refused to do work he considered "legal," despite his legal training; neglected his collection responsibilities; falsified his time records; and alienated coworkers. However, the proximate cause of the firing -- the "nail in the coffin" as Shaulis put it -- was the discovery that Masek used the Company's credit report system for unauthorized purposes.

   Masek was working at a computer on August 25, 1994, when a secretary reported to Harkless that Masek had "done something" to the credit check computer because it was spewing out copies of all the credit reports stored in its memory. When gathering the erroneously printed reports, Harkless noticed that Masek's own credit report was among them. Harkless took this matter to Shaulis, who immediately confronted Masek about running his own credit report. Masek denied any involvement in the matter. Later that evening, or the following morning, Harkless and Shaulis analyzed the reports further. Using old billing records, Harkless found that, in addition to credit reports on Masek, the system also contained credit reports on a woman named Lynn K. Ramsey, who happened to be Masek's ex-wife. Harkless and Shaulis believed, but could not prove, that these reports also were run by Masek. Company policy and the contract between the Company and the credit bureaus prohibited running credit checks on people other than the Company's debtors, and neither Masek nor his ex-wife were debtors of the Company. After much discussion, and with Harkless' agreement, on August 26, 1994, Shaulis called Masek into Shaulis' office and fired him.

   Masek denied he ever used the credit report system for personal reasons, and furthermore, believed he was a satisfactory employee because he was never given a written reprimand or told by any supervisors that they did not like the way he was collecting accounts and performing other tasks. Masek also testified that he was doing everything the way the Company wanted it done with the exception of his handling of the Jennings Road property.

III. ALJ's Decision

   The critical issue for the ALJ was whether Masek was fired because of the protected activity. Shaulis, the firing official, denied he had been directed to fire Masek by Daniel Cadle or by anyone else, and further testified that, when he fired Masek, he was not aware that Masek had complained to any authority regarding potential environmental hazards. Id. at 18-19. However, the ALJ found Shaulis' testimony incredible based upon the post-hearing deposition testimony of David Rodenhausen, the Wage and Hour Division investigator assigned to the Masek complaint. Id. at 19.

   In answer to questions posed by the ALJ at the liability hearing, Shaulis had testified that he had fired Masek "on his own initiative." Tr. at 306. However, in his post-hearing deposition, Rodenhausen contradicted Shaulis on this point by saying Shaulis had told him that he had not terminated Masek solely on his own initiative. Rodenhausen Dep. at 10. Based on this apparent discrepancy, the ALJ ruled that "Shaulis' testimony in court [was] untrue." R. D. & O. Liab. at 19. Moreover, because Rodenhausen testified that Shaulis had told him that Cadle had "allowed" him to terminate Masek, the ALJ found that Shaulis' denial that Cadle had directed the firing was not "worthy of belief." Id. Because he viewed Rodenhausen's testimony as impeaching Shaulis on these two points, the ALJ concluded that the Company's explanation for terminating Masek was "pretext and untrue," and accordingly, that the Company had violated the environmental whistleblower statutes. Id. at 19-20. However, the ALJ did not explicitly find that Masek had proven that he was terminated because of his protected activity. He simply concluded: "[O]n the issue of liability only, I find for the Complainant, Raymond Masek, and against the Respondent, the Cadle Company." Id. at 20.

    As we discuss below, the ALJ erred in both his methodology and his conclusion. Accordingly, we reverse the finding of liability.

I. Scope of Review and Standard of Proof

   The Board has jurisdiction to decide appeals from recommended decisions arising under the whistleblower provisions of the Federal environmental statutes. Secretary's Order No. 2-96, 61 Fed. Reg. 19,978 (May 3, 1996). As the designee of the Secretary of Labor, the Board is not bound by the decision of the ALJ, but rather retains complete freedom of decision.

In making its decision, whether following an initial or recommended decision, the agency is in no way bound by the decision of its subordinate officer; it retains complete freedom of decision -- as though it had heard the evidence itself. This follows from the fact that a recommended decision is advisory in nature. [Citation omitted.] Similarly, [Section 557(b) of the Administra-tive Procedure Act] provides that "On appeal from or review of the initial decisions of such . . . officers, the agency shall, except as it may limit the issues upon notice or by rule, have all the powers which it would have in making the initial decision."

Att'y Gen. Manual on the Administrative Procedure Act, Chap. VII §8, pp. 83-84 (1947);

see also Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). Accordingly, the Board is not bound by either the ALJ's findings of fact or conclusions of law, but reviews both de novo.

   In reviewing an ALJ recommended decision under the whistleblower provisions of the environmental statutes, we apply the APA's "preponderance of the evidence standard." Martin v. Dep't of Army, Case No. 96-131, Dec. and Ord., July 30, 1999, slip op. at 4. See Steadman v. Sec. and Exch. Comm'n, 450 U.S. 91, 101-102 (1981)(holding that, under the provision of 5 U.S.C.A. §556(d), the proponent of a rule or order has to meet his burden by a preponderance of the evidence); Dir., Office of Workers' Comp. Programs v. Greenwich Colleries, 512 U.S. 267, 277 (1994) (reaffirming Steadman). Evidence meets the "preponderance of the evidence" standard when it is more likely than not that a certain proposition is true. Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); see also United States v. Gibbs, 182 F.3d 408, 445 (6th Cir. 1999).

II. Whether Masek was Retaliated against for Engaging in Protected Activity

   In order to prevail in an environmental whistleblower case, the employee must prove, by a preponderance of the evidence, that he engaged in protected conduct, and that the employer took some adverse action against him because of that protected conduct. Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec'y Dec. and Fin. Ord., April 25, 1983, slip op. at 5-9; Carroll v. Bechtel Power Corp., Case No. 91-ERA-46, Sec'y Fin. Dec. and Ord., February 15, 1995, slip op. at 11, n.9, aff'd 78 F.3d 352 (8th Cir. 1996).

