For convenience, we briefly restate certain background facts. Additional details are provided in the ALJ's Recommended Decision and Order (R. D. & O.).

    At all times relevant to these proceedings, EG&G operated the Tooele Chemical Agent Disposal Facility (TOCDF) at the Deseret Chemical Depot 22 miles south of Tooele, Utah, under a contract with the United States Army. R. D. & O. at 2. In 1994 Caldwell began working for EG&G as a maintenance engineer, and at the time of his termination in 2003 he worked as an engineering technologist. Id.

    Caldwell stated on his March 1994 application for employment with EG&G that he had completed four years of college and graduated from "Texas Tech" in Houston. He also stated on the application that he had attended classes at the University of Idaho and "Utah Tech" and that he had received an associate's degree from Texas Tech, which he described as a technical school and not a university. R. D. & O. at 3; RX-14 at R182. Caldwell produced no documentary evidence that he had graduated from or attended Texas Tech or any other institution of higher education. Tr. at 1382, 1392, 1494-1495. EG&G, however, offered into evidence a letter from Texas Tech University of Lubbock, Texas, stating that Caldwell's name and social security number did not appear in its records. Caldwell testified that he was unable to find his diploma or the location of the school. He also admitted that in a prior case he had testified that he had taken engineering courses from several colleges but did not graduate from any of them. R. D. & O. at 3.

    Caldwell's supervisor, Curtis Goodell, gave Caldwell four job performance evaluations between 1999 and 2002. CX-4. In 1999 Caldwell needed improvement in

five categories. In 2000 Goodell rated Caldwell at a level 2 ("standard") performance level in all categories, but in 2001, 2002, and 2003 Goodell gave him a below-standard rating in the teamwork category. Id. Goodell testified that Caldwell received a below-standard rating in teamwork in 2001 and 2002 because he had problems with work orders completed by other departments. In April 2003 Goodell began drafting a Performance Improvement Plan (PIP) for Caldwell because of "performance issues that had been building." Tr. 2187; RX-9. Goodell never put Caldwell's name on the PIP and never obtained formal approval of the draft from the plant's Human Resources Department. R. D. & O. at 3-4, 6; Tr. at 2188-2189.

    In 2002 and 2003, there were three serious incidents at the plant that resulted in the release of toxic chemical agents into the plant. R. D. & O. at 4-12. On July 15, 2002, there was a release of a chemical agent in one of the plant's liquid incinerator rooms, which resulted in the serious exposure of a worker to the agent. R. D. & O. at 4; Tr. at 1588. On April 22, 2003, an alarm in the Automatic Continuous Air Monitoring System was set off, signifying an agent migration, when TOCDF employees entered an x-ray florescence room. R. D. & O. at 7. RX-10 at 154. Finally, on May 3, 2003, another chemical migration set off a series of alarms along the ventilation system flow path in the Munitions Demilitarization Building, and the building was evacuated. R. D. & O. at 11. EG&G conducted investigations of all three incidents.

Investigation of the July 15 Incident

    EG&G conducted an investigation of the July 15 migration incident and suspended operations for almost nine months. As a result of this investigation as well as investigations by the Army Board of Investigation and the Office of the Inspector General of the Department of Defense, EG&G implemented corrective actions, including creation of a comprehensive management planning and control document called PRP-MG-015 and adoption of higher performance standards for engineers. R. D. & O. at 4; Tr. at 1589-1590; CX-26 at 682.

   By the time the plant resumed operations in March 2003, Caldwell had completed a modification of the Spent Decon System (SDS), the system for transporting spent decontaminant, the fluid that results from mixing fresh decontamination liquid with a toxic agent. R. D. & O. at 5; Tr. at 472, 1032-1033, 1406-1407. Caldwell's modification, which was called the "multi-basket strainer system," was not immediately put into operation because of delays in obtaining regulatory approvals. R. D. & O. at 5-6; Tr. at 443-444, 459; RX-22a at R232. Therefore, Terry Thomas, TOCDF's engineering manager and Goodell's supervisor, assigned Caldwell the task of designing a temporary system to bypass the multi-basket strainer system until EG&G received regulatory approval of the system. R. D. & O. at 6; Tr. at 1363-1365. Caldwell and Mike Burch, a systems engineer for the SDS, decided that spring-loaded check valves should be installed in the temporary bypass system to reduce the chances that toxins could back up and escape. Tr. at 2378-2382, 2443. Caldwell testified that he ordered spring-loaded valves from a supplier and that he completed a purchase requisition dated December 26, 2002, which specified "carbon steel-flanged valves," but he did not list a part number or

specify "spring-loaded valves" on the requisition. Tr. at 1534, 1544, 1725-1727, 2067, 2079.

