evidence, pursuant to 29 C.F.R. §18.54(c), admitted as CX-24. Respondent was given until February 15, 1997 to file a response to that Motion; that response was received on February 15, 1997 and admitted as RX-14. Respondent also filed a response to CX-23; Respondent's response is admitted as RX-13. The record was closed on February 15, 1997 as I have declined to allow Complainant's Motion to introduce newly-acquired evidence for reasons as stated below.

    With regard to Complainant's Motion to introduce newly discovered evidence I deny the Motion to admit the evidence of the affidavit of Stephen Paine. In order for newly-acquired evidence to be admitted into the record post-hearing it must have been both unavailable to the party at the time of the hearing and must be outcome determinative. James v. Ketchikan Pulp Co., 94-WPC-4(ARB June 28, 1996), slip op. at 2, citing Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996); Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994). The admission of the contested affidavit of Mr. Paine would have absolutely no effect on the outcome of this case. At the time the Complainant's motion was made it had already been determined that the Complainant's testimony was credible. The credibility determination was based upon his demeanor at the hearing and the actual content of his testimony. The material contained in Mr. Paine's affidavit is simply immaterial, irrelevant and unduly cumulative and, as such, I exclude it pursuant to 29 C.F.R. §24.5(e).

    The Respondent has raised numerous objections to the admissibility of certain exhibits proffered by the Complainant. Specifically, the Respondent requests this Court exclude the following items: CX-1: tape recordings of conversations between Complainant and several of Respondent's employees, conversations which Complainant did not obtain consent to record, and Complainant's transcript of those recordings, and CX-2-CX-18: documents obtained from the Respondent's premises allegedly without permission of the Respondent. Most of these documents, but not all, identify themselves as being internal Saybolt documents. Before proceeding with an analysis of the case on its merits it is necessary to resolve the question of which, if any, of the Complainant's exhibits are admissible in this proceeding.

    After careful consideration Complainant's Exhibit 1 is hereby excluded. It is excluded on the grounds that it

is unduly repetitious pursuant to 29 C.F.R.§24(e)(1). Accordingly, I need not reach the issue of whether or not the recording and subsequent transcript are authentic, accurate, or trustworthy. I previously ruled on the record that testimony regarding the conversations that Complainant had with Respondent's employees was admissible as long as it was based on the Complainant's own knowledge and belief. (TR 153-154) I have further concluded that the testimony of the witnesses at the hearing was credible. As I find that the admission of the tape recordings and transcript adds nothing to the record and is unduly repetitious it is hereby excluded. 29 C.F.R. 24(e)(1). Testimony from the Complainant regarding his recollection of those tape recorded conversations is admitted not for its hearsay value but for whatever probative value it may have in providing an understanding of the overall picture of the Complainant's claim and his relationship with Respondent.

    After careful consideration Respondent's objections to CX-2 - CX-18 are overruled and those exhibits proffered by the Complainant are admissible evidence in this proceeding. At the outset, it should be noted that Clean Air Act claims are adjudicated under 29 C.F.R. Part 24. 29 C.F.R. Part 24 does not incorporate the rules of evidence located at 29 C.F.R. Part 18, Subpart B. Rather, "Formal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidence available shall be applied. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious." 29 C.F.R. §24.5(e)(1).

    An initial objection made at the hearing to the admission of CX-2 - CX-18 was that they were not authenticated. 29 C.F.R § 18.50 states, "The authenticity of all documents submitted as proposed exhibits in advance of the hearing shall be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed a written objection." 29 C.F.R. §18.50. In the instant case the Complainant did not file the pre-hearing materials containing the contested exhibits until the night before the hearing. (ALJ EX 7) Clearly, the Respondent has shown good cause as to why he was unable to file a written objection prior to the hearing. His objection was noted on the record throughout the hearing, and, in fact, both parties were directed to brief the issues of the admissibility of evidence in the instant case and to submit their positions in post-hearing briefs. (TR 626, 629) Post- hearing briefs were submitted on

December 20, 1996. (CX-21 and RX-9) No objection to or arguments regarding the authenticity of CX-2 - CX-18 were proffered in Respondent's post-hearing brief. Accordingly, I find that Respondent has waived the issue of the authenticity of the documents and find the documents to be authentic pursuant to 29 C.F.R. § 18.50 and pursuant to the Complainant's under oath testimony establishing what the documents were and from where he had obtained them.

    The primary objections to CX-2 - CX-18 raised and argued in the Respondent's post-hearing brief are twofold: First, Respondent argues that CX-2 - CX-18 were documents stolen from its premises by Complainant who was an agent of the EPA at that time. Thus, Respondent argues, the documents are inadmissible because they were obtained in violation of Respondent's Fourth Amendment rights. Second, Respondent argues that CX-2 - CX-18 are inadmissible because they are irrelevant and unduly cumulative. I shall deal with Respondent's second objection first.

    As this case is adjudicated under 29 C.F.R. Part 24 the rules of evidence at 29 C.F.R. Part 18, Subpart B, do not govern. The relevant provision is found at 29 C.F.R. §24.5(e)(1); that provision states in part "...rules or principles designed to assure production of the most probative evidence available shall be applied. The administrative Law Judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious." 29 C.F.R. §24.5(e)(1).

Complainant's testimony, some of it quite technical in nature, and to determine if the Complainant makes out a prima facie case.

    Finally, "[t]he mandate of Section 24.5 (e)(1) is consistent with the nature of the evidence presented in a circumstantial evidence case of retaliatory intent, some of which may appear to be of little probative value until the evidence is considered as a whole." Seater v. Southern California Edison Co., 95-ERA-13(ARB Sept. 27, 1996, slip op. at 6, n.6 See also Timmons v. Mattingly Testing Services, 95-ERA-40 (ARB June 21, 1996.) Respondent alludes to the fact that the sole issue before me for decision are the remedies available to Complainant; however, the Respondent has refused to stipulate that the Complainant has made his prima facie case. Therefore, in addition to admitting CX-2 - CX-18 to help understand the Complainant's testimony as a whole, I am admitting them to assist me in evaluating the Complainant's prima facie case and his entitlement to any damages. For these reasons I find that CX-2 - CX-18 are probative to this proceeding; how much weight I choose to accord them is at my discretion as the fact finder in this case. 29 C.F.R. §18.57(b); §24.6(a).

    Respondent also asserts that the documents were taken by Complainant while he was an "agent" of the EPA, and, as an "agent" of a government agency, he is constrained by the Fourth Amendment. Respondent alleges that such "warrantless seizure" of the documents violated the Respondent's constitutional rights under the Fourth Amendment and, thus, must be suppressed.

    First, I do not find that the testimony of the Complainant bears out the Respondent's assertion that he was an "agent of the EPA". Respondent cites to several pieces of Complainant's testimony in the hearing transcript in support of its theory; however, Respondent leaves out some key testimony of Complainant which, in my view, suggests that Complainant was not "working for" or "authorized by" the EPA to obtain the contested documents. Respondent asked Complainant "...based upon instructions from Tomasello, you did take and copy documents, didn't you?" Complainant testified that while he did copy documents Agent Tomasello "had not instructed me specifically to go ahead and copy documents and put myself at risk." Respondent again asked Complainant if the Agent had told him to take the documents and Complainant's response was that Agent Tomasello told me to take them "At my own will...". The Respondent asked the Complainant the same question a third time

and Complainant stated "He did not specifically ask me to get documents. He said, if you would like to submit documents to me...feel free. You have my authorization. He gave me authorization of the federal government." (TR 174-175)

    Later on in his testimony the Complainant stated "I didn't say I was working with the EPA. I said I was reporting to the EPA. There's a difference." (TR 193) Complainant, in reporting a conversation he previously had with Mr. Paine, wherein Mr. Paine asked him to produce his EPA identification, said that he "wasn't working for them." (TR 209) Respondent, later in the hearing, asked Complainant whether he took the documents because Agent Tomasello asked him to do so. Complainant stated "I had told him I was going to photocopy some documents. Would he be interested in them? He said yes." Complainant restated that the Agent told him not to put himself at risk. (TR 465-466) Claimant also testified that the EPA asked him to obtain evidence for them (TR 490), and that he was doing work for the EPA. (TR 492) When asked by Respondent whether it would be safe to say that Complainant was working with the EPA, talking with the Agent Tomasello, and doing certain things that the Agent told him to do as of July 22, 1996, Complainant confirmed only that he "had been speaking with EPA" and nothing more. (TR 518) Respondent's counsel again honed in on the agency issue when he asked Complainant "You were working with Mr. Tomasello. Isn't that right?" Complainant's response was "I was reporting to him." (TR 535)

    Complainant's father testified that it was his understanding, that his son was simply getting "support if he could behind the claim that he had made to the EPA." (TR 590) Complainant's father testified that he was proud of his sons efforts in choosing the right road and contacting the EPA. He also stated that his son "expressed pride in the fact that he was doing the right thing." (TR 611) While the Complainant's father did use the word "working for" EPA in certain instances in his testimony, as did the Complainant, the overall import of the testimony does not establish an agency relationship as alleged by the Respondent.

