13). At lunch time that day he went home sick. (Tr. 12).

    4. Hadley believes that he was reassigned to the shop in retaliation for having told other employees that he was planning to report "numerous" environmental violations to government agencies. (Tr. 13). On April 15, 1991 at 12:40 p.m., Hadley phoned in a complaint with the Austin-Travis County Environmental Health Division ("ATCEHD"). (Tr. 14; JX 1B). This complaint alleged that Quality Equipment was pumping used oil onto the ground, that its waste oil tanks were defective, and that it buried batteries in the back of its lot. (Tr. 21, JX 1B). On April 16, 1991, Hadley made a similar complaint with ATCEHD at 9:40 a.m. (JX 1B). Also on April 16, Hadley complained to the Texas Water Commission about environmental violations at Quality Equipment. (J-X 1A).

    5. On the morning of April 16, 1991, Hadley told Bradley about having made the complaints. (Tr. 19). Later he photographed an oil pit overflowing onto the ground, a leaking gas tank, and other alleged environmental violations. (Tr. 14, 16-17). According to Hadley, after he was discovered by company officials taking pictures, he was taken by them to Gene Bradley's office. (Tr. 17-18). Hadley stated that he felt physically intimidated by the persons around him as he was being escorted to Bradley's office. (Tr. 18). According to Hadley, after he entered the office Bradley swore at him and asked him why he was taking pictures. He stated that Bradley then "told me flat out, get off his property; leave his shop immediately." (Tr. 18-20). Hadley denies ever having said that he was quitting and denies having used abusive language with Bradley. (Tr. 29-30, 33). He also stated that he never told anyone on the 15th or 16th that he was going to try to get fired. (Tr. 31).

    6. Eugene Bradley is vice president and branch manager of Quality Equipment Company in Austin, Texas. According to Bradley, Hadley went home sick on April 10 and called in sick on April 11 and 12. The service manager, Mr. Morin, told Bradley about Hadley's complaint about the van's exhaust system. (Tr. 40-41). Bradley stated that although he has not had any repairs done to fix the problem Hadley was complaining about, employees have used the van each day after April 10 without any complaints. (Tr. 41-42). Bradley stated that as a result of Hadley's complaints about the van, "we decided to protect ourselves, we would have to take Duane [Hadley] off the van and put him in the shop." (Tr. 42). Bradley

denied having reassigned Hadley to janitorial work. He explained that all mechanics are responsible for keeping their own work area clean. (Tr. 42). Bradley added that because Hadley was the only mechanic they had at the time who was factory-trained for warranty work, he was a very valuable employee. (Tr. 43-44).

    7. Hadley came into Bradley's office about lunch time on April 15. Bradley told him that he would not fix the van and that he was being reassigned in order to protect his health. (Tr. 44-45). According to Bradley, Hadley in response "said if he couldn't have his job on the van, he was giving me two weeks notice." (Tr. 45). Bradley stated that he replied that "I don't need two weeks. We will accept you notice as effective next Friday, next pay day." (Tr. 46). Bradley denies having cursed Hadley during this conversation. (Tr. 49). Bradley stated that prior to noon on April 15 he was not aware of any threat by Hadley to make environmental complaints to government agencies, nor was he aware of any complaints having been filed. (Tr. 46-48).

    8. According to Bradley, on the morning of Tuesday, April 16, Hadley appeared at Bradley's office at about 7:30 a.m. with a camera and "started making threats about the kind of trouble he was going to get us in," saying that "he was going to get me in trouble. He was going to report me to the EPA." (Tr. 52, 63). Later that morning, Henry Morin, the service manager, came into Bradley's office to tell him that Hadley was in the shop taking pictures and disrupting work. (Tr. 53). Bradley asked Morin to bring Hadley to his office. According to Bradley, Hadley came into his office around 8:00 a.m. cursing and talking about the trouble he would make for the company. At that time he threatened to report Quality Equipment to EPA and OSHA. (Tr. 84). Bradley quoted extremely obscene and abusive language allegedly used by Hadley during this encounter. (Tr. 54-56, 82-83, 84). Bradley stated that after Hadley's profane outburst he told him, "Why don't you load your tools and leave now?" (Tr. 54, 85). He explained that by this language he was not intending to fire Hadley, but was asking him to leave because it did not appear that he intended to do any work that day. (Tr. 85). He stated that he asked Hadley to leave specifically because of his abusive language and his disruption of work in the shop. (Tr. 60-61). Bradley denied having had any concern about Hadley's taking pictures. (Tr. 64). After Hadley left the office, Bradley stood in the door leading to the shop in order to prevent any trouble that might arise as Hadley left. (Tr. 54-55). According to Bradley, Hadley made several more

obscene comments to him as he loaded up his tools while preparing to leave. (Tr. 54-55).

