v.
U.S. Department of Labor, 867 F.2d 513, 519 (9th Cir. 1989)
(only discharge motivated by retaliatory animus violates ERA);
Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th
Cir. 1987) (employee must show "causal link" between protected
activity under STAA and adverse action); Mackowiak v.
University Nuclear Systems, Inc., 735 F.2. 1159, 1162 (9th
Cir. 1984) (issue in whistleblower case is whether employee "was
discriminated against because he" engaged in protected
activity) (emphasis in original).
In addition, I do not agree that surveillance of employees
is a per se unfair labor practice under the
NLRA. See, e.g., NLRB v. Southwire Corp., 429 F.2d 1050,
1054 (5th Cir. 1970),
[PAGE 5]
cert. denied 401 U.S. 939 (1971) ("[N]ot all surveillance
is prohibited by the [NLRA]; . . . the only surveillance
prohibited is that which interferes with, restrains or coerces
union activities."); NLRB v. Mueller Brass Co., 509 F.2d
704, 708 (5th Cir. 1975) (NLRA does not prohibit all
surveillance, only that which tends to interfere with, restrain
or coerce union activities); NLRB v. Intertherm, Inc., 596
F.2d 267, 273 (8th Cir. 1979) (NLRA prohibits surveillance that
"reasonably tends to coerce employees in the free exercise of their
rights."). [3]
Mr. Hermiller and James Wellington, Alyeska Chief of
Security, both testified that the purposes of the Wackenhut
investigation were to determine what company documents were being
leaked, who was the source of the leaks, retrieve the documents
and take appropriate legal action. T. 137; 387. There is no
evidence that the purpose or effect of the Wackenhut
investigation was to intimidate Scott from reporting safety and
health violations. Alyeska strictly limited the number of people
informed about the surveillance and Scott himself only became
aware he was a target of it months after it ceased. Alyeska had
a legitimate business reason to investigate leaks of its
documents, see note 3 above, and the record does not show
it intended to use the surveillance to intimidate its employees
from making safety or health complaints.
Scott's disciplinary record at Alyeska comprises hundreds of
pages detailing numerous incidents of misconduct, absenteeism and
poor performance. See, e.g., R-168; R. D. & O. at 5.
Alyeska disciplined Scott several times during his 13 years of
employment, including counseling, placing him on a work
Improvement Plan and suspending him twice. R. D. & O. at 6-8.
As early as 1983, Scott's supervisors recommended firing him, R.
D. & O. at 7, and an incident in 1988 that involved a serious
violation of safety rules would have resulted in discharge, but
was downgraded to a suspension. R. D. & O. at 8. Alyeska
transferred Scott several times when his disruptive, abusive
conduct became intolerable to his supervisors and co-workers.
R. D. & O. at 6-8.
In June 1990, Scott was involved in another incident that
led to a recommendation by the Valdez terminal maintenance
manager, the Valdez human resources representative and the Valdez
terminal superintendent that Scott be fired. R. D. & O. at 9.
Alyeska did not act on that recommendation. Alyeska suspended
Scott indefinitely after two more incidents in September 1990 and
the new Valdez terminal manager recommended firing him. R. D. &
O. at 10. The Alyeska Management Committee considered that
recommendation on October 22, 1990 and decided to fire Scott
because of the three most recent incidents and past poor
performance. R. D. & O. at 12; T. 231-32.
[PAGE 6]
The initiative to fire Scott originated entirely from
managers and supervisors who were familiar with his record and
the most recent incidents of misconduct. None of them knew about
the surveillance. Mr. Collins, the Valdez terminal manager, had
decided to fire Scott and could have done so if the Alyeska Human
Resources manager, Kathy Carr, concurred. R. D. and O. at 11-12;
T. 2261. Mr. Collins only raised the matter before the
management committee because Ms. Carr did not give him a definite
answer. T. 2263. Ms. Carr was concerned that Scott would file
an age discrimination complaint if Alyeska fired him and favored
a suspension. T. 2418-19; 2423. At the management committee
meeting, the discussion focused exclusively on Scott's past
performance with no discussion of the surveillance. R. D. and O.
at 12; 40; T. 2424-25. The ALJ held, and I find the record
supports his conclusion, Mr. Hermiller only ratified the
unanimous consensus of the management committee to fire Scott.
R.D. and O. at 41. On these facts, I find Scott has failed to
show that the Alyeska managers who effected his discharge had
knowledge of his protected activities, an essential element of
any claim under the employee protection statutes. See
Samadurov v. General Physics Corp., Case No. 89-ERA-20, Secy.
