ARB CASE NO. 02-092 ALJ CASE NO. 01-CER-1 DATE: April 30, 2004
In the Matter of:
RAYMOND L. SCHLAGEL,
COMPLAINANT,
v.
DOW CORNING CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
A. Alene Anderson, Esq., Project On Liberty & The Workplace, Seattle, Washington, Robert C. Seldon, Esq., Project On Liberty & The Workplace, Washington, D.C., and Raymond L. Schlagel, pro se, Florence, Kentucky
For the Respondent:
Kenneth S. Handmaker, Esq., and Timothy P. O'Mara, Esq., Middleton Reutlinger, Louisville, Kentucky
FINAL DECISION AND ORDER
This case is before the Administrative Review Board (ARB) pursuant to the employee protection provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9610 (West 1995), Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2622 (West 1998), Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 1995) and the Department of Labor's (DOL) implementing regulations set out at 29 C.F.R. Part 24 (2003). The Complainant (Schlagel) asserts that his employer, Dow Corning Corporation (Dow), violated the employee protection (whistleblower) provisions of the CERCLA, TSCA and CAA when Dow allegedly retaliated against him for raising environmental safety concerns. Following a hearing, the Administrative Law Judge (ALJ) concluded that Schlagel had failed to meet his ultimate evidentiary burden and demonstrate his entitlement to relief under the environmental whistleblower statutes. Specifically, the ALJ determined that the Complainant had failed to prove by a preponderance of the evidence that the Respondent discriminated against him because of his protected activities. Recommended Decision and Order (R. D. & O.) at 45. Thus, the ALJ recommended that Schlagel's complaint be dismissed. Schlagel appeals and, for the reasons set forth below, we affirm the ALJ's recommended findings and rulings denying the complaint as a whole.
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BACKGROUND
Dow employed Schlagel at its chemical plant in Carrollton, Kentucky, from May 1989, until the termination of his employment on November 10, 1999. Hearing Transcript (HT) at 42. At all relevant times, the Carrollton plant manufactured silicones that were used in various products, such as deodorants and shampoos. HT at 33. Schlagel initially worked as a plant engineer and then worked as a project engineer. HT at 166-169. In 1996, Schlagel became a project engineer with the manufacturing group of the plant, where his original supervisor was Andy Pierce and, subsequently, Chris Kneale was his supervisor from January 1998, until his termination. HT at 38, 42-43. Pierce and Kneale both reported to the plant manger, John Lackner. Id. While Schlagel's performance appraisals contained in the record are, in general, positive regarding his technical skills as both a plant engineer and project engineer, Schlagel's appraisals as early as March 25, 1997, and April 30, 1997, indicate his need to improve his poor leadership skills. Joint Exhibit (JX) 4 at 37; JX 5 at 63-65; Joint Stipulated Exhibit (JSX) 10 at 3; JSX 11 at 14.
After learning of a release of methylchloride from the plant into the atmosphere on July 27, 1997, Schlagel spoke with his supervisor, Andy Pierce. HT at 53-65. Schlagel expressed his safety and environmental concerns that the use of a bypassed valve and solids build-up on the machinery caused the release. Id. Schlagel also reported his research on the cause and solutions for the solids build-up in an e-mail dated October 10, 1997, to Andy Pierce, as well as to John Lackner and Chris Lanthier. Complainant's Exhibit (CX) 73 at 121-122. Lanthier headed the C3 Motors Project, a compressor project on which Schlagel was also involved at the time. Carrollton HT at 136-137. In addition, Schlagel expressed safety issues in a November 6, 1997 e-mail to Pierce regarding the use of bypassed valves with the C3 Motors Project. HT at 65-66; CX 75 at 125-126. Dow removed Schlagel from the C3 Motors Project on November 12, 1997. CX 107 at 194-195; HT at 1018-1019; Carrollton HT at 135, 162.
Schlagel met with John Lackner in December 1997 and again raised his safety and environmental concerns about valve bypasses, equipment issues, compressor problems, as well as freon releases. HT at 72-74. Andy Pierce offered Schlagel a new position with the reliability group for the first time in January 1998. HT at 75; CX 184 at 495. In a subsequent meeting with Lackner in June 1998, Schlagel reiterated his safety and environmental concerns and Lackner again offered Schlagel the position with the reliability group. HT at 79-80; CX 22 at 62. In addition, in June 1998, Schlagel requested a "process change request" or PCR, which he believed was necessary to comply with regulatory standards, in order to replace a malfunctioning flow meter that was providing incorrect measurements regarding the release of waste gases into the atmosphere. HT at 80-87; CX 82 at 147.
