1) Martin has been employed by Akzo for six years. He is a chemical operator at the North Teal Unit of the Deer Park plant. (Tr. 17). Akzo produces pyrophoric chemicals. (Tr. 18). Chad Anderson is the Production Superintendent at Akzo's Deer Park plant. (Tr. 210). He is Martin's supervisor's supervisor. Donald Empfield is the Site Manager at Akzo's Deer Park plant. (Tr. 296). He is Anderson's supervisor. (Tr. 298).

   2) In March, 2001, Martin reported an unsafe venting incident to a supervisor, Marty Martinez. Martin told a supervisor that he was reporting the incident to OSHA. (Tr. 23, 146). Martin did not report the incident to OSHA. (Tr. 25). There is no evidence that Empfield and Anderson were aware of this incident.

   3) In the early morning hours of June 19, 2001, another unsafe venting incident occurred. Martin was not working that shift but relieved the operator that had the incident. (Tr. 27). Martin's supervisor asked Martin to make a determination of how much material was lost but Anderson did not give the cylinder tracking sheet to Martin so he could not make the calculation. (Tr. 28).

   4) On Friday, June 16, 2001, a celebration lunch at Akzo's expense was held for Martin's shift. The details of what was to be spent were unclear but it was assumed by Anderson that approximately $25.00 per person would be spent. (Tr. 214). The other shifts spent approximately $160.00 for their lunches. Martin picked up the order for his shift. He used Ike Silos' company credit card to make the purchase. He spent $680.28, which included a $90.00 tip. (RE. 2).

   5) Concern was immediately expressed concerning the amount spent on the lunch. Silos was so concerned that he called Anderson on Saturday and Sunday to let him know. (Tr. 216). Silos was surprised at the amount of the bill. (Tr. 180). Silos expected the bill to be around $100.00 ($200.00 to $300.00 at the most) and was concerned that he would have to pay for the lunch himself. (Tr. 181; 216). Anderson appeared upset and afraid to tell Empfield about the incident. (Tr. 175). As early as June 17, Martin knew there was a problem and that Anderson was upset. (Tr. 94). Anderson felt the department had been taken advantage of and began an investigation into the incident. (Tr. 217). On Monday, Anderson contacted the restaurant to obtain a copy of the receipt. He received it on Thursday, June 21. (Tr. 218; RE. 2). Anderson was surprised at the amount spent and the number of dinners that were purchased. (Tr. 222). He interviewed Martin the next day. (Tr. 221; RE. 3). Martin expressed no remorse for the incident and stated he wished the company would quit whining and crying, that he would pay the bill. (Tr. 223). Anderson continued to interview other employees. David Fryar indicated he had no part in the lunch, that he was embarrassed and hoped this incident would not be held against the rest of the shift. Other members of the shift expressed similar concerns. (RE. 3). On June 25, Anderson appeared to be stress out over the dinner incident. (Tr. 165).

   6) Martin reported the June 19, 2001 incident to TNRCC on June 26, 2001. (Tr. 30; RE. 8). That same day Martin told Arthur Jackson, a co-worker, that he had called TNRCC. (Tr. 111). At some later point there was gossip that Martin had made a report with OSHA. (Tr. 185).

   7) Jeffrey Seiler is an inspector for TNRCC. On June 27, 2001, he visited the Deer Park facility of Akzo. Seiler indicated he was investigating a complaint concerning a flare incident that occurred on June

18, 2001. He reviewed the incident reports, log books and computer records for some type of upset that would indicate a flare problem. Seiler was at the facility for less than one hour. (Tr. 276; RE. 8).

   8) Henry Staniszewski is an environmental manager for Akzo. He escorted Seiler on the June 27, 2001 visit. Staniszewski was left with the impression that the complaint was made by somebody driving past the plant. He thought possibly someone had noticed a flare from a neighboring plant and assumed it came from Akzo since Akzo's sign was noticeable from the road. A review of Akzo's records did not indicate any incident on June 18, 2001. (RE. 8). The flash fire that occurred on June 19, 2001, was discussed. (Tr. 289). Staniszewski's understanding is confirmed by the Conclusions and Recommendations in Seiler's report. While the report discusses the June 19 fire, Seiler concludes that ". . . the alleged incident that occurred on June 18, 2001 could not be confirmed." (RE. 8). Following the visit, Staniszewski had no indication there was a violation or problem. (Tr. 280). The investigation appeared to be closed. (Tr. 281). Staniszewski informed his supervisor of the TNRCC visit. (Tr. 292). He did not inform Empfield of the visit. (Tr. 282).