    Rather, viewing the testimony as a whole, instead of in slanted portions, I find the testimony to mean simply that Complainant communicated with EPA while he undertook an "investigation" on his own in an effort to verify the charges he had made to EPA. Certain factors provide a credible explanation as to why some of the statements purportedly show an agency relationship between Complainant and the EPA. Specifically,

these factors are the length of the time the Complainant was on the stand testifying at the hearing, nearly 1 days, the rapid fire cross-examination of the Complainant by the Respondent's counsel, and the number of compound questions asked on cross-examination.

    Second, the determination of the existence of "instrument" or "agent" status is dependent upon government knowledge and authorization of the search and seizure as well as the intent of the party performing it. See Rodwell v. Fair, 834 F.2d 240, 241(1st Cir. 1984); United States v. Walter, 652 F.2d 788, 792 (9th Cir. 1981) See also United States v. Young, 78 F.3d 758 (1st Cir. 1996) While the Complainant's testimony suggests that the government, in this instance the EPA, had knowledge that the Complainant was taking documents from his employer, it is by no means clear that the EPA had authorized the taking of those documents. No one from EPA testified as to this issue. Additionally, the Complainant's testimony is clear as to his intent in taking the documents. He testified that he took the documents because he wanted protection and did not want to get into trouble. (TR 207; 210; 199-200; 207; 209; 210) He testified that he copied documents "So I could protect myself by gathering evidence in case the EPA decided to go into the lab and search things around...so I wouldn't get prosecuted for faking lab results." (TR 484) He testified he photocopied the documents to protect himself and that it had nothing to do with Agent Tomasello. He did not copy documents in anticipation of his discussion with the EPA Agent. (TR 545)

    Complainant denied that he took the documents in order to receive reward monies. He testified that he had, in fact, been told by EPA Agent Tomasello that there would be no reward in this instance. (TR 309) He also testified that he had never worked with EPA prior to his employment with Respondent and that he had never worked for the government. (TR 195) Complainant also testified that with respect to documents copied on July 24, 1996 when confronted by Mr. Paine he informed him that he had copied documents. He also asked "I can't photocopy documents?" and Mr. Paine said "I'm not saying you can't do that." Complainant understood this to mean that Mr. Paine had not forbid him from copying documents. (TR 210) Complainant also testified that some documents were taken from the trash can on Respondent's premises after they had been discarded. (TR 198, 543-544)

    It is worth noting at this juncture that several cases have held that the gathering of evidence to be used to support a protected complaint is itself protected under

whistleblower provisions. Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Jan. 6, 1997) (photocopying documents); See, e.g., Mosbaugh v. Georgia Power Co., 91-ERA-1 and 11 (Sec'y Nov. 20, 1995) (tape recording); Adams v. Coastal Production Operator's, Inc., 89-ERA-3 (Sec'y Aug. 5, 1992) (photographing oil spill); Haney v. North American Car Corp., 81-SWDA-1 (Sec'y June 30, 1992)(tape recording). All these cases arose under analogous statutes. All of these cases confirm that the type of evidence at issue here is admissible for purposes of pursuing whistleblower cases.

    Although the testimony regarding Complainant's agency status appears somewhat inconsistent I find that those inconsistencies are the result of the length of time he was on the stand, the rapid fire cross- examination by Respondent, the number of compound questions asked by the Respondent, and Complainant's lack of understanding into the legal significance of the definition of a "government agent". All these factors when viewed in their totality and in conjunction with my viewing the demeanor and testimony of a credible Complainant, support the conclusion that he was not an "instrument" or "agent" of the EPA at the time he obtained the documents identified CX-2 - CX-18.

    It should be noted that CX-2 - CX- 10 were, according to the Complainant, obtained before he had made himself personally known to the EPA. He testified that he contacted the EPA anonymously on the afternoon of July 18, 1996. He further testified that he was given the name of EPA Agent Tomasello to contact on that date.(TR 117-118; 146; 172-173; 544-545) He did not have contact directly with Agent Tomasello until July 19, 1996 and it was at that time that he left the agent a voice mail message in which he identified himself and provided a number where he could be reached. (TR 172-173; 545) He testified that he found the documents relating to the oxygenate results of the Mekanic shipment in the trash and torn up, and that these were removed by him on July 18, or July 19, 1996 before the EPA agent contacted him directly. (TR 197-198; 172-173). He specifically testified that CX-5 and CX-6 were obtained on July 18, 1996. (TR 546) He also testified that some documents were taken from the trash can at Saybolt on July 18, 1996. (TR 198) These documents were identified by Complainant as the oxygenate content results from the Mekanic. He testified that he took these documents "because there would be no argument that the results which Saybolt reported were false, because they wouldn't coincide with the results off the chromatograph." (TR 198) Later he

testified that some of these documents were obtained from the trash on July 19, 1996 because he was unable to find them. He also stated that Paul St. Germaine took the documents out of a drawer, tore them up, and said "I better get rid of these." (TR 543-544) He testified that CX-2 was copied before he contacted the EPA. He is pretty certain he copied CX-2 on July 18, 1996. (TR 538-539) Therefore, with respect to CX-2 - CX-10, these exhibits are admissible as the EPA had no knowledge of the existence of these documents as of July 18th and thus could not have authorized him to procure those documents because he had already taken them on his own.

    The parties stipulated that if Ms. Takvorian were to testify she would testify to what was stated in her submission contained in the Complainant's pre-hearing brief. Respondent's counsel did not stipulate that Ms. Takvorian's testimony, contained in her submission, was the truth. (TR 564-565; 623-624; ALJ EX 7)

    Complainant was born on November 7, 1971. (TR 234) Complainant attended Peabody high school and graduated in 1989. (TR 244) After being graduated from high school in 1989 he went to Wentworth Institute of Technology where he studied electronic engineering from 1990-1991. (TR 244) He then attended Massachusetts College of Pharmacy where he studied from 1991-1992. (TR 245) He did not like pharmacy school. (TR 246) Complainant entered Boston College in 1992 (TR 245) and received his B.S. in Biochemistry in 1995. Mr. Takvorian engaged in countless efforts to secure a job after his graduation from college. Those efforts included talking with two employment agencies, and sending out resumes to firms in which he was interested. He had at least 10-20 interviews before he was hired by Respondent on May 28, 1996. His job search took approximately one year. (TR 76-78)

    Complainant was interviewed by and ultimately hired by Stephen Paine, the District Manager for Respondent, on May 28 or 29, 1996. Saybolt was his first real job after college. (TR 265) At the hearing, Respondent queried Complainant about a listing on the resume he submitted to Saybolt which indicated that he worked for Aetna Chemical between July 1995 and March of 1996. (RX-1) Complainant testified "I did not work for Aetna Chemical. I put on the resume I did. I knew somebody who worked there who said feel free to put on your resume that you worked there. I was sick of not getting a job, and I put it on my resume." (TR 265-266) Complainant's father confirms in his testimony that Complainant did not work for Aetna Chemical. (TR 584) Complainant acknowledged that what he put on the resume was untrue. (TR 267) Respondent asked why his schooling at Wentworth and at Massachusetts College of Pharmacy were not listed on his resume; Complainant explained that he only put the college from which he was graduated on his resume. (TR 267-268)

    During the period he was interviewing with Respondent Complainant was required to complete an employment application. (TR 268; RX-2) On that application he also indicated that he had previously worked for Aetna Chemical. (TR 269) Complainant listed several responsibilities he had while employed at Aetna Chemical including testing and analysis of petroleum products. (TR 269) Complainant testified that his friend from Aetna Chemical took him through the ASTM methods, but that he was never employed by them. (TR 270) Complainant also states he did an internship with SCS; SCS was not listed either on his resume or

employment application. (TR 269-279; RX-1; RX-2)

    Complainant found out about the job opening at Saybolt by calling them directly and speaking with Mr. Paine. (TR 270-271) Complainant testified at the hearing that he remembered signing a document dealing with work rules/codes of conduct for Saybolt; he did not remember reading the document. (TR 271; RX-3) He also admitted that he told the Department of Labor (hereinafter "DOL") investigator that he had not received a copy of the work rules. (TR 273; RX-8) He did however testify that he knew he could be discharged for unexcused lateness or absences. (TR 279-280) He began working for the Respondent on July 3, 1996. He was hired as lab manager trainee, and was informed that his first 90 days of work would be probationary. Complainant's salary was $32,000 per year. Complainant testified that he was told by Mr. Paine that he would be working the classical hours of a salaried employee, 8:30 AM to 5:30 PM with one hour for lunch. (TR 78-81; 276-277)