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Schlagel met with Lackner again on August 28, 1998. HT at 88-90; CX 26 at 66. Lackner again offered Schlagel the reliability group position and Schlagel reiterated his previously raised safety and environmental concerns related to his job with the manufacturing group. Id. On August 31, 1998, Schlagel sent an e-mail to his supervisor, Chris Kneale, stating his opinion that freon in the refrigeration units needed to be replaced. HT at 91; CX 118 at 249. Schlagel further noted that replacing the freon must be reported as a "freon release" to comply with regulatory standards. Id. Later that day, Schlagel met with Mike Nevin regarding his possible transfer to the reliability group. HT at 90; CX 29 at 69. Schlagel reiterated his previously raised safety and environmental concerns related to his manufacturing group job to Nevin, who was to be his supervisor with the reliability group. Id. Ultimately, Nevin withdrew the job offer with the reliability group and Dow reassigned Schlagel's methylchloride responsibilities in the manufacturing group in September 1998 to another project engineer, Katy Biallas. HT at 93; CX 24 at 64. Schlagel retained his hydrolysis responsibilities in the manufacturing group. Id. Subsequently, on September 29, 1998, Schlagel wrote an e-mail summarizing tasks that needed to be completed in preparation for an inspection from the manufacturer of the refrigeration units. See HT at 96-99; CX 122 at 260-261. Schlagel again recommended replacing the freon in the refrigeration units. Id.
On January 7, 1999, Schlagel wrote a review of his supervisor's, Kneale's, performance for Lackner, in which he made reference to his previous discussions with Lackner regarding his safety and environmental concerns. HT at 100; CX 32 at 72. On February 25, 1999, Schlagel sent an e-mail to Kneale, Lackner and others regarding the performance of heat exchangers and their compliance with regulatory standards. HT at 102; CX 153 at 395-396.
In April 1999, Kneale provided Schlagel with a written appraisal of Schlagel's performance in 1998, which indicated a need for Schlagel to improve his poor leadership skills. JX 3 at 26. Shortly thereafter, on April 23, 1999, Schlagel sent an e-mail to Ed Ovsenik, a Dow attorney in its legal department, Ovsenik's supervisor, Jeanne Dodd, and Burnett Kelly, detailing what he considered to be his unfounded performance evaluation and his safety and environmental concerns and complaints, which instigated a Dow investigation. CX 44 at 85-86; Respondent's Exhibit (RX) 9.
Finally, in September 1999, Dow offered Schlagel a new position as the coordinator of the Backstep program, which was a program Dow initiated to mothball plant equipment in light of a reduction in production at the Carrollton plant. CX 57 at 104; CX 58 at 105. On October 15, 1999, Dow transferred Schlagel to the Backstep position, where his new supervisor would be Chris Lanthier. HT at 131-132. Later that day Schlagel sent an e-mail to the CEO of Dow, Gary E. Anderson, with his April 23, 1999 e-mail, detailing his safety and environmental concerns and complaints attached. JX 13 at 103; JSX 1 at 19. Schlagel asked "Gary" to "check into this" and opined that "he felt like I have been bullied into another job." Id. Schlagel then sent an e-mail to everyone at the Carrollton plant, including outside contractors not employed by Dow, and attached both his e-mail to Anderson and his April 23, 1999 e-mail. HT at 332-333; JX 13 at 1-6; JSX 1 at 22; RX 24. In his e-mail to everyone at the Carrollton plant, Schlagel generally asked "would you have any misgivings working for Chris Lanthier?," while noting that "I might get myself fired." Id. John Lackner informed Schlagel later that same day, by phone and by letter, that Schlagel was suspended with pay. HT at 136; JX 13 at 102; JSX 1 at 18; RX 25. Ultimately, at a meeting held on November 10, 1999, Schlagel's supervisor, Chris Kneale, along with Eric Heimke, a Dow human resources representative, informed Schlagel that Dow had terminated his employment.
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Schlagel contends that the particular occasions on which he raised his safety and environmental concerns about problems that he perceived at the plant with his supervisors, either in meetings, by e-mail or when requesting a PCR, constituted protected activity and that Dow took a number of adverse actions against him because of his protected activities. Complainant's Trial Brief (before the ALJ) at 16-23. Specifically, Schlagel alleges that his initial protected activity occurred when he spoke with his supervisor, Andy Pierce, on July 27, 1997, about his safety and environmental concerns regarding the methylchloride release. Id. Schlagel also contends that Dow took adverse action against him when: removing him from the C3 Motors Project; offering him a new position with the reliability group; reassigning his methylchloride responsibilities in the manufacturing group; criticizing his leadership skills in his April 1999 performance evaluation; and transferring him to the Backstep position. Id. Both Dow and Schlagel stipulate that his suspension and termination were adverse actions.
