those statutes. She ordered remedial action. On February 23, 1988, the ALJ issued a Supplemental Recommended Decision recommending that compensatory damages be denied and that any determination as to exemplary damages be postponed until after final determination of the jurisdiction issue. Thereafter, on march 24, 1988, the ALJ issued a recommended Decision and order Awarding Attorney Fees.

   Upon review of the entire record in this case, including the very extensive briefs submitted to me by each of the parties, I have concluded that the ALJ was correct in finding that I have jurisdiction under CERCLA to entertain the complaint of Complainant pogue. Nevertheless, I find that Complainant Pogue has failed to establish that she was the victim of unlawful retaliation under any of the whistleblower statutes. In view of these findings, I make no rulings as to jurisdiction under the Solid Waste Disposal Act, the Clean Water Act or the Toxic Substances Control Act.

   This case squarely presents the issue of whether Complainant Pogue, who alleges retaliation by her supervisors for making environmental complaints, may seek relief under CERCLA's whistleblower provision, or whether she is limited to relief under the whistleblower provision of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 2308(b)(8) (1982). Although claims of Federal employees have been entertained Under various environmental whistleblower statutes, the Secretary has not heretofore ruled directly on the issue of coverage of Federal employees. See, Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6, Sec. Order of Dismissal Approving Settlement July 20, 1987; McAllen v. U.S. Environmental Protection Agency, Case No. 86-WPC-1, Sec. Order Approving Settlement and Dismissing Case, May 5, 1987; Kaufman v. EPA, Case No. 83-CER-1, Sec. Approval of Settlement, July 14, 1983.

   The Navy argues that I lack jurisdiction to entertain Pogue's complaint under CERCLA because Congress did not intend this statute to apply to Federal employees. In support of this position, the Navy argues: that there is no express language in CERCLA, nor any express statement in its legislative history, indicating coverage of Federal employees; that there has been no waiver of the sovereign immunity of the Federal government; and that CERCLA does not cover Federal employees because the CSRA established for Federal employees a comprehensive scheme to

address all claims concerning adverse personnel actions.

I. Whether Complainant's Claims Are Covered by CERCLA.

   The ALJ found that the plain meaning of CERCLA is that whistleblower claims of all employees, including employees of the Federal government, are covered by CERCLA. D. and O. at 50-52, Thus, the ALJ rejected the Navy's contention that there is "no evidence that Congress either expressly or implicitly intended that federal employees be afforded the remedies contained therein." Respondent's Post Trial Reply Brief at 3.

   Before me, the Navy makes a different argument as to the inapplicability of CERCLA to Federal employees -- that the Federal government is not a "person" prohibited by CERCLA from discriminating against whistleblowers, because the Federal government has not waived its sovereign immunity with respect to the CERCLA whistleblower provision.

   Upon review of the briefs of both parties and consideration of the arguments therein, I reject both of the Navy's arguments.

I.a. Statutory language.

   I start with the language of the statute. "Where, as here, resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear." Blum v. Stenson, 465 U.S. 886, 896 1984). Bradley v. Austin, 841 F.2d 1288, 1293 (6th Cir. 1988).

of section 9610 is specifically afforded to "any" employee, 42 U.S.C. § 9610(a), and its remedies are specifically made available to "any" employee. 42 U.S.C. § 9610(b). The use of the adjective "any" without descriptive words of limitation requires that the phrase be given its common meaning of "all" or "each and everyone", and that it thus exclude no employee. Consequently, I find no ambiguity in the language of section 9610 which would support the exclusion of Federal government employees such as Complainant. See United States v. Arizona, 295 U.S. 174, 184 (1935), holding that, where general terms are used, they include Federal employees.

   This is confirmed by the provision of CERCLA, generally referred to as the Federal facilities section, which requires Federal agencies to comply with the CERCLA requirements to the same extent as nongovernmental persons:

Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity . . . .

42 U.S.C. § 9620(a). As noted above, the term "person" includes the United States Government, 42 U.S.c. § 9601(21), and the employee protection provision of the Act stipulates that no "person" shall in any way discriminate against "any employee" for engaging in protected activity, including participation in any proceeding under or resulting from "the administration or enforcement of the provisions" of CERCLA. 42 U.S.C. § 9610(a).

   Moreover, Section 9659 of Title 42, 42 U.S.C. § 9659 (Supp. IV 1986), permits any person to file suit against the United States for violation of any standard, requirement, etc., which is in effect. Under this provision, an employee of the Federal government may file a citizen's suit against an agency for violation of environmental standards. As pointed out by complainant, if the CERCLA whistleblower provision were read to exclude Federal employees, "nonfederal employee whistleblowers participating in an action against a federal facility would be protected, while federal employees engaging in the same action would not. This aberrant result should not be lightly inferred, and is clearly unsupported by the statute, legislative history or any case law." Complainant's Response Brief on Review (Complainant's Response) at 20.

   Moreover, narrowly reading "any employee" to exclude Federal employees would frustrate the statute's goals:

CERCLA is essentially a remedial statute designed by Congress to protect and preserve public health and the environment. We are therefore obligated to construe its provision liberally to avoid frustration of the beneficial legislative purposes. Mottolo, 605 F. Supp. at 902; Conservation Chemical, 619 F. Supp. at 192. With this in mind, we join the Second Circuit in proclaiming that "[w]e will not interpret section 9607(a) in any way that apparently frustrates the statute's goals, in the absence of a specific congressional intent otherwise." New York v. Shore Realty Corp., 759 F.2d 1032, 1045 (2d Cir. 1985).

Dedham Water Company v. Cumberland Farms Dairy Inc., 805 F.2d 1074, 1081 (1st Cir. 1986). To limit CERCLA's whistleblower protection to nongovernmental employees would substantially diminish the sources through which information could be obtained as to compliance with the environmental requirements of the statute, thus undermining the statute's objectives, Accordingly, I conclude that CERCLA applies to Complainant Pogue's claims.

I.b. Sovereign Immunity.

