93 (Stockton), 104-06, 118 (Akins). Stockton, who was acquainted personally with Timmons, asked that Akins give Timmons more time to demonstrate his suitability for the job. Id.

   During Timmons' tenure of approximately ten weeks, neither Akins nor Miller advised Timmons about either specific or general concerns that they had regarding his work performance or his continued employment. HT at 16-17 (Timmons), 78-80 (Miller), 103, 119 (Akins). On October 11, 1996, co-worker Wayne Black did advise Timmons, however, that Timmons was mistaken in construing Miller's "offers" of overtime literally; such "offers" actually indicated a crucial need for Timmons to work after regular hours or on weekends to complete work necessary to Franklin's operation as an electrical power provider and should not be declined. HT at 20-21, 25-26 (Timmons), 63, 69-70 (Black); see HT at 82 (Miller), 91-92 (Stockton). Stockton, who did not ordinarily supervise Timmons, also broached the overtime issue with Timmons outside of work and advised him of the importance of being available to work overtime when asked. HT at 95-96 (Stockton).

   On the morning of Friday, October 11, 1996, Timmons was asked to work overtime that day and the next. HT at 17-21, 25-26 (Timmons). Timmons initially declined, but after Black explained to Timmons that he should not decline Miller's "offers" of overtime, Timmons confirmed with Miller that it was necessary for Franklin's operations for him to work the extra hours, and he agreed to do so. HT at 20-21, 25-26 (Timmons), 63, 69-70 (Black).

I. Liability

to Franklin's contentions, it was not necessary for supervisory personnel to proceed with the original plan to bury the oil barrels or for Timmons to file a more formal internal complaint in order to invoke the protection of the SWDA. It was enough that Timmons, acting on a reasonable belief that the burial of the oil barrels would be in violation of pertinent environmental law, raised his objection to the interment plan to supervisory personnel. See Oliver v. Hydro-Vac Servs. Inc., Case No. 91-SWD-00001, Sec. Dec., Nov. 1, 1995, slip op. at 9-13; Minard, slip op. at 4-25; Dodd, slip op. at 6-7; see generally Bechtel Const. Co., 50 F.3d at 933-34 (raising specific safety concerns to supervisory personnel is activity protected under the employee protection provision of the Energy Reorganization Act, 42 U.S.C. §5851 (1988)). Timmons' objection to the plan to bury the barrels of oil on October 11, 1996, qualifies for protection under the SWDA.

   B. Timmons' proof that termination was based in part on protected activity

   The ALJ correctly concluded that the preponderance of the evidence established that Franklin terminated Timmons, at least in part, because of Timmons' protected activity. There is no dispute that Akins was aware of Timmons' October 11 protected activity when, near the end of the work day on October 15, 1996, Akins advised Timmons that his employment was terminated. R. D. and O. at 7. Therefore, the key issue to resolve is whether Timmons' protected activity motivated Akins, at least in part, to fire Timmons. In order to resolve this issue it is necessary to weigh Franklin's argument that Timmons was fired out of concerns about the adequacy of Timmons' performance during the approximate ten week period of his employment with Franklin.

   The ALJ rejected Akins' explanation that the pace of Timmons' operation of a company tractor and Timmons' failure to work overtime on two occasions formed the sole basis for Akins' termination decision; the ALJ concluded instead that Timmons "was not the team player Mr. A[ki]ns was seeking and when [Timmons] refused to bury the oil barrels this was the last straw." R. D. and O. at 8. In support of that conclusion, the ALJ cited (a) the temporal proximity between Timmons' protected activity on Friday, October 11, 1996, and his termination by Akins on the following regular workday, Tuesday, October 15, as well as (b) Akins' failure to provide a plausible explanation for choosing October 15 to terminate Timmons. Id. at 8-9. As we fully explain in the following analysis, the preponderance of the evidence establishes that while Akins had expressed concerns about Timmons' employment to Miller, Stockton, and McCulloch on various occasions, Akins had not determined whether or when he would terminate Timmons until after Timmons engaged in protected activity on October 11, 1996.

   In asserting that Timmons would have been terminated even in the absence of his raising concerns about the oil tanks, Franklin's witnesses articulated three primary rationales that served as justification for his removal on October 15, 1996: (1) Timmons generally was not a team player, i.e., did not fit in as part of the crew; (2) Timmons was unwilling to work overtime when requested, and (3) Timmons was not a good worker. Viewed in full context, we share the ALJ's view that the reasons offered by the company are pretext, and that the motivating

event behind the termination was Timmons' objection to the oil drum burial. We consider each of these rationales in turn.

