Complainant testified that he smelled the Ethylene Oxide. He said it smelled like hair spray, deodorant spray, or hair net spray. (Tr. 204-205). On cross-examination, Complainant conceded that in a prior deposition he did not mention anything about having smelled Ethylene Oxide. (Tr. 205).

    After the alleged exposure to Ethylene Oxide, Complainant and Mr. Krause went to the smoking room for a cigarette. At this point a series of alarms went off, eventually leading to the evacuation of the entire plant. (Tr. 38-42).

    Complainant testified that he told his immediate supervisor, Jimmy Shaw, about the exposure; however, according to Complainant, Jimmy Shaw did not respond. (Tr. 40). Later that same day, Pat Holland, the plant safety manager, spoke to Complainant and Mr. Krause about the exposure. According to Complainant, when he asked Mr. Holland if he could go to a doctor, Mr. Holland told them everything would be all right in about three hours. (Tr. 43).

    Complainant said that he asked Mr. Holland if he was going to report the incident. Mr. Holland responded that he had to go to a meeting with the "big man." (Tr. 44).

    The afternoon of the exposure, Complainant asked if he could go home because he was not feeling very good. (Tr. 47). The next day, Saturday July 6, 1996, Complainant was scheduled to work. Complainant called in and said he was still feeling bad. He told Mr. Holland that he needed to see a doctor. According to Complainant, Mr. Holland told him that a visit to a physician would have to be arranged by Lois Ready at Dunhill Temps. (Tr. 48-49). Later that morning, Complainant said that he called Mr. Holland back. Mr. Holland simply told him to take some Motrin and have a nice weekend. (Tr. 50).

    On Monday, July 8, 1996, Complainant went to see Dr. Nichols, as arranged by Lois Ready. Complainant told the doctor he was having headaches and stomach problems. (Tr. 52-53). By Tuesday, July 9, 1996, Complainant said that he was still having headaches, so he went to St. Frances Hospital emergency room in the evening, to have his blood checked. (Tr. 54).

    Wednesday, July 10, 1996 was the next day Complainant was scheduled to work. Complainant testified that he overslept. He was supposed to be at work by 7 a.m. Ms. Ready called him at 9 a.m. to find out why he wasn't there. (Tr. 55-57). Complainant testified that, Jamie Wood, human resources manager at Ethox, was worried about him, and had called Ms. Ready to find out why Complainant wasn't at work. (Tr. 88). When Complainant agreed to go to work, Ms. Ready told Complainant that she had to call Jamie Wood and then she would call Complainant back. When Ms. Ready called the second time, Ms. Ready told him that Mr. Wood told her that he did not want Complainant on the job anymore. (Tr. 55-57). Complainant

never talked to Mr. Wood personally. (Tr. 88).

    On Thursday, July 11, 1996, Complainant went to Dunhill to pick up the personal items that he had left at Ethox. (Tr. 57).

    Complainant testified that on the date of the Ethylene Oxide release he wrote down a phone number written on the railcar in the vicinity of the alleged Ethylene Oxide release. He said that he intended to report the release, thinking that the phone number might put him in contact with the EPA or OSHA. The number turned out to be the poison control center. (Tr. 61-62). Complainant testified that he told Mr. Holland and several co-workers about his intention of reporting the release. He stated that he asked Mr. Holland if he were going to report the release to the EPA. When Mr. Holland allegedly stated he had to have a meeting with the "big man," Complainant testified that he told Mr. Holland, "If you don't report it, I will." Complainant stated that Mr. Holland heard him say this. (Tr. 62-63). Complainant agreed that Mr. Holland never said that he was not going to report the release. (Tr. 71).

    Complainant testified that he telephoned Jamie Wood later in July. He told Mr. Wood that he felt there had been some miscommunication between Mr. Wood and Ms. Ready and that Complainant wanted to return to his job with Ethox. (Tr. 90-91).

    Complainant disputed the accuracy of his medical records. He did not believe that his headaches began around 8 or 9 p.m. on Friday, July 5. Nor did he take any Tylenol for the headache, as indicated in his medical records. (Tr. 83; RX 4).

Testimony of William Krause

    Mr. Krause is a maintenance worker at Ethox Chemicals. (Tr. 96). He was working with Complainant on July 5, 1996, the day of the alleged Ethylene Oxide exposure. (Tr. 97). Mr. Krause stated that he noticed a shortness of breath. He also saw a vapor at the end of a hose, next to the railcar. The vapor had no color to it, but looked like heat waves. He stated that he only saw the vapors around the hose itself. (Tr. 98). Mr. Krause stated that he gagged and coughed from the vapors. (Tr. 106). Later that day, he and Complainant talked to Mr. Holland about the exposure. Mr. Holland asked if they needed to see a physician. (Tr. 113-114). Mr. Krause also developed a severe case of flatulence which may have been caused by Ethylene Oxide exposure. (Tr. 115).