The absence of consent is a fundamental, jurisdictional defect that may be asserted at any time, either by the parties or by the court on its own motion. Only Congress can waive the United States' sovereign immunity and the government is not subject to assertions of waiver or estoppel when it raises the defense.

14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3654 (Supp. 1989) (emphasis supplied). Professor Wright points out that Judgments obtained against a governmental entity immune from suit have been held to be void and not entitled to res judicata effect. Id. See also United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1941). Accordingly, I shall consider the Navy's sovereign immunity argument.

   It is not disputed that the United States may be sued only if Congress has consented to the action. See Library of Congress v. Shaw, 478 U.S. 310 (1985). Contrary to the Navy's position, Respondent's Initial Brief in Response to Administrative Law Judge's Decision and order (Navy's Initial Brief) at 9 and 11, this consent need not be express, but must be clear and unequivocal. "[A) waiver of sovereign immunity is accomplished not by a "ritualistic formula'; rather intent to waive immunity and the scope of such waiver can only be ascertained by reference to underlying congressional policy." Franchise Tax Board of California v. U.S. Postal Service, 467 U.S. 512, 521 (1984), (citing Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 389 (1939)).

rather, I find that the sovereign immunity of the Federal government has been waived in CERCLA as to the claims involved herein. The express inclusion of the Federal government in the definition of "person", 42 U.S.C. § 9601(21), accompanied by the requirement that Federal facilities comply with CERCLA provisions to the same extent as nongovernmental persons, are unequivocal expressions of Congress' intent that Federal agencies should comply with the CERCLA whistleblower provision in cases such as this. Originally enacted in section 9607(g) of CERCLA of 1980, the Federal facilities provision was subsequently (in 1986) included as section 9620(a). 42 U.S.C. § 9620(a) (Supp. IV 1986). This provision states that "each department, agency, and instrumentality" of the United States "shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity . . . ." (Emphasis supplied). The "chapter" referred to in this provision encompasses the entire CERCLA statute. No section of the statute is exempted. Congress emphasized this in the legislative history of the 1986 CERCLA amendments. See H. Rep, No. 253(I), 99th Cong., 2d Sess. 93, reprinted in 1986 U.S. Code Cong. & Admin. News 2875, stating that Federal agencies are required to comply with "this legislation and the current law" in the same manner and to the same extent as any nongovernmental agency. (Emphasis supplied). See also id. at 2946, pointing out that "[t]he section would apply all requirements, standards, guidelines, rules, regulations and procedures applicable under CERCLA to facilities owned or operated by the federal government and states that no federal agency or department may adopt provisions which are inconsistent with such rules and regulations." I conclude, therefore, that Congress has made clear its intent to require Federal agencies to comply with the whistleblower provision of CERCLA in cases such as this.

   The Navy's argument that this waiver is limited to activities occurring after the 1986 enactment of section 9620 is not valid. The requirement that Federal entities comply with all Federal requirements was contained in section 9607(g) of the original act. Pub. L. No. 96-510 § 107(g), 94 Stat. 2783 (1980). Although section 9607(g) was expanded in 1986 and incorporated into the current section 9620, the language reflecting the waiver of sovereign immunity is virtually identical in both sections. Both sections provide that Federal agencies "shall be subject to, and comply with, this chapter in the same Manner and to the same extent, both procedurally and substantively, as any

The bill contains a new section 1222 of title 5, United States Code, which provides that the network of rights and remedies created under chapter 12 and chapter 23 of title 5 is not meant to limit any right or remedy which might be available under any other statute. Other statutes which might provide relief for whistleblowers include the Privacy Act, a large number of environmental and labor statutes which provide specific protection to employees who cooperate with federal agencies, and civil rights statutes under title 42, United States, Code. Section 1222 is not intended to create a cause of action where none otherwise exists or to reverse any court decision. Rather, section 1222 says it is not the intent of Congress that the procedures under chapters 12 and 23 of title 5, United states Code are meant to provide exclusive remedies.

135 Cong. Rec. § 2782 (daily ed. March 16, 1989); 135 Cong. Rec. H750 (daily ed. March 21, 1989) (emphasis supplied).

as an Assistant Ship Test Engineer. Id. Complainant's first assignment at Mare Island was in the Nuclear Quality Engineering Division of the Nuclear Engineering Department. Complainant has a degree in nuclear engineering. D. and O. at 7; Complainant's Exhibit (C)-7.

   Complainant's performance was evaluated for the first time at Mare Island on April 25, 1983. C-8. At that time, Complainant was in grade GS-9. Her performance was rated satisfactory overall, but on two out of four performance elements, the appraisal noted in the rating column "[n]ot observed." Id.

evaluation form continue:

Note: Employee refused to sign performance appraisal[.] Employee requested in writing ways to improve performance, so attached of 10-10-84. Also discussed with employee on 10-9-84 possibility of her talking with counciler [sic] at civ. employee ass. prog.

controls over each phase of her work. R-63, p. 601. The note stated:

Because your performance is "marginal" you will be given a progress review in 30 days and re-appraisal in 60 days. If your performance is satisfactory, the marginal rating will be amended.

To help you raise your performance level the following step will be started.

1. Require you to give me an outline of each new document (not minor rev's) so we can dissus (sic).

2. We will spend one hour per week going over various tech. subjects.

3. For each project I will give you the following dates a) start work b) outline to me and dissus (sic) c) out for 1st review d) final due.

   Complainant filed a grievance over this appraisal. At the first step of the grievance procedure, reconsideration by Mr. Stephens, he agreed to change the "Marginal" rating on element number 4 because the information on the criticism of Complainant by another office was inaccurate. R-63, p. 602. At the 30 day review of Complainant's performance, Mr. Stephens found Complainant was "doing better" on element number 3, meeting scheduled dates, but on critical element number one, submitting workable documents, he said "[t]his area still needs work". R-63, p. 603. After 60 days, on June 9, 1986, Mr. Stephens agreed to change the rating on element number three to "Satisfactory". He still found Complainant's performance on critical element number one in need of improvement, and because this element was "Marginal", he would not change the overall rating of "Marginal". R-63, p. 604.