    At this time Complainant was living at home and paying no rent. Complainant did not have health insurance between the time he left school and the time he was fired from Saybolt. Complainant owns a car, an Acura Legend, purchased in February of 1996; the car is in his father's name but he paid for it by selling his old car and taking a credit card cash advance of approximately $3,500. Complainant has about $400 dollars in savings and credit card debt of approximately $3,000 dollars. He is currently paying $150 to $200 dollars per month as his share of the utilities at his parents home. (TR 239-243)

    During his first week of work he was engaged in petroleum analysis and learned how to conduct approximately 15-20 lab tests. (TR 82) His hours that week were 8:30 AM to 5:30 PM with one hour for lunch. (TR 81) The issue of hours was raised during his second week of employment directly with Mr. Paine. Complainant had a previously scheduled doctor's appointment at approximately 2:30 PM in the afternoon. It was an appointment he felt that he could not miss, so he asked Mr. Paine if he could leave early on that day. Complainant testified that Mr. Paine allowed to him to leave early and, in fact, told him that when he needed to leave early he could do so. Mr. Paine also told him that this was alright as he would be working some nights and weekends, and that some weeks he would be working well more than his usual hours. (TR 82-83; 278-279) Complainant's testimony on this issue is supported by his time sheets which are in evidence at RX-4 and CX-20. Complainant also testified that he worked on July 4, 1996. (TR 85) Complainant stated that Mr. Paine wanted him to be

available 7 days a week 24 hours a day and thus, Mr. Paine provided him a pager during his second week of work. (TR 84)

    During his second week of employment Complainant became involved in the testing of reformulated gasoline. (TR 85) The testing involved determining the level of oxygenates contained in the gas. The function of the oxygenates is to reduce emissions during internal combustion. Different levels of oxygenates may be required for different geographical locations; Massachusetts is a geographical location requiring a higher concentrate of oxygenates. (TR 86-87)

    During the month of June, 1996 and the early part of July, 1996 Complainant received favorable comments on his work progress from Mr. Paine. (TR 88) During June, 1996 and July, 1996 Complainant remained involved in the testing of gasoline for oxygen content. (TR 88) On July 17, 1996 Complainant reported to work at 8:30 AM and was advised that a lot of work needed to be done that day and that the Mekanic samples (from Global Petroleum) had arrived and needed to be tested. (TR 91) Complainant began testing the Mekanic samples at approximately 11:00 AM. Present during the testing were George Pennock, chemist for Respondent, and Paul St. Germaine, a lab technician for the Respondent. (TR 94-95) About half-way through his testing of the samples, Complainant testified that Dave Loane, of the Respondent's marketing department, called George Pennock to inquire about the results. Complainant stated that George Pennock informed him of the call and told him that Dave Loane was inquiring into the test results. George Pennock reported the test results at 2.1-2.2, results which had been obtained by the Complainant prior to Mr. Loane's phone call, and was informed by Mr. Loane that the results needed to be at least 2.5 to meet the EPA guidelines. Complainant also testified that Mr. Pennock then told him that the results needed to be manipulated by adding less DME, but reporting that 1 milliliter of DME had been added, a procedure which would cause the chromatograph to produce a higher result. This was done but still did not produce enough of a higher result. Complainant stated that he and Paul St. Germaine tried loading at least four skewed samples but were unable to obtain a reading of 2.5. Complainant left to go home some-time after 6:30 PM, possibly closer to 7:30 PM. (TR 97-102)

    Complainant called his mother before completing the testing of the Mekanic samples on July 17, 1996. He was upset because he felt he was being asked to do something wrong or illegal at work but he was unable to talk on the phone with his mother to tell her exactly what was happening. (TR

105) Later that evening he discussed the Mekanic testing situation with his father. His father works for Northeast Petroleum, has worked there for approximately 15 years, and is familiar with the industry. (TR 108) He told his father that "although he had no hardcore evidence because [he] had not actually read the dials, [he] felt that [he] was doing something wrong or possibly illegal" in altering test results which had come from a very accurate machine. (TR 114)

    When Complainant returned the following morning, July 18, 1996, he saw a 2.5 result on the raw data sheet. (TR 103; 115) After seeing the oxygenate level listed as 2.5, he felt compelled to call the EPA to ask them whether getting a reported number and raising it was illegal. When he initially called EPA he called anonymously; he did not give his name or the name of the Company for which he worked. He spoke with a woman from the criminal investigations division but he does not recall her name. The call was made around 4:30 or 5:30 PM. He was informed by the EPA that the activity he was describing was illegal. (TR 117-118; 172-173) Complainant was given the name of Agent Tomasello to contact. (TR 172)

    Complainant left a message on Agent Tomasello's voice mail on Friday, July 19, 1996. Complainant states that Agent Tomasello contacted him by phone, at his home, sometime over that weekend. Complainant told Agent Tomasello that Respondent was boosting oxygenate results and the Agent informed him that this was illegal. (TR 173-174) During Respondent's voir dire of Complainant he reiterated that he was certain that he had contacted the EPA on July 18, 1996. (TR 172) When asked why his August 23, 1996 affidavit to DOL showed his first contact date with the EPA to be July 17, 1996, the Complainant stated that he believed that he had contacted the EPA on July 18, 1996 and that he had simply supplied an incorrect date in the affidavit. (TR 184-185, 188; 281; RX-8)

    Also on July 18, 1996 Complainant sought out George Pennock to apologize for having commented in front of several corporate employees that he was unable to figure out how to obtain a 2.5 reading. Complainant testified that George Pennock pulled him aside after he made that comment and told him to "shh". (TR 104) Pennock took him aside and told him that when he was asked to change a lab result he shouldn't "hang [his] own [expletive] up", but instead should put Dave Loane's initials on the lab results since it was Dave Loane who was telling him to do this. (TR 104-105; 173)

    After talking with the EPA Complainant set out to discuss the issue of what he termed "falsification" with George Pennock, Vinnie, Steve Strout and Paul St. Germaine. (TR 118) In his conversation with Paul St. Germaine, Complainant testified that he stated to Mr. St. Germaine with respect to the Mekanic gasoline shipment "I can't believe we have to do that" and that Mr. St. Germaine's response was "yeah." (TR 129) Complainant next spoke with George Pennock. In that conversation Complainant states that George Pennock told him to put Dave Loane's initials on the test results anytime he was asked to alter the results. Complainant also stated that George Pennock informed him that Dave Loane had told him to keep Complainant "out of the loop". (TR 129-130; 204-205)

    Complainant then testified about the first weekend fuel analysis he had conducted for Sprague, another of Respondent's customers; he conducted the tests at roughly 2:00 AM during the weekend. He had only been shown how to conduct these tests at 4:30 PM on the previous Friday. Apparently he conducted the tests incorrectly and the readings were much more favorable than they should have been. After he was informed that he had made an error he went to Steve Paine as he was concerned that he might get written up or be fired. Complainant states that Mr. Paine told him not to worry and that he should not expect things to go perfectly the first time. Complainant then testified that Mr. Paine said "...the error was made; now it's time to concentrate on the coverup." Complainant testified that he "remembered this [statement] perfectly." (TR 131-132, 134, 138) Complainant saw George Pennock grabbing drying agents and then running the Sprague jet fuel through drying agents, filters, and charcoal. Complainant testified that the results passed and that George Pennock called Sprague to explain that the differing test results were caused by bad samples. (TR 139)

    Complainant then asked George Pennock why the oxygenates had been leveled. Complainant testified that Pennock said "it had to do with something called oxygenate crates, which they could cash in on." (TR 141) George Pennock proceeded to tell him that marketing basically governed how the company was run, and that while "we" might not feel comfortable changing test results, marketing brings in customers and sometimes we have to give the customers what they want. (TR 142) Complainant and Pennock also discussed zero tolerance policy, reporting results with no deviations, and Pennock told Complainant that when Respondent had that policy several years ago business had decreased. (TR 142-143)

    Complainant also talked with Vinnie, described by Complainant "as sort of a dispatcher of the directors". Complainant testified that he told Vinnie he was nervous about what had occurred the previous day, that the results had been falsified. Vinnie told him not to worry about it, that it was over with. He also told Complainant not to leave a paper trail because if there was no paper trail no one could find out that anything had gone wrong. He told Complainant the papers should go in the shredder. (TR 143) Vinnie also told Complainant that boosting the test results was a money game. From Complainant's viewpoint, Vinnie was frustrated that he was doing the testing, reporting accurate results, and then being told to change them. According to Complainant, it made Vinnie feel that the work he had done was useless. Complainant also stated that Vinnie told him "Don't leave a paper trail, and you're all set." (TR 145-146)

