DATE:  March 16, 1995
CASE NO. 93-CAA-7


IN THE MATTER OF

PHILLIP P. JACKSON, II,

          COMPLAINANT,

     v.

THE COMFORT INN, DOWNTOWN,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
which arises under the Clean Air Act, 42 U.S.C. § 7622 (CAA)
(1988).  The ALJ found that Complainant, Philip Jackson, failed
to establish that Respondent Comfort Inn (the hotel) violated the
CAA when it discharged him from its employ, and recommended
dismissal of the complaint.  Upon review of the ALJ's R.D. and
O., as well as the case record and the parties' submissions, I
agree that the complaint should be dismissed, for the reasons set
out below.
                                DISCUSSION
     Complainant, a maintenance engineer, was discharged on or
about February 24, 1993.  Complainant alleges that he was
discharged in violation of the CAA's employee protection
provision, because of his internal complaints to Respondent's
managerial personnel regarding the lack of a freon recovery 
unit [1]  and his alleged threat to report this failing to the
Environmental Protection Agency (EPA).  In effect, Complainant
alleges that he was let go for simply doing his job and 
[PAGE 2]
attempting to follow the law.                                     
     After a thorough review of the record, I have determined
that the ALJ's factual findings and credibility determinations,
see, R.D. and O at 1-9, 13, [2]  are supported by
substantial evidence.  Although I disagree with the ALJ's
analysis that Complainant failed to establish a prima facie case,
I conclude that Complainant did not carry his ultimate burden of
proving by a preponderance of the evidence that his discharge
was, in part, motivated by protected activity.
     In order to establish a prima facie case of discrimination
under the CAA, Complainant must initially show that he engaged in 
protected activity of which Respondent was aware, that Respondent
took some adverse action against him, and he must produce
evidence sufficient to raise an inference that the protected
activity was the likely motive for the adverse action. 
See Dartey v. Zack Co. of Chicago, Case No. 82-ERA-
2, Sec. Dec. Apr. 25, 1983, slip op. at 7-8 (under the Energy Reorganization
Act).  To establish a prima facie case Complainant need only
present evidence sufficient to prevail until contradicted and
overcome by other evidence.  See Carroll v. Bechtel
Power Corporation, Case No. 91-ERA-0046, Sec. Dec. Feb. 15,
1995, slip op. at 11 (under the Energy Reorganization Act).  
     If Complainant establishes a prima facie case, Respondent
has the burden of producing evidence that the adverse action was
motivated by legitimate, nondiscriminatory reasons. 
Dartey, slip op. at 8.  Complainant, however, always bears
the burden of proving by a preponderance of the evidence that
retaliation was a motivating factor in Respondent's actions. 
Id.; Crosby v. Hughes Aircraft Co., Case No. 85-
TSC-2, Sec. Dec. and Order, Aug. 17, 1993, slip op. at 30-31,
appeal docketed, Crosby v. Reich, No. 93-70834 (9th
Cir. Oct. 18, 1993).
     Essentially, the ALJ in this case believed Respondent's
explanation of its motivation for discharging Complainant and did
not believe Complainant's testimony in that regard.  The ALJ
specifically found that Complainant's credibility was suspect. 
R.D. and O. at 11-13.  While I am not bound by the ALJ's
credibility determinations, I agree with his reasoning in
discrediting Complainant's version of the facts.  Simon,
slip op. at 8.  
     I disagree, however, with the ALJ's determination that "it
is not clear . . .  whether Complainant actually complained to
management about the lack of a freon recovery unit."  R. D. and
O. at 11.  The next sentence of the ALJ's decision notes that the
need for a freon recovery unit was discussed with Complainant's
former supervisor, Andy Purkey.  Mr. Purkey, as a supervisor, was
part of Respondent's management team.  Therefore, I find that
Complainant did complain to Respondent's management about the 
[PAGE 3]
lack of a freon recovery unit.  
     I do agree with the ALJ's reasoning and alternative holding
that Complainant did not show that Respondent's reasons for
discharging him were pretextual.  R.D. and O. at 13. 
Complainant's case fails because he did not ultimately persuade
the trier of fact that any alleged protected activity in which he
engaged was a motivating factor for his discharge.  Complainant's
repeated failure to complete work assignments, his lingering
after his shift was over, his unauthorized use of hotel equipment
to view a pay-per-view television event, and his attempts to give
a bad impression of the hotel to guests as well as a new
employee, (R.D. and O. at 13), were all non-pretextual
"legitimate management concerns" for which Respondent would have
discharged Complainant, regardless of his engagement in any
protected activity.  
     Accordingly, this complaint is DISMISSED.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1] 
  The Secretary has previously decided that an employee's
internal complaint with respect to violations of environmental
laws is a protected activity. See, e.g., Simon v.
Simmons Indus., Inc., Case No. 87-TSC-2, Sec. Final Dec. and
Order, April 4, 1994, slip op. at 4-5 (and cases cited therein).

[2] 
  I note that the ALJ's R.D. and O. contains an apparent
typographical error on pages 12 and 13.  Lines 8-11 of the second
full paragraph on page 12 should be inserted between lines 5 and
6 of the first full paragraph on page 13.