   Complainant disagreed with Mr. Stephens' decision not to change the overall "Marginal" rating. In a memorandum of June 17, 1986, complainant complained; among other things, that Mr. Stephens did not give her the promised training and did not give her the promised dates for completion of her assignments. She pointed out that if he did not change his rating, she would not get her step increase on time.

   Complainant's grievance over Mr. Stephens' evaluation of her

performance went to the second step of the grievance procedure before the Production Engineering Division Manager, Mr. Priess. The grievance was denied on August 1, 1986. R-63, pp. 612-613. Mr. Priess found that:

[m]y review of the evidence indicates that your supervisor has fulfilled his obligation to provide training and help with job scheduling. He has changed your rating in two of the performance elements based on your improvement in these areas. Critical element #1, however, still requires improvement . . . . [W]hen any critical element is Marginal, the overall rating will be Marginal. There is no indication that Mr. Stephens has asked you to perform any work which is beyond your capabilities and has, in fact, spent extra time reviewing what is expected of your performance, helping you to bring the performance rating up to Satisfactory level in two of the established elements on your performance appraisal.

   Complainant's within-grade increase, due on August 17, 1986, was withheld. In his memorandum notifying Complainant of this decision, Mr. Stephens said "[i]n order to receive a within-grade increase, you must improve your work." In addition, he warned complainant that "[y]ou are further advised that if, at any time, your performance falls below the marginal standard, action to remove you from your position will be taken . . . ." R-63, p. 615.

   During this time period, Complainant also filed a grievance claiming that Mr. Stephens was harassing her by counseling her on possible sick leave abuse and having a union representative and a person from the employee assistance program counsel her; by disapproving a leave slip; and by placing Complainant on "Z leave" for consulting with the union on work time without his approval. R-63, p. 616.

   After meeting with Complainant and her union representative, Mr. Stephens sent them a memo rejecting her charges. R-63, p. 616. The memo stated that Complainant had "a pattern of taking sick leave as it becomes available. She has not had over 25.5 hours since she (transferred to Mr. Stephens' office). . . . Barbara is the only person in my section to have a problem with sick leave." Mr. Stephens explained further that he disapproved the leave slip because Complainant gave it to him 25 minutes before the leave was to begin with no explanation for this "last

minute-request." Mr. Stephens said Complainant was spending more than the allowed time for grievances, and reduced her compensatory time accordingly. Mr. Stephens concluded by saying "I have not been harassing Barbara Pogue. My concern is that her work assignments are taking too long to complete and she is not spending as much time on her assigned work as she should." Id. Mr. Stephens' memo is dated August 21, 1986.

   On September 10, 1986, Complainant transferred into the Occupational Safety and Health office, Occupational Health Technical Division (OHTD) under Michael Noble's supervision.

made a commitment to Mr. Tung. Id. Complainant came to see Mr. Noble several times and he told her the only Position he had was in industrial hygiene engineering. T. 838. Mr. Noble told Complainant he was aware of the problems she was having in the Production Engineering Division. T. 842. He decided to hire her as a mechanical Engineer because she expressed a strong interest in hazardous waste which Mr. Noble thought would be transferable to hazardous material industrial hygiene. T. 844.

   Mr. Noble assigned Complainant to work temporarily on hazardous waste oversight until Mr. Tung came on board. Mr. Noble had been directed by the Shipyard Commander on September 3, 1986, "to take immediate action to establish an interim capability" for hazardous waste oversight until the hazardous waste engineer was "on-board and up to speed." R-23; T. 846-47. Complainant understood that she was being assigned to hazardous waste oversight on an interim basis, C-218, and not as the permanent position title into which she was transferring. T. 438. Mr. Noble's supervisor, Mr. Tatum, the Director of the Occupational Safety and Health Office, testified that, at the time Complainant transferred to OHTD, the Shipyard Commander had decided there was an immediate need to make the hazardous waste program visible again. T. 1368. Two other people, in addition to complainant, who had no experience in hazardous waste, were assigned to auditing of waste problems. T. 1369. The objective was to make very simple findings, not in-depth auditing. T. 1369-70. Mr. Tatum also did not intend to assign Complainant to hazardous waste auditing permanently. T. 1371. See also testimony of Mr. Tung at 1208.

   The first hazardous waste audit at Mare Island had been ordered by Mr. Tatum in 1983. T. 1353. He had directed the OHTD to conduct the audit because of the lack of any auditing of hazardous waste. T. 1354. The audit was not required by any statute, regulation, or Mare Island directive. T. 1353-54. That first audit report, issued on January 24, 1984, R.1, was signed by Mr. Noble, who had been a Compliance Officer with the occupational Safety and Health Administration of the Department of Labor for three years. T. 791. The line managers were shocked by the report and the fact that hazardous waste problems existed. T. 1354. The report found 43 areas of noncompliance with specific regulations or Navy directives and 27 areas of partial compliance. After the California state Department of Health Services conducted an investigation in 1984 and made several findings of violations, the Shipyard Commander ordered establishment of a regular audit program. R-20; T. 1355.

   Complainant worked on hazardous waste audits from her starting date in OHTD, September 10, 1986, T. 847, until October 28, 1986. T. 931. Mr. Noble gave Complainant guidance on sites around Mare Island to audit. He directed her to use prior audits and the state investigation report to follow up to see if they were still out of compliance. Mr. Noble directed Complainant to advise him of serious violations immediately. T. 854; R-27.

   Although Complainant's first hazardous waste audit report was "very rough," T. 862, Mr. Noble accepted it in that form because he understood that Complainant was new to the area and was under pressure to produce a report quickly. Id. Mr. Noble wrote to complainant on a copy of her first report saying "Barbra [sic] - Looks good. See comments. Lets really hit this week I want to get as many places looked at as possible . . . ."