Schlagel filed a complaint against Dow with the United States Department of Labor, Occupational Safety and Health Administration (OSHA), on November 15, 1999. See Respondent's Motion for Summary Decision [before the ALJ], May 10, 2001, Exhibit A. After OSHA initially denied the complaint on February 12, 2001, ALJ Exhibit (ALJX) 3, Schlagel requested a hearing with the Office of Administrative law Judges. A hearing was held before the ALJ on October 2 to October 4, 2001, in Cincinnati, Ohio, on October 5, 2001, in Carrollton, Kentucky, and on December 5 and 6, 2001, in Cincinnati.
ISSUES
I. Whether certain adverse actions Schlagel alleges that occurred more than thirty days preceding the filing of his complaint are time barred under the relevant environmental whistleblower statutes.
II. Whether, as to those adverse actions that are not time barred, Schlagel proved by a preponderance of the evidence that Dow discriminated against him because of his protected activity.
JURISDICTION AND STANDARD OF REVIEW
The environmental whistleblower statutes authorize the Secretary of Labor to hear complaints of alleged discrimination in response to protected activity and, upon finding a violation, to order abatement and other remedies. Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 9 (ARB Feb. 28, 2003). The Secretary has delegated authority for review of an ALJ's initial decisions to the ARB. 29 C.F.R. § 24.8 (2002). See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).
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Under the Administrative Procedure Act, the ARB, as the Secretary's designee, acts with all the powers the Secretary would possess in rendering a decision under the whistleblower statutes. The ARB engages in de novo review of the ALJ's recommended decision. See 5 U.S.C.A. § 557(b); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir. 1997); Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ No. 97-CAA-2, 97-CAA-9, slip op. at 15 (ARB Feb. 29, 2000).
DISCUSSION
Elements of complaint
To prevail on a complaint of unlawful discrimination under the whistleblower protection provisions of the environmental statutes, a complainant must establish by a preponderance of the evidence that the respondent took adverse employment action against the complainant because he engaged in protected activity. See Jenkins, slip op. at 16-17. Specifically, Schlagel must establish by a preponderance of the evidence that Dow is subject to the statutes, that he engaged in protected activity of which Dow was aware, that he suffered adverse employment action and that the protected activity was the reason for the adverse action, i.e., that a nexus existed between the protected activity and the adverse action. Id. Failure to establish any of these elements defeats a complaint under the applicable whistleblower statutes. Jenkins, slip op. at 16.1
Protected activity furthers the purpose of the environmental whistleblower statutes. Jenkins, slip op. at 15. Under the "participation" provisions of the employee protection (whistleblower) provisions of the CERCLA, TSCA and CAA, we have construed the term "proceeding" broadly to encompass all phases of a proceeding that relate to public health or the environment, including the initial internal or external statement or complaint of an employee that points out a violation, whether or not it generates a formal or informal "proceeding." Passaic Valley Sewerage Comm'rs v. United States Dep't of Labor, 992 F.2d 474, 479 (3d Cir. 1993); Sasse, slip op. at 9; Jenkins, supra (emphasis added). Complaining internally about inadequate and inappropriate regulation is a protected activity. See, e.g., Passaic Valley Sewerage Comm'rs, 992 F.2d at 478-480 ("proceeding" includes intracorporate complaints that sewerage system was "inordinately expensive, inefficient, scientifically unreliable and in violation of the Clean Water Act user charge provisions"); Pogue v. United States Dep't of Labor, 940 F.2d at 1288-1289 (complainant employed in "hazardous waste oversight position charged with the responsibility for surveying and reporting on hazardous waste compliance[;]" undisputed protected activity included preparation of internal reports documenting noncompliance at Navy shipyard and transmittal of letter to shipyard commander detailing environmental violations).