   1. The "not a team player" issue

   Before we address the evidence that supports the ALJ's conclusion that Timmons' protected activity triggered the termination, the significance of the ALJ's conclusion that Akins had found Timmons not to be a "team player" warrants clarification. Our inquiry into whether Timmons' termination was based on prohibited criteria is restricted to the narrow focus of the employee protection provision of the SWDA. It is well-settled that the employee protection provided by the SWDA and similar statutes does not prohibit an employer from imposing a wide range of requirements on employees. See, e.g., Kahn v. U. S. Sec'y of Labor, 64 F.3d 271, 279 (7th Cir. 1995) (under the Energy Reorganization Act); see also Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 n.3 (8th Cir. 1985) (noting, in a case arising under Title VII of Civil Rights Act of 1964, that employer may develop arbitrary, ridiculous and even irrational policies as long as they are applied in a nondiscriminatory manner), cert. denied, 475 U.S. 1050 (1986). When an employer applies an otherwise legitimate criterion in such a way that it interferes with the exercise of specific whistleblower rights, however, the employer acts in violation of the employee protection provision of the corresponding statute. See Assistant Sec'y and Ciotti v. Sysco Foods of Philadelphia, ARB No. 98-103, ALJ Case No. 97-STA-00030, July 8, 1998, slip op. at 8 (citing Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Dec., Aug. 6, 1992, slip op. at 5).

   An employer's expectation that an employee interact with others in the company as a "team player" does not constitute a proscribed criterion per se. See Odom v. Anchor Lithkemko/ International Paper, ARB No. 96-189, ALJ Case No. 96-WPC-0001, Oct. 10, 1997, slip op. at 12; Erb v. Schofield Mgmt., ARB No. 96-056, ALJ Case No. 95-CAA-1, Sept. 12, 1996, slip op. at 2-3. Nonetheless, the extension of that expectation to a point where it interferes with protected activity is prohibited. Therefore, Akins legitimately could require Franklin employees to follow management's lead unquestioningly in most aspects of their work, including the scheduling of overtime work and the manner in which Franklin's work generally was accomplished. However, Akins could not legitimately penalize Timmons for raising SWDA-based objections to Franklin's plan to bury the drums of oil.

   We agree with the ALJ that the evidence indicates that Timmons was not seen as a team player by Akins. The testimony of Akins and other Franklin supervisors establishes that Franklin is operated as a close-knit company where a new employee is expected to receive orientation to company practices informally, through information provided by co-workers, and where employees routinely are expected to work overtime on short notice. See HT at 63, 69 (Black), 73-74, 78, 82 (Miller), 91-92 (Stockton), 106, 112-13, 124-26 (Akins). When Timmons started work at Franklin, he requested an employee handbook from Akins, who replied that the only written employee guidelines were found in the contract with the union, which Timmons could not join until after he had been employed for six months. HT at 99-101 (Akins); see RX 1. Miller testified that Timmons "at times" suggested that particular work should be done in a manner different from the way it ordinarily would be done at Franklin. HT at 78. Akins contrasted Timmons' failure to work overtime with the commitment demonstrated by a

employees to work overtime. HT at 106; see HT at 119, 124-26 (Akins). Thus, Akins implied that renewed concern regarding Timmons' past refusal to work overtime led Akins to terminate him. However, on Friday evening, October 11, and on Saturday, October 12, Timmons had worked overtime, after he confirmed that there was a crucial need for him to work the extra hours to ensure the timely completion of necessary work. HT at 17-21, 25-26, 34-35 (Timmons); see HT at 69-70 (Black), 95-96 (Stockton). Akins made no attempt to explain why he developed renewed concern about Timmons working overtime in spite of Timmons' acceptance of two overtime assignments. Akins cited no other action on Timmons' part during the October 7 through 15 period that precipitated the termination action. HT at 105-06; see R. D. and O. at 5, 8.

   Akins' claim that concerns about Timmons' reluctance to work overtime led him to fire Timmons is further undermined by Timmons' uncontradicted testimony. Timmons testified that after Akins advised him that he was being fired as of the end of the workday on October 15, Timmons first asked Akins and then Miller whether the action was being taken because of the two days when Timmons had declined to work overtime. HT at 15, 38; see R. D. and O. at 4. Akins and Miller denied that the overtime issue had played a role, and they did not offer Timmons any further explanation. HT at 15, 27, 38 (Timmons); see R. D. and O. at 4. Such a shift in Franklin's explanation for the termination action provides support for the conclusion that the action was motivated by retaliatory intent. See Bechtel Const. Co., 50 F.3d at 935; James v. Ketchikan Pulp Co., Sec. Dec., Case No. 94-WPC-4, Mar. 15, 1996, slip op. at 4-5 and cases cited therein; Hoffman v. W. Max Bossert, Sec. Dec., Case No. 94-CAA-0004, Sept. 19, 1995, slip op. at 9-10 and cases cited therein.

