After several attempts to determine what Mr. Neff was doing while working late, Complainant finally cornered him and he told her that he was helping Mr. David Jungerman, Respondent's President, remove asbestos from the plant. Mr. Neff told Complainant that he was being paid very well, in cash every night (TR 242). Complainant then notified the Kansas City Health Department requesting information on the effects of asbestos and informed the Health Department that asbestos was being illegally removed at Respondent's plant (TR 243). The Health Department took Complainant's name and address and told her they would send her literature on asbestos.

   When Complainant awoke on March 4, 2000, she discovered Mr. Neff riffling through her mail. When confronted, Mr. Neff admitted that Mr. Jungerman had asked him to go through Complainant's mail to see if she was receiving any information from OSHA or any other government agency pertaining to asbestos. Complainant immediately had Mr. Neff pack his belongings and he left the next morning, March 5, 2000 (TR 244-245).

   On March 5, 2000, Complainant noticed that all of the information she received from OSHA and the Cancer Society pertaining to asbestos was missing. On Monday, March 6, 2000, Complainant questioned Mr. Neff at work as to the whereabouts of her mail. Mr. Neff refused to answer her question and just smiled (TR 249).

   On March 7, 2000, Complainant noticed that the work area of Stacey Hedrick, a coworker, was in disarray. Leo Wynne, Respondent's foreman of maintenance, informed Stacey it was "none of her damn business" what went on during the night. On March 8, 2000, Complainant noticed that several coworkers had not shown up for work. Complainant also noticed that the tables in her work area were out of place and covered with dust. When questioned about what happened after quitting time, Leo told Complainant it was "none of her damn business" (TR 250-251). Complainant noticed that the insulation on the overhead pipes had been removed and believed the dust over her work area to be asbestos. When Complainant again asked Leo about the "fibers or dust," he again told her that "it was none of [her] damn business, and for [her] to go back to work." (TR 251). Leo then went straight into the office (TR 251). Shortly thereafter, Leo returned and told Complainant to move to the front of the plant. Complainant believed the transfer was so that Respondent could observe her every move. Complainant was then asked numerous questions by coworkers, Pat and Mildred. Mr. Jungerman subsequently came out of his office on two occasions and spoke with Pat and Mildred individually. At this time, Leo informed Complainant that she was not doing her job (TR 255). Just before her break period, Mr. Jungerman informed Complainant that he wanted to speak with her following break.

   After break, Complainant met with Mr. Jungerman and Leo in Mr. Jungerman's office. At this time, Complainant was questioned about phone calls that she allegedly made to Stacey Hedrick, who had just quit (TR 258-260). Complainant was then informed that she was fired, as Respondent did not need someone like her in the plant (TR 261). Complainant then filed a claim with OSHA for discrimination (TR 262).

   Claimant states that she was forced to relocate as a result of losing her job. In addition, because of her termination, she was unable to fill her blood pressure medications, her blood pressure worsened, and now requires double the medication to keep it under control. Complainant further states that on one occasion she was rushed by ambulance to the hospital with difficulty breathing. The doctors told Complainant that her difficulty breathing is due to stress (TR 265). Complainant estimates that bills relating to her health as a result of being terminated are approximately $500 (TR 266). Complainant further stated that she was unemployed for three weeks and had to take a job paying sixty cents an hour less. Complainant is now employed at a different location and the hourly wage is forty cents an hour less than she received working for Respondent. Associated with Complainant's move to be near her new job was the cost of various deposits totaling $600. Lastly, Complainant stated that her 1999 Christmas bonus was cut in half as a result of her filing a complaint with OSHA.

   On cross-examination, Complainant was questioned about her April 5, 2000 complaint to OSHA. The investigator documented that Complainant stated that she had received disciplinary action for filing complaints with OSHA, EPA, and the Kansas City Health Department (hereinafter KCHD), yet she had not made any of those complaints. Complainant insisted that she did, in fact, make the March 1999 complaint to OSHA (TR 276).

   Complainant admitted to receiving two written warnings from Respondent for talking, working at a slow rate, and wandering away from her work station (TR 290). However, Complainant insisted that her actions were in no way inconsistent with the behavior of the other employees at Respondent's plant. Complainant admits that she signed the first written warning and refused to sign the second.

   Complainant admitted that the OSHA report failed to mention any complaint about paint or paint fumes and could not explain why (TR 283).

   Complainant was shown numerous documents and testified as to the dates she filed complaints with OSHA. The first form was an OSHA discrimination worksheet that was dated September 13, 2000, and stated that on April 4, 2000, Complainant filed a discrimination complaint. The report stated that it was in reference to a CAA complaint (TR 339, CX 10). The second OSHA discrimination worksheet was dated October 4, 2000, and the CAA statute was marked (TR 338, CX 1).