The ALJ determined that Schlagel's initial allegation of a protected activity, when he expressed his safety and environmental concerns to his supervisor, Andy Pierce, regarding the methylchloride release on July 27, 1997, was indeed protected under the relevant environmental whistleblower statutes. R. D. & O. at 27. The ALJ further concluded that Schlagel's reiteration of his safety and environmental concerns in meetings with John Lackner in December 1997, June 1998, and August 1998, as well as his request for a "process change request" or PCR to replace a malfunctioning flow meter in June 1998, constituted protected activity. R. D. & O. at 28-30. Similarly, the ALJ ruled that Schlagel's August 31, 1998 e-mail to his supervisor, Kneale, regarding his concern that freon in the refrigeration units needed to be replaced and reported as a "freon release" and his meeting the same day with Nevin, at which he reiterated his previously raised safety and environmental concerns, constituted protected activity. R. D. & O. at 30. The ALJ also determined that Schlagel's February 25, 1999 e-mail to his supervisor, Kneale, and Lackner, regarding the compliance of plant heat exchangers with regulatory standards, constituted protected activity. R. D. & O. at 31.
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Finally, the ALJ concluded that Schlagel's April 23, 1999 e-mail, following the receipt of his performance appraisal, in which he detailed and summarized his previously raised safety and environmental concerns and complaints that ultimately instigated an investigation by Dow, was protected activity. R. D. & O. at 31-32. Thus, the ALJ also determined that his October 15, 1999 e-mail to Dow's CEO, Gary E. Anderson, requesting that Anderson "check into" the concerns raised in his April 1999 e-mail, which was attached, was protected activity. Id.
1 We note that, in setting forth the legal standard governing proof of discrimination in cases arising under the environmental whistleblower statutes, the ALJ, citing cases arising under the Energy Reorganization Act (ERA), 42 U.S.C.A. § 5851 (West 1995), stated that if a complainant meets his initial burden of establishing a prima facie case of unlawful discrimination under the environmental whistleblower statutes, then the burden shifts to the employer "to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior," citing Zinn v. University of Mo., 93-ERA-34 and 36 (Sec'y Jan.18, 1996); R. D. & O. at 1-2, and "would have taken the adverse action even if the complainant had not engaged in the protected activity," citing Lockert v. United States Dep't of Labor, 867 F.2d 513 (9th Cir. 1989). R. D. & O. at 24, 41. To clarify the ALJ's apparent misunderstanding or misstatement of the parties' respective burdens of production and proof, we summarize the standards appropriate to establishing discrimination under the environmental whistleblower statutes.
To establish a prima facie case of unlawful discrimination under the environmental whistleblower statutes, a complainant needs only to present evidence sufficient to raise an inference, a rebuttable presumption, of discrimination. As the Secretary and the Board have noted, a preponderance of the evidence is not required. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 1 n. 7 (ARB May 30, 2003). A complainant meets this burden by initially showing that the employer is subject to the applicable whistleblower statutes, that the complainant engaged in protected activity under the statute of which the employer was aware, that the complainant suffered adverse employment action and that a nexus existed between the protected activity and the adverse action. See Jenkins, slip op. at 16-17; Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-934 (11th Cir. 1995); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995). Contrary to the ALJ's characterization, once a complainant meets his initial burden of establishing a prima facie case, the burden then shifts to the employer to simply produce evidence or articulate that it took adverse action for a legitimate, nondiscriminatory reason (a burden of production, as opposed to a burden of proof). When the respondent produces evidence that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, the rebuttable presumption created by the complainant's prima facieshowing "drops from the case." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981). At that point, the inference of discrimination disappears, leaving the complainant to prove intentional discrimination by a preponderance of the evidence. Jenkins, slip op. at 18. Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Thus, after a whistleblower casehas been fully tried on the merits, the ALJ does not determine whether a prima facieshowing has been established, but rather whether the complainant has proved by a preponderance of the evidence that the respondent discriminated because of protected activity. Williams, slip op. at 1 n. 7; Jenkins, slip op. at 16-17.
If the complainant proves by a preponderance of the evidence that a retaliatory or discriminatory motive played at least some role in the respondent's decision to take an adverse action, only then does the burden of proof shift to the respondent employer to prove an affirmative defense and show that the complainant employee would have been fired even if the employee had not engaged in protected activity. Lockert, 867 F.2d at 519 n. 2. Contrary to the ALJ's characterization of the employer respondent's burden of proof to prove an affirmative defense at this stage, while Congress has specifically placed a higher burden on the employer in an ERA case in such circumstances, i.e., to demonstrate by "clear and convincing" evidence that it would have nevertheless taken the same action, see 42 U.S.C.A. § 5851(b)(3)(D), it has not done so with respect to employers under the CERCLA, TSCA or CAA. Under these environmental whistleblower statutes, the employer may meet that burden by only a preponderance of the evidence. See Cox v. Lockheed Martin Energy Sys., Inc., ARB No. 99-040, ALJ No. 97-ERA-17, slip op. at 4 n.7 (ARB Mar. 30, 2001). Nevertheless, the ALJ correctly placed the ultimate burden of proof on Schlagel and the ALJ's isolated misstatement of the burdens of proof did not affect the relevant analysis and outcome of the case, with which we agree.
