A. Background and Employment History

   In addition to modifying the pad to prevent overspray contamination, Radian gave EDI employees who were supervising the pad the authority to stop the decontamination process if they observed overspray. Sherrod testified that this was certainly within Gross' authority. (TX, p. 510). It was EDI's job to prevent contaminated equipment from leaving the DECON pad. Sherrod testified that to the best of his knowledge no contaminated vehicle ever left the pad and no Radian employee ever pressured any EDI employee to allow the early release of a vehicle. (TX, p. 512).

   Gross also indicated in his testimony that the problems with equipment decontamination were once reported to Keith Enders, the Corps of Engineers on site quality assurance person. (TX, p. 146). That incident occurred when one of the Radian employees attempted to pressure Gross or another EDI employee into releasing a piece of equipment from DECON before it was completely clean. Apparently the Radian employee, identified as Don Conklin, indicated that he had a firearm in his truck and that he would shoot an unidentified EDI employee if a certain piece of equipment was not released. (TX, pp. 145-146).

   The Court accepts the fact that the event described above actually occurred. There is no evidence, however, that it was Mr. Gross who was threatened. Further, there is no evidence that Mr. Gross was the EDI employee who reported the problem to Keith Enders. We note that this is the only information in the entire testimony that even comes close to a report to an outside government agency.

   Mr. Bradshaw testified that although Radian demanded immediate cure for this problem they did not instruct him to terminate Mr. Gross. In fact, Radian never instructed Mr. Bradshaw to terminate the Complainant. (TX, p. 242). Based on Radian's allegations, however, Bradshaw conducted an investigation of Mr. Gross. (TX, p. 242).

   Initially, Mr. Bradshaw inspected Gross' project clipboard. He inspected the clipboard looking for any information that Gross had prepared that might need to be submitted that day. Bradshaw testified that he had asked Gross not to come in on May 14 based on Bradshaw's previous phone conversation with Tom Sherrod. (TX, p. 243).

   Upon inspection of the clipboard, Mr. Bradshaw testified that he discovered several pages of graffiti including a pornographic picture. The contents of the graffiti and pornography are described in full detail in the trial record. The Court feels that it is inappropriate to reproduce the material here except to say that it made highly graphic allusions to the sexuality of Mr. Sherrod. (TX, pp. 243-244).

   B. The Merits

       1. Time Bar

   As evidence of his phone conversations with OSHA Claimant presented a copy of an answering machine tape which he purports includes messages from regional OSHA officials regarding his case. The Court accepts the Claimant's testimony that he called OSHA on June 10, 1999. We cannot accept, however, the tape which he asserts contains answering machine messages from OSHA officials. Such a recording amounts to hearsay and is excluded under the Federal Rules of Evidence. Additionally, the Court cannot verify either the identity of the voices on the tape or the truth of their words with any certainty. Even if the tape were otherwise admissible, the Court would be inclined to assign it little credibility or weight. Further, even if the Court admitted the evidence and gave it some minimal level of credibility or weight, it cannot aid the Complainant's case. Assuming arguendo that the tape includes information given by Ed Walton, and further that the information given indicates a June 10, 1999 filing date, at best, this would constitute erroneous legal advice from OSHA or Department of Labor. As the Court will discuss below, such erroneous advice is not sufficient to stop the statute of limitations from running.

   OSHA's official position on this case is given in its August 16, 1999 letter to Mr. Gross. In that letter, Edward Walton, the Senior Investigator for OSHA Region VII states that the Complainant's written complaint was not received until July 26, 1999. This date is well after the end of the 30 day period. Mr. Walton therefore recommended the dismissal of the complaint as untimely filed.

   Equitable tolling is available to modify the periods provided by employee protection acts. Tracy v. Consolidated Edison Co. of New York, Case No. 89-CAA-1, (Sec'y, July 8, 1992). This doctrine focuses on the complainant's excusable ignorance of his statutory rights as a reason to modify the limitations period. See Andrews v. Orr, 851 F.2d 146, 150-151 (6th Cir. 1988). Generally, however, this doctrine is applied on a very limited basis. See School District of the City of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir. 1981).

   There are three specific situations in which equitable tolling is applied. First, where the employer prevents the employee from filing, equitable tolling may allow additional time to file. See McConnell v. General Telephone Co., 814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom, General Telephone Co. v. Addy, 484 U.S. 1059 (1988). Second, where the employee was prevented from asserting his rights by excusable ignorance, the Court may allow for additional time to file. See City of Allentown, 657 F.2d at 19. Third, equitable tolling is appropriate when the employee actually filed his claim timely, but did so in the wrong forum. See id. at 20.