    9. Mr. Wiley is an outside salesman for Quality Equipment Company. His office is next to Bradley's. (Tr. 88). On April 15, 1991, he overheard the conversation between Hadley and Bradley. (Tr. 89). Wiley stated that he heard Hadley say "that if he couldn't drive the van that he just didn't want to work there at all." (Tr. 90). Wiley has no recollection to any reference to two week's notice being given, nor does he remember hearing Hadley actually quit at that time. (Tr. 95-96).

    10. On the morning of April 16, 1991, Wiley overheard another conversation between Hadley and Bradley. According the Wiley, Hadley "walked into Mr. Bradley's office and just started cussing him and hollering and calling him names." (Tr. 90). Wiley quoted some of the obscene language allegedly used by Hadley during this encounter. (Tr. 91).

    11. Mr. Morin is service manager for Quality Equipment. On Wednesday, April 10, Hadley complained to Morin about being made sick by fumes from the van. (Tr. 97-98). Morin drove the van himself that afternoon and also asked James Gardner, another Quality Equipment employee, to drive it. They concluded that it was "smoking a little", so they changed the fuel filter. Gardner drove the van all day that Friday without any complaints. (Tr. 98-99).

    12. Late that Friday, Morin told Bradley about Hadley's problems with the van. (Tr. 100). On Monday, April 12, Morin told Bradley that Hadley's problems with the van were causing him to miss work and suggested that they "just get him off the van and see if his health will improve." (Tr. 101).

    13. On Monday, April 15, Morin saw Hadley at 7:30 a.m. and told him to take his tools off the van because he was being reassigned for health reasons. He assigned him to work on a trencher that morning. (Tr. 102). Later that day Morin overheard a conversation between Hadley and Bradley. (Tr. 103-104). Not long after this conversation Morin heard Hadley asking someone over

the phone about suing Quality Equipment. (Tr. 104). Morin stated that Hadley told the person on the phone "that he was just going to go ahead and stick around until either he got fired or got kicked out of the premises." (Tr. 115-116).

    14. Later on April 15 Bradley told Morin that during their conversation in his office, Hadley had said that he was giving his two-week notice if he could not drive the van any more. Bradley told Morin that he responded that he could make Hadley's resignation effective that Friday, the end of the pay period. (Tr. 105).

    15. On Tuesday, April 16, Morin came to work at 8:00 a.m. Hadley was already there, but he was not in uniform. (Tr. 106). Morin stated that because Hadley was yelling and was "out there just making a big scene", he was concerned that no work would get done that morning. Accordingly, he went to Bradley's office to talk about what to do. Morin and Bradley decided to pay off Hadley through the end of the pay period and ask him to leave that day. Morin went to get Hadley to call him to Bradley's office. When he got Hadley, he had a camera but was not taking pictures. (Tr. 107-108).

    16. Morin stated that about two weeks after Hadley left Quality Equipment, Sheldon Davidson, at that time an employee of Quality Equipment, told him that Hadley asked him to spill some oil in order to cause trouble. (Tr. 109-110, 119).

    17. Mr. Courtney is responsible for maintaining the rental fleet for Quality Equipment. (Tr. 121-122). Although Courtney was uncertain as to the date, he believes that Hadley told him on the morning of Monday, April 15 that he was "going to make them fire him." (Tr. 121-122, 124, 126). Courtney could not remember Hadley saying anything about resigning. (Tr. 126).

    19. Mr. Davidson is currently employed by Krislin Electric as an electrical apprentice. (Tr. 129). During April, 1991 he worked at Quality Equipment. When he left to work for Krislin he was on good terms with Mr. Bradley and was not asked to leave. (Tr. 129-130).

    20. On the morning of "Tuesday, March 16, as Hadley and Davidson were walking into work together, Davidson saw Hadley stop at Bradley's office to tell him that he "had turned him in to EPA." According to Davidson, Bradley accepted this statement calmly. (Tr. 131, 133-134). Later that morning, after Hadley had taken some pictures, he was called in Bradley's office. As Hadley left Bradley's office, Bradley told him "just get your stuff and go . . we don't need that here." (Tr. 132).

    21. Davidson denies having been asked by Hadley to spill some oil and denies having told Morin that Hadley suggested that he do so. (Tr. 132-134). Hadley never told Davidson that he had resigned from Quality Equipment. (Tr. 131).

    Complainant, Duane Hadley, brought this action alleging that Respondent, Quality Equipment, discharged him in violation of the whistleblower provisions of the Toxic Substances Control Act (hereinafter "TSCA"), 15 U.S.C. §2622. Specifically, Mr. Hadley alleges that he was dismissed on April 16, 1991, in retaliation for making or threatening to make complaints about improper disposal or storage of oil, gasoline, and car batteries.