No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has provided information to a State or to the Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.
See 42 U.S.C.A. § 9610(a).
Pursuant to the TSCA:
No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment….
15 U.S.C.A. § 2622(a). The CAA contains a similar, parallel provision, see 42 U.S.C.A. § 7622(a). See also 29 C.F.R. §§ 24.2(a), 24.3(a), 24.4(d)(3) (2002).
Section 24.2(a) states:
No employer subject to the provisions of any of the Federal
statutes listed in Sec. 24.1(a), or to the Atomic Energy Act of 1954 (AEA), 42 U.S.C.A. 2011 et seq., may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in this section.
29 C.F.R. § 24.2(a).
3 Neither Schlagel nor Dow raise any issue regarding the fact that Dow is subject to the applicable whistleblower statutes.
4 Schlagel argues that the ALJ erred in finding that certain disclosures that Schlagel made prior to the actionable alleged adverse actions in 1999 did not constitute protected activity. Thus, Schlagel contends that the ALJ did not have an accurate understanding of the extended pattern of his protected activity or disclosures reaching back to 1997 through 1999. Specifically, Schlagel argues that the ALJ erred in concluding that his e-mails dated October 10, 1997, November 6, 1997, and September 29, 1998, as well as the January 7, 1999 performance review Schlagel completed, did not sufficiently raise safety or environmental concerns to be considered protected activity. R. D. & O. at 10-11, 15, 27-28, 30-31. According to Schlagel, the ALJ unnecessarily judged the merits of his disclosures, whereas he contends that complaints that are grounded in reasonably perceived violations of the environmental whistleblower statutes need not be shown to be meritorious for a complainant to prevail.
We note, however, that the ALJ nevertheless determined that Schlagel's earliest alleged disclosure, his conversation with Andy Pierce in August of 1997, was indeed protected activity, along with finding other protected activities from December 1997 through October 1999. R. D. & O. at 27-32. Thus, as the ALJ nevertheless found that Schlagel's protected activities extended from August 1997 through 1999, any potential errors by the ALJ as to whether specific subsequent activities were protected are harmless. Moreover, the asserted errors do not relate to and, therefore, are not relevant to the ultimate basis of the ALJ's denial of Schlagel's complaint on the merits, that Schlagel failed to prove by a preponderance of the evidence that Dow discriminated against him because of his protected activities dating from August 1997 through October 1999. The ALJ determined that the record establishes legitimate, nondiscriminatory reasons for the actionable adverse actions in 1999 that occurred subsequent to these alleged protected activities, which the ALJ concluded Schlagel did not prove were a pretext for discrimination.
5 We note, however, that because Dow had already investigated Schlagel's safety and environmental concerns and complaints raised in his April 1999 e-mail by the time that he sent his October 1999 e-mails, a viable argument may be raised that Schlagel's attachment of his April 1999 e-mail to his October 1999 e-mails was not protected, since Schlagel would seemingly no longer have a reasonable, good faith belief that Dow had not addressed the safety and environmental hazards he raised. Eltzroth v. Amersham Medi-Physics, Inc., ARB No. 98-002, ALJ No. 97-ERA-031, slip op. at 15 (ARB April 15, 1999); Van Beck v. Daniel Constr., 86-ERA-26, slip op. at 4 (Sec'y Aug. 3, 1993) (the pertinent issues are whether complainant had a reasonable, good faith belief that conditions were unsafe, and whether respondent provided sufficient information to dispel these concerns and adequately explained the safety issues raised).
6 Schlagel points out that his performance record was good until he moved into manufacturing. Schlagel's performance appraisals as early as March 1997, preceding his initial asserted protected activity or disclosure in July 1997, call attention to the need to acquire better leadership skills, however, which belie any characterization by Schlagel that his performance appraisals while he worked in manufacturing were motivated by his asserted protected activities. See HT at 641.