   Mr. Noble had many problems with Complainant's subsequent reports, however. He expected her, as a GS-11 "full performance journeyman engineer," T. 862, to be at or close to the full performance working level for a professional engineer, including preparing reports, doing research, evaluating process problems and making recommendations to management. T. 863. Mr. Noble accepted Complainant's citation of numerous statutory and regulatory requirements for each violation found where one would have been sufficient, because she was new to the area. T. 863- 864. But, Mr. Noble found Complainant's reports wordy, ungrammatical, poorly organized, and containing too much of Complainant's opinions rather than simply reporting facts. T. 864. Mr. Noble edited Complainant's reports to make them more effective, with more impact on those to whom they were addressed, but did not delete any of the violations found. T. 872. Compare, e g., C-100, pp. 492-494, Complainant's draft of Hazardous Waste Oversight Program surveillance Report #20, including Mr. Noble's editing marks, with R-30, PP. 200-202, the same report after it had been rewritten.

   At the end of October 1986, Mr. Noble directed Mr. Tung to review and edit Complainant's last reports, T. 892; R-29, p. 109, and assigned Complainant to the work he originally hired her to do, industrial hygiene engineering. T. 884.

   In late September 1986, Mr. Balli, a supervisor in the production engineering department, called Mr. Noble to complain about the conduct of a hazardous waste inspection team. T. 894. Mr. Noble set up a meeting with Complainant and Mr. Balli to discuss his concerns. T. 895; C-5. Mr. Noble cautioned Complainant that Mr. Balli might get emotional because he was

upset that someone on the audit team had said they were out to "get somebody," T. 894, and because Mr. Balli felt he was being held responsible for hazardous waste dumping over which he had no control. T. 895. Mr. Noble told Complainant the meeting was not to question her credibility, but to try to resolve Mr. Balli's concerns. T. 897. Mr. Noble wanted to maintain a good working relationship with Mr. Balli so that the hazardous waste problems could be resolved. T. 899-900. After an emotional beginning, the meeting concluded with Mr. Balli making some commitments to resolve some of the problems. T. 900-901.

   However, after the meeting, Complainant accused Mr. Noble of playing politics with Mr. Balli. She thought that setting up this meeting, which she considered a "critique" of the report, was "unreasonable." T. 195. She accused Mr. Noble of watering down her report. T. 901.

   Another member of the audit team, Mr. Hanson, who also participated in the meeting with Mr. Balli, told Mr. Noble he thought Complainant had acted in an unprofessional manner in the meeting. T. 902. A few days later, Mr. Noble called Complainant into his office and talked with her about what he viewed as her communications problem and suggested she take some training in this area. T. 903. Complainant said this suggestion was unfair. Id. Mr. Noble made no changes in Complainant's hazardous waste report as a result of the meeting with Mr. Balli. T. 906.

   On or about october 15, 1986, Complainant attended a meeting on Used Solvent Elimination (USE), although she had no responsibility for that program. T. 927. Dr. Cornils told Mr. Noble that Complainant's behavior in the meeting was very counterproductive. She was argumentative, causing employees in Dr. Cornils' office to be reluctant to deal with her after that. T. 928. In January 1987, Dr. Cornils declined to select Complainant for an environmental engineer position in his office. He told her that "her uncontrolled actions at a past meeting concerning USE was the deciding factor." R-56, p. 542. A few days after the USE meeting, Mr. Noble spoke to complainant about her conduct at the USE Meeting, He told her that he thought she was creating an appearance of a conflict of interest by trying to advance her ideas on solvent recovery in this meeting when she stood to gain financially because she had submitted a formal suggestion on it. T. 929; R-73, p. 880.

   Mr. Noble gave Complainant a new assignment on October 28, 1986, to conduct a noise control engineering feasibility study. R-69, P. 696. Noise control is an aspect of industrial hygiene, which was the area of work for which Complainant had originally

been hired by Mr. Noble. T. 935. Mr. Noble gave Complainant reference materials on noise control, id., and a self-study text on industrial hygiene in which she was to concentrate on noise control. T. 963-64. Mr. Noble directed Complainant to work with Mr. Loyberg, an audiologist, to learn how to use a sound level meter, how to establish interim controls for hearing protection, and to assist her in making her initial assessments of noise problems in the production shops. T. 962.

   The noise control assignment had three steps. First, using an industrial hygiene survey conducted by the Mare Island Naval Hospital, Complainant was to make a list of noise hazardous areas. T. 959. Next, Complainant was to "prioritize" the list by "exposure risk and sound level, [and] number of personnel exposed," and develop target dates for studying each location. T. 961; R-69, P. 696. Finally, Complainant was to conduct engineering feasibility studies of the identified problem areas on how noise in the machinery or equipment could be reduced. R-69, P. 696.

   Mr. Loyberg, the audiologist who worked with Complainant on the noise control assignment, described Complainant's assignment as "go[ing] over . . . noise measurements that had been previously made, . . . pick[ing] out those areas that presented the most hazard to the greatest number of people, and . . . work[ing] on providing . . . engineering noise controls . . . ." T. 1864. Mr. Loyberg described these engineering controls as "low echelon," like tightening loose parts or adding padding where metal hits metal. T. 1864-65.

   Complainant told Mr. Noble she thought the noise control assignment was trivial, T. 966, and told Mr. Loyberg it was unimportant and a waste of time. T. 1871. Mr. Noble explained to complainant that noise control was very important because Mare Island had a potential liability of $500,000 a year for workers' compensation claims for hearing loss. T. 967. See also T. 1365, 1862.

   Complainant's progress, or lack of progress from Mr. Noble's point of view, on this noise control assignment was one of the major factors in Mr. Noble's decision to give Complainant a Notice of Unsatisfactory Performance, and 30 Day Period to Correct Performance on January 22, 1987, and a Notice of Unsatisfactory Performance, Decision to Transfer, and Withhold Within-Grade Increase on April 10, 1987. See infra at 41-42, and 46.