    Complainant then talked with Steve Strout and asked him what had occurred with the Global ship the previous day. Complainant testified that Mr. Strout said "what? The coverup?". Complainant asked him if he could get into any trouble; Mr. Strout told him no. Mr. Strout told him that he should watch out to whom he said things. Mr. Strout also told him that the higher the oxygenate levels the more money the gasoline could be sold for. (TR 146-147)

    Complainant testified that prior to the week of July 22, 1996 Mr. Paine was on vacation. On July 22, 1996 Complainant went to Mr. Paine's office and told him that he was concerned about the testing of the gasoline which had been performed the previous week. Complainant stated that he told Mr. Paine that he was afraid he would get into trouble. Mr. Paine told him that he, Mr. Paine, signed off on the lab results and that should anything happen it would be he who would take the blame. Complainant also told Mr. Paine that the oxygenate levels were raised because Dave Loane had told them to raise them. Mr. Paine's response, according to the Complainant, was that he was not happy about what had occurred but that "that is how things were run here. (TR 149) Complainant testified that Mr. Paine told him that years ago Respondent had a zero tolerance policy and that as a result of that they nearly went out of business. Mr. Paine said they needed to cater to the customer but that he did not like that anymore than Complainant did. The Complainant also testified that things were not hostile as of that date. (TR 211)

    Complainant testified that he was called into Mr. Paine's office on July 23, 1996. Mr. Paine told him he was

concerned about the Complainant because it had been reported to him that he had been asking questions. Mr. Paine expressed concern that Complainant might be working under the direction of or for the EPA. Complainant denied that he was working for or at the direction of the EPA. Complainant reiterated that he was uncomfortable with altering test results, and remained concerned that he, personally, could get into trouble. Complainant also stated that he understood that they were supposed to raise the oxygenate levels of the shipment of gasoline from the Mount Lady due in that day. Mr. Paine's response according to Complainant was "yes, we are." (TR 151-152) Mr. Paine also advised him that the boosting of the results was done on the repeatability testing; that is, the same samples were tested in the same lab. (TR 201-202) Complainant states he was "relatively hostilely" sent home on July 23, 1996. (TR 207) Respondent suggested that the reason that Complainant was sent home on July 23, 1996 was that he had already worked a 10 day. (TR 291-292) Complainant's voluntarily kept time sheets, indicate that he worked from 8:00 AM to 6:30 PM. (RX-4, CX-20) Complainant feels that he, in specific, was sent home early before the testing was complete. The workers who remained were hourly employees who had also worked 10 hours. Complainant opined that the decision to send him home actually cost Respondent more money because Respondent then had to pay them overtime wages. (TR 291-292)

    On July 24, 1996, at approximately 1:00 or 2:00 AM, Complainant went to Saybolt to photocopy documents. Complainant testified that he received a morning phone call from Mr. Paine asking him why he had been in the lab at 2:00 AM and telling him the alarm company had informed him of Complainant's presence. Complainant told Mr. Paine that he returned to the lab to get his calculator which he had left there. (TR 208-209; 479-480). Mr. Paine raised his voice to Complainant and told him he did not understand what he was doing and told him he was acting "crazy". Complainant told Mr. Paine he was just trying to protect himself. (TR 209)

    Complainant went into work on July 24, 1996 at 1:00 PM. Complainant stated the fact that he went to work at 1:00 PM had nothing to do with his copying documents the previous night. Rather, he came in late that day because he expected a weekend shipment and expected that he would be required to work that weekend. (TR 304-305; 480; 484; RX-4) Complainant's affidavit to the DOL, in evidence as RX-8, states Complainant arrived at work at 11:00 AM. Complainant, who stated he gets

somewhat confused over times (TR 483), acknowledged that no one at Saybolt had told him not to come in at 8:30 AM on July 24, 1996. (TR 305)

    When he arrived at work Mr. Paine took him into his office. The conversation was "entirely hostile". Complainant testified that he was told to produce his EPA identification if he was working for them. Complainant told Mr. Paine that he was not working for the EPA. Complainant testified that Mr. Paine said "well, if the EPA knew what was going on around here, they would close the doors on this place. They'd shut us down, and we'd all be out of work." (TR 209-210)

    Complainant spent approximately 1 hour copying documents. (TR 309) Complainant states he did not sign out on this day because of all the fighting/arguing he had done with Mr. Paine. Complainant described the arguing as very hostile. He admits that this argument is not mentioned in his August 23, 1996 affidavit filed with the Department of Labor. (TR 307-309, RX-4, RX-8) The argument, is however, noted in his supplemental affidavit filed with the DOL on September 4, 1996. (CX-19)

Complainant states that, on July 24, 1996, he saw a lab sheet which contained raw data; in addition, the raw data results were crossed out and written in were better results. Complainant states that this was sent to Connecticut Light & Power Company, but his testimony does not reveal that he actually saw the results sent. (TR 167, 169-170) Complainant testified that he did see the results of tests contained in CX-16 being signed and faxed to Global. He copied that document as it was coming out of the printer so his copy is not signed. (TR 521,524; CX-16) Complainant was unable to make a copy of the signed version of CX-16, and was unable to explain why he could not obtain a final copy. (TR 526-527; 532) When pressed by the Respondent Complainant acknowledged that CX-16 was not signed, however, he remained very insistent that CX-16 was the final result and that it was the final document. Complainant stated "CX-16 -- the entire package was sent out. This is the final results(sic)that went to Global." (TR 527,532; CX-16)

    On July 25, 1996 Complainant did not report to work. On that day he met with Attorney Haddad. (TR 212, 281; 316) Complainant met with his attorney sometime that morning (TR 316-317), probably around 9:15 AM. (TR 322) He did bring documents but cannot remember if he brought any other items along to the meeting. (TR 323) At approximately 10:30 AM Complainant met with Agent Tomasello at an EPA office and turned over documents

that he had collected from Respondent. (TR 324) Complainant spent a few hours with the Agent. (TR 338) He did call his work at 9:30 AM and spoke with Mr. Paine. Mr. Paine inquired as to his whereabouts and he said he was feeling unwell, but would come in later. (TR 339-340; 475; RX-8) Complainant stated the conversation was hostile, and that Mr. Paine was unaware that he was consulting counsel at that time. Complainant assumed Mr. Paine was hostile because he was not reporting to work. (TR 341)

    Respondent queried the Complainant on the exact timing of his call to Mr. Paine. Complainant did acknowledge that his supplemental DOL affidavit, in evidence as CX-19, indicated that he called Mr. Paine in response to a page at 4:00 PM. (TR 478-479) Complainant testified that he made 2 calls to work that day. (TR 478-479) On that same day he met with George Pennock in the parking lot of the Respondent's premises. George Pennock informed him that Mr. Paine had fired him, Complainant, that day. They also had some discussion in which they discussed the falsification of test results. According to Complainant, he asked George Pennock whether he felt comfortable with what he had been doing and Mr. Pennock said "no". (TR 212-213; 337)

    On Friday July 26, 1996 Complainant had a conversation with Mr. Paine in which he was informed that he was fired for not showing up to work on July 25, 1996. Mr. Paine told him that was the reason he was giving to corporate headquarters. Mr. Paine then went on to say he did not understand Complainant's behavior over the last week, he did not understand what Complainant was trying to do, and he did not understand what the commotion was all about if Complainant was not working for the EPA. Complainant testified that Mr. Paine told him that he thought that he was going to work out and that he had been doing some good work. He also told Complainant that his job was not a flex-time job, that his hours were from 8:30 AM to 5:30 PM, and that if they required him to work more hours then that was simply what he had to do. (TR 221)

    Complainant testified that what Mr. Paine had said about his having scheduled hours was inconsistent with what Mr. Paine had told him on prior occasions. (TR 221) He also stated that no one had previously talked with him about missing work, and that on only one occasion that he could remember did anyone comment upon his arrival to work. At the end of his cross-examination Complainant stated that sometime in early July 1996 he did have a discussion with Mr. Paine. At first, he could not recall whether or not the discussion was about absenteeism or lateness, he then said that it was not. Rather, the discussion was that "he

needed to shoot for more like 45-50 hours weekly rather than 40-45 hours. (TR 222; 413-414) Respondent also queried Complainant as to whether Mr. Paine was upset because he had failed to show-up for a customs audit on that day. Complainant believes that he was told to avoid the audit because he was new and he was going to be asked a lot of questions. (TR 416) This appears to have occurred on July 5, 1996 and Complainant remembers it because it was a holiday and he had to work on that day. Complainant seems to remember, but is not certain, that it was Mr. Pennock who told him not to come in. (TR 418, 421) RX-5, the "Record of Employee Absences for the Year 1996", shows that July 5, 1996 was indeed a holiday and nothing is noted regarding any unexcused absence or untimely appearance. (TR 425-426)