7 Schlagel asserts that the ALJ erred in concluding that Lackner removed Schlagel from the C3 project due to cost overruns on the former C2 project, R. D. & O. at 11, as Ray Williamson testified that he was "mostly" responsible for the C2 project cost overruns. HT at 716. As the ALJ observed, however, Lanthier, not Lackner, had removed Schlagel from the C3 project for other reasons, including failing to meet time tables and failing to define the scope of the C3 project, while the ALJ further recognized that the scope of the C3 project was "not solely in the hands of" Schlagel. R. D. & O. at 11; Carrollton HT at 135, 162.
8 Contrary to Schlagel's contention on appeal, he was found to be insubordinate due to his apparent expressed misgiving working for Lanthier, not for sending the e-mail to everyone at the Carrollton plant. HT at 499.
9 Schlagel contends that the ALJ erred in failing to consider the pretextual context for his transfer, evidenced when Dow previously took adverse action against him in removing his methylchloride responsibilities in September 1998 after he reported safety issues related to the methylchloride release and other concerns. Schlagel also asserts that the ALJ made erroneous findings of fact in regard to his testimony, which influenced the ALJ to make wrongful conclusions regarding Schlagel's credibility in regard to certain events that occurred prior to the actionable adverse actions in 1999.
The asserted errors, however, do not relate to and, therefore, are not relevant to the basis of the ALJ's denial of his complaint, that the record establishes legitimate, nondiscriminatory reasons for the actionable adverse actions in 1999, which Schlagel did not prove were pretextual. Thus, the asserted erroneous findings of fact are harmless. Moreover, the ARB defers to an ALJ's credibility findings. Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No.99-STA-21, slip op. at 9 (ARB July 31, 2001) quoting NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983); Jenkins, slip op. at 9. In any event, as the ALJ determined that the "substantial majority" of Schlagel's testimony was credible, R. D. & O. at 4, any potential error in this regard was harmless. Thus, we reject Schlagel's contentions in this regard.
Alternatively, Schlagel argues that his October 1999 e-mail to everyone at the Carrollton plant was nevertheless defensible because it was impulsive and provoked because Dow failed to properly investigate his safety and environmental concerns, which he asserts were justifiable complaints regardless of his motivations. Contrary to Schlagel's characterization of the factual premise of his argument, however, a review of the record establishes, as we previously observed, that Dow had already investigated the concerns Schlagel raised in his April 1999 e-mail and had found that they were previously addressed and resolved or proven to be unfounded. See HT at 748; CX 204.
Similarly, Schlagel further contends that any insubordination expressed his October 1999 e-mail to everyone at the Carrollton plant was excusable in light of Dow's unjustified adverse action in transferring him. Again, the factual premise of Schlagel's argument is misplaced for, as we previously discussed, the record further establishes that his transfer to the Backstep position was as a result of the future reduction in production at the plant and because his skills were the best fit for the position. Thus, Schlagel's contentions that his actions were otherwise defensible are also rejected.
10 On December 16, 2002, the Board received "Complainant's Attorneys' Application to Intervene for the Limited Purpose of Protecting Their Right to Attorneys' Fees" from A. Alene Anderson, Esq., and on December 20, 2002, the Board received a "Motion for Raymond L. Schlagel to Participate as an Attorney/Pro Se and to Protect Complainant's Right to All Damages, Remedies and Attorney Fees (Response to Complainant's Attorney's Application to Intervene)." Subsequently, on January 9, 2003, the Board issued an "Order Granting Complainant's Motion to Represent Himself Before the Board and to Show Cause" as to why the Board should not deny Anderson's application to intervene.
Subsequently, Schlagel filed a "Motion to Amend, Reconsider/Restate Order," dated January 14, 2003, to reflect that he had not rescinded his representation by Anderson. Finally, the Board received a "Motion to Order Petitioner [Anderson] to Present Fee Petition to Complainant" from Schlagel on February 13, 2003.
The whistleblower provisions of the environmental statutes entitle a successful complainant to an award of attorney fees. 42 U.S.C.A. § 9610(c); 15 U.S.C.A. § 2622(b)(2)(B)(iv); 42 U.S.C.A. §7622(b)(2)(B). Attorney's fees may be ordered, however, only if an order has been issued following a decision that the whistleblower provisions of the environmental statutes have been violated. In light of our disposition of this case, since no such decision and order have been issued at this time, we need not rule on Schlagel's outstanding "Motion to Amend, Reconsider/Restate Order" and "Motion to Order Petitioner [Anderson] to Present Fee Petition to Complainant," and the portion of the Board's "Order Granting Complainant's Motion to Represent Himself Before the Board and to Show Cause," ordering the parties to Show Cause as to why the Board should not deny Anderson's application to intervene, is moot.