   A prima facie case of unlawful retaliation or discrimination under the CAA and CERCLA requires a showing that the Complainant engaged in protected activity, that the Respondents subjected him to adverse action, and that the Respondents were aware of the protected activity when they took the adverse action. As the Complainant, Gross must also present sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action. Holtzclaw v. United States Environmental Protection Agency, ALJ No. 95-CAA-7 (ARB February 13, 1997), slip op. at 3-4.

       Protected Activity

   The definition of protected activity under the Clean Air Act is found at 42 U.S.C. § 7622. That section provides in pertinent part that

"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. . .

(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. §7622(a)(1-3).

   Similarly, CERCLA defines protected activity in 42 U.S.C. §9610(a). That section provides that,

"No person shall fire or in any other way discriminate against . . . any employee or any authorized representative of employees by reason of the fact that such employee or representative has provided information to a State or Federal Government, filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter."

42 U.S.C. §9610(a).

   The statutory provisions prevents employers from discriminating against employees who take official action to prevent or remedy employer conduct that violates the statute. Both provisions parallel closely with the whistleblower provision of the Energy Reorganization Act, 42 U.S.C. §5851. Employer urges that we should therefore consider the statutory provisions in light of judicial interpretations of this parallel statute. Specifically, Employer points us to the interpretation handed down by the Fifth Circuit in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The decision in Brown and Root specifically held that filing internal reports or raising concerns internally was not protected activity within the meaning of the ERA. See id. 747 F.2d at 1036; see also Macktal v. United States Department of Labor, 171 F.3d 323, 328-29 (5th Cir. 1999).

   The Court notes that the analysis in Brown & Root is not religiously followed by all of the circuits. In Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), the court affirmed the Secretary of Labor's conclusion that section 5851 of the ERA protects employees from retaliation based on internal safety complaints. A similar conclusion was reached in Wheeler v. Caterpillar Tractor Co., 485 N.E.2d 372. In that case, the Court concluded that Congress intended to protect employees from discrimination on this basis as a means of encouraging them to report statutory violations. See id. at 377.

   The court is not aware of any case squarely on point in the Seventh Circuit. Accordingly, we defer to the decision of the Secretary Mackowiak. That decision requires us to find that the Complainant engaged in protected activity if he reported what he reasonably believed to be violations of the CAA or CERCLA either to outside governmental authorities or internal supervisory personnel. The Court concludes that in this case Mr. Gross was simply performing his job, not engaging in protected activity.

   Gross testified that the first time he reported to any government agency about the SLAPS site was when he called the NRC about his termination. (TX, p. 352). Gross testified that this call was placed approximately June 10, 1999. (TX, p. 348). He also testified that he was familiar with some of the basic provisions of CERCLA, but that he had no experience with the CAA. He did not learn that this was a possible CERCLA or CAA case until after his conversation with Robert Schlicter, an investigator with OSHA. (TX, p. 351). Although no date is given for this conversation, the Court notes that it must have happened after Claimant's initial conversation with OSHA on June 10, 1999.

   Mackowiak sets up two modes of protected activity. An employee engages in the first mode when he reports a violation of the CAA or CERCLA to an outside government agency and causes the institution of a government investigation or other proceeding. In this case, the Court finds that Complainant did not engage in protected activity of that type while working for Radian and EDI. No evidence is presented that Gross reported to any government agency until after he was released from his position. But for the decision in Mackowiak our analysis would end there.

   Under Mackowiak a complainant engages in the second mode of protected activity when he engages in purely internal safety activities during his employment. This includes filing nonconformance reports or other formal reports or requests for information when an employee reasonably believes that company activities might result in harm to others. In this case it is difficult to determine whether Gross engaged in the second mode of protected activity. Gross argues that he engaged in such activity when he prevented equipment from leaving the DECON pad and shut down the work site because of the dust hazards.

   First, Mr. Gross testified that while he was employed at the SLAPS site and supervising the decontamination pad, he repeatedly prevented Radian personnel from removing heavy equipment from the pad. According to Gross, the equipment could not be properly decontaminated without removing the tracks from it. Radian refused to take that step. (TX, pp. 145-147). Gross testified that he discussed this problem at length with Mr. Bradshaw. Ultimately, Bradshaw instructed Gross to write a list of all of the problems with the decontamination pad and give it to him. Gross testified that he complied with this request. (TX, pp. 149-150). Gross also testified that he was under extreme pressure to decontaminate the equipment more rapidly and return it to service in a timely fashion. (TX, p. 146).

   Despite all of the pressure and other problems with the decontamination pad, Gross testified that there was but one piece of equipment on which the tracks were never removed. That piece was a bulldozer. (TX, p. 337). He also testified that the bulldozer was not released from the decontamination pad until he was satisfied that it was fully decontaminated. (TX, p. 339). This testimony is supported by that of Tom Sherrod. (TX, p. 512). Even if the equipment had been released from the DECON pad prematurely, it is unlikely that the dirt caught in its tracks would have caused a reportable CERCLA violation. (TX, pp. 520-521).