Lisa Jeter

   Ms. Jeter currently works for S&K Industries and has been employed there for approximately a year (TR 69). Ms. Jeter was employed at Baby-Tenda for approximately two years (TR 70). Ms. Jeter was trained by other employees and part of the training was to sit, watch, and talk with the other employee while that employee worked (TR 71).

   Ms. Jeter quit her employment with Respondent in March of 2000. Ms. Jeter stated that the reason she quit was because asbestos was being illegally removed from the plant and that she feared for her safety and the safety of her family (TR 71). Ms. Jeter knew that the insulation contained asbestos as she removed a sample of the insulation on or about March 7, 2000, which was her last day of employment for Respondent, and had the sample tested (TR 73). Ms. Jeter filed complaints with the Kansas City Missouri Air Quality Control (hereinafter KCAQCD) and the EPA in March 2000 (TR 76). Ms. Jeter filed the complaints because Respondent failed to warn the employees about the removal of asbestos and afford them an opportunity to protect themselves (TR 77).

   Ms. Jeter stated that two fellow employees, Angie Begula and John Gilbertson, told her that Kenneth Neff and Leo Wynne had been helping Mr. Jungerman remove the asbestos at night after the day shift went home (TR 78).

   Further, Ms. Jeter testified that she took pictures of boxes before they were removed from the plant that she suspected contained asbestos insulation. Ms. Jeter could not remember if it was the EPA or the Health Department that requested that she take pictures and get samples of the material as it would be needed as proof that Respondent was illegally removing asbestos. Ms. Jeter also recalled the complaint that was made to OSHA in October 1999 (TR 84). According to Ms. Jeter, Mr. Jungerman offered $1000 to anyone that could bring him proof as to who filed the October 1999 complaint with OSHA. Mr. Jungerman also talked with Ms. Jeter privately and stressed that he wanted to know who the "back stabber" in the plant was (TR 85-86).

   Under cross-examination, Ms. Jeter admitted to a confrontation between herself and Complainant, but further stated that others in the plant had also been in arguments. Ms. Jeter also admitted being involved in an argument with a fellow employee named Gail. Ms. Jeter denied any knowledge of problems created by Complainant against Pat Daniels, Richard Dover or Bill Collins. Ms. Jeter further admitted that Complainant acted no differently than anyone else in the plant.

John Gilbertson

   Mr. Gilbertson is currently employed at Westfield Apple, and has been there for approximately a year and a half (TR 111). Prior to that time, Mr. Gilbertson worked for Baby-Tenda. Mr. Gilbertson worked in various parts of the plant and characterized the work environment as lax, that the employees constantly talked with one another and were out of their work stations regularly (TR 112). Mr. Gilbertson stated that he left Baby-Tenda because he had a new born baby and was fearful of bringing home asbestos due to the removal of asbestos at the plant (TR 121).

   Mr. Gilbertson admitted to covering up a table saw before the October 1999 OSHA inspection (TR 114). This was done on direct orders from Mr. Jungerman to Mr. Gilbertson, because a Baby-Tenda employee had been seriously injured operating one of the saws (TR 113). Mr. Gilbertson admitted to deliberately concealing the covered saw from OSHA (TR 116).

   Following the inspection by OSHA, Mr. Gilbertson installed guards on the saws. In addition, Mr. Gilbertson noticed a major change in the attitude toward and treatment of Complainant. This shift in the way Complainant was treated after the October 1999 OSHA complaint and inspection was evidenced by the fact that Complainant and Hedrick were issued written warnings for being outside of their work areas when everyone else would be out of their work areas and not written up (TR 119). Mr. Jungerman expressed his belief to Mr. Gilbertson that either Complainant or Stacy (another worker) had turned him in to OSHA. Mr. Gilbertson testified that Respondent made it very clear to him that the reason he wanted to know who turned him in was to fire that person (TR 118-120).

   On cross-examination, Mr. Gilbertson reiterated that the rules changed after the October 1999 OSHA inspection for two employees, the Complainant and Stacey (TR 127). Mr. Gilbertson further testified that he did not witness an argument between Complainant and Ms. Jeter. Nor did Mr. Gilbertson hear Complainant tell Ms. Jeter that "Pat said she did crappy work," or that Complainant said she would beat up Richard Dover. Mr. Gilbertson also stated that Mr. Dover was a hot head and did not get along with anyone (TR 129).

