1 The Complainant is an employee of AKZO Nobel Polymer Chemicals LLC, a wholly owned subsidiary of AKZO Nobel Chemicals, Inc., see Respondent's Post-Hearing Brief.
2 Martin appears pro se. His brief to the Board is merely a copy of the same post-hearing brief that was filed with the Administrative Law Judge (ALJ) on his behalf by his counsel who represented him before the ALJ at that time. Nevertheless, we have construed his brief liberally, i.e., we read it as asserting that the ALJ's conclusions of law were erroneous. See Williams v. Baltimore City Pub. Schools Sys., ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 1 n.2 (ARB May 30, 2003); Young v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ No. 00-STA-28, slip op. at 8 (ARB Feb. 28, 2003).
3 In setting forth the legal standard governing proof of discrimination in cases arising under the environmental whistleblower statutes, such as the CAA, the ALJ, citing cases arising under the Energy Reorganization Act (ERA), 42 U.S.C. § 5851 (2000), stated that if at hearing a complainant proves "by a preponderance of the evidence that he engaged in protected activity which was a contributing factor in an unfavorable personnel decision," then the burden shifts to the employer "to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. Trimmer v. U.S. Depart. of Labor, 174 F.3d 1098 (10th Cir. 1999); See also Dysert v. Secretary of Labor, 105 F.3d 607 (11th Cir. 1997)." Recommended Decision and Order (R. D. & O.) at 4-5. While Congress has specifically placed a higher burden on the employer in an ERA case in such circumstances, i.e., to demonstrate by "clear and convincing" evidence that it would have nevertheless taken the same action, see 42 U.S.C. § 5851(b)(3)(D) (2000), it has not done so with respect to employers under the CAA. Thus under the CAA, the employer may meet that burden by only a preponderance of the evidence. See Cox v. Lockheed Martin Energy Sys., Inc., ARB No. 99-040, ALJ No. 97-ERA-17, slip op. at 4 n.7 (ARB Mar. 30, 2001). We find, however, that this isolated misstatement of the burdens of proof did not affect the relevant analysis and outcome of the ALJ's R. D. & O., which we adopt in all other aspects. We also note that the ALJ's description of an adverse action as "an unfavorable personnel action" does not fully express the need for the action to have a "tangible" effect or consequence in order to qualify as conduct prohibited under the Act. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999); Jenkins, ARB No. 98-146, slip op. at 17. A suspension without pay, as in this case, clearly fits that requirement.
4 Debbie Sullivan and Scott Fossum were also AKZO officials who participated in the meeting held on July 3, 2001, in regard to disciplining Martin and in the drafting of the letter of discipline given to Martin, RX 3-4; HT at 228, 298-302.