    Respondent argues that Hadley resigned on April 15, 1991 after having been reassigned as a shop mechanic from his position as a road mechanic. Respondent explains that Hadley was reassigned because of health problems that he attributed to exhaust fumes from the company van he drove while performing his duties as a road mechanic. Respondent denies any knowledge of complaints or threats of complaints to environmental agencies made by Hadley before April 15. Finally, Respondent argues that Hadley left Quality Equipment on April 16 after having been asked to leave for making obscene and abusive comments to his supervisor and for disrupting work in the shop.

    The applicable legal principles may be summarized as follows:

In a whistleblower case the burden is on the complainant to prove by a preponderance of the evidence that retaliation for protected activity was a motivating factor in the adverse action complained of. Lopez v. West Texas Utilities, 86-ERA-25 (Secretary's Final Decision and Order, July 26, 1988), Decision OALJ and OAA Vol. 2 No. 4, July-August 1988, p. 240. The requirements for establishing a prima facie case are the following:

(1) that the employee engaged in protected conduct;

(2) that the employer was aware of such conduct; and

(3) that the employer took some action adverse to the employee which was more likely than not the result of the protected conduct.

Put another way, as part of the prima facie case the employee must present evidence supporting the inference that the protected activity was the likely reason for the adverse action. Dartey v. Zack Company of Chicago, 80-ERA-2 (Decision and Final Order of the Secretary April 25, 1983).

    If the employee establishes a prima facie case, then the employer has the burden of producing evidence to rebut the evidence of disparate treatment by presenting evidence that the action complained of was motivated by legitimate nondiscriminatory reasons. At this point, the employer bears only a burden of producing evidence. The ultimate burden of demonstrating intentional discrimination rests with the employee. If the employer rebuts the prima facie case, then the complainant may demonstrate that the proffered reason was a pretext. Dartey v. Zack and Company, supra.

    Respondent has alleged that Hadley resigned of his own initiative and that, in any event, he was asked to leave on April 16 for reasons that had nothing to do with his protected activity. Where both protected and unprotected activity are involved in a termination an analysis under the "dual motive discharge" doctrine may be appropriate. See Wright Line, a Division of Wright Line, Inc., 1980 CCH NLRB #17,356 (1980), affirmed sub. nom. NLRB v. Wright Line, 662 F.2d 889 (1st Cir. 1981), cert. den. 455 U.S. 989 (1982) and Consolidated Edison Co. of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982).

    The Secretary of Labor has adopted the two-part test for "dual motive," discharges announced by the U.S. Supreme Court in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568,

50 L.Ed. 2d 471 (1977). Under the Mt. Healthy test, "once the plaintiff has shown that the protected activity 'played a role' in the employer's decision, the burden shifts to the employer to persuade the court by a preponderance of the evidence that it would have discharged the plaintiff even if the protected activity had not occurred." Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1163-1164 (9th Cir. 1984); Dartey v. Zack and Company, supra.

    The issues in this case are as follows: 1) Did Hadley engage in activity protected by the TSCA and was Respondent aware of such activity?; 2) Did Hadley resign on April 15?; 3) Was Hadley terminated on April 16?; 4) If he did not resign, is there evidence that Hadley's protected activity played a role in his termination?; 5) If he did not resign, would Hadley have been terminated irrespective of his protected activity?

Issue 1: Did Hadley engage in Protected activity and was Respondent aware of such activity?

by showing that it would have terminated Hadley because of his statements to Bradley irrespective of his exercise of protected activity. The record as a whole compels the conclusion that Respondent has met this burden. Bradley's testimony as to Hadley's use of extremely obscene and abusive language during the confrontation of the morning of April 16 is credible and is corroborated by Wiley. (Findings 8, 10). Moreover, Bradley's version of Hadley's behavior that morning is consistent with Hadley's intention, articulated the previous day and reported by credible witnesses, to get himself fired. (See Findings 13, 17). upon consideration of the record as a whole, Hadley's denial of using such language (Finding 5), is not credible.

    It is within the prerogative of an employer to dismiss an employee for the type of insubordination committed by Hadley when he used extremely obscene and abusive language with Bradley on the morning of April 16. Accordingly, the record compels the conclusion that Respondent had a legitimate motive for dismissing Hadley, independent of his exercise of protected activity. In short, Hadley would have been terminated because of his insubordinate behavior whether or not he engaged in protected activity. Respondent did not violate the whistleblower provisions of the TSCA.

    IT IS ORDERED that the complaint of Darvin Duane Hadley in Case No. 91-TSC-5 be dismissed.

       THEODOR P. VON BRAND
       Administrative Law Judge

TPvB/RPS