   On November 14, 1986, Complainant was removed from a meeting of Mare Island managers who were preparing for a meeting with the

Shipyard Commander on hazardous waste. T. 221; 974. Mr. Noble testified COmplainant came into his office and screamed at him that he had her removed from the meeting because he did not want her working on hazardous waste and was playing shipyard politics. T. 974. Mr. Noble told Complainant her work on her assignments was unsatisfactory. Mr. Noble conceded he got angry because of the accusations Complainant was making and because in ten years as a supervisor he had never had an employee speak to him that way. T. 975; R-69, p. 694. Mr. Noble thought Complainant's behavior was similar to her conduct after the meeting with Mr. Balli. T. 979. Complainant told Mr. Noble that she and an employee in another office had concerns about hazardous waste problems that were not being addressed. Mr. Noble told her to prepare a report on these problems and send it through Mr. Tung, Mr. Noble and Mr. Tatum. T. 997-98.

   A few days later, on November 17, 1986, Mr. Noble called Complainant into his office to tell her he would not tolerate the kind of behavior she exhibited on November 14. He warned her he would take disciplinary action if it happened again. T. 981; R-69, p. 695. Mr. Noble also spoke to Complainant about her noise control assignment and self-study project; Complainant again characterized the noise control project as trivial. Id.

Mr. Noble was upset about the letter because he believed it was the report on Complainant's concerns about hazardous waste she had mentioned to him on November 14, and which he had directed her to send through Mr. Tung, himself and Mr. Tatum. T. 897; 1388.

   On December 3, 1986, Mr. Noble Met with Complainant. He told her he knew about the letter to the shipyard Commander. He said he "considered her letter . . . a direct violation of my order to prepare a report signed by [Complainant] and [the other employee she referred to] and forward it to [Mr. Tatum] via Kam [Tung] and myself." C-121; T. 1002-1003. Complainant replied that these were two separate letters, Mr. Noble also told complainant that her work output on the noise control project was inadequate. All she had produced since October 28 was a list of noise hazardous areas, a task Mr. Noble thought a clerical employee could have done in 8-10 hours. C-121. He gave her specific requirements for how many assessments should be done each week because none had been done yet. C-121; R-65 p. 703; T. 1008. Mr. Noble directed Complainant to consult with Mr. Loyberg, the audiologist, for assistance in making the assessments. R-69, p. 703; T. 1008-1009.

   After the meeting, Complainant made inquiries about a temporary transfer to another office. T. 225-226. Mr. Noble told Complainant he would not agree to a temporary transfer because she would still be counted against his personnel ceiling and his office was short-handed as it was. C-124; 1043-44; T 1393-94.

   On December 8, 1986, Complainant asked Mr. Noble if she could pick up a Hewlett-Packard computer system from the surplus property office. Mr. Noble told her to check with Mr. Noel (the Automated Information Systems (AIS) Project Manager, T. 1031) to find out if the computer was compatible with the new AIS being installed. If it was, Mr. Noble told Complainant she could acquire the computer. R-73, p 871; T. 1029; 2044. If not, Mr. Noble directed her not to obtain it for the purpose of trading it for property or services from other offices. R-73, p. 871; T. 1029. Complainant asked Mr. Noel about it and he said he did not need the computer. T. 2045. Nevertheless, Complainant decided to pick up the computer anyway just "to get the computer [to store it and] possibly use it in trade." Id. Complainant asked four other employees to help her obtain the computer; she asked Mr. Reynolds, another engineer, to sign for it at the surplus property office, and all four of the other employees helped her move it into a bomb shelter. T. 1029, 1034; R-73,

p. 873. She gave them the impression Mr. Noble had approved acquisition of this computer. T. 1034; R-73, p. 872. Two of the employees complained to Mr. Noble right after moving the computer about spending their time in this way. T. 1029, 1032. One of them felt he had been "snookered" into this by Complainant. R-73, p. 872.

   On December 16, 1986, Mr. Noble saw Complainant using a microfiche reader which she also had apparently obtained from the surplus property office. Complainant said this was her hobby and she would only play with it during lunch or on her own time Mr. Noble told her it was not appropriate to bring her hobbies into the office and that he did not want any more "junk" (non- functioning or excess government property) brought into the office. T. 1030.

   Complainant also came into Mr. Noble's office on December 16, 1986, to ask if she could have the construction workers who were building a computer room for Mr. Noel build a loft in it. When Mr. Noble tried to cut off the discussion by telling her this was not in the budget, Complainant suggested picking up some insulation at the surplus property office to trade for the construction labor. T. 1053-54. Mr. Noble told Complainant he thought it was illegal to obtain government property and trade it for services. T. 1054. Nevertheless, without asking Mr. Noel or informing Mr. Noble, Complainant arranged for the loft to be built. Mr. Noel was on leave at the time. T. 1055. Mr. Noel came into Mr. Noble's office at eight the next morning, December 17, 1986. Mr. Noel was very angry, called the building of the loft a stupid thing to do, and explained why it would be dangerous for employees and that the expensive new computer equipment could be damaged. T. 1055.

   After all these incidents, Mr. Noble was fed up, particularly because Complainant was spending work time in this way and had not turned out any work product other than the list of noise hazardous areas. T. 1056. After talking to Mr. Noel, Mr. Noble told Complainant he was revoking her authorization to obtain surplus property, effective immediately. Id. She was "no longer authorized to go there [the surplus property office] period." T. 1057.

complainant the noise control assignment. T. 1022. Within a few weeks, Mr. Bass was taking on more assignments, of greater difficulty, than Complainant. Id. In addition, Mr. Noble had to spend much less time supervising Mr. Bass than Complainant, even though Complainant had the lowest workload in the office. T. 1023. Mr. Noble explained that, due to staff shortages and unusual demands on his time, dependability and ability to work independently with a minimum of supervision were very important. T. 972.