Investigation of the April 22 Incident

    The investigative team assigned to determine the causes of the April 22 migration incident interviewed Caldwell four times during the 10 days after the incident because the team initially identified Caldwell's temporary bypass as a pathway of possible agent seepage. The members of the team were Dick Snell, chair of the team and environmental manager of the plant; Bob Banks, an operations specialist; Steve Bunn, an agent munitions safety specialist; Brent Culley, a computer programmer; and Jim Wilcox, an environmental auditor. Their assignment was "to identify and investigate ‘potential pathways for [the] agent vapors' that caused the alarms to activate on April 22." R. D. & O. at 7; Tr. at 782, 1770, 1803, 1865, RX-10 at 155. Caldwell did not inform Goodell of his first two meetings with the investigative team until April 30, 2003, when he, Goodell, and Burch attended Caldwell's third meeting with the team. Tr. at 1415, 2206-2207.

    What Caldwell said to the members of the investigative team during his three meetings with them is disputed. Caldwell maintains that he informed the team at their first meeting, on or about April 25, that there was no way that the Clean Decon System (CDS) could be the source of the agent migration. Tr. at 1408. Banks, however, testified that there was just general discussion about the SDS, not the CDS. Tr. at 1918. Bunn testified that Caldwell "firmly denied that the SDS bypass could be the source of the leak." R. D. & O. at 8; Tr. at 1873-1874.

    Two days after their first meeting Caldwell again met with the investigative team and answered inquiries about the temporary bypass system. R. D. & O. at 8; Tr. at 1409-1411. Caldwell claims that on the morning after their second meeting, he told Culley that if the check valves in the SDS were failing, that would be the problem. Tr. at 1414. According to Culley, however, Caldwell said that the SDS bypass could not have been the source of the leak because check valves had been used in the system. R. D. & O. at 8; Tr. at 1807. Culley's testimony is consistent with that of Snell, Banks, and Bunn. Snell said that during the second meeting Caldwell never told them that a check valve problem caused the agent migration, and Banks testified that Caldwell told them that the check valves were spring-loaded, and that there was no problem with their orientation. Tr. at 1028, 1878, 1906. Finally, Bunn stated that Caldwell was adamant that there was no risk of agent migration through the SDS bypass. R. D. & O. at 8-9; Tr. at 1874-1875.

    According to Caldwell, at the team's third meeting on April 30, 2003, which Goodell and Burch also attended, he told the team that the SDS bypass was definitely the source of the problem. Tr. at 1419. He stated that he warned the team that the leak could be related to the SDS bypass if two check valves failed, and also told them that the check valves in the SDS bypass should be spring-loaded. R. D. & O. at 9; Tr. at 1417-1419. Snell and Wilcox agreed that Caldwell told them that the check valves were spring-loaded. Tr. at 1036, 1772. Banks further testified that the team would have moved more quickly to identify the source of the leak if Caldwell had told them that the check valves

were not spring-loaded. R. D. & O. at 10-11; Tr. 1912.

   Caldwell's fourth and final meeting with the investigative team was by a teleconference, in which Goodell also participated. According to Caldwell, during the conference Goodell tried to conceal information that Caldwell was sharing with the team, but both Snell and Culley stated that Goodell made no effort to conceal anything and was very cooperative in the investigation. R. D. & O. at 11; Tr. 1436, 1811, 1815.

Investigation of the May 3 Incident

    After the May 3 migration incident, Goodell made two phone calls to Caldwell to get Caldwell's help in locating the purchasing documents for the SDS bypass check valves. Caldwell testified that during these phone calls he expressed surprise that the SDS bypass was still being used and asked Goodell if the check valves had been tested. Goodell, however, disputes Caldwell's claim that he expressed surprise. R. D. & O. at 12; Tr. at 1442-1443, 2274. Goodell stated that the purchase documents revealed that the SDS bypass was the likely source of the leak because swing valves had been installed in the bypass. Tr. at 2209; RX-11, RX-12. According to Goodell, Caldwell's work on the temporary bypass led to the agent migration:

These [purchase] documents confirmed that, in fact, swing valves, not spring valves, had been received from the parts supplier and installed into the SDS bypass. Tr. at 2199-2200, RX 10 at 162. Goodell also testified that he then began to believe that the valves were not working correctly because they had been installed with the wrong orientation. Tr. at 2211, RX 10 at 162. Specifically, he testified, the check valve on the line leading to the C sump was mounted in the horizontal position and, once opened, would not close. Tr. at 2212. Furthermore, Goodell asserted, the work order prepared by Caldwell for installing the check valves was inadequate insofar as it failed to properly describe the direction of flow and the vertical or horizontal orientation of the valves to be installed. Tr. at 2201. Inspection of the check valves after the temporary SDS bypass had been removed confirmed they were not spring-loaded and also "identified a lot of sludge material in the valves." RX 10 at 162. Based on this evidence, the members of the team concluded in their final report that the "direct cause" of the two agent migration incidents was that "the temporary configuration of the SDS system provided a pathway for agent contamination in category ‘C' areas." RX 10 at 162. Four "contributing causes" were also noted: inadequate review of the temporary bypass design, inadequate review of extension requests for

the temporary bypass, failure to properly identify the valves ordered for the temporary bypass, and inadequacies in the work planning package associated with the temporary bypass. RX 10 at 162-63. Finally, the "root cause" was stated as "inadequate design and installation of the SDS temporary change." RX-10 at 163.

R. D. & O. at 12. Caldwell was thus responsible for all of the "contributing causes" that led to the agent migration.

    On May 5, 2003, Goodell met with Joe McKea, a Human Resources Representative at EG&G. Tr. at 292-294. According to McKea's notes from this meeting, Goodell told him that he was concerned about the May 3 chemical migration and Caldwell's role in it. Goodell said, "I need to get [Caldwell] out of here," to which McKea replied that he would investigate to find out what happened and what to do about it. Tr. 295. McKea also noted that at his initial meeting with Goodell, Goodell said that he was worried "that this might turn into a whistleblower case." R. D. & O. at 13; Tr. at 295; RX-3 at 26.

    Also on May 5, after Goodell informed Thomas that check valves, and not spring valves, had been installed in the bypass, both Goodell and Thomas met with McKea, and the three decided that suspension of Caldwell was warranted. R. D. & O. at 13; Tr. at 571. The suspension letter, which was given to Caldwell on May 5, reads in part:

Your response [to the investigating team's inquiries] that the orientation did not impact the valve operation biased the team's decision, which in turn delayed critical actions by the team, which would have prevented the chemical event on 3 May 2003 . . . . In addition, you were contacted by the team members concerning the situation on 23 April 2003. No attempts to inform your management were made on your part. . . . This in turn again delayed any response to correct the situation.

R. D. & O. at 13; CX-1.

    On May 12, 2003, Caldwell filed a whistleblower complaint with OSHA, alleging that EG&G violated the whistleblower provisions of the environmental acts when it suspended him for five days. R. D. & O. at 14; CX-3a. A copy of the complaint faxed to EG&G by Caldwell's attorney is stamped "Received, Human Resources, May 13, 2003." CX-3b at C7.

    McKea continued to investigate Caldwell's performance. He reviewed Goodell's notes about Caldwell's performance problems and interviewed members of the Snell team. McKea decided to bypass EG&G's progressive discipline and immediately terminate Caldwell. Tr. at 412. According to McKea's testimony, the primary reasons for termination were that "the responsibilities that Mr. Caldwell had in the whole process

of ordering the part, making sure it was installed correctly, testing it" were not properly carried out and the evidence that Caldwell "was not communicating with his management on his work and what he was doing . . . ." R. D. & O. at 15; Tr. at 413. McKea also decided to bypass progressive discipline because of Caldwell's failure to provide adequate detail in the work order for the bypass check valves and his failure to specify a test plan for the valves. Tr. at 414. With Goodell's assistance, McKea drafted a termination letter, and on May 15, 2003, when Caldwell returned to work after his suspension, Thomas told Caldwell that he was being terminated. Tr. at 370, 378, 387. The letter stated that Caldwell was terminated for failure to follow established procedures, resulting in agent release, and unacceptable past work performance:

This [termination] action is a result of your failure to follow PRP-MG-015, resulting in an agent release into a category "C" area and for issues related to continued unacceptable past work performance.