Dec. Nov. 16, 1993, slip op. at 11; Bartlik v. TVA, Case
No. 88-ERA-15, Secy. Dec. Apr. 7, 1993, slip op. at 4 n.1
(Complainant must show that "an employee . . . with authority to
take the complained of action, or an employee with substantial
input in that decision, had knowledge of the protected
activity.") [4] Assuming Mr. Hermiller's knowledge of Scott's protected
activity was a factor in his decision to approve the Management
Committee recommendation to fire Scott, and that his approval was
essential, the record in this case overwhelmingly supports the
ALJ's conclusion that Scott would have been fired even if he did
not engage in protected activity. Scott had a lengthy record of
persistent disruptive, uncooperative behavior, poor performance,
and refusal to perform assigned tasks. He had been disciplined
several times before and had been warned further misconduct could
lead to discharge. See, testimony of Leo Anderson, Valdez
terminal Human Resources Representative that recommendation to
fire Scott was based on his entire record; see also T.
2160, 2172, 2174, 2191-92, 2196, 2201, 2203, 2206, 2213, 2248-49,
2258, 2261, 2265-66, 2267, 2272, 2311, 2320-21, 2359-60, 2361-62,
2363, 2367, 2368-69, 2382-84, 2385, 2414, 2422-23 2431, 2435,
2436, 2437, 2439-40, 2440, 2442-43, 2444, 2454, 2458, 2459, 2461,
2462, 2464, 2466, 2467, 2469-70, 2470, 2474; R-168; R. D. & O. at
48. When Scott committed additional acts of misconduct Alyeska
followed through on those warnings.
Accordingly, the complaint in this case is DISMISSED.
SO ORDERED.
[PAGE 7]
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] In an unopposed motion, Respondent requested leave to
modify the page limitations of the OAA briefing schedule by
giving the parties the discretion to allocate the total of 55
pages granted for opening and reply briefs to each brief as they
deem appropriate. That motion is GRANTED. However, I note that
although the briefing schedule did not explicitly establish rules
for margins and type font and size, I view Complainant's
counsel's filing of briefs utilizing eight point type and half
inch right margins as an inappropriate attempt to take unfair
advantage of the page limitations in the briefing schedule.
In addition, Complainant attached to his opening brief a
copy of a Congressional committee report which had not been
offered or admitted as evidence in the hearing before the ALJ and
Respondent moved to strike this non-record evidence. Final
decisions in cases under 29 C.F.R. Part 24 must be based on the
record and the recommended decision of the ALJ, 29 C.F.R.
§ 24.6(b), and the record consists only of the transcript of
the hearing before the ALJ and exhibits and other pertinent
documents or records introduced as evidence at the hearing. 29
C.F.R. § 24.5(e)(2). This document and all references to it in
Complainant's briefs will not be considered.
[2] Scott attacks the ALJ's finding that Scott was not a
credible witness. Scott asserts it was error for the ALJ to find
that Scott was lying when Scott testified that his admitted use
of the term "heifer" to refer to women co-workers was a
"complimentary term." Aside from the fact that the ALJ found
Scott incredible for many other reasons, R. D. & O. at 4-5,
Scott's use of that term in context with other, vulgar, base
characterizations of his women co-workers to their face
demonstrates beyond any doubt the absurdity of his assertion.
See, e.g., T. (Transcript of hearing) 2360 (called two
women co-workers "bitch and heifer"); T. 2361 (used colloquial
term for oral sex as means of controlling women); T. 2458 (used
the terms "heifer," "bitch," and colloquial slang term for female
genitals interchangeably to refer to women co-workers.)
I note that Scott's counsel pressed this patently
disingenuous argument even to the length of submitting two extra-
record affidavits attesting to the innocent import of the term
"heifer" from individuals who had no connection with and knew
nothing about this case. Those affidavits have been given no
weight in deciding this case. See footnote 1.
[3] I note that Alyeska probably would have been within its
rights to discipline Scott for unauthorized taking and
distribution of confidential company information. See, e.g.,
NLRB v. Brookshire Grocery Co., 919 F.2d 359, 363 (5th Cir.
1990) ("[W]rongfully obtaining information from a company's
private files is not a protected activity."); Texas
Instruments, Inc. v. NLRB, 637 F.2d 822, 830-31 (1st Cir.
1981) (employees' use of confidential company information outside
protection of NLRA, even if in interest of self-organization or
collective bargaining). It would be incongruous if an employer
could discipline an employee for such conduct, but were
prohibited from taking steps to discover which employee deserved
the discipline.
[4] Scott argues there was direct evidence of discriminatory
motive, the notes of comments made about Scott at meetings of the
owners' representatives. But I agree with the ALJ that only
Alyeska managers who knew nothing about the surveillance
participated in the decision to fire Scott. None of the owners'
representatives played any role in that action.