   9) By July 3, 2001, Anderson had completed his investigation of the lunch incident. A meeting was held with Empfield, Debbie Sullivan (Human Resources Manager) and Scott Fossum (Production Engineer) to discuss possible discipline. Key to the decision to discipline was Martin's lack of acceptance of responsibility or accountability. (Tr. 223, 301). The group decision was to impose a three day suspension with reparation for partial cost of the meals. (Tr. 226). Empfield made the ultimate decision for the discipline. (Tr. 300). The discipline decision was made on July 3, 2001. (Tr. 301). The letter of discipline was drafted on July 5, 2001. (Tr. 227; RE. 4, 5). The intent was to serve the letter on July 5, 2001, but Martin was on vacation. (Tr. 228). Martin was the only employee disciplined over the lunch incident. (Tr. 237). Silos's company credit card was taken away as a result of the incident. (Tr. 174).

   10) On July 9, 2001, Seiler requested a copy of the shift supervisor's logs from June 10 to June 20. Staniszewski notified Empfield of the request and faxed the logs to Seiler. (Tr. 294; RE. 8). This is the first that Empfield was aware that TNRCC had been on site. (Tr. 303). Staniszewski informed Empfield that TNRCC was investigating an incident from June 18, 2001, and had been at another Akzo site before being directed to the Deer Park plant. Empfield first became aware of the alleged notice of violation on July 30, 2001. (Tr. 304). Empfield had no suspicion that Martin was involved in the TNRCC investigation. (Tr. 305).

   11) Martin received a three day suspension on July 10, 2001. (CE. 4).

   12) On July 23, 2001, Seiler requested a copy of the incident report for the June 19 fire. Staniszewski faxed the report to Seiler on July 23, 2001. (Tr. 283, CE. 2). This is the first indication that Seiler was investigating the June19 fire. On July 30, 2001, Seiler advised Staniszewski that a violation would be written for the June 19 fire. (Tr. 284).

The CAA at 42 U.S.C. §§ 7622 states:

(a) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of an employee)--

(1) commenced or caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan,

(2) testified or is about to testify in any such proceeding, or

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of the Act.

    To establish a prima facie case of retaliation under the whistleblower provisions invoked here, a complainant must show that: (1) the complainant is a covered employee; (2) the complainant engaged in protected activity; (3) the employer was aware of that protected activity; and (4) the employer took some adverse action against the complainant. The complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip op. at 8. Passaic Valley Sewage Com'rs v. Dept. Of Labor, 992 F.2d. 474, 480-81 (3rd Cir. 1993); Carroll v. U.S. Dept. Of Labor, 78 F.3d. 352, 356 ( 8th Cir. 1996); Kahn v. U.S. Secretary of Labor, 64 F.3d. 271, 278 (7th Cir. 1995). If the complainant makes out a prima facie case, the burden of production shifts to the employer to articulate a legitimate business reason for the adverse action. Where the employer articulates a legitimate nondiscriminatory reason for the adverse action, the complainant must prove that the reasons articulated by the employer were pretextual, either by showing that the unlawful reason more than likely motivated the employer or by a showing that the proffered explanation is not credible and that the employer discriminated against him. Nichols v. Bechel Construction Co., 87-ERA-44 (Sec'y October 26, 1992); Carroll, supra; Kahn, supra.

   If the case proceeds to a hearing before the Secretary, the complainant must prove the same elements as in the prima facie case, but this time must prove by a preponderance of the evidence that he engaged in protected activity which was a contributing factor in an unfavorable personnel decision. Trimmer v. U.S. Dept. of Labor, 174 F.3d 1098 (10th Cir. 1999) (case below 93-CAA-9 and 93-ERA-5); See also Dysert v. Secretary of Labor, 105 F.3d 607, 609-10 (11th Cir. 1997) (holding that Secretary's construction of §§ 5851(b)(3)(C), making complainant's burden a preponderance of evidence, was reasonable). Only if the complainant meets his burden does the burden then shift 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.

Complainant is a covered employee who engaged in protected activity:

   Martin has failed to prove that any employee of Akzo that was involved in the decision to discipline had any knowledge of any protected activity on the part of Martin. Martin has failed to show that his complaint to TNRCC was a contributing factor in the decision to discipline him. Having found that Martin has failed to prove the essential elements of his case and because I find no improper motive in Akzo's action, a dual motive analysis is unnecessary.

   Accordingly, I find and conclude that Akzo did not violate the employee protection provisions of the Clean Air Act when Akzo suspended Martin without pay for three days.

   It is recommended that the complaint of Larry Martin against Akzo Nobel Chemicals, Inc., under the Clean Air Act be DISMISSED WITH PREJUDICE.

   SO ORDERED.

       LARRY W. PRICE
       Administrative Law Judge

LWP:map

   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).