   On March 7, 2000, Mr. Gilbertson's last day of employment with Respondent, inspectors from EPA, OSHA or the Kansas City Health Department arrived at the plant and were turned away (TR 135). According to Mr. Gilbertson, Complainant had discussed the paint fumes escaping from the paint room into the plant and outside the plant with him but there was nothing he could do to correct the situation (TR 139). Mr. Gilbertson was confused as to exact dates and which agency showed up at the plant on what day. However, he was present when the EPA gained access to the plant and took samples from the paint room, the bathroom and the maintenance room. Further, he was present when Ms. Jeter took pictures of the suspected asbestos insulation that had been removed from various pipes in the plant, and stood as a lookout while Ms. Jeter took some of the insulation to be tested (TR 146-147). Despite the confusion as to the dates, from the testimony it is clear that all of this occurred prior to the termination of the Complainant, on March 8, 2000.

Annette Beluga

   Annette Beluga is a former employee of Baby-Tenda. She worked for Respondent in shipping and receiving for approximately two years and left due to the asbestos in the plant (TR 156). Ms. Beluga felt it was morally wrong to send out goods that she felt were covered with asbestos dust (TR 158). Ms. Beluga stated that the employees talked to one another all the time, as the atmosphere was very lax (TR 159). Further, Ms. Beluga witnessed employees in arguments, loitering, and hanging around and was not aware of anyone ever being discharged because of it (TR 159).

    On cross-examination Ms. Beluga testified that she did not hear Complainant tell Ms. Jeter that Pat claimed she did "crappy work," nor did she witness a fight between Ms. Jeter and Complainant. Further, Ms. Beluga was unaware of Complainant constantly trying to slip away from her work area or starting trouble with other employees (TR 161).

Kurtis Rogers

   Mr. Rogers worked for Baby-Tenda until late 1999 or early 2000 (TR 167). Mr. Rogers testified that while in the employ of Respondent he was injured using a saw; specifically, a splinter was lodged in his thumb. As a result, Mr. Rogers needed four surgeries to try and correct the problem (TR 168). Mr. Rogers continues to experience pain in his thumb.

   On the day of the injury, Mr. Rogers reported the incident to Leo, Respondent's maintenance foreman, who told him to go and report the incident to Mr. Jungerman (TR 168). Mr. Rogers testified that Mr. Jungerman instructed him to go to the hospital, claim the injury happened at home and claim that he had no job so that the hospital would not charge him. Mr. Jungerman informed Mr. Rogers that he would take care of the medical bills; however, Mr. Rogers claims that currently the medical bills remain unpaid (TR 169).

   On cross-examination, Mr. Rogers testified that he was unaware that his worker's compensation claim and lawsuit against Baby-Tenda had been abandoned (TR 177). Mr. Rogers reiterated that Mr. Jungerman told him to tell the hospital that the injury occurred at home and that Respondent would take care of the bills (TR 179).

Stacey Hedrick

   Stacey Hedrick currently works for Public Storage as a property manager. Prior to her current position, Hedrick was employed at Baby-Tenda for more than two and a half years. While employed at Baby-Tenda, Hedrick worked in close proximity to Complainant, working back to back, just a few feet apart (TR 181). Hedrick stated that employees walked around and talked with one another frequently during the day, as much as 90% of the time. Further, Hedrick stated that she and Complainant did not walk around and socialize anymore than any other employee (TR 182).

   Hedrick testified that after the complaint was made to OSHA in October 1999, management kept a close eye on Complainant (TR 183). According to Hedrick, Complainant was treated differently than everyone else, and after the complaint, Complainant was no longer allowed to talk to other employees (TR 183). Mr. Jungerman requested Hedrick speak to Complainant to find out if she was the one who made the complaint to OSHA because he was going to fire whoever made the complaint (TR 184).

   In September 1999, Respondent hired Mr. Collins to manage the plant. Mr. Jungerman testified there were problems between Complainant and Mr. Collins (TR 353).

   Mr. Jungerman testified that Complainant was an "at will" employee and could be fired at any time. However, Mr. Jungerman stated that he did not fire her because he needed to document everything to prevent her from collecting unemployment (TR 417). On March 8, 2000, Respondent had lost between twenty and twenty-five percent of his work force, yet Mr. Jungerman proceeded to fire Complainant (TR 420).

   When questioned about the results of the asbestos tests, Mr. Jungerman admitted there were more than six positive results (TR 423). However, in fact, ten out of nineteen tests came back positive for asbestos (TR 423).

   Mr. Jungerman denied questioning Complainant at the termination hearing regarding phone calls from Stacey Hedrick or John Gilbertson (TR 426).