    That weekend, Complainant visited his house and talked about calling the phone number on the side of the railcar. Complainant also asked if Mr. Krause had an attorney. (Tr. 116).

    On July 5, the date of the alleged release and exposure, Mr. Krause did not

know that Complainant had written down the poison control center phone number; nor did he hear Complainant tell anyone that he planned to report the release. Complainant did not mention to Mr. Krause that he was suffering from any adverse symptoms on July 5. (Tr. 126-127).

Testimony of Pat Holland

planned to report the incident. (Tr. 183). She stated that the earliest knowledge Ethox had regarding Mr. Norris' report was Sept. 19, 1996.

    Ms. Brookbank testified that Ethylene Oxide is detectable by odor at 700 parts per million. (T. 203). She stated that according to the material data safety sheets, Ethylene Oxide is described as having an ether like odor. (Tr. 206).

Testimony of Lois Ready

    Lois Ready is the industrial coordinator for Dunhill Staffing. (Tr. 209). She placed Complainant and Mr. Krause in positions at Ethox. According to Ms. Ready, Mr. Krause had considerably more experience than Complainant. This justified the higher salary that Mr. Krause received as a maintenance worker. (Tr. 209-211). Complainant often called Ms. Ready's office to complain about the fact that he wasn't earning enough money. (Tr. 212-213).

    On Saturday, July 6, Mr. Holland called Ms. Ready to tell her that Complainant and Mr. Krause had been exposed to Ethylene Oxide. (Tr. 213 and 215). She then called Complainant. Complainant told her that he had a headache and felt nauseous. She told him he could see the doctor on Monday. Because it was a weekend, the company's doctor would not have office hours until Monday. (Tr. 216). Ms. Ready set up doctor's appointments for both Mr. Norris and Mr. Krause. (Id.).

    On Wednesday, July 10, Jamie Wood from Ethox called to tell Ms. Ready that Complainant was not at work. (Tr. 217). Ms. Ready telephoned Complainant to see if he planned to go back to work at Ethox. Complainant told her that he had a job interview and would let her know. (Tr. 216-217). When she asked if he was planning to go to work, Mr. Norris told Ms. Ready, "no, I don't guess I will." She said he was vague. He concluded the conversation by stating, "no I'm not going back." (Tr. 217-218).

    Ms. Ready stated that she received the letter in July from Mr. Holland stating that Mr. Norris and Mr. Krause had smelled an unrecognized odor. (Tr. 219).

Testimony of James Wood

    Mr. Wood is the human resources manager at Ethox. (Tr. 223). He and the maintenance supervisor, Jimmy Shaw, jointly set the wages for Mr. Krause and Mr. Norris. The discrepancy between the wages of the two was based upon a disparity in experience. (Tr. 224-225). Mr. Wood had no contact with Mr. Norris after the July 5 incident, nor did he have knowledge of any complaint filed by Mr. Norris until September 19, 1996. (Tr. 226-228). Mr. Wood testified that he did not know anything about the events between July 5 and July 10, except that Mr. Norris did not show up for work on July 10. (Tr. 226 and 229).

Documentary Evidence

    The Respondent submitted a record of the sensory data collected on July 5, 1996, indicating that levels of Ethylene Oxide were detected by the Ethylene Oxide sensors on that day. (RX 1). The Respondent also submitted two documents describing Ethylene Oxide and its dangers. (RX 2 and RX 3).

    Medical records from St. Frances Hospital were submitted into evidence, indicating that Complainant suffered from headaches, stomach complaints, and indigestion. The report, written by Dr. Celia Thomas, indicated that the problems suffered by Complainant on the date of examination, July 10, 1996, were doubtfully related to Ethylene Oxide exposure. (RX 4).

    Dr. Nichols examined Complainant on July 8, 1996. Complainant reported experiencing burning eyes, loss of breath, dry heaves and coughing. Complainant stated that about one to two hours after the exposure, he had an upset stomach and diarrhea. These symptoms continued through the weekend, according to Complainant. His symptoms on July 8, consisted mainly of a headache, but that he still experienced an upset stomach and some heartburn. Dr. Nichols concluded that Mr. Norris had sustained a mild degree of Ethylene Oxide exposure and the symptoms may persist for several hours or at most a few days, and should resolve without permanent deficit. (CX 2).

