DATE:  August 4, 1995
CASE NO.  94-CAA-5


IN THE MATTER OF

KEVIN FRANK RIVERS,

          COMPLAINANT,

     v.

MIDAS MUFFLER CENTER,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case arises under the employee protection provisions of
the Clean Air Act (CAA), 42 U.S.C. §7622 (1988).  On January
27, 1994, the Administrative Law Judge (ALJ) issued a Recommended
Decision and Order (R. D. and O.) holding that the Complainant
was not terminated in retaliation for protected activity.  After
review of the entire record, I affirm the ALJ's decision, as
modified below. 
                             BACKGROUND
     Complainant Kevin Frank Rivers (Rivers), began working at
Respondent Midas Muffler Center (Midas), in March 1993 as a
technician.  On September 7, 1993, an International Scout without
a catalytic converter was delivered to Midas for replacement of
dual mufflers and tailpipes.  R. D. and O. at 2; Transcript (T.)
33, 34.  Rivers determined from a door sticker that the vehicle
production date was 1979.  Rivers testified that the Midas policy
manual and the EPA require a 1979 model year vehicle to have a
catalytic converter.  R. D. and O. at 2.  Rivers informed his
manager, Larry Lazzara, of the vehicle's production year.  
[PAGE 2]
According to Rivers, Lazzara told Rivers that he discussed the
production year with general manager Dan McKinnon, who said to
"make it look like a 1974 model vehicle on paper."  Id.
     No work was performed on the International Scout that day
and when Rivers reported to work the following day, September 8,
1993, he replaced the CV joints on another vehicle.  R. D. and O.
at 2.  Rivers had a problem removing one side of the CV joint and
"conceded that he used a hammer and stripped the threads."  R. D.
and O. at 4.  
     At noon on September 8, Rivers was involved in "a little
skirmish about time cards" with McKinnon because he had not
clocked out for lunch.  R. D. and O. at 2.  During this
conversation, Rivers confronted McKinnon regarding the absence of
a catalytic converter on the International Scout and was told "to
get his facts straight."  Id.  Subsequently, Rivers called the
Environmental Quality Vehicle Emission Department (EQVED) in
Phoenix, Arizona and a man named "Dick" allegedly informed him
that "it was illegal to put dual exhaust on a vehicle without a
catalytic converter."  Id.  Rivers testified that Lazzara
overheard this conversation and went into the office, presumably
to speak with McKinnon about the call to EQVED.  Id.
     Rivers resumed work on the other vehicle after lunch, and a
co-worker replaced the dual mufflers and tailpipes on the
International Scout.  Id.  Later that afternoon, McKinnon "came
out and told [Rivers] to pick up [his] tools and leave."  Id.  
     On September 22, 1993, Rivers filed a complaint with the 
U. S. Department of Labor (DOL) alleging that he engaged in
protected activity within the scope of the Act, and that Midas
discharged him in retaliation.  After a hearing on the merits,
the ALJ found that while Rivers engaged in protected activity by
calling the EQVED in Phoenix, Arizona, there was no proof that
the McKinnon knew of Rivers' contact.  R. D. and O. at 5.  The
ALJ further found that Midas demonstrated Rivers "was terminated
because of his poor work product" and Rivers failed to rebut this
reason for the termination "by demonstrating the excuse offered
was simply a pretext".  R. D. and O. at 6.
                             DISCUSSION
     The ALJ focused on Rivers' September 8, 1993 contact with
the EQVED as the only protected activity in this case.  However,
the evidence is unrefuted that Rivers also engaged in protected
activity on September 7 and September 8, 1993, when he expressed
his concerns to Lazzara and McKinnon, respectively, regarding the
need to install a catalytic converter on the 1979 International
Scout.  See, e.g. T. at 13-14.  The Secretary of Labor has
consistently held that internal complaints to management
constitute activity protected under the environmental statutes.  
Passaic Valley Sewerage Commissioners v. Dept. of Labor,
992 F.2d 
[PAGE 3]
474, 478 (3d Cir. 1993); Carroll v. Bechtel Power
Corporation, 91-ERA-46, Sec. Dec., Feb. 15, 1995, slip
op. at 13-14, and cases cited therein.  
     The ALJ's failure to discuss Rivers' internal complaints to
management however, does not alter my analysis of the case.  The
only problem resulting from the ALJ's failure to recognize the
internal complaints made by Rivers, was that it caused the ALJ to
find that Midas was not aware of any protected activity.  But,
the ALJ went on to accurately analyze the case from the
perspective of whether Rivers proved that Midas' reasons for
discharging him were pretextual.  
     I find there is ample evidence in the record to conclude
that Midas discharged Rivers for legitimate, nondiscriminatory
reasons.  Rivers damaged the CV joint on another vehicle
and had to rethread the grooves.  T. 41.  Further, there was a
confrontation between Rivers and McKinnon on September 8,
regarding Rivers not clocking out for lunch.  R. D. and O. at 6. 
Finally, Rivers had a second job which had been a source of
contention for some time and Rivers had been asked to make a
choice between the two jobs.  Id.  
     McKinnon testified that Rivers was discharged because of his
poor work performance on another vehicle and that Rivers had
tardiness problems.  He denied that Rivers' discharge was based
upon any protected activity.  R. D. and O. at 4.  Moreover, while
McKinnon admitted that he and Rivers discussed the lack of a
catalytic converter on the International Scout, McKinnon denied
that there was a violation of the law.  He stated that "it is not
illegal . . . to install mufflers and tailpipes only, on a
vehicle that came into the shop with a pre-existing custom dual
exhaust system."  R. D. and O. at 3 and 4.  McKinnon's produced,
post hearing, a copy of an Environmental Protection Agency fact
sheet supporting his conclusion that the repair was legal. 
Respondent's Exhibit 1; R. D. and O. at 4 and 5.  
     Even if the work performed on the International Scout was
legal, this does not preclude Rivers from bringing a claim of
retaliation.  Previous Department of Labor decisions support a
conclusion that "an employee's reasonable belief that his
employer is violating the law, is a sufficient basis for a
retaliation claim if the employer takes action against the
employee because he expressed this belief, irrespective of after-
the-fact determinations regarding the correctness of the
employee's belief."  Minard v. Nerco Delmar Co., Case No.
92-SWD-1, Sec., Dec., Jan. 25, 1995, at 24.  Yet, proof of
McKinnon's assertion that there was no violation of the law does
tend to demonstrate, as found by the ALJ, that "this isolated
event was not threatening to [McKinnon] and he would doubtfully
have terminated an otherwise good employee because of it."  R. D.
and 
[PAGE 4]
O. at 6.
     Despite Rivers' protected activity, I do not find that the
general manager seized upon his poor performance as a pretext 
for retaliation.  Monteer v. Milky Way Trans. Co., Inc.,
Case No. 90-STA-9, Sec. Dec., July 31, 1990, slip op. at 4 (under
the Surface Transportation Assistance Act, evidence of
unprotected conduct immediately preceding adverse action may
militate against inference of causation).  I agree with the ALJ
that Midas' explanation is persuasive and not pretextual.  R. D.
and O. at 6.  I find that Respondent articulated a legitimate,
nondiscriminatory reason for discharging Rivers.
     Based upon the evidence as a whole, Rivers failed to
prove that his protected activity either led to his discharge, or

"played a role" in Respondent's decision.  Passaic Valley,
992 F.2d at 481.  In the absence of such proof, Rivers'
complaint must be dismissed.  Accordingly, I accept the ALJ's
findings and conclusions as modified above, and it is hereby
ORDERED that the complaint be DISMISSED.
SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D. C.