   Complainant made a number of requests for training in her areas of responsibility. T. 354. Mr. Noble told Complainant that he planned to bring in a consultant to do noise control training which she as well as another engineer could take. T. 963. In the interim, Mr. Noble gave Complainant the industrial hygiene self-study materials, which had a number of sections on noise control. T. 963. He also directed her to reference materials available in the office, and told her to work with Mr. Loyberg to learn the basics of hearing conservation and noise control. Id. In December 1986 and January 1987, Mr. Noble worked with Complainant on her individual development plan. R-49. Mr. Noble developed similar plans with all his staff members. T. 1114. In January 1987, Mr. Noble also assigned Dr. Haberman; an industrial hygienist, to assist Complainant in working on the self-study material. T. 1061.

   Mr. Noble expected Complainant to perform only the most rudimentary analysis of noise problems. T. 1066. It was the kind of analysis an experienced mechanic could perform and did not require formal training. T. 1066-67. Mr. Loyberg described Complainant's assignment as "low echelon . . . in terms of the engineering expertise required . . . . " T. 1865. Complainant's task was to find the "many things that can be done in noise control that are fairly simple and fairly straightforward to reduce the amount of noise." Id.

   On a number of occasions in January and February 1987, complainant requested that she be allowed to obtain training and certification as a technician for taking sound level measurements. T. 1126; see C-3, p. 11, § 5.2.1(a). Mr. Noble explained to Complainant that this training was very broad in scope and only touched briefly on noise control. T. 1126-27. He told her she did not need this certification to carry out her noise control assignment. T. 1127-30.

   During a review of Complainant's work on February 9, 1987, Mr. Noble asked Complainant why she had Recommended reducing noise by replacing a particular saw with a machine called a

"broho saw." T. 1532. Since a broho saw can be used in only certain situations, Mr. Noble asked Complainant what kind of saw was then being used at the site. Complainant did not know, which led Mr. Noble to question whether she had really looked at the saw at all. Complainant's response was that this was another area in which she needed training. T. 1532-33. Mr. Noble told complainant this is not something that requires training - you simply look at the saw to see what type it is. This is "pretty elementary," especially for an engineer with eight years' experience at an industrial shipyard. T. 1656. Mr. Noble believed that it bordered on malpractice for Complainant to make a recommendation for reducing noise by substituting one kind of saw for another when she did not know what kind of saw was being used at the site. T. 1658.

level engineer, during the same time period. T. 1091. The 30 day notice warned Complainant that unless she made significant progress she would be fired. C-156, p. 648.

   After giving Complainant the 30 day notice, Mr. Noble met with Complainant almost every week to review her progress on her assignments. At the first such meeting on January 26, 1987, Complainant had no work product to show Mr. Noble. T. 1525. At the meeting of February 2, 1987, Mr. Noble knew that Complainant had gone over some material in the self-study project with Dr. Haberman and had met with Mr. Loyberg and completed the training Mr. Noble had directed Mr. Loyberg to give her. T. 1525-26. Complainant gave Mr. Noble her field notes on noise hazardous areas she had inspected. However, the notes contained very little information, with much of it being just a restatement of the findings of the Naval Hospital report. T. 1527. Mr. Noble characterized it as having "no real engineering evaluation in it." T. 1527; R-69, pp. 748-49. Again on February 9, 1987, Mr. Noble found that Complainant had not done any engineering evaluation of noise problems. T. 1532; R-69, pp. 757-58. (This was the meeting in which Mr. Noble questioned Complainant's recommendation to substitute a broho saw for another saw. See supra at 40-41.)

   On February 19, 1987, when Mr. Noble was on leave Ms. McLouth, another engineer, held the weekly assignment review meeting with Complainant. T. 1542. In a memo to Mr. Noble summarizing the meeting, Ms. McLouth first complained that Complainant misled her into believing Complainant was entitled to have a union representative sit in on the assignment review meeting. R-69, p. 760. Ms. McLouth then reported that Complainant submitted some reports on noise control which contained initial assessments and recommended solutions. But Ms. McLouth said "[Complainant's] reports were poorly organized and difficult to follow. Without looking at the problems myself, I had a hard time understanding the problems and solutions she recommended. There were a lot of unnecessary visit and Telephone Conversation Records which tended to take up filing spaces and confuse the matter." R-69, p. 762.

prima facie case, the employer has the burden of producing evidence at this point; the ultimate burden of persuasion of the existence of intentional discrimination rests with the employee. [Citation omitted).

If the employer successfully rebuts the employee's prima facie case, the employee till has "the opportunity to demonstrate that the employment decision .. .. [The employee] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." [Citation omitted]. The trier of fact may then conclude that the employer's proffered reason for its conduct is a pretext and rule that the employee has proved actionable retaliation for protected activity. Conversely, the trier of fact may conclude that the employer was not motivated, in whole or in part, by the employee's protected conduct and rule that the employee has failed to establish his case by a preponderance of the evidence. [Citation omitted]. Finally, the trier of fact may decide that the employer was motivated by both prohibited and legitimate reasons, i.e., that the employer had "dual motives."

. . . [I]f the trier of fact reaches the latter conclusion, that the employee has proven by a preponderance of the evidence that the protected conduct was a motivating factor in the employer's action, the employer, in order to avoid liability, has the burden of proof or persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. [Citations omitted].

Slip op. at 7-9

   Respondent argues that Complainant has not proven the first element of a prima facie case, that she engaged in protected activity, because internal reports to management are not a protected activity under any of the statutes in this case. Navy's Initial Brief at 30. Although there have been no previous

the Secretary has held, both under the ERA and other whistleblower laws, that personnel other than quality control inspectors can be protected for their internal complaints, Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Dec. July 30, 1987, slip op,. at 11 (a, welder); Willy v. The Coastal Corp. (an attorney); Poulos v. Ambassador Fuel Oil Co. (truck driver); cf., Consolidated Edison Co. of N.Y. v. Donovan, 673 F.2d 61 (2d Cir. 1982) (mechanic).

activity of writing the letter to the Shipyard Commander, Nevertheless, as more fully explained below, I find that Complainant's work performance and intolerable behavior in many other respects fully justified the actions taken against her, and that Respondent has proven by a preponderance -- indeed by a substantial preponderance -- of the evidence that it would have taken the same actions if Complainant had never written the letter. Price Waterhouse v. Hopkins, 109 S. Ct. 1775, 1789-90 (1989); NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983); Mt. Healthy City School District v Doyle, 429 U.S. 274, 287 (1977); Mackowiak v. University Nuclear Systems, Inc., 735 F..2d 1159, 1164 (9th Cir. 1984); Dartey v. Zack Co. of Chicago, slip op. at 9.