   We also conclude that these denials by Akins and Miller (the decision-maker and immediate supervisor, respectively) at or soon after the time that the termination decision was made are more probative of the retaliatory intent issue than are Stockton's later statements to Timmons regarding the basis for the termination. Stockton testified -- and Timmons acknowledged -- that Stockton had approached Timmons at the church that they both attended with the intention of telling Timmons that his termination had not been the result of the oil barrels incident and that "before that time, a lot of different things [were] going on." HT at 39-42 (Timmons), 90-91 (Stockton). Stockton also testified that he raised this subject with Timmons because he "understood [that Timmons] probably had the idea that this all happened because of what [Timmons] said" about the oil barrels on October 11. HT at 90-91. In cases involving prohibited employee discrimination, "[t]he presence or absence of retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. . . ." Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), quoted in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).

   3. Timmons' work performance

   Franklin's failure to adduce testimony that projects a clear image of the shortcomings in Timmons' work performance allegedly relied on by Akins casts further doubt on

whether Akins was motivated solely by those factors. See Lieberman v. Gant, 630 F.2d 60, 65 (2d Cir. 1980) (arising under Title VII of the Civil Rights Acts of 1964); Loeb v. Textron, Inc., 600 F.2d 1003, 1012 (1st Cir. 1979) (arising under the Age Discrimination Act). For example, Akins supported his conclusion that Timmons' operation of a company tractor was too slow by recounting a specific occasion when he had observed Timmons performing such work. HT at 103-04. On cross-examination, however, Akins acknowledged that on the particular occasion cited he was observing Timmons' operation of the tractor immediately after the discovery that the tractor (while driven by either Black or Timmons) had knocked a breather off a gas line, i.e., after an accident. HT at 116-18; see HT at 84-85 (Stockton), 103-04 (Akins). We do not find this example to provide adequate support for the claim that Timmons' work was inordinately slow, and we note that on cross-examination Akins failed to rehabilitate his credibility by explaining how, when observing Timmons' work during a period when anyone naturally would have proceeded with caution, he nonetheless concluded that Timmons' work was unacceptable. In addition, Miller's testimony regarding the pace of Timmons' operation of the tractor provides only qualified support for Akins' testimony. Miller stated that Timmons' work was slow "[j]ust on the tractor. Just the new one. It's slow. We weren't getting enough work done." HT at 73. Miller also testified, "On August 26, we [Miller & Akins] w[ere] out on the job site when they w[ere] operating the tractor and stuff. And he was operating a tractor and we seemed to think it wasn't -- he wasn't operating it fast enough, you know, good enough." HT at 74. In response to a question regarding whether Timmons had performed his work with a chain saw satisfactorily, Miller testified, "Probably did. Yes." HT at 79.

   On the basis of the foregoing analysis, we reject Franklin's contention that Timmons was terminated on October 15, 1996, based solely on Akins' concerns about legitimate work performance issues. The termination was motivated at least in part by Timmons' protected activity on October 11, 1996.

   Franklin contends that rejection of its explanation for the termination action effectively imposes a requirement on employers to provide formal warnings prior to terminating whistleblowing employees on the basis of unsatisfactory performance, even if such warnings are not required by the employer's established practice or procedure. Resp. Brief at 13-14. We disagree. The conclusion that Franklin's termination of Timmons was prompted by his protected activity is based on the several factors discussed above and does not run afoul of the prohibition against our supplanting the employer's business judgment. See Kahn, 64 F.3d at 279. The failure of Franklin supervisory personnel to advise Timmons of any perceived shortcomings in his work performance is a relevant factor, which we have considered in our analysis. See R. D. and O. at 9; Loeb, 600 F.2d at 1012. That factor has not, however, played a determinative role in our conclusion that Timmons' termination was based, at least in part, on his protected activity of October 11, 1996.

   C. Franklin's failure to avoid liability under the dual, or mixed, motive doctrine

   We turn now to the question whether Franklin has established a basis for avoiding liability under the dual motive doctrine. As indicated above, Franklin may avoid liability if it establishes by a preponderance of the evidence that it would have terminated Timmons even if

he had not engaged in protected activity on October 11, 1996. See Combs, slip op. at 4 (citing Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977)).