    Complainant explained that he arrived at work on July 22, 1996 at around 1:00 PM and that was because they were expecting a late ship arrival on that day and Complainant expected to have to be present for a long time. (TR 222) Complainant testified that Mr. Pennock never complained to him about missing work. Complainant also stated that he was not required to keep time sheets but did so voluntarily and placed them on the bulletin board. Mr. Paine told him that he appreciated the posting of the time sheets. (TR 223)

    After he was terminated by Respondent Complainant filed a complaint with the Department of Labor; attached to the complaint was an affidavit dated August 23, 1996. (RX-8) Complainant had stated in that affidavit that he had not received a copy of the Respondent's work rules. (TR 273) At the hearing, and when confronted with his signature on the work rules, the Complainant

then admitted that he had in fact received them. (TR 272-273; 275; RX 3) Complainant stated that the DOL affidavit, identified as RX-8, was true and accurate to the best of his recollection at the time it was written. The affidavit was submitted on August 23, 1996. (TR 274) The affidavit was drafted with the assistance of Attorney Greene and it was Attorney Greene who accompanied him to the Department of Labor. On that day Complainant states he had slept only 3 hours the night before, and he was very hungry. (TR 282-283)

    Respondent cross-examined Complainant about discrepancies between his hearing testimony and statements contained in the initial affidavit submitted to DOL. There were no entries in the affidavit regarding any activity which occurred on July 18, 1996. (TR 282-283) There was no mention of the Sprague incident or the Connecticut Light and Power incident to which

Complainant testified during the hearing at TR 131-132, 134, 138-139; 167-169. (TR 287-289) There is no mention of a discussion with Mr. Paine on July 22, 1996 . (TR 289-290) There is nothing in the affidavit regarding a July 23, 1996 conversation with Mr. Paine. There was nothing in the affidavit with regard to most of the conversations which occurred between July 18, 1996 and July 25, 1996 and about which Complainant testified at the hearing. (TR 291) Complainant testified that there were a number of matters that were not in the affidavit and that there was no perjury because the affidavit had been signed to the best of his recollection. "Just because I didn't mention everything that happened didn't mean I was lying." (TR 295)

    Complainant testified on rebuttal that the affidavit was prepared with a colleague of Attorney Greene's just before it had to be filed with the DOL. Attorney Greene was on vacation at that time. (TR 428-429; 492) He understood that the affidavit was supposed to be a summary of the facts. (TR 428) Regarding RX-8, the initial affidavit submitted to DOL, the Complainant testified that he did not recall if anyone had told him to withhold anything from the document; however, he did not believe that anyone had. (TR 489)

    He testified that he prepared a supplemental affidavit, in evidence as CX-19. (TR 428) It was signed under the pains and penalties of perjury, and it contained the following "This statement contains a summary of some but not all the facts pertaining to events that occurred during my employment at Saybolt." (TR 432) In the supplemental affidavit Complainant did describe the conversations he had with Mr. Paine and Mr. Pennock, as well as addressing the manipulation of test results, and the incidents involving both the Mount Lady and the Mekanic. (TR 433; CX-19) The supplemental affidavit was taken on September 4, 1996 by DOL investigator Paul Sullivan. (TR 459-460) There is no reference in the supplemental affidavit about Complainant contacting or meeting with Agent Tomasello. (TR 462; 480; CX-19) Complainant testified that during the week of July 22, 1996 ,he, Complainant, was instructed by Agent Tomasello not to divulge any information about the fact that he had previously made tape recordings or previously photocopied documents. (TR 464-465) There is mention in the supplemental affidavit about taping done on July 18, 1996. (TR 470; CX-19)

    Complainant testified that after he was fired he did not immediately begin to job hunt because he was involved with the claim and with the EPA. (TR 342) He contacted an employment agency on a weekly basis but did not send out resumes. (TR 343-344) He made efforts to obtain work, but was unable to find

anything satisfactory. The only job interview he had was with National Tribology. (TR 363) Saybolt was listed as a reference, but Complainant requested that they not be contacted. (TR 363-364)

    He did take a job for a few days at National Tribology Services located in Peabody; however, they would not accommodate his schedule so that he could enter a part-time Master's program. Complainant testified later in the hearing that he had told National Tribology that he was planning on returning to school on a full-time basis; as a result he was hired on a part-time basis. (TR 364) Complainant then contradicted himself and said "I told them I was going back to school. Whether I specified full-time or not, I cannot recall." (TR 365, 367-368) Complainant thinks he had this discussion with National Tribology sometime in late August, around the time he went to work for them. (TR 364-365) Complainant did not have confirmation at that time that he was returning to school full-time as he did not know whether he had received the position of teaching assistant. (TR 262, 264; 346-347; 368,371,374-375)

    The job was also boring in comparison to the tasks in which he was engaged at Saybolt. Complainant also left National Tribology because he was still upset about the incidents which had occurred at Saybolt; he simply felt that he could not commit to another company at that time. (TR 376) Complainant located the job through a cold call. Complainant was unable to recall who had hired him or where the company was located even though he has lived in Peabody all his life. The Company was located in a part of Peabody with which the Complainant was unfamiliar, and he only worked there for two days. Complainant has worked on a part-time basis with Nautilus since 1991; however, currently he gets about five hours a week from them. (TR 262, 264; 346-347;371, 374-375)

    Since Complainant was unable to find a satisfactory job in the industry he contacted U Mass Boston and requested a transfer from the part-time program to the full-time program in chemistry. He contacted U Mass to change his status in the last week of August of 1996. (TR 249; 343-344) He is not certain, but believes that he thought about going back to school full-time about 1 or 2 weeks after he was fired. He is certain that he did not make a final decision about this until late August of 1996. He also did not inform his parents of the final decision until after he had contacted U Mass and had been accepted into the full-time program. (TR 344-345; 362-363)

    U Mass allowed him to make this change and gave him a teaching assistant job. While at Saybolt he had been

accepted into the part-time program but was not yet enrolled. (TR 223-226; 247) His enrollment date for the full-time program was just after Labor Day 1996. (TR 249) He first applied to the part-time program in May 1996. (TR 246) Complainant is currently taking 9 credits which is considered full-time. He also has a teaching assistant position which pays $76.00 weekly. Expenses for tuition, insurance, and extra fees run about $3,200. This amount does not include books. (TR 250-252; 260) The full-time program is 2 years but he intends to convert to a part-time program if he can find an excellent job like the one he had at Saybolt. (TR 349) He denied that he told anyone at Saybolt that he would be leaving them at the end of the summer so that he could return to school. (TR 349) He has job hunted since September of 1996, although he has not filled out any job applications. (TR 412) He has looked for work through help wanted sections and word of mouth. (TR 412) He has been looking for part-time weekend work, or an odd lab shift.(TR 412-413) He had not had any job interviews as of the date of the hearing. (TR 413)

    Complainant testified that during the final week and a half that he was employed by Respondent he felt immoral when asked to falsify test results. He felt that he was not being true to himself, and he felt taken advantage of as a recent college graduate being asked to do a large corporations dirty work. (TR 227) When his friends and family ask him about his job at Saybolt he feels embarrassed to discuss his experience there. (TR 227)

    Complainant believes that the reasons Mr. Paine gave him for his termination were untrue and it bothered him. (TR 230) "[I]t totally destroyed my entire future plans. I planned on working for Saybolt a minimum of four years while I pursued my Master's degree in analytical chemistry. ...I'm broke now, completely. I don't even know if I can succeed in school too well because of just the--I just can't--I'm still kind of shell shocked by what happened. I mean I'm not--I just don't feel right about being told to do what I did. And the fact that I don't work at that company anymore makes me feel that--sometimes I feel guilt wondering if I did anything wrong by reporting them. Maybe I should have just kept my mouth shut, gone along with the flow like everyone told me to there. But I felt an obligation to report them and protect myself." (TR 232)

    Complainant reviewed the "Record of Employee Absences for the Year 1996", a document in evidence as RX-5. Complainant noted the company had recorded July 5, 1996 as a holiday. There was no notice that he had been untimely or had any unexcused absence for this day. He admitted that the document showed that he was given a half day of unexcused absences for July

22, and July 24, 1996. He noted that the document did not show any unexcused absences or tardiness on his part for all of June 1996 and the first two weeks of July 1996. (TR 425-426; RX-5)

    He acknowledges that Saybolt has offered him unconditional reinstatement. (TR 231; 419) He is unable to accept the offer. His discomfort level is high because he tape recorded some conversations with his co-workers and feels that his co-workers are aware of this. He is also testifying against the Respondent, Complainant remarking "And how am I going to feel comfortable there, and especially I feel taken advantage of in the first place. And what if they ask me to do something like that again." (TR 231) Complainant testified that he has received no other correspondence from Saybolt. No one from Saybolt has reached out to him, with the exception of the reinstatement offer, nor have they threatened him. (TR 376-377) He stated that he contacted no one from Saybolt in August of 1996. (TR 378) In August both the DOL complaint and his contact with the EPA were on-going. (TR 378) He testified that nothing was going on physically with Saybolt, but that he was still upset at being forced to commit a criminal action. (TR 378)