In relation to the chemical incident on May 03, 2003, the investigation team concluded that a temporary change (SDS-063), which you had initiated and for which you were responsible, was a main contributor to the agent release. Under the requirements of PRP-MG-015, it is the engineer's responsibility, among other things, to "review impacts to permits, regulations and standards; develop detailed work instructions; identify special conditions; and approve conditional and/or full release for equipment operation." As the principal engineer responsible for the temporary change, you failed to fully comply with the procedure.

Past performance evaluations have documented areas for improvement. The October 2002 Continuous Improvement Summary noted "continues to have difficulties with departments and/or individuals outside of Engineering" and the Performance Appraisal dated September 19, 2001 states "needs to develop a better working relationship with the Maintenance Supervision." Your current supervisor, Curtis Goodell, has observed no improvement in these performance areas. He has received comments from personnel in other departments regarding your inability to communicate professionally. Strained relations have caused significant delays with projects critical to plant operations. Strong interdepartmental communication is critical to the success of Project Engineering and the Site overall.

CX-2.

A. The Legal Standards

C. Causal Connection

testimony. The ALJ explicitly credited the testimony of the Snell team members and discredited Caldwell's testimony. We defer to the ALJ's credibility findings and affirm his determination that Caldwell did not warn the Snell team that the spring-loaded valves had been installed in the bypass. EG&G did not fire Caldwell because he engaged in protected activity; EG&G fired him because it could have avoided the May 3 migration if Caldwell had provided accurate information in the first place when the Snell team interviewed him.

    In addition, Caldwell's faulty work on the temporary bypass caused the May 3 chemical migration. Caldwell was responsible for reviewing permits, regulations and standards; developing detailed work instructions; identifying special conditions; and approving conditional and/or full release for equipment operation. He failed in these responsibilities when he did not properly request spring-loaded valves for the bypass and improperly completed a work order for installation of the valve. The investigation team determined that the temporary bypass, which was Caldwell's responsibility, was the main cause of the agent release on May 3, 2003.

    EG&G had other reasons for its adverse action. Caldwell did not inform management of his contacts with the Snell team, which delayed management response to correct the situation. In this regard, we reject Caldwell's contention that the ALJ's decision relies on an erroneous legal theory that an employee must report to his supervisors that he engaged in protected activity. The ALJ's decision was based on the premise that it is entirely reasonable for an employer to be informed of ongoing investigations in its plant:

[T]he evidence indicates that the sole concern of the EG&G supervisor in this regard was the Complainant's failure to have informed his supervisors that the meetings were occurring. The Complainant's supervisors had both a responsibility and legitimate interest in knowing of all important events involving the Engineering Department.

R. D. & O. at 22.

    The record also establishes that Caldwell had a history of performance problems. Caldwell's performance appraisal as early as 1999 specified that he needed to improve in five categories. His evaluations in 2001, 2002, and 2003 rated him below standard in the teamwork category. EG&G stated in its suspension letter that Goodell had received comments from personnel in other departments regarding his inability to communicate professionally. As the letter stated, "Strained relations . . . caused significant delays with projects critical to plant operations." Caldwell's performance problems had become so critical that Goodell began drafting a PIP for Caldwell in April 2003 because of "performance issues that had been building." R. D. & O. at 3-4; Tr. at 2187.

    Caldwell contends that Goodell's comment to McKea that Caldwell's suspension and termination "might turn into a whistleblower case" indicates Goodell's

discriminatory intent. The ALJ concluded that this statement did not indicate a retaliatory intent because Goodell was merely expressing his fear "that [Caldwell] would use the whistleblower complaint procedures as a tactic for preventing or reversing any disciplinary action against him." R. D. & O. at 21. His conclusion is supported by the testimony of Debbie Sweeting, Human Resources manager, who said that Goodell probably made this comment because he had heard that Caldwell was going to contact an attorney who had represented complainants in whistleblower cases. Sweeting acknowledged that both management and Human Resources staff were considering the possibility of a whistleblower complaint at the time of Caldwell's suspension. Tr. at 267-269.

    Accordingly, because Caldwell has not demonstrated by a preponderance of the evidence that EG&G discriminated against him in violation of the environmental acts, we DISMISS his complaint.

   SO ORDERED.

            M. CYNTHIA DOUGLASS
            Chief Administrative Appeals Judge

            WAYNE C. BEYER
            Administrative Appeals Judge