Esther Fish

   Ms. Fish is a former employee of Respondent and worked at the Baby-Tenda plant during 1999-2000 (TR 430). Ms. Fish testified that Complainant was very disruptive, often left her work station and visited other employees (TR 431). At the time Ms. Fish was employed by Respondent she could see Complainant's work station from her work station. Mr. Collins, the plant manager, was employed by Respondent during the period that Ms. Fish was employed there (TR 432).

   Ms. Fish testified that Complainant left her work area daily and would try to hide so that Mr. Collins did not see her. Also, Ms. Fish stated that Complainant was very loud and her voice

carried over the entire plant (TR 434-435). Ms. Fish did not personally witness or hear a confrontation between Complainant and Ms. Jeter (TR 435). Ms. Fish further stated that she did not see or hear a confrontation between Complainant and Mr. Neff (TR436).

   Ms. Fish stated that she stayed in her work area and did not pay attention to what was going on in the plant (TR 434). Ms. Fish stated that Complainant was not a good worker because she could not keep her supplied with tables to put brackets on (TR 436).

   Ms. Fish found the atmosphere at the plant to be friendly and safe (TR 438). Ms. Fish stated employees could talk to each other but were not supposed to walk around (TR 438). Ms. Fish stated that Mr. Collins told her he was quitting because of Complainant. Mr. Collins told Ms. Fish that Complainant was writing down all the time that he and Esther were talking and walking around (TR 437). Ms. Fish further stated that Complainant was constantly spreading rumors about all the employees (TR 440).

   Ms. Fish denied ever seeing any dust on the tables. She further denied that her materials were ever moved out of position (TR 440). Ms. Fish also stated that she never heard Respondent state that he was out to get Complainant (TR 441).

   On cross-examination, Ms. Fish testified that she worked in two areas of the plant. Ms. Fish worked in close proximity to Pat while putting brackets on the tables and also worked in the paint room putting paint and lacquer on the tables (TR 444). While working in the paint room both painting and applying lacquer, Ms. Fish would open the outside door to get fresh air (TR 444). Ms. Fish further stated that there was no door within the plant separating the paint room from the rest of the plant (TR 445).

   Ms. Fish admitted that she frequently missed work, on an average of three days a month. Also, Ms. Fish admitted that she frequently arrived late for work (TR 446-447). Ms. Fish recalled one occasion where she had a verbal altercation with Complainant. Ms. Fish went to

Complainant's work area and confronted Complainant concerning a rumor that was alleged to have started with Complainant. Ms. Fish admitted that she was late on that day and thus was not yet on the clock. Further, Ms. Fish admitted she was not written up or disciplined regarding the incident (TR 449-450).

Patricia Daniels

   Ms. Daniels worked in the same general area as Complainant and often worked with her (TR 458). Ms. Daniels admitted that Complainant did come to her work area but often it was in order to help her with the work (TR 458). Ms. Daniels never witnessed a confrontation between Complainant and Ms. Jeter, nor did she witness a confrontation between Complainant and Mr. Neff (TR 458-459). Ms. Daniels stated that Complainant was very loud and could be heard a good distance away (TR 461). Ms. Daniels did not recall ever coming to work and finding her area out of order. Nor did Ms. Daniels remember ever coming to work and finding any dust on the tables (TR 462).

Marta Gasser

   Ms. Gasser is a current employee of Baby-Tenda and has been employed there for more than five years (TR 468). She had a desk in the administrative office. Ms. Gasser stated that Complainant came to the office on an average of three times a week to speak with Mr. Jungerman (TR 468). Ms. Gasser also stated that Complainant was very loud and that you could hear everything that she said (TR 469).

   Ms. Gasser had no recollection of ever seeing a cloud of dust near the offices. She stated that Complainant never mentioned to her that she had filed complaints with OSHA, the EPA or the Kansas City Health Department. Further, Ms. Gasser stated that Complainant never mentioned to her any concerns about asbestos, or paint fumes (TR 471).

Mildred Kessinger

   Ms. Kessinger currently works for Baby-Tenda and has been employed there for more than twenty-nine years (TR 476). Ms. Kessinger did not work in an area close to Complainant, and they only had contact when Complainant needed help with a product (TR 476). Ms. Kessinger stated that at first Complainant would get the help she needed and then go back to her work area, but that after a while she started hanging around to talk more and more (TR 477-478).

   Ms. Kessinger admitted that Mr. Jungerman approached her and requested that she document every time that she saw Complainant leave her work station to gossip and wander around but that she refused to do so (TR 480). Ms. Kessinger characterized Complainant as a good worker but that she had issues with talking too much (TR 485).