    Several notes from Pat Holland to Lois Ready were submitted into evidence. These notes confirmed an Ethylene Oxide leak at the facility, and that Complainant and Mr. Krause could have received low level inhalation exposure. The final note stated that "Mitchell Norris chose not to continue his probationary period with our company. Bill Krause has continued to work and has had no other complaints resulting from the incident." (CX 3).

    Ms. Brookbank wrote a letter to Hashim Safi of the EPA, indicating that the likely cause of the Ethylene Oxide release was from wash water. The worst case fugitive release, according to Ms. Brookbank, was 0.108 pounds. There were no readings from the Ethylene Oxide monitors at the railcar where Complainant and Mr. Krause were working. The letter concluded that the two employees were exposed to volatiles from the drain line as the wash water moved through the drain. (CX 4).

    In order to establish a prima facie case of retaliatory discharge, the complainant must show that 1) he was an employee of the party charged with discrimination; 2) he was engaged in a protected activity; 3) respondent was aware of complainant's participation in the protected activity; 4) he was subjected thereafter to an adverse action regarding his employment; 5) the protected activity was the reason for the adverse action. Passaic Valley Sewer Comm. v. U.S. Dept. Of Labor, 992 F.2d 474 (3rd Cir. 1993); David v. State University of New York, 802 F.2d 638, 642 (2d Cir. 1986).

    Once the Complainant establishes a prima facie case, the Respondent may rebut the claim with evidence of a legitimate, non-discriminatory reason for Complainant's discharge. The ultimate burden of persuasion, however, rests with the Complainant to prove discriminatory intent. See Passaic Valley Sewer Comm., 992 F.2d at 482; David, 802 F.2d at 641.

    In this case, there is no dispute that Complainant was an employee of Ethox, the party charged with discrimination. Nor is it disputed that Complainant was engaged in a protected activity. The Respondent concedes that Complainant may have been exposed to Ethylene Oxide and thereafter reported a release of Ethylene Oxide to the EPA. Complainant has failed to carry his burden, however, with regard to the remaining three elements of a prima facie case.

    Complainant has not shown by the weight of evidence that Respondent was aware of Mr. Norris' participation in the protected activity. Complainant testified that he told Mr. Holland, the safety manager, that if the company did not report the Ethylene Oxide release, then he would. Complainant also testified that he told his co-workers the same. There is no evidence in the record to corroborate Complainant's contention. In fact, the evidence points to the contrary conclusion. Mr. Holland testified that nothing was said to him about reporting the release. Mr. Krause, who was present during the initial meeting between Complainant and Mr. Holland, testified that nothing was said about reporting the release. The earliest date at which Respondent may have been on notice that Mr. Norris was filing a complaint was July 24, 1996. That is the date when Complainant alleges the complaint was originally filed. The earliest documentary evidence in the record of actual notice to the Respondent is a letter dated September 19, 1996 from the U.S. Department of Labor. All of these dates are well after the relevant time frame of July 5, 1996 (the date of Complainant's exposure to Ethylene Oxide) and July 10, 1996 (the date of Complainant's termination from Ethox).

    Complainant has failed to show by the weight of evidence that he was subjected to adverse action by the employer. The weight of the probative, credible evidence compels a conclusion that Complainant was not fired, but voluntarily resigned. Mr. Norris' story is that he overslept the morning of July 10, 1996. He received a phone call from Ms. Ready at Dunhill, telling him that the personnel manager at Ethox, Jamie Wood, wanted to know why Mr. Norris wasn't at work. Mr. Norris told Ms. Ready that he overslept, but that he would try to go to work. Ms. Ready told Mr. Norris that she had to call Mr. Wood. When Ms. Ready called Mr. Norris for the second time, she told him that Mr. Wood told her that he did not want Mr. Norris working at Ethox anymore.

    Again, Complainant's story is not corroborated by the credible testimony of either Ms. Ready or Mr. Wood. Ms. Ready testified that she was under the impression

Complainant quit. According to Ms. Ready, Complainant told her he did not plan to go back to work at Ethox. There is evidence based on the testimony of Ms. Ready and Mr. Norris that prior to July 5, Mr. Norris was unhappy with the wages he was receiving at Ethox; that he was looking for a new job; and that he may even have had a job interview scheduled. Ms. Ready testified that Complainant was vague in response to her inquiries on the morning of July 10. There was no direct contact between Mr. Norris and anyone at Ethox on July 10, 1996. Mr. Wood testified that he did not know anything about the events between July 5 and July 10 except that Complainant did not show at work. The burden is on the Complainant to establish that an adverse action was taken against him. He contends that he was fired, but the evidence of record indicates that he resigned his position voluntarily, without any prompting or pressure on the part of Respondent.