   Tom Sherrod testified that dust control was a specific concern of the environmental plan put together by Radian and approved by the Corps of Engineers for this project. Sherrod testified that the plan accounted for dust problems by preparing the site to prevent them. Specifically, when the excavation crews went to work moving dirt on an area of the site they would station water tanks and hoses near that site. The tanks and hoses would then be used to spray down the site prior to the beginning of excavation work. (TX, p. 516). According to Sherrod, Radian's response to the dust problems was not instantaneous. It was not designed to be. (TX, p. 518). Sherrod explained, however, that even with a delay in the system, there was never a reportable release of any CERCLA regulated material. (TX, p. 520).

   The Court finds that these case, like the bulldozer, were not sufficient to rise to the level of protected activity. No investigation was spawned by Mr. Gross' comments or concerns. Instead, we find that Gross' "complaints" to higher level personnel such as Mike Bradshaw were really either basic requests for information about how to perform his job or, alternatively, justifications for his decisions about how to perform his job. The Court is not convinced that any of these activities rose to the level of protection under CAA or CERCLA.

   We find that Claimant vocalized concerns about three things to his employers. First, he was concerned that vehicles which were not properly decontaminated would be released from the site prematurely. Second, he was concerned that contaminated dust from the site would be released because of heavy truck traffic over dry ground. Third, he was concerned that trucks carrying contaminated dirt out of the site would spill their cargo. The Court concludes that all of these concerns were voiced before an actual safety threat existed. As far as we can tell, they were each properly dealt with.

   Complainant might have had a legitimate concern with respect to the possibility of releasing dust from the site. His concerns, however, were no more than an ordinary part of his job. They were never voiced to outside authorities or to his internal supervisors.

       Awareness of Protected Activity

   The second part of the prima facie case requires the complainant to prove that the employers were aware of his participation in protected activity. Gross claims that his protected activity was comprised of reporting environmental problems to contractor and subcontractor supervisors at the SLAPS site. He also includes the several occasions on which he stopped work at part of the site because dust was escaping into other, uncontaminated areas. The Radian project manager, Tom Sherrod, testified that he did not know about any of these claimed violations of CERCLA and the CAA until he received a copy of the complaint filed in this case in July of 1999. (TX, p. 536).

   The Court concludes that although Radian and EDI would have had notice of the Complainant's work stoppages and decontamination claims, there was no evidence that either company knew that Claimant felt these were violations of CERCLA or the CAA. The fact that the employers did not find out about the alleged violations until after Gross was fired indicates that they did not know about the allegations at the time they took adverse action.

       Adverse Action

   Like the problem of awareness, there is little doubt that the employers took adverse action against Gross. The Court finds that he did in fact lose his job with EDI at the SLAPS site. The question, however, centers on the last part of the Holtzclaw test, whether complainant has presented sufficient evidence to permit the inference that he was fired because he engaged in protected activity. If the question were reached at all, it would be the considered opinion of the Court that Gross did not.

   Gross presented evidence that he was ultimately terminated from his position. He asserts that he was terminated because he brought problems with site operations to the attention of the contractor and the subcontractor that he worked for. The evidence in this case actually suggests that the Complainant was terminated because he made unacceptable comments about his superiors and because he placed graffiti and pornography on government property.

   Considering all of the evidence presented by the parties, the Court concludes that Gross was justifiably fired by EDI because of an improper attitude toward his superiors, poor work habits, and the fact that he defaced government and private property. Tom Sherrod testified that he caught Gross in the act of defacing site property on one occasion after another Radian employee had already caught him on a previous occasion. (TX, p. 528; RDX-15). Sherrod also testified that he caught the Complainant leaving work early on May 13, 1999. (TX, p. 530).

   The Court finds that any one of Mr. Gross' indiscretions in the workplace would have been enough to justify terminating his employment. Considered in comparison to vague and unreported claims of environmental violations, the Court finds that they are sufficient to prove that Mr. Gross was not fired for whistleblower activities protected by the CAA or CERCLA. If the Court were to reach the merits of the case, our conclusion would be that the Complainant was not terminated as a result of protected activity.

   It is recommended that the complaint of Michael Gross against EDI, Inc. and Radian International Inc. under the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act be dismissed as untimely.

   In the alternative, if the complaint of Michael Gross against EDI, Inc. and Radian International Inc. under the Clean Air Act and the Comprehensive Environmental Response, Compensation, and Liability Act is timely, it is recommended that a judgment be entered in favor of Radian and EDI because the Complainant has failed to make out a prima facie case.

    So ORDERED.

       RICHARD D. MILLS
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, 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).