   To establish a case of discrimination under the CAA, the Complainant, Ms. Evans, must prove: 1) that she was an employee of a covered employer; 2) that she engaged in protected activity; 3) that thereafter she was subjected to adverse action regarding her employment; 4) that the Respondent knew about the protected activity when it took the adverse action; and 5) that the protected activity was the reason for the adverse action. Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995); Carroll v. Bechtel Power Corp., 1991-ERA-46 , slip op. at 11 n.9 (Sec'y Feb. 15, 1995), aff'd sub nom., Carroll v. U. S. Dep't. of Labor, 78 F.3d 352, 356 (8th Cir. 1996).

   Complainant must prove by a preponderance of the evidence that she engaged in a protected activity which was a contributing factor in an unfavorable personnel decision. If she meets this burden, the burden then shifts to the Respondent to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action absent the protected behavior of the Complainant. Where Respondent articulates a legitimate nondiscriminatory reason for the adverse action, the Complainant must prove that the reasons articulated by the Respondent were pretextual, either by showing that the unlawful reason more than likely motivated Respondent or by a showing that the proffered explanation is not credible and that the Respondent discriminated against her. Nichols v. Bechel Construction Co., 1987-ERA-44 (Sec'y Oct. 26, 1992); Moore v. U.S. Dep't of Energy,1999-CAA-15 (ALJ Jan. 28, 2000).

   It is undisputed that Complainant, Ms. Evans, was an employee of Respondent, Baby-Tenda, a covered employer. Nor is it in dispute that the Respondent took adverse actions against the Complainant culminating in the termination of her employment. The primary issues remaining before me concern the nature of the protected activity, the knowledge of the Respondent, and the motivation of the Respondent in taking adverse action against the Complainant.

Protected Activity

   Concerns Regarding Paint Fumes

   Complainant testified that in October of 1999 she filed a complaint with OSHA regarding several health, safety, and environmental concerns pertaining to Respondent's plant. At issue is whether or not that complaint falls under the CAA. Complaints regarding workplace health and safety issues fall under OSHA and this court does not have jurisdiction to hear such cases.

   Complainant testified that she raised three issues in her complaint to OSHA. The first regarded the absence of guards on the various saws in the plant, the second dealt with an injury to an employee at the plant, and the third pertained to the existence of paint fume vapors and overspray. Complainant concedes that the first two issues in her complaint fall under OSHA jurisdiction and are not before this court. The last issue regarding paint fumes, vapors and overspray being emitted into the air outside of the plant would fall under the CAA. Thus, if in fact Complainant did file a claim with OSHA alleging violations of the CAA, then Complainant's subsequent claim of discrimination as a result of filing that claim would be properly before this court.

   Several reports were entered into evidence. The U.S. Department of Labor investigated a complaint lodged by Complainant on April 4, 2000, alleging discrimination under the CAA. The Department investigated the allegation, found it to have merit, and informed the Complainant (CX 16). Two DOL Discrimination Case Activity Worksheets dated September 13, 2000, and October 4, 2000, both state that the complaint falls under the CAA. Also, there is the Secretary's Finding and Order, which, after a full investigation, found that the weight of the evidence indicated that Complainant was a protected employee engaged in a protected activity within the scope of the CAA.

   Respondent argues that the OSHA complaint and subsequent report that was filed as a result of Complainant's October 1999 complaint, fails to mention paint concerns. Respondent argues that this is so because Complainant never mentioned any concerns she had regarding paint fumes escaping into the outside air. I find this rationale to be lacking and flawed. The mere fact that paint fumes and paint overspray are not addressed in the OSHA report is not dispositive as to whether they were mentioned in the original complaint. The same agency that Complainant filed her initial complaint with, OSHA, is the very agency that subsequently investigated her complaint alleging discrimination under the CAA and found that Complainant had, in fact, been discriminated against as a result of her complaint alleging violations of the CAA. The Complainant's testimony at the hearing addressed her complaints to OSHA regarding the paint fumes and I find her testimony to be credible. In addition, several coworkers confirmed that the Complainant had raised concerns over the paint fumes.

   Complainant testified that she did not file the complaints in March 2000; further, Ms. Jeter testified that she filed the complaints. However, Complainant further testified that she had called the Kansas City Health Department in March of 2000 seeking information on asbestos, and did in fact receive information. Complainant testified that she had informed the KCHD that she was concerned for the safety of her children and grandchildren. While the complaints may very well fall under other statutes such as the EPA or the OSHA, the CAA is also implicated because the complaints articulated more than a strictly occupational hazard. Complainant raised her concerns regarding asbestos leaving the plant with the KCHD in March of 2000 when she called requesting information on asbestos. The actions of the Complainant establish that she was about to commence or cause to be commenced a proceeding under the CAA and, thus, engaged in a second instance of protected activity under the CAA.