    Complainant testified that he feels blacklisted from the industry but has no evidence that Saybolt has blacklisted him from the industry. (TR 404) Complainant testified that Mannie Polumbo, who works at his father's company and whose name his father told him to use as a reference in the interview with Saybolt, was very cold to him at a company picnic in September of 1996 (TR 406, 408-409) He had contacted Mr. Polumbo in May of 1996 to discuss his interest in Saybolt; he has not spoken to him since that time. (TR 408-409) Mr. Polumbo and Mr. Paine knew one another. (TR 409) Mr. Polumbo did not speak with Complainant at the picnic. (TR 410) When he looked at Mr. Polumbo and waved hello, Mr. Polumbo turned away. It is Complainant's view that, from the distance between the two of them, Mr. Polumbo saw him wave. (TR 411) Complainant states "He was actually sitting diagonally from me at another table and he just really wouldn't respond." (TR 411)

    In October of 1995, Complainant experienced some type of kidney failure apparently due to dehydration related to his power lifting competitions. He testified that the kidney failure was not caused by use of steroids, but rather a misuse of diuretics. He was asked whether he had used steroids between June 1996 and the present. He testified that he had not. (TR 257; 396; 399) He has seen orthopedic doctors and chiropractors since January of 1996. These visits occurred approximately 4 times weekly and were related to a January 1996 car accident. The injuries

involved his neck and some numbness to his hands. He was not required to take medication as a result of the accident. He is not involved in any litigation as a result of this accident. Other than treatment for the car accident he has been to the doctor for only minor things, such as a TB test. He considers himself to be in good physical health. (TR 253-256; 258) A few weeks ago he was prescribed some nasal medication for a cold. He was also given an antibiotic and an antihistamine. (TR 399-401) Complainant denies current use of diuretics. (TR 399)

    Complainant testified that since January 1996 he has not seen a psychiatrist or psychologist for therapy of any kind. He has taken no medication for any mental anguish or anxiety. (TR 259) Since being fired from Saybolt he has missed a few classes to discuss his case with his attorney. (TR 380) He has not missed class to see any doctors or because he was ill. (TR 380) His normal day consists of getting up at 8:30 AM and studying approximately 5-6 hours. He continues to work at Nautilus. (TR 381) He has been a competitive power lifter since the age of 19. (TR 382) As a power lifter he can shift his weight dramatically upwards or downwards in a matter of a week's time. (TR 384-393) He has lost 23 pounds since he has been terminated from Saybolt, he has not been training for any weight competitions, and he has not tried to induce the weight loss. (TR 421-422) He feels he lost the weight as he does not really work out at the gym because he has mentally lost interest, he has not been hungry, and he is feeling "unaccomplished in [his] life at this time." (TR 423)

    Witness is the 50 year old father of the Complainant. (TR 566,579) He lives with his wife and his son, the Complainant. (TR 567) Witness confirms that his son was graduated from Boston College in May 1995. (TR 567) His son and the whole family made efforts to find him a job. These efforts included: looking through the help wanted ads during the week and on Sundays, as well as working with several employment agencies, faxing and sending resumes, seeing a career counselor, making phone calls and going out on follow-up interviews. (TR 567-568) Basically the rejection letters his son received related to lack of experience. (TR 583) His father helped him with looking at job ads; he did not review his resume. (TR 583-584) He was asked to look at his son's resume, in evidence as RX-1, and did not recall that his son had worked at Aetna Chemical. (TR 584)

    It took his son approximately one year to locate a job. (TR 568) His son was very excited and happy when he

landed the job at Saybolt. (TR 569) He helped his son obtain a reference from Manny Polumbo for his job interview at Saybolt. Mr. Polumbo works with witness, his title is Forwarding Manager, and he is involved with all inspection companies. Mr. Polumbo did call Saybolt on behalf of his son. (TR 585) Witness did not know if Mr. Polumbo had seen his son's resume, nor did he know how Saybolt had obtained a copy of the resume. (TR 586) He believes that his son and Mr. Polumbo have met in person based on the number of years they have worked together and the number of company events they have all attended. (TR 586)

    Witness is currently employed with Cargill Energy Northeast Petroleum Division as the commercial business manager. (TR 579) He previously worked as credit manager. His present duties include structuring exchange in terminal agreements with other companies, handling asset purchases and sales, and handling new commercial business ventures and opportunities. (TR 580) He has been employed with Cargill since its acquisition of Northeast Petroleum about 10 years earlier. Prior to that he was with Northeast Petroleum for 6 years. Cargill sells gasolines, distillates, heating oil, diesel fuel, kerosene, and heavy residual oils. (TR 580) They also sell reformulated gas and he is involved in selling it. (TR 581) His company is a competitor of Global. (TR 582-583)

    Witness understood his son's hours to be 8:30 AM to 5:30 PM. Initially he observed these work hours, but later his son was given a pager as he was on call 24 hours a day. Witness had occasion to observe his son being paged to work. While he could not testify as to the frequency of the paging, he did recall that his son was paged over the July 4, 1996 weekend. His son had told him that he could not go to Cape Cod that weekend as Saybolt was expecting a vessel and he needed to remain near his pager. He was in fact paged on that weekend and worked it. (TR 569-570)

    On July 17, 1996, a date which he recalls because it was his wife's birthday, he received a call from his wife. She told him that Complainant had called her and that he was very nervous and concerned about work. She also told him that their son was angry and upset on the phone. (TR 571-572) It was that evening that he and his son were able to talk. His son outlined the events that occurred at work and told his father he was very concerned that some of what he was being required to do was illegal. He also told his father that he was going to contact the EPA. His son told him only that he was going to contact the EPA, not that he had already contacted them. Witness told his son, that from his description, it sounded as if his employer might be violating the CAA, and that he was running the risk of

participating in what might be criminal fraud at the federal level. Witness advised his son to seek the counsel of an attorney before contacting the EPA. (TR 573; 588) During the discussion his son told him that he thought the company had violated the CAA. His son asked "Who (sic) did Saybolt sell off-spec gas to? Was any of it going to the United States Government?" (TR 587-588) Witness acknowledged that he had no personal knowledge as to what had happened in the lab at Saybolt. (TR 588) He described his son as being worn and nervous the night of the discussion. (TR 575)

    Later on, after July 18, 1996, witness remembers seeing portions of CX-2-CX-18. Witness spent a few minutes looking at the documents. (TR 594) Witness saw the documents out on the kitchen table, he did not ask his son if he could look them over. (TR 601) His son did not describe what was going on between himself and the EPA. (TR 600) Witness remembers answering the phone occasionally when Agent Tomasello called, but he never spoke to him about the case. (TR 590)

    Witness described his son's condition from July 17, 1996 through his termination date. His son was very angry, basically at big business, and he had numerous sleepless nights. Often when he heard his son stirring he joined him in the kitchen and they talked about his being sad over losing a job which he had enjoyed. His son was frustrated and disappointed, he lost weight, was not eating properly, and was no longer enjoying his main hobby of power lifting. (TR 575)

    After his son's discharge Witness described him as still being angry. Witness thinks that part of Complainant's anger was directed at himself and that he was questioning the choice he made in handling this matter. Witness states his son says he knows he did the right thing but had he kept quiet he could have kept his job at Saybolt, become a lab manager, and been enrolled in a part-time master's program in his chosen field. (TR 575-576) He and his son have discussed his son's future in the industry. His son has told him that he feels he will never obtain a job in the petroleum industry; "he feels as though the door has been permanently closed behind him as a result of all of this." (TR 578)

    He confirms his son's car accident of January 1996. (TR 605) He also confirmed his son's injury to his kidneys. He states his son has not seen a psychiatrist or any mental health therapists, nor has he taken any medication for nervous tension, or any ailment related to anxiety or stress. (TR 606) He acknowledges that his son's weight fluctuates a great deal, but that it does so less now and seems more stable. (TR 607-608) Witness feels that

one reason his son's weight went down after his termination was due to anxiety. (TR 608)

    He did know that his son went to Respondent's offices in the early morning of July 24, 1996, and he thinks his son told him he was going to copy documents. (TR 608-610) He told his son to be careful. (TR 610) He is proud of the fact that his son "decided to be honest and take the right road..." (TR 611) He did discuss some aspects of what was going on with his son with his employer's corporate-in-house counsel, Attorney Colleen Knapp. He went to Ms. Knapp because he wanted to tell her what happened and that Global was involved. (TR 612; 618-621) Other than his employer's corporate in-house counsel, and perhaps her boss, he has not discussed what has gone on with any other outside parties. (TR 617; 619) Witness does not believe that he has talked with Mr. Polumbo about this case. (TR 619)

    She would have testified that her son generally left the house at 7:30 AM to go to work. On nights her son worked late he would leave the house at 9:00 AM to go to work. She would have confirmed the efforts taken and the length of time spent on her son's post college job search. She would have attested to her son's appearance and mental condition during the month of July and up to the present. She would have attested to the fact that her son has been depressed, nervous, anxious, guilty and discouraged. (TR 623-624)

    Respondent chose not to have any witnesses testify. Instead their case consists of RX Exhibits 1-14, and the cross- examinations of the Complainant and his father. Relevant testimony which came about on cross-examination has already been reported in the summaries of the Complainant and his father's testimony.

