a man named "Jim" in Michigan after Jim and Krumm got into a scuffle. (TR 45) Complainant testified that Perretti had stated in meetings that Krumm, "Bruce", Mortimore, and Barto probably had the authority to fire people. (TR 45-46)

   Complainant testified that when he reported to work Monday morning following the asbestos discovery, Bob Krumm informed him his services were no longer needed. (TR 22) Complainant stated that he asked him if it had anything to do with the discovery of the asbestos and Krumm told him that it did not help. (TR 23) Complainant stated that he was given no other reason for his dismissal. (TR 23, 34) Complainant testified that he was terminated on Monday, April 20, 1998. (TR 38) Complainant testified that he was not fired by Randy Perretti and Perretti never told him his services were no longer needed. (TR 75) He stated that Bob Krumm did not direct him to talk to Perretti when he showed up at the job site that Monday morning. (TR 75)

   Complainant testified that Respondent had a disciplinary policy that consisted of one verbal warning, three written warnings, and then an individual would be terminated. (TR 23) He testified that eight men were late for a safety meeting once because there had been some confusion over the time and they were written up for it, but no one had to sign it. (TR 23-24) Complainant had never been cautioned about sexual harassment while employed with Respondent. (TR 32) He was never accused of theft on the job site. (TR 33) No one ever discussed inappropriate behavior on the job site with him. (TR 34) Complainant testified that he had received five raises in one year and two months and he was told he had a great attitude. (TR 34) He testified that he had been a happy employee. (TR 39) Later, four travel expense reimbursement sheets filled out by Complainant were introduced into the record as RX 3. Across the bottom of the expense sheets, Complainant had made comments such as " Sucks" and "Bullshit." (RX 3, TR 53) Complainant was not happy about the reimbursement for travel expenses and felt that Respondent should have paid more of his health insurance. (TR 54) Complainant stated that his comments on the travel expense sheets may not have been appropriate for high level professionalism, but they were common for a construction worker. (TR 68)

   Complainant testified that he provided his own health insurance. (TR 26) Respondent paid approximately fifty dollars a month towards his health insurance premiums. (TR 26) He canceled his health insurance coverage through Humana on April 15, 1998 because the $450 a month premiums were too high. (TR 26-27) The cancellation of the insurance took place before he discovered asbestos and had nothing to do with whether or not he was happy with his job. (TR 28, 39) He signed up with Aetna health insurance sixteen days later. (TR 65) He is no longer with Aetna, and his insurance is now provided through the union, now that he is a union employee. (TR 65)

   Complainant testified that it took him three weeks to find another job after he lost his job with Respondent. (TR 28) Complainant testified that there was a deduction of $325.71 taken out of his last pay check. (TR 29) At the same time, which was May 8, 1998, he received a check from Respondent for $144.12. (TR 30) Complainant went to work for S.C.

Johnson after he was fired. (TR 66) Complainant no longer works at S.C. Johnson. (TR 65)

   Complainant testified that he obtained his union card a week and a half after he, "quit Randy or, I didn't mean to say that but that's what it was. When I was fired or laid off or however you want to state it." (TR 39-40) After looking at his union card, he later testified that he joined the union about mid-way through April of 1998. (TR 40-41)

   Complainant testified that he did not know when OSHA came out to the job site. (TR 68) He told several co-workers about the phone call he made to OSHA because they were calling him over that weekend to find out what was going on. (TR 69) Complainant has no idea what was done as a result of his finding asbestos. (TR 70)

Testimony of Randy Perretti

   Randy Perretti testified that he has been the president of Perretti Building Contractors, Inc. for about five years and he was the president of the company during the course of Complainant's employment. (TR 88) He hired Complainant in January of 1997. (TR 89) He testified that he is the only individual who has the authority to hire and fire people. (TR 89)

   Randy Perretti testified that Bob Krumm and Al Mortimore were the supervisors on the Ramada Inn project. (TR 90) Roger Barto was not in a management position on that project. (TR 95) He was notified that asbestos had been discovered on the job site on the morning of Thursday, April 23, 1998 around eight or nine o'clock. (TR 90, 91) Complainant came to work with asbestos in his car, showed it to Roger Barto, Barto went to Mortimore. (TR 90) Mortimore went to the office of the owners of the project and had them contact Ecological Services and the EPA. (TR 90) After he was informed of the discovery, Perretti made sure that all of the proper procedures were being followed. (TR 94)