   Proof of causation for the ALJ depended on the credibility of the Office Manager, William Shaulis, and the ALJ based this critical credibility determination upon his reading of the post-hearing Rodenhausen deposition transcript. As we discuss below, the ALJ erroneously admitted that deposition after the hearing record was closed. Evaluation of the evidence without the Rodenhausen deposition leads us to conclude that Masek failed to prove that he was terminated because of his protected activity.

    In the course of Rodenhausen's investigation, Rodenhausen interviewed Dan Cadle and William Shaulis. Shaulis told Rodenhausen that he did not terminate Masek solely on his own initiative, therefore, I find that Shaulis' testimony in court untrue [sic]. Shaulis told Rodenhausen that he was "allowed" to terminate Masek. Mr. Cadle gave Shaulis the authorization to terminate Masek. I find that Shaulis' statement to Rodenhausen to be [sic] inconsistent with his testimony in court that Cadle did not tell Shaulis to terminate Masek, that he did it upon his own initiative, and that Shaulis does the hiring and the firing. Mr. Shaulis told me in court (TR 306) that it was his job to fire Mr. Masek. I asked Mr. Shaulis whether he terminated Mr. Masek on his own initiative and Mr. Shaulis responded, "that's my job". I find Mr. Shaulis' testimony on this point to be impeached by Investigator Rodenhausen and not worthy of belief.

R. D. and O. Liab. at 19.

   There are two errors embedded in this portion of the recommended decision. First, the ALJ failed to apply the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. 29 C.F.R. Part 18. Rule 18.54(a) provides that "[w]hen there is a hearing, the record shall be closed at the conclusion of the hearing unless the administrative law judge directs otherwise." 29 C.F.R. §18.54(a). The ALJ did not direct that the record remain open at the end of the hearing on liability; therefore by operation of Rule 18.54(a), the record closed on June 21, 1995. Rule 18.54(c) restricts the evidence which may be accepted after the close of the record: "Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." Id. at 18.54(c)(emphasis added). As we discuss below, Masek did not demonstrate that Rodenhausen's testimony met the requirements of Rule 18.54(c), and the ALJ therefore erred in allowing the deposition and admitting the testimony.

   Masek's September 6, 1995 Motion to Reopen the Record stated in its entirety:

Complainant respectfully moves this Court for permission to re-open the record for the purpose of rebuttal and permit [sic] the deposition of Investigator David Rodenhausen as to interviews with Cadle VP Office-Manager William E. Shaulis and determination as to the cause of Complainant's firing. For his [sic] reason, Complainant states that Investigator Rodenhausen has information critical to Complainant's case and in direct contradiction to Mr. Shaulis's sworn testimony.

   Masek did not assert, and the ALJ did not determine, that Masek possessed new and material evidence which was not readily available prior to the close of the record as required

by Rule 18.54(c). Indeed, as Masek's ex parte letter to the ALJ, submitted with his post- hearing brief, makes abundantly clear, Masek's basis for requesting the deposition was Rodenhausen's written narrative. The narrative was provided to Masek prior to the hearing before the ALJ, Masek moved to have it admitted at the hearing, and the ALJ denied that motion.

St. Mary's Honor Center v. Hicks, 509 U.S. at 511 (emphasis added). The Court noted that "a reason cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." Id. at 515. "It is not enough . . . to disbelieve the employer . . . ." Id. at 519.

   Because the ALJ proceeded, without further analysis, from a finding that Shaulis was not a credible witness to a conclusion that the Company retaliated against Masek, we believe that he did not engage in an evaluation of the ultimate question whether Masek was retaliated against for engaging in protected activity. We now engage in such an evaluation having excluded Rodenhausen's deposition.

   The fact that Masek was terminated shortly after he engaged in protected activity was sufficient to raise an inference that the protected activity caused the Company to terminate him. However, that inference does not compel a decision in Masek's favor. In light of all of the evidence in the record -- including the testimony of Shaulis, Harkless and Buente -- we conclude that Shaulis did not know of Masek's protected activity, and did not act on instructions from Cadle (who did know of the protected activity) when he terminated Masek.

   For this reason we conclude that Masek failed to prove that he was terminated because he engaged in protected activity. However, even if we were to find that Daniel Cadle's displeasure with Masek's protected activity played a part in Shaulis' decision to terminate Masek, we would conclude that the Company proved that it would have fired Masek even in the absence of his protected activity. The evidence establishes that Shaulis terminated Masek because they believed he had run credit reports on his ex-wife in violation of Company policy.

   Under a "dual motive" analysis, when a complainant proves, by a preponderance of the evidence, that a respondent took adverse action against him in part because he engaged in protected activity, the burden of persuasion shifts to the respondent to prove, by a preponderance of the evidence, that it would have taken the adverse action against complainant even if he had not engaged in the protected activity. See Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Fuller v. Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995); Pogue v. U.S. Dep't of Labor, 940 F.2d 1287, 1289-1290 (9th Cir. 1991) (dual motive test set forth in Mt. Healthy); Passaic Valley Sewerage v. United States Dep't of Labor, 992 F.2d at 481; Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d at 1163-1164.

   For the foregoing reasons, the decision of the ALJ is reversed and the complaint is dismissed.

   SO ORDERED.

      PAUL GREENBERG
      Chair

       E. COOPER BROWN
      Member

      CYNTHIA L. ATTWOOD
      Member