   Complainant was an employee with a history of employment difficulties and barely adequate or marginal performance for several years before she began work in OHTD. In 1984, her supervisor noted on Complainant's performance appraisal that he expected improvement in one of Complainant's critical performance elements. See discussion supra at 17. A year later in March 1985, the same supervisor evaluated Complainant's performance as marginally satisfactory on one critical element, and as needing improvement on a noncritical element. Supra at 17-18. He also noted what he believed to be abuse of sick leave, supra at 18, and recommended that Complainant receive counseling from the employee assistance program. Id.

complainant's within-grade increase was withheld in August 1986 because her work had not improved, and she was warned that she would be fired it she did not improve, In the summer of 1986, complainant filed another grievance claiming Mr. Stephens was harassing her with respect to leave. Mr. Stephens rejected this grievance on August 21, 1986. Supra at 22-23. Complainant also suggested that Mr. Stephens harassed her because she was a woman, T. 435, and that Mr. Stephens' editing of her reports was harassment. T. 451.

   During the summer of 1986, as matters were going downhill for complainant under Mr. Stephens, supervision, Complainant approached Mr. Noble about transferring to OHTD. Supra at 25. Although he had misgivings because he was aware of her problems under her two immediate past supervisors, Mr. Noble gave Complainant another fresh start because she seemed enthusiastic about areas related to the work he had for her in OHTD. Supra at 25. Complainant's employment history at Mare Island, of which Mr. Noble was aware, corroborates Mr. Noble's testimony that he disciplined Complainant for unsatisfactory performance and disruptive and insubordinate behavior, which he viewed as a repetition of her past work pattern, rather than for reporting hazardous waste problems. See T. 907; 931; 1048; 1748.

   Complainant asserts in this proceeding that one fact which tends to prove retaliatory motive is that Mr. Noble reassigned her in October 1986 from hazardous waste engineer to mechanical engineer as punishment for Complainant's hazardous waste reports. T. 442. Both Mr. Noble and Mr. Tatum testified they never intended to assign Complainant to be the hazardous waste engineer. They had already made a commitment to hire Mr. Tung in that position, and only intended to assign Complainant (as well as two other engineers with no hazardous waste training) temporarily to hazardous waste auditing because the Mare Island Commander wanted the program to become visible immediately without waiting for Mr. Tung to start work. See discussion supra at 25-26. This explanation of the events surrounding Complainant's transfer to OHTD is corroborated by Complainant herself. In Complainant's Interview Statement taken by a Wage- Hour compliance Officer (and introduced by Complainant, C-218) complainant said "I think that I was transferred into [OHTD] with the understanding that I would do it (hazardous Waste oversight] for awhile; then I would assist (Mr.) Tung, and then I could replace (Mr.) Tung on an as needed basis." C-218, P. 833. Complainant also testified that she knew in August 1986, when she was notified about her transfer to OHTD, that she was not going

to be the Hazardous Waste oversight Engineer. T. 438. See also testimony of Mr. Tung, T. 1208-9.

   Shortly after transferring to OHTD, Complainant became dissatisfied because Mr. Noble was editing her hazardous waste reports. Complainant spoke to Mr. Tatum about it, and asked him for another assignment. Mr. Tatum viewed this as an attempt by Complainant to circumvent Mr. Noble's direction. T. 1379, 1483.

   Complainant alleged that her hazardous waste reports were held up and edited by Mr. Noble because they were too controversial and hard hitting. C-218; R-48. Mr. Noble testified he held up some of the reports she drafted for editing because he found them wordy, ungrammatical, poorly organzied and containing too much opinion rather than simple reporting of facts. Supra at 27-28. (Mr. Noble found the first few reports by Complainant acceptable, and even wrote on one of them "[l]ooks good . . . lets really hit it this week, I want to get as many places looked at as possible . . . .") one need not be an expert in hazardous waste to recognize, for example, that the final version of Hazardous Waste Oversight Program Surveillance Report #20, C-30, pp. 197-202, is much more readable and effective than ComplainAnt's draft, C-100, pp. 492-494.

   However, even if an argument may be made that Complainant's approach was preferable, as the supervisor responsible for the reports, Mr. Noble was well within his authority in requiring stylistic and organizational changes. Moreover, Complainant has not identified any substantive point made in her drafts which was deleted or softpedaled in the final reports. See, e.g., Complainant's testimony at T. 516-530.

   Complainant attempted to show that Mr. Noble wanted to tone down or softpedal the findings in her hazardous waste reports because Mr. Noble was concerned about the strong reaction by some of the shop supervisors to Complainant's findings. See e.g., T. 279; 281; 282; 297-299. The ALJ apparently reached the conclusion, based on the testimony of Mr. Lee, an environmental engineer in the Environmental Engineering Branch, that Mr. Noble and Mr. Tatum were influenced by the reaction of "shop superintendents" to Complainant's hazardous waste reports. D. and O. at 16. This conclusion is not supported by the record. Mr. Lee's testimony was based on hearsay and was merely speculation on his part. See T. 282. Mr. Lee testified that he had no knowledge of whether a shop supervisor, Mr. Bennett, told Mr. Noble, Mr. Tatum, or anyone else about Mr. Bennett's belief that Complainant should be removed from working on hazardous waste oversight. T. 288. See also T. 299-300; 300-301; 301-303;

304; 309-310; 314.