   Perretti testified that Respondent has a policy on what to do if an individual discovers hazardous material. (TR 94) That individual is to report his discovery to his direct supervisor who is aware of the proper safety procedures and who will stop the work. (TR 95) By not going to Mortimore or Krumm, Complainant did not inform the correct person of his discovery; however the right person did find out about the discovery. (TR 107) Once Mortimore was aware of the asbestos, he followed the proper procedures. (TR 95) Perretti was not concerned about the delay the discovery might cause in the project because his first concern was his workers' safety. (TR 117)

   Complainant had only been written up once while employed with Respondent and that was for arriving late to a safety meeting. (TR 95) Other than that, Complainant had always been a good worker and done a good job. (TR 96) Perretti had given him regular raises. (TR 96)

   However, Complainant's attitude had begun to change around the time of the Ramada Inn job site. (TR 93, 96) Perretti testified that Krumm had spoken to him about Complainant's attitude on that job site. (TR 92) Complainant was telling the other men they should quit, he was telling other employees that Respondent was paying for his insurance, and he was telling other employees that he had been receiving bonuses and that they were not. (TR 93) Complainant would disrupt other employees' work, he was not working in the area he was supposed to be in, and he was out talking to the other workers. (TR 93) Krumm and Mortimore spoke to Complainant about his behavior. (TR 93) At this time, Complainant had also begun writing inappropriate remarks on his mileage reimbursement sheets. (TR 96) Complainant showed up fifty-five minutes late for a meeting he had scheduled with Perretti on Friday, April 24, 1998. (TR 96, 108) It is customary for Perretti to have meetings with his employees even though they have the day off. (TR 108) The meeting was scheduled for 11:00 a.m. and at 11:25 a.m., his secretary called Complainant and said that Perretti could not meet with him and rescheduled the meeting for Monday, April 27, 1998 at 4:00 p.m. (TR 96) He did not fire Complainant. (TR 97, 99-100)

   Complainant did show up for work on Monday, April 27, 1998. (TR 102-103). He was not fired that day. (TR 103) Bob Krumm did not have the authority to fire Complainant. (TR 103) From April 27, 1998, Complainant has never expressed a desire to come back to work for Respondent. (TR 103) He missed the two meetings scheduled with Perretti on Friday, April 23 and Monday, April 27. (TR 103)

   At the meetings that had been scheduled with Complainant, Perretti planned to discuss Complainant's attitude of the previous two weeks and why he took asbestos off the site and brought it back the next morning, rather than immediately reporting it to the correct person when he found it. (TR 113-114, 116) He also wanted to discuss Complainant repeatedly referring to Mrs. Faunce, another employee, as "babe" and "honey", even after she had asked him not to do that. (114-115) This also began taking place in the last two weeks. (TR 115)

   Respondent is a non-union contractor. (TR 97) From time to time, Respondent has received a certain amount of friction for being non-union. (TR 97) Union representatives had showed up at the job site that week. (TR 97)

   Respondent was not aware that OSHA was involved in the discovery of the asbestos until Tuesday, April 28, 1998 when they showed up on the job site. (TR 98) He did ask the individual from OSHA if they were made aware of the asbestos by the EPA, but he was told they cannot divulge that information. (TR 98) He was not aware that Complainant had contacted OSHA until sometime in May, after the second meeting with OSHA. (TR 100) OSHA informed him that Respondent had done exactly what it was supposed to do. (TR 117) If it had been graded, it would have rated an "A" for taking the appropriate measures to secure the area. (TR 117)

   Perretti testified that the deductions for $325.71 from Complainant's last pay check was for a credit card charge and vehicle repairs made through the company. (TR 109) A handwritten check for $144 was also enclosed with his last pay check that amounted to .

(TR 111) The $144 represented a refund on Complainant's health insurance premium that had been improperly deducted from his pay. (TR 111)

Testimony of Robert Krumm

   Robert Krumm testified that he is a project coordinator for Respondent. (TR 119) He has had that position for about five years and he worked with Complainant in that capacity when he was working for Respondent. (TR 119) He was the project coordinator on the Ramada Inn project. (TR 120) His job was to oversee the entire operation of the project. (TR 120) An individual might come to him if he had to take off early for a doctor's appointment or wanted to leave for lunch early, but he did not have the authority to fire people. (TR 120) Only Perretti has the authority to fire someone. (TR 120) Perretti did not give Krumm the authority to fire Complainant. (TR 120) He did not tell Complainant he was fired on Monday, April 27. (TR 121) He told Complainant that he was not to report to the job site until he had met with Perretti. (TR 121) The information Krumm had from Perretti's office was that Perretti had rescheduled the meeting with Complainant for Monday, April 27 at four o'clock and that Complainant had been informed of this meeting. (TR 127)