    Complainant seeks recourse as a "whistleblower" pursuant to 42 U.S.C. §7622, entitled "Employee Protection," which in pertinent part

provides that:

Discharge or discrimination prohibited

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 the employee) -

(1) Commenced, 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 this chapter.

42 U.S.C.A.§ 7622(a)(West 1995).

    In claims brought for alleged retaliatory adverse action, such as the case at bar, the Complainant bears the ultimate burden of proving that the Respondent intentionally discriminated against him. United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L. Ed. 2d 403 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L. Ed. 2d 207 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S.Ct. 1817, 36 L. Ed. 2d 668 (1972); Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y of Labor, Apr. 23, 1983) (adopting the approach of McDonnell Douglas, Burdine and Aikens in cases involving the employee protection provisions adjudicated by the Department of Labor.) See also, Ronald Crow v. Noble Roman's, Inc., 95-CAA-8 (ALJ June 13, 1995), aff'd mem. (Sec'y Feb. 26, 1996). In order to establish a prima facie case under federal whistleblower protection statutes, a complainant must show that he was engaged in protected activity of which the respondent employer was aware and that the employer took some adverse action against him. Dartey, supra; Burdine, supra; et al.

    If the Complainant establishes a prima facie case, the employer may rebut the retaliatory action by articulating a legitimate, nondiscriminatory reason for the adverse

action taken. Aikens, 460 U.S. at 714; Burdine, 450 U.S. at 254. The mere production of evidence by the employer of a nondiscriminatory reason for the adverse action, whether believed or not, rebuts the presumption of intentional discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) Upon the employer's articulation of a nondiscriminatory reason for the adverse action, the framework, as established in McDonnell Douglas, Burdine, and Aikens, becomes irrelevant and the trier of fact must determine whether or not the employer intentionally discriminated against the complainant. Id. at 510-511. Once the employer has rebutted the complainant's prima facie case the complainant has the ultimate burden of persuading the trier of the fact that the employer's articulated reasons are pretext and the real reason for the employer's action was discriminatory. Id. In order for the complainant to meet this burden he must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action or that the Employer's proffered explanation is not credible. Id.; Burdine, 450 U.S. at 256; Crow, 95-CAA-8 at 9; See also Scerbo v. Consolidated Edison Co. of New York, Inc., 89-CAA-2 (Sec'y Nov. 13, 1992).

    The evidence reflects that the Complainant remained involved in his work environment after he had contacted EPA and determined, from his own perspective, that the Respondent was violating the CAA. His name appears on numerous test results as the technician, who ran the tests, after July 22, 1996. July 22, 1996 was the first day he returned to work after making contact with Agent Tomasello of the EPA. Based upon his testimony there is no evidence that he did anything more than run tests after July 22, 1996 and produce the unaltered results. Tasks he was directed to do by his Employer. The Complainant testified that the results he reported were unaltered and accurate and that later they were altered by other employees of Saybolt. I find Complainant's testimony credible based on the following facts: he was under oath at the time it was given, his recollection of events contained significant details, and his demeanor when testifying in the areas of significance was unhesitating and forthright. For these reasons, I do not find that the Complainant deliberately violated the Act. Nor for that matter has it been determined that the Respondent violated the Act; that question is irrelevant for purposes of this case.

    The whistleblower provisions protect preliminary steps to commencing or participating in a proceeding when those steps "could result in exposure of employer wrongdoing." Poulos v. Ambassador Fuel Oil Co., 86-CAA-1(Sec'y April 27, 1987), slip op. at 4. Employee protection provisions, such as that of the Clean Air Act, are to be construed broadly and reasonably to achieve their purpose..., [which is primarily] to protect employees who speak up regarding violations of the Law." Id. at 5.

    The record reflects that the Complainant, on several occasions discussed his concerns about what he considered the manipulation of test results in violation of the Act. When he did not receive adequate assurances that the test results were not being manipulated, or that the "manipulations" were not in violation of the Act, he contacted the EPA about his concerns. Complaints about unsafe or unhealthful conditions made to management or outside agencies, such as the EPA, are protected under the statutory language of the CAA. Scerbo v. Consolidated Edison Co. of New York, 89-CAA-2(Sec'y Nov. 13, 1992), slip op. at 2. See Kansas Gas & Electric Co. V. Brock, 780 F. 2d 1505, 1510-1513 (10th Cir. 1985), cert. Denied, 478 U.S. 1011(1986); Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1159, 1162-

1163(9th Cir. 1984) Complainant's concerns were the level of emissions being released into the air from reformulated gas; whether or not his concerns were valid is irrelevant, but the fact that his concerns touched upon public safety and health is enough to bring his actions within the protection of the Act.

1993), slip op. at 6 , aff'd, 98 F.3d 1351 (11th Cir. 1996) citing Williams v. TWI Fabrication and Machining Inc.,88-SWD-3(Sec'y June 24, 1992) In addition, Mr. Paine certainly had substantial input into the decision to terminate the Complainant, if not the actual authority to do so. Therefore, I find that Respondent had knowledge of the Complainant's protected activity.

This was told to him by Mr. Paine. In addition, the fact that Respondent provided Complainant with a beeper, supports the Complainant's contention that he was to be available whenever needed, especially as he was a salaried employee.

    Complainant's testimony supports his contention that his work schedule became an issue only after he had told the Respondent of his concerns and contacted the EPA. Neither his time sheets nor the Record of Absences reflect that he was ever tardy or impermissibly absent until the last week in July, shortly after he had contacted the EPA. That Respondent's point to Complainant's unexcused absence of July 22, 1996 is simply pretextual in that he went to work late because he expected to remain late to test samples. Complainant testified that this had happened before and no one at work had reprimanded him. His mother recalls his leaving for work around 9:30 AM on those days he expected to work late. On July 23, he testified, he arrived at 1:00 PM and did not sign out. Yet, the Employer notes no unexcused absence or tardiness for that date.

proximity in time between the Complainant's engagement in protected activity and his termination, a matter of 8 days. The temporal proximity of the adverse action to the protected activity is sufficient in itself to raise the inference that the protected act was the reason for the adverse action. Bartilik v. United States Dept. of Labor, 73 F.3d 100(6th Cir. 1996)(Discharge closely following engagement in protected activity justifies inference of retaliatory discrimination); Couty v. Dole, 886 F.2d 147 (8th Cir. 1989)(Temporal proximity of "roughly 30 days" was sufficient as a matter of law to establish an inference of retaliatory motivation); Mandreger v. The Detroit Edison Co.,88-ERA-17 (Sec'y March 30, 1994)(A 6 month interval between protected activity and adverse action sufficient to raise inference of causation); Crow v. Noble Roman's Inc, 95-CAA-8 (ALJ June 13, 1995), aff'd mem., (Sec'y Feb. 26, 1996)(Proximity in time between protected activity and termination sufficient to establish a prima facie claim of retaliatory discharge). Based upon the totality of circumstances as presented by the evidence in the record, and the demeanor and credibility of the witnesses who testified, I can reach no other view but that the termination of Complainant was motivated solely by the fact that the Complainant engaged in protected activity.

I find and conclude that the Respondent's termination of the Complainant was intentionally discriminatory in that it was motivated for no other reason than that the Complainant had contacted the EPA. As the Complainant's activity was protected, as the Employer knew about the protected activity, and as the Employer retaliated against Complainant, by creating a hostile work environment and then firing him, the Complainant is entitled to damages.

    Mr. Takvorian is entitled, by statute, to back pay from the date of his termination, July 26, 1996 to the date of October 3, 1995; the date he was required by Respondent to reply to its offer of reinstatement. (ALJ EX-4) 42 U.S.C. §7622 (b)(2)(B)(ii) Refusal of an unconditional offer of reinstatement constitutes a breach of Complainant's obligation to mitigate his damages. Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992), slip op. at 5. The Employer is to be credited with any earnings which the Complainant accrued during this time period. Sprague v. American Nuclear Resources, Inc., 92-ERA-37(Sec'y Dec. 1, 1994), slip op. at 7;

    Front pay is not a remedy specifically allowed under 42 U.S.C § 7622 (b)(2)(B). Mr. Takvorian is not entitled to an award of front pay; reinstatement is the appropriate remedy in this instance. Complainant has not proffered any acceptable rationale to show why he is unable to accept Respondent's September 27, 1996 unconditional offer of reinstatement. Complainant asserts that since he engaged in secretly recording conversations with fellow co-workers without their permission he will not be accepted back into his work environment. He also alleges that he is afraid that the Respondent might make him commit similar actions in violation of the Act. It should be noted that no finding as to whether or not the Respondent has violated the Act has been made in this decision as it is not relevant to determining the outcome of this case. Additionally, an unfounded fear that an employer might demand that an employee engage in work activity which might or not violate any law is insufficient to establish grounds for an award of front pay as opposed to reinstatement, especially as Complainant now enjoys the status of a protected whistleblower.