   Finally, on the morning the Complainant was terminated, she brought her concern regarding the asbestos dust to the attention of Leo Wynne, the Respondent's maintenance foreman. He reacted angrily, moved the Complainant to another location, and went straight to

the office. The Complainant was not provided an opportunity to explain her concerns, but only told that it was "none of her damn business" and to return to work. In combination with the testimony of Ms. Jeter, Ms. Hedrick, and Mr. Gilbertson, it is clear that the concern over the asbestos dust included the concern that it would escape from the Baby-Tenda facility to outside of the plant on both the clothes of the employees and the boxes of baby furniture when shipped. This would constitute the fourth instance of protected activity. Shortly thereafter, the Complainant was terminated by Mr. Jungerman in the presence of Respondent's foreman, Mr. Wynn.

   Complainant has proven by a preponderance of the evidence that she, as well as Ms. Jeter, Hedrick and Beluga, engaged in a protected activity.

Knowledge of Protected Activity

   The undisputed testimony is that Respondent did not have direct, actual knowledge through the Complainant that she had engaged in protected activity in October 2000. Complainant testified that she had not discussed her complaint with Respondent. However, there is ample evidence on the record that Respondent's President, Mr. Jungerman: 1) had constructive or implied knowledge that Complainant had filed the October 1999 complaint; 2) had actual knowledge that Complainant had contacted the KCHD and was about to commence or cause to be commenced a proceeding under the CAA; 3) was informed and reacted angrily to Complainant's concern that asbestos dust was covering her work station; and 4) acted as if he had actual knowledge that Complainant filed the March 2000 complaints with the EPA, OSHA and the KCHD.

   Following the October 1999 complaint filed by Complainant with OSHA, Respondent, through its management, embarked on a crusade to find out who filed the complaint and to terminate that employee. Mr. Jungerman offered a $1000 reward to anyone who could give him the name of the responsible party. Mr. Jungerman also communicated to several employees that he believed the Complainant had in fact made the complaint. In addition, Mr. Jungerman had Mr. Neff search Complainant's mail to see if Complainant was receiving any information on asbestos from any government agency. Mr. Neff then discovered literature from OSHA and other agencies regarding asbestos. Moreover, Complainant's testimony that Mr. Neff admitted checking on Complainant's mail for Mr. Jungerman and, in fact, gave Mr. Jungerman Complainant's mail, was not refuted by Respondent. One can infer from the actions of Mr. Neff regarding Complainant's mail that he took the same from Complainant and gave it to Mr. Jungerman. It is reasonable to infer that based on this information, Mr. Jungerman did in fact believe that Complainant had filed the complaint. Moreover, Mr. Jungerman admitted as much to other employees whose testimony I find to be credible.

   An inspector from the EPA documented an interview with Mr. Collins, the plant manger (CX 1). Mr. Collins admitted during the interview that the disciplinary write ups

against Complainant were trumped up in that Respondent believed Complainant had filed the complaints and was going to terminate her. Mr. Collins further stated that he covered up a saw that was not in compliance with OSHA regulations at the time of the OSHA inspection, so that it would not be discovered. The statements made by Mr. Collins to the EPA are hearsay, but as I find that his statements so closely corroborate the Complainant's testimony as to the adverse actions taken against her by Mr. Jungerman, I accept Mr. Collins' statement as further evidence which demonstrates the disposition, character and credibility of Mr. Jungerman. Mr. Collins' statements go to the credibility of Mr. Jungerman as well as his awareness that Complainant had made a complaint with OSHA. Further, the EPA inspector's report is consistent with the findings contained in Secretary's Findings and Order (CX 1).

   The inference to be drawn from Mr. Jungerman's actions is that he knew Complainant had filed the October 1999 OSHA complaint and may have filed another. On top of this knowledge, on the very day Complainant was terminated, Mr. Jungerman and Mr. Wynne knew the Complainant was asking about the missing pipe insulation and the dust around her work area. The Complainant wanted answers and the Respondent was upset that she was asking questions. Taken as a whole, the evidence clearly establishes that Respondent had knowledge that Complainant had engaged in a protected activity.

Adverse Action

   Complainant testified that following the October 1999 complaint to OSHA, Respondent took adverse actions against her. These actions included isolating her from other employees, watching her at all times, moving her work location, cutting her bonus in half, having other employees spy on her, having her live-in boyfriend go through her mail, having her written up for engaging in activity that other employees also engaged in but were not written up for, and, ultimately, her termination.

   Respondent argues that it would have terminated Complainant even if she had not filed a complaint with OSHA. Mr. Jungerman testified that Complainant was extremely loud, a trouble maker, always wandering around, and a poor worker. Mr. Jungerman further testified that Complainant had engaged in arguments with Mr. Dover, Ms. Jeter, Mr. Neff, Ms. Daniels and others.