   On Monday, April 27, Complainant dropped off his stepson who was also working for Respondent. (TR 121) He was not wearing the appropriate footwear and he was dressed more casually than normal. (TR 121) Krumm approached Complainant and told him that his services were no longer needed on the job site as he was supposed to meet with Perretti on Friday and had not shown and that until he had a meeting with Perretti, he was no longer on the project. (TR 122)

   Krumm was notified of the asbestos the morning of Thursday, April 23. (TR 123) Mortimore, who was the assistant project coordinator for that project, brought it to his attention. (TR 123) Mortimore told him that Complainant had brought it to the attention of Roger Barto on Wednesday who brought it to his attention Thursday morning. (TR 123, 124) Roger Barto is sometimes a small job supervisor although he was not employed in that capacity on this project, he was a laborer. (TR 124) Krumm investigated the situation and closed off access to any suspect areas. (TR 124) He discussed the situation with Mortimore and they decided that Mortimore would notify the necessary outside agency to investigate the material and Krumm contacted Perretti about 10:30 a.m. that morning to tell him of the situation. (TR 125) At no point during that telephone conversation did Perretti state he was going to fire Complainant.

Testimony of Allen Mortimore

   Allen Mortimore is employed as a job superintendent with Respondent. (TR 129) He has been employed there for about one and a half years. (TR 130) He worked with Complainant in that capacity during the time of Complainant's employment with Respondent. (TR 130) He was a project manager on the Ramada Inn project, along with Bob Krumm. (TR 130) Roger Barto was not a supervisor on that job. (TR 131)

   Barto informed Mortimore of the discovery of asbestos on the morning of Thursday, April 23. (TR 132) When he arrived at 7:00 a.m., the employees were in an uproar about the discovery of a substance by Complainant. (TR 132) He told the employees that he did not know what they were talking about and Barto got a piece of the substance and brought it over to him. TR 132) All of the laborers on the site with the exception of the witness and Krumm seemed to be aware of asbestos. (TR 132) Mortimore testified that there should not have been any confusion as to who was in charge of that job site. (TR 133) Mortimore spoke with Complainant and Barto, then shut down the room where the asbestos had been found. (TR 133) He took the asbestos to the owner's representatives on the job site and informed them that it was their responsibility to have it checked out and taken care of immediately. (TR 133, 135) That was how Ecological Services was notified of the asbestos. (TR 134, 135)

   Mortimore met with Krumm about how to address the issue and after that, Mortimore called Perretti. (TR 135) At no point did Mortimore tell anyone to keep quiet about the situation, nor was he informed by management to tell the men to keep quiet. (TR 135) Mortimore did not fire Complainant, nor was he given the authority to fire Complainant. (TR 135) Mortimore felt that Complainant was being disruptive on Thursday morning by talking to all of the men about his discovery, despite management taking steps to contain the situation. (TR 137-138)

Documentary Evidence

   Complainant submitted a letter from Humana that confirmed that he canceled his health insurance on April 15, 1998. (CX 1) He submitted the pay stub from his last pay check dated May 8, 1998. (CX 2) He submitted a copy of a check from Respondent to Complainant in the amount of $144.12 that was handwritten. (CX 3) He submitted a letter written by respondent's counsel dated September 14, 1998 that stated the reasons why Complainant was terminated. (CX 5)

   Respondent submitted Complainant's letter to the Wage and Hour Division dated May 4, 1998 that stated he discovered the asbestos on Thursday, April 23, 1998 and that he was terminated on April 27, 1998. (RX 1) Respondent submitted travel expense vouchers filled out by Complainant dated March 22, 1998, March 29, 1998, April 5, 1998 and April 12, 1998 that contained Complainant's comments such as "sucks" and "bullshit". (RX 3) Respondent submitted the written warning notice dated December 27, 1997 that Complainant was late to a safety meeting. (RX 4)

   The CAA at 42 U.S.C. § 7622 states:

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

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

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

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

   A complainant in a whistleblower case must satisfy his initial burden of establishing a prima facie case of discrimination by a showing that (1) the employer is subject to the Act; (2) the complainant engaged in protected activity; (3) the complainant was subjected to an adverse employment action; (4) the employer was aware of the protected activity when it took the adverse action; and (5) an inference is raised that the protected activity was the likely reason for the adverse employment action. Passaic Valley Sewage Com'rs v. Dept. Of Labor, 992 F.2d. 474, 480-81 (3rd Cir. 1993); Carroll v. U.S. Dept. Of Labor, 78 F.3d. 352, 356 ( 8th Cir. 1996); Kahn v. U.S. Secretary of Labor, 64 F.3d. 271, 278 (7th Cir. 1995). If the complainant makes out a prima facie case, the burden of production shifts to the employer to articulate a legitimate business reason for the adverse action. Where the employer articulates a legitimate nondiscriminatory reason for the adverse action, the complainant must prove that the reasons articulated by the employer were pretextual, either by showing that the unlawful reason more than likely motivated the employer or by a showing that the proffered explanation is not credible and that the employer discriminated against him. Nichols v. Bechel Construction Co., 87-ERA-44 (Sec'y October 26, 1992); Carroll, supra; Kahn, supra. It is undisputed that Complainant was an employee of Respondent and that Respondent is subject to the Act.

   Complainant stated that he contacted OSHA to ask them to investigate the substance he found at the job site prior to his alleged termination. This falls under the definition of protected activity under the Act. Complainant testified that he told several of his co-workers that he contacted OSHA over the weekend between the discovery of the asbestos and his last day of employment. He also testified that he was of the opinion that Respondent contacted Ecological Services regarding the asbestos because management figured he was going to contact someone regarding the discovery. (TR 71-72) However, there is no evidence in the record that

Respondent was aware that Complainant had contacted OSHA before his employment ended. Complainant testified that he did not meet with the OSHA representative until after his employment with Respondent had come to an end. Randy Perretti testified that OSHA came to investigate the job site on April 28, 1998, the day after Complainant was allegedly fired. Perretti had thought OSHA had been contacted by the EPA. Perretti further testified that Respondent was not aware that it was Complainant who had contacted OSHA until sometime in May. Complainant cannot meet his burden of proving that this protected activity was the basis of any adverse action on behalf of Respondent as he cannot prove by a preponderance of the evidence that Respondent was aware of this activity prior to any adverse employment action.

   An informal and internal safety complaint may constitute protected activity under the environmental whistleblower statutes. See Dysert v. Westinghouse Electric Corp., 86-ERA-39 (Sec'y October 30, 1991); Nichols, supra. Complainant stated that he reported the discovery of the asbestos to Roger Barto.

   The United States Court of Appeals for the Sixth Circuit, the circuit in which this case arises, has stated in a case arising under the Energy Reorganization Act's employee protection provision involving an internal safety complaint that the provision " . . . does not protect every act . . . under the auspices of safety', and that [w]histleblowing must occur through prescribed channels.'" American Nuclear Resources, Inc. v. United States Department of Labor, 134 F.3d. 1292, 1295 (6th Cir. 1998) (quoting Stone & Webster Engineering Corporation v. Herman, 115 F.3d. 1568, 1574 (11th Cir.1997)). Further, the Court stated that "[t]o constitute a protected safety report, an employee's acts must implicate safety definitively and specifically." Id. at 1295. The Sixth Circuit held in American Nuclear Resources that an employee who had been contaminated with radiation particles who complained to his supervisor that the Radiation Protection employees did not know what they were doing and demanded the results of his body count test did not constitute an internal safety complaint because the Complainant did not allege that the respondent was violating nuclear laws, regulations, safety procedures or assuming unacceptable risks. Id. at 1296.

    I do not find that Complainant made an internal safety complaint. Complainant discovered asbestos, reported the discovery to a co-worker who reported it to management, and the situation was promptly dealt with. From the testimony, it appears that Respondent was not aware that there was asbestos on the job site until it had been discovered by Complainant. Therefore Respondent was unaware of any violations of the Act, regulations or safety procedures and did not knowingly assume an unacceptable risk. Once Respondent was aware of the discovery, it took the necessary steps and precautions to resolve the situation. Complainant's discovery does not rise to the level of a safety complaint as he only reported that he found a substance he believed to be asbestos. Complainant has not met his burden of proving by a preponderance of the evidence that he engaged in protected activity by raising an internal safety complaint.