See also Creekmore v. ABB Power Systems Energy Services, Inc., 93-ERA-24 (Dep. Sec'y April 10, 1996); Boytin v. Pennsylvania Power & Light Co., 94-ERA-32 (Sec'y, Oct. 20, 1995); McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991)

    The Supreme Court has held "absent special circumstances the rejection of an employer's unconditional job offer ends the accrual of potential back pay liability." Ford Motor Co. v. EEOC, 458 U.S. 219, 241; 102 S.Ct. 3057; 73 L. Ed. 2d 721 (1982) A Complainant's refusal to accept an offer of reinstatement is to be measured by an objective reasonable person standard. Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Jan. 6, 1997), slip op. at 7-8. The evidence proffered by the Complainant falls within those incidental burdens which are both routine and foreseeable where reinstatement is ordered due to an employers wrongdoing. Rosario-Torres, 889 F.2d at 323. The Complainant has failed to provide sufficient evidence to suggest that his return to work at Respondent is impossible because of animus or hostility on the part of the parties. Finally, it is appears that the Complainant is hedging his bets to some extent in that he is currently enrolled in a full-time program pursuing a Master's degree in chemistry. I find that part of the reason the Complainant does not wish to return to Saybolt is because he wishes to further his education, a most laudatory goal. I do not credit Complainant's testimony on the specific issue of his wanting to find a comparable job to that at Saybolt, full-time work and pay with the ability to engage in a part-time Master's program. Complainant's lack of effort in locating any employment, part-time or full-time to date, suggests that he has no significant desire to be anything but a full-time student at present. His lack of serious effort is all the more apparent in light of the significant employment efforts he took following his college graduation in 1995. For all these reasons, Complainant's claim for front pay is denied and reinstatement is ordered.

    The Complainant is entitled to compensatory damages pursuant to 42 U.S.C. §7622(b)(2)(B)(ii). Compensatory damages include those caused by mental and emotional distress as evidenced by his conduct and observed by others. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed. 2d (1978); Blackburn v. Martin, 982 F.2d 125, 132 (4th Cir. 1992) The Complainant has the burden of showing that he suffered mental pain and anguish as a result of Respondent's retaliatory behavior. Crow v. Noble Roman's Inc., 95-CAA-8, slip op. at 2

(Sec'y Feb. 26, 1995) citing Blackburn v. Martin, 982 F.2d 125, 131 (4th Cir. 1992). Compensatory damages are not awarded for mental pain and suffering occurring as a result of engaging in the protected activity.

    Numerous cases under a variety of statutes containing protection for whistleblowers hold that it is not necessary for the Complainant to produce medical or psychiatric evidence to prove a claim for compensatory damages. Compensatory damages awarded solely on the basis of a credible complainant's testimony have been upheld as being based on sufficient evidence. See generally Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Sept. 6, 1996); Crow v. Noble Roman's Inc., 95-CAA-8 (Sec'y Feb. 26, 1996); Smith v. Littenberg, 92-ERA-52 (Sec'y Sept.6, 1995), aff'd, No. 95-70725 (9th Cir. March, 27, 1996); Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Aug. 16, 1993).

    Complainant's testimony establishes that he suffered mental anguish both as a result of engaging in protected activity (non- compensable) and due to the adverse employment actions, the hostile work environment and the termination from employment (compensable). The testimony of the both the Complainant and his father makes it difficult to separate whether his mental anguish related to his engagement in protected activity or was a result of the short period of time he worked in a hostile work environment, 3 days from July 23, 1996 to July 26, 1996, and his termination. Additionally, the evidence proffered by Complainant through his testimony, the testimony of father, and the admitted statement of his mother, is not particularly clear in describing actual mental or physical suffering on the part of Complainant. All three witnesses testified that Complainant lost weight as a result of the actions of Saybolt; yet, the evidence also reflected that the Complainant could very easily manipulate both weight loss and weight gain as part of his power lifting competitions. The reasons for the lost weight are not well enough documented to establish a causal link between the adverse actions and the weight loss.

    There is also no evidence to support the Complainant's contention that he is being blacklisted from the industry. He has neither sought nor been rejected for employment by any company in the industry. There has been no evidence submitted to suggest that the Complainant has suffered any intentional interference or adverse action by Respondent causing him to be blacklisted from the industry. Bausemer v. TU Electric, 91-ERA-20 (Sec'y Oct. 31, 1995); Frady v. Tennessee Valley Authority, 92-ERA 19 and 34 (Sec'y Oct. 23,

1995) The only testimony by Complainant on the issue of blacklisting was his own feeling, and a description of a lack of interaction with his father's colleague, Manny Polumbo, at a company picnic; that Manny Polumbo saw him wave hello and deliberately did not respond. These pieces of information are nebulous at best and simply do not establish that the Complainant has been blacklisted from the industry. Also, against a finding that Complainant is being blacklisted, is his success in obtaining a job at National Tribology even after advising them that he had previously worked at Saybolt and requesting that Saybolt not be contacted as a reference.

    There is, however, sufficient credible testimony to support the Complainant's assertions that he was embarrassed by his firing, and that he was upset, angry, and anxious as a result of the firing. The physical effects of these feelings are manifested by loss of appetite, loss of sleep, and a loss of interest in his hobby of competitive weigh lifting. I do find that the loss of his first real job post college has caused him mental anguish. The Complainant's actions are to be congratulated because only by such actions is the efficacy of such statutes guaranteed. Accordingly, I find that a compensatory damage award in the amount of $3,800 is appropriate in these circumstances.

issue of award monies under 42 U.S.C. §7413 (f) has been raised and is being preserved in this record, and I decline to make any award for the reasons as stated.

   An award of attorney's fees is allowed pursuant to 42 U.S.C. §7622 (b) (2)(B)(ii). I find that the fee petition submitted by Attorney Greene, attached to his post-hearing brief, in evidence as CX-21, is inadequate to allow me to render an award. The fee petition must be based on records providing details of specific activity taken by counsel and indicating the date, time and duration necessary to accomplish the specific activity. Sutherland v. Spray Systems Environmental, 95-CAA-1 (ARB July 9, 1996); West v. Systems Applications International, 94-CAA-15 (Sec'y Apr. 19, 1995) The Complainant's attorneys should submit a detailed fee petition outlining the specific activity, the date on which the activity was conducted and the amount of time that was devoted to the specific activity, based on the firm's hourly rates. The fee petition should be filed with our Docket Clerk within (30) days of receipt of this Recommended Decision and Order and Respondent's attorney shall have (14) days to comment thereon.

    Respondent argues that Attorney Greene is not entitled to attorneys fees after September 27, 1996, the day Complainant rejected Respondent's unconditional offer of reinstatement. No legal authority was submitted by the Respondent's counsel either in his pre-hearing submission or his post-hearing brief. The Respondent was sent a copy of Complainant's post-hearing brief with the attached fee petition on December 20, 1996; no objection to the fee petition was filed by Respondent. An appeal to the Administrative Law Judge from the District Director's Finding is a matter of right, and the hearing is de novo. 29 C.F.R. §24.4(3)(I); Smith v. Littenberg, 92-ERA-52 (Sec'y June 30, 1993); Varnadore v. Oak Ridge National Laboratory, 94-CAA-2, 94-CAA-3 (ALJ Apr. 6, 1994) Accordingly, I do not find that Complainant's rejection of Respondent's offer of reinstatement made in response to the Assistant District Director's Finding sufficient grounds to halt the recovery of attorney fees from that date forward; the legal services thereafter were necessary to establish Complainant's status as a whistleblower and his right to compensatory damages. To so hold would have a chilling effect on Complainants seeking to assert their appeal rights with the assistance of counsel. The fact that my finding is the same as that of the District Director's is simply happenstance and his findings were not considered in reaching my findings of

facts, conclusions of law, and award of remedies; my decision is based on the record as perfected by the parties.

    Based upon the forgoing Finding of Fact, Conclusions of Law, and upon the entire record, I issue the following recommended compensation order:

      David W. Di Nardi
      Administrative Law Judge

Dated:
Boston, Massachusetts
DWD/krz/las