   I find that there is nothing in the record to support an inference that Complainant's supervisors, Mr. Noble and Mr. Tatum, wanted to cover up or downplay hazardous waste violations. On the contrary, there is record evidence that Mr. Noble took his Job seriously and wanted to produce the most effective reports possible. Mr. Noble supported one of Complainant's first reports, as noted above, and urged her to pursue her oversight activity vigorously. C-81. He also had written one of the first hazardous waste oversight reports at Mare Island in 1984, which found 70 areas of noncompliance or partial compliance. Supra at 26. Mr. Tatum, who concurred in the adverse actions against Complainant, had initiated the first hazardous waste reports at Mare Island in 1983. T. 1354. Mr. Lee, who was responsible for hazardous waste management, T. 242-243, testified that the hazardous waste oversight reports prepared after Complainant was assigned to other work were just as hard hitting as the ones in which she participated. T. 314. See Atchison v. Tompkins-Beckwith, Inc., Case No. 82-ERA-12, Sec. Dec. Jan. 28, 1988, slip op. at 21, aff'd, Atchison v McLaughlin, No. 88-4150 (5th Cir. Nov. 7, 1988).

Mr. Noble was looking for was quite basic and unsophisticated. Supra at 40; T. 1063-67. Mr. Noble contrasted Complainant's work during this period with that of Mr. Bass, a newly hired entry level GS-7 engineer. Mr. Bass had many more assignments than complainant and produced a much greater amount of work. Supra at 39; T. 1091-92.

   I therefore conclude that Respondent had substantial, legitimate reasons for the unsatisfactory performance appraisal, decision to transfer, and decision to withhold Complainant's within-grade increase. Complainant has not carried her burden of proving by a preponderance of the evidence that these reasons were pretextual or that a discriminatory reason more likely motivated Respondent,

in light of "the consistency and inherent probability of testimony," Id. See also, Ertel v. Giroux Brothers Transportation, Inc., Case No. 88-STA-24, Sec. Dec. Feb. 16, 1989, slip op. at 12 nn. 7-8; Perez v. Guthmiller Trucking Co., Case No. 87-STA-00013, Sec. Dec. Dec. 7, 1988, slip op. at 13-14.

   On the crucial events in this unfortunate matter, I find that Mr. Noble's testimony is corroborated by that of other more disinterested, witnesses (and sometimes even by the Complainant herself), and it is logical and consistent with the flow of events. Complainant's testimony, on the other hand, is sometimes internally inconsistent or is contradicted by other testimony and exhibits. To the extent that there are direct conflicts between the testimony of Complainant and that of Mr. Noble, I credit: Mr. Noble's testimony, and I also reject the ALJ's finding as to Noble's credibility.

   Complainant asserted, for example, that she was hired as the hazardous waste oversight engineer and Mr. Noble reassigned her from hazardous waste oversight to the noise control project in retaliation for her reports which were too "hard hitting" and "contraversial [sic]". R-48. Mr. Noble testified that he reassigned her because the permanent engineer had come on board and Mr. Noble never had intended to appoint Complainant as the permanent hazardous waste oversight engineer. Mr. Tatum and Mr. Tung, the permanent engineer, both confirmed Mr. Noble's testimony on this point. Supra at 25-26. Complainant made inconsistent statements about this point in her testimony. Compare T. 141 and 145 with T. 438. But in her Wage-Hour interview statement, taken on March 10, 1987, Complainant said "I think I was transferred into [OHTD] with the understanding that I would do it for awhile; then I would assist [Mr.] Tung, and then I could replace Tung on an as needed basis." C-218 (emphasis added). In addition, as discussed above, the record shows that Mr. Noble was not afraid of issuing hard hitting, controversial reports.

   Mr. Noble testified he was told by Dr. Cornils that Complainant's behavior in the "USE" meeting in the middle of October 1986 had been argumentative and counter productive. This is corroborated by a note written by Dr. Cornils in January 1987 stating that he had not hired Complainant for an environmental engineer position because of "her uncontrolled actions at a past meeting concerning USE . . . ." R-56.

   Mr. Noble explained the nature of Complainant's noise control assignment as being only a rudimentary analysis of noise problems which any mechanic could perform and which did not

require formal training. Mr. Loyberg, the audiologist, confirmed this, describing the engineering involved in Complainant's assignment as "low echelon", consisting of finding the "fairly simple and fairly straightforward [steps] to reduce the amount of noise." Supra at 40.

   Complainant asserted she was repeatedly denied the training she needed to perform her noise control assignment. But complainant conceded on cross-examination, as Mr. Noble had testified, that she had not been denied formal training in noise control, the course just had not been scheduled yet. T. 595-596; R-49, P. 469. Complainant did receive substantial informal training through the industrial hygiene self-study material, office reference materials, and on-the-job training by Mr. Loyberg and study guidance by Dr. Haberman. Supra at 39-40.

   Moreover, Complainant did not always focus her attention on training in noise control. For example, just before the 30 day notice was issued, Dr. Haberman wrote a memo to Mr. Noble stating that he had reviewed with Complainant material in the self-study package on liquid and solid waste. R-69, p. 736. This had nothing to do with Complainant's noise control assignment. Complainant also spent a considerable amount of time on what can only be described as frolics of her own, e.g., the Hewlett- Packard computer incident and the loft construction incident, rather than studying noise control.

   Other employees' descriptions of the principals in this case, Complainant and Mr. Noble, are persuasive in evaluating their credibility. Mr. Tatum had been Mr. Noble's supervisor since 1979. When Mr. Noble first started working for Mr. Tatum, if there was a problem with an employee's performance or attendance, Mr. Noble sometimes used an abrasive manner in dealing with the employee. T. 1381. Generally, however, Mr. Noble was correct in his assessment of the employee's performance. Mr. Tatum thought Mr. Noble had improved significantly over the years in communicating effectively with his employees. Id. Overall, Mr. Tatum described Mr. Noble as a "textbook manager." T. 1437. Mr. Loyberg, who had worked for Mr. Noble for a number of years, described him as "direct, fair, honest and straightforward." T. 1886.

   The descriptions of Complainant by her co-workers seriously undermine her credibility. Mr. Tung described an incident in which Complainant