   None of the allegations put forth by Respondent can be reconciled with the testimony offered. Not one employee testified that he or she witnessed Complainant arguing with Ms. Jeter, Mr. Dover, Mr. Neff or Ms. Daniels. Although several witnesses testified that they had heard rumors relating to several incidences involving Complainant, none of the witnesses actually witnessed or heard any of the alleged incidences first hand.

   Mr. Jungerman testified that he did not have to actually witness a problem involving Complainant first-hand because she was so loud that she could be heard throughout the plant. One must question, then, why none of the witnesses could testify about hearing any arguments or disturbances involving Complainant. Ms. Jeter, under cross examination by Respondent's counsel, admitted that she had been involved in an argument with Complainant, but added that she was also involved in an argument with another employee named Gail. Further, Ms. Jeter testified that she had no knowledge of any problems created by Complainant against Pat Daniels, Richard Dover or Bill Collins. Ms. Jeter also stated that Complainant acted no differently than any other employee. Ms. Beluga testified that she witnessed several employees in arguments, loitering, and hanging around and was not aware of any employee ever being discharged as a result. Ms. Beluga testified that she did not witness an argument between Complainant and Ms. Jeter, nor was she aware of Complainant constantly trying to slip away from her work station. Mr. Gilbertson testified that there was a shift in treatment towards Complainant after the October 1999 complaint to OSHA. Mr. Gilbertson never witnessed or heard any altercation between Complainant and Ms. Jeter, Mr. Dover or Ms. Daniels. Further, with regard to Mr. Dover, Mr. Gilbertson testified he was a "hot head" and no one got along with him.

   The credibility of Mr. Jungerman is further challenged by his inconsistent statements in the various reports entered into evidence. Mr. Jungerman told an OSHA inspector that he was being set up by disgruntled employees (CX 25). Later he told another inspector that the EPA had admitted to him that asbestos evidence had been planted in the plant (CX 241). Mr. Jungerman even accused one inspector of planting the asbestos herself to ruin Respondent's business (CX 240). When first questioned by OSHA and EPA inspectors as to whether he had removed asbestos insulation from the plant, he informed them that he had not. Only later did Respondent admit that he had (CX 238). Further, Mr. Jungerman testified that he allowed inspectors from the EPA, KCHD and OSHA to inspect his plant and that they were not turned away or required to secure a search warrant. However, the reports from the inspectors and three employees contradict that testimony. The issue is not whether the inspectors had to secure a search warrant, but rather whether they were allowed to enter the premises on the first day that they arrived, as Respondent testified. The evidence supports a finding that the inspectors were, in fact, turned away on their first attempt to enter and inspect the plant.

   Mr. Jungerman testified that he did in fact offer a $1000 bonus to any employee who turned in the employee who filed the complaint with OSHA. However, Mr. Jungerman stated that he only wanted to talk to that employee and did not offer the bonus to entice one employee to turn in another so as to fire the employee who made the complaint. The weight of the evidence, both in agency reports and testimony, refutes this account. The evidence establishes that Mr. Jungerman embarked on a course to seek out the employee who made the October 1999 complaint and to fire that employee. The evidence further establishes that Mr. Jungerman believed that employee to be Complainant.

   Mr. Jungerman further testified that the reason he documented every move of Complainant and had other employees watch her for him was to prevent Complainant from being granted unemployment compensation. Mr. Jungerman further boasted that no one in thirty years of business had collected unemployment from his business.

   I am of the opinion that the CAA whistleblower protections must extend to persons erroneously believed to have filed complaints. If an employer is free to fire anyone other than the complainant, then that employer is free to eviscerate the CAA. In fact, taking adverse actions against coworkers, whether intentional or unintentional, may be more effective than retaliating only against the complainant because it encourages fellow employees to turn on the complainant to protect their own jobs. Whistleblower statutes are premised on the fact that some employees may hesitate to complain of safety and health issues for fear of retaliation. Even greater is that fear when the employee believes that retaliation will follow if any employee complains. The protection of the CAA must shield employees from both intentional or unintentional adverse actions, because in either case, such retaliation chills the interest of employees to exercise their rights. As such, the Respondent acted adversely to the Complainant with the clear intent of chilling the exercise of her rights under the CAA.

   Complainant testified that she suffered from anxiety or panic attacks following her termination and was rushed by ambulance to the hospital. In addition, because of her termination, Complainant was unable to purchase blood pressure medication and, as a result, she must now take twice the dosage of her blood pressure medication. Further, Complainant was forced to relocate to secure new employment. For a period of three weeks following her termination, Complainant had none of her necessary medication. While not providing an expert to testify on her behalf, after witnessing Complainant, her demeanor and truthfulness, it is apparent that Complainant has suffered mental anguish and stress.