   Even if Complainant's discovery could be considered an internal safety

complaint that qualifies as protected activity under the Act, I do not find that Complainant reported this incident through prescribed channels. Complainant initially testified that Barto was not a supervisor on this project, but had been on other projects and he felt that he was the appropriate person to tell "without me making a big stink and running to somebody . . ." (TR 16) Complainant further testified that about five minutes after he reported it to Barto, Al Mortimore and Bob Krumm arrived and were concerned about the discovery. He testified that as a "[m] atter of fact, management came to me before I even had a chance to get out of the room . . ." (TR 19). He later changed his testimony and stated twice that Barto was a supervisor on that project. Respondent is a small business. Complainant himself testified that there were about fourteen employees. It is not plausible that Complainant would have any confusion as to who was in charge of this particular job site. Randy Perretti testified that Respondent had a policy on what to do if an individual discovered hazardous materials at a job site. An individual is to report the material to his direct supervisor, who knows the proper safety procedures to follow, will turn it in to the correct person, and will stop work at the site. Complainant himself testified that he took some of the asbestos home and he did not report the asbestos the day that he found it. (TR 21, 43). Complainant's actions and his testimony indicate that he had no intention of complying with Respondent's prescribed policy for reporting hazardous materials. Thus, even if Complainant's discovery of the asbestos could be considered an internal safety complaint, it cannot be considered protected activity as Complainant chose not to report it through the prescribed channels.

   Even assuming for the sake of argument that Complainant's discovery of the asbestos could qualify as an internal safety complaint that constituted protected activity under the Act, Complainant cannot prove that Respondent took adverse action against him. Complainant's testimony is full of inconsistencies and cannot be relied upon. He cannot remember the correct dates or even days of the week he made the discovery of the asbestos. Complainant first testified that the meeting on Friday, April 24, 1998 with Randy Perretti was scheduled at 4:30 p.m, after work. (TR 56) Later, he testified that the meeting was scheduled for Friday in the evening (TR 81), then testified that the meeting was at 11:00 p.m. (TR 81) He also testified that the work week at Respondent's was set up in such a way that no one had to work on Fridays. (TR 85) First, his testimony indicated that he was aware Barto was not a manager on that particular job site, then he later testified twice that Barto was supervisor on that job site. Complainant testified that he did not receive his union card until a week and a half after he was no longer with Respondent, then upon examining his union card, he stated that he joined the union midway through April of 1998. (TR 39-41)

   Perretti's and Krumm's versions of events are consistent and supported by Complainant's actions. Complainant actions are not consistent with someone satisfied with his job or upset about his dismissal. Complainant canceled his health insurance one week before the discovery of the asbestos, about the same time he received his union card according to his testimony. Perretti testified that Complainant started exhibiting a poor attitude at work about two weeks before the discovery. His testimony is supported by Complainant's travel expenses reports. The reports with the inappropriate comments contained in the record are from the last four weeks of Complainant's employment. When Complainant did appear for his meeting with

Perretti on April 24, 1998, he removed personal belongings from the office. Complainant argues that language contained in a letter from Respondent's counsel dated September 14, 1998 which states that Respondent stands by its termination of Complainant is evidence that Complainant was terminated. However, it is noted that the letter was written by Respondent's counsel and cannot be considered an admission on the part of Randy Perretti. What is noteworthy is that in response to a question about when he received his union card, Complainant stated " [i]t was three weeks, well, probably a week and a half approximately after I quit Randy or, I didn't mean to say that but that's what it was. When I was fired or laid off or however you want to state it." (TR 40) Further, upon learning his services were no longer needed at the job site, Complainant never inquired of Perretti why he had been dismissed.

   I do not find that Respondent terminated Complainant, but rather Complainant terminated himself. He was aware of the two meetings that were scheduled with Randy Perretti to discuss his recent change of attitude. He showed up late to the first one, which he was informed was rescheduled. When Complainant came to the job site, I find the testimony of Bob Krumm credible that he was not dressed appropriately for work and that he was informed he was not to come back until he had spoken with Randy Perretti. Complainant chose not to meet with Randy Perretti at 4:00 p.m. on April 27, 1998. He never attempted to return to work or to discuss his situation with anyone at Respondent after that date.

   As Complainant has been unable to prove that he engaged in protected activity or that Respondent took adverse employment action against him for his participation in protected activity, he has been unable to establish a prima facie case under the employee protection provision of the Act.

   For the foregoing reasons, Manuel Gonzales's claim of discrimination under § 7622 of the Clean Air Act is hereby DISMISSED WITH PREJUDICE.

      DANIEL L. LELAND
      Administrative Law Judge

DLL/lwa/lab

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