   As summarized above, the evidence shows that Akins had expressed concern to Miller, Stockton, and McCulloch about Timmons' continued employment with Franklin. Nonetheless, the evidence also demonstrates that Akins was involved in a continuing evaluation of Timmons as a probationary employee, and it is uncertain when (or if) Akins would have acted to terminate him had the oil barrels incident not occurred. Indeed, the evidence regarding the overtime issue suggests that, had Timmons not been terminated on October 15, he might have succeeded in conforming to Akins' legitimate expectations. In sum, the relevant evidence demonstrates that Akins' evaluation of Timmons as a candidate for permanent employment was a matter of continuing consideration and does not establish that Akins would have terminated Timmons on October 15 were it not for the oil barrels incident. We therefore conclude that Franklin has not established by a preponderance of the evidence that it would have terminated Timmons in the absence of that activity. See Dodd, slip op. at 17-18.

II. The remedy

   Timmons seeks reinstatement to his former position, back pay, and a reasonable attorney's fee and other litigation expenses. Comp. Brief at 20-21. The employee protection provision of the SWDA, as implemented at 29 C.F.R. Part 24, provides for the remedies sought. 42 U.S.C. §6971(b), (c); 29 C.F.R. §§24.7(c)(1), 24.8(d) (1998); 29 C.F.R. §§24.6(b)(2), (3) (1997); see Ishmael v. Calibur Systems, Inc., ARB No. 97-118, ALJ Case No. 96-SWD-2, Oct. 17, 1997.

   The ALJ concluded that Timmons should be reinstated by Franklin to his former, or a substantially equivalent, position, with credit for the time previously worked toward his six-month probationary period and any other privileges that are based on length of employment. The ALJ also concluded that Franklin should expunge from its personnel records any reference to Timmons' wrongful termination on October 15, 1996. The ALJ also found that Timmons' counsel had substantiated a total attorney's fee of $3,200.00 plus $83.50 in litigation expenses. However, the ALJ concluded that Timmons could have found alternative work within eight weeks after his termination had he exercised reasonable diligence in seeking such employment and therefore recommended that Timmons be awarded only eight weeks of back pay. R. D. and O. at 10-12.

   We agree with the ALJ regarding all aspects of Timmons' remedy, other than back pay. As we discuss below, the ALJ did not apply the correct legal standard in determining that Timmons had not exercised reasonable diligence in mitigating his back pay damages. Application of the correct standard constrains us to order back pay for a longer period of time.

   With regard to the back pay calculation, we must determine, as the ALJ observed, whether Timmons has fulfilled his duty to mitigate his income losses through the exercise

of reasonable diligence in seeking suitable work. See Cook v. Guardian Lubricants, ARB No. 97-055, ALJ Case No. 95-STA-43, May 30, 1997, slip op. at 5-6. The back pay award must be reduced by any amounts that Timmons received from interim employment or by amounts that he could have earned, with reasonable diligence, during the interim period. See Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 623 (6th Cir. 1983).

someone to finish my house." HT at 48. Timmons also testified that he earned some money through self-employment in a logging and sawmill operation. HT at 27, 31. In response to the ALJ's request, Timmons submitted documentation reflecting gross receipts from his sawmill operation in 1997, which totaled $518.87. Comp. [Post-hearing] Brief at 17, Attachment A. In sum, Timmons presented evidence that he sought alternative employment, accepted suitable employment when it was presented, and remained available for employment even while engaged in building his house.

   Accordingly, Respondent Franklin Electric Cooperative is ORDERED to:

   1) Expunge from the Respondent's records any reference to the termination action of October 15, 1996;

   2) Offer Complainant Milton Timmons reinstatement to his former position, or a substantially equivalent position with Respondent;

   3) Pay Complainant Milton Timmons back pay for the period beginning October 16, 1996, and continuing until such time as Respondent extends an unconditional offer of reinstatement to Complainant; for the period beginning Wednesday, October 16, 1996 through Tuesday, June 17, 1997, the amount after deductions for income from self-employment totals $14,881.13;

   4) Pay interest on all amounts due, at the rate provided at 26 U.S.C. §6621 (1994), to accrue from the dates that each salary payment, minus the applicable interim income, would have been paid had Complainant not been terminated by Respondent on October 15, 1996;

   5) Pay attorney's fees for services rendered through August 4, 1997 in the proceedings before the ALJ, which total $3,200.00, plus $83.50 in other expenses incurred in pursuit of the complaint below.