   It must not be overlooked that Complainant also suffered during her remaining five months of employment with Respondent. Complainant was isolated from other workers and her actions were scrutinized by Respondent. Complainant's live-in boyfriend stole her mail in order to accommodate and please Respondent. Further, Respondent offered a $1000 reward to obtain proof that Complainant had filed the OSHA complaint, and tried to enlist other employees in his endeavor to illegally fire Complainant.

   Accordingly, in view of the foregoing, and upon the entire record, I find as follows:

1. Complainant was an employee of the Respondent, Baby-Tenda, a/k/a Babee-Tenda, a/k/a Tenda from on or about March 1, 1999 until being terminated on or about March 8, 2000.

2. On or about October 1999, Complainant filed a complaint with OSHA regarding equipment safety issues and paint fumes escaping from Baby-Tenda through open doors into the ambient air.

3. Respondent knew or believed that Complainant filed the October 1999 complaint with OSHA.

4. OSHA inspected the premises of Baby-Tenda and found eight safety violations.

5. Mr. Jungerman is the owner, manager, and president of Baby-Tenda and oversees all plant operations.

6. Following the OSHA inspection, Mr. Jungerman offered $1000 to the employee who made the complaint to OSHA if they came forward, or, in the alternative, to anyone who knew the identity of the person who filed the complaint and gave him that person's name.

7. On or about March 2, 2000, the EPA and OSHA commenced an investigation against Baby-Tenda as a result of further complaints regarding occupational safety, asbestos exposure, and dumping issues.

8. Respondent knew Complainant was collecting information on asbestos exposure in preparation to commence an action under the CAA.

9. Respondent knew that Complainant had complained about asbestos dust over her work station.

10. Respondent knew, prior to terminating Complainant, that inspectors had sought entry into the Baby-Tenda facility and that their return was imminent.

11. Respondent erroneously suspected that Claimant had filed a complaint which was the cause of the impending inspection.

12. Respondent's President, Mr. Jungerman, tried to cover up his motives and intentions under the guise that Complainant would have been terminated even if she had not participated in safety complaints.

13. On or about April 5, 2000, Complainant filed a timely discrimination complaint with OSHA.

14. OSHA investigated the complaint and I affirm OSHA's findings based on the evidence that Christine Evans was a protected employee, engaging in a protected activity within the scope of the CAA, and that discrimination as defined and prohibited by the statute was a factor in the actions which comprised Christine Evans' complaint.

   Accordingly, in view of the foregoing, and upon the entire record, I issue the following Recommendations:

1. Respondent shall offer Complainant full time employment at a rate of pay that reflects all raises, bonuses and other benefits that Complainant would be entitled to receive had her employment not been terminated. Such offer, once made, shall remain open for a period of thirty days. Complainant is under no obligation to accept such offer as Respondent created a hostile work environment.

2. Respondent, Baby-Tenda, a/k/a Babee-Tenda, a/k/a Tenda shall pay back pay to Complainant as outlined in this opinion. Counsel for Complainant shall file a petition for all back pay within thirty (30) days after the filing of the Recommended Decision and Order with service on Counsel for Respondent.

3. Respondent, Baby-Tenda, a/k/a Babee-Tenda, a/k/a Tenda, shall immediately pay Complainant, Christine Evans, the sum of $25,000 as compensatory damages for the emotional suffering and distress caused to her by the adverse actions of Respondent.

4. Counsel for Complainant shall file a Petition for Fees and costs within thirty (30) days after the filing of the Recommended Decision and Order for all legal services rendered with service on Counsel for Respondent. Respondent may file objections, if any, to said application for fees and costs within fifteen (15) days of receipt. Within fifteen (15) days after receipt of any such objections from Respondent, Counsel for Complainant may file a response thereto.

5. Respondent shall expunge Complainant's work records of any information regarding Christine Evans' involvement in protected activity and any record of disciplinary action surrounding this matter, including all written and or verbal warnings.

6. Respondent shall pay the sum of $500 for medical bills incurred by Complainant as a result of her termination. Further, Respondent shall pay the sum of $600 which represents the cost of Complainant having to relocate as a result of her termination.

7. Respondent shall pay to Complainant the additional sum of $20,000 in exemplary damages.

8. Respondent shall post this decision at the Baby-Tenda facility where all employees can see it for a period of 90 days.

       ROBERT J. LESNICK
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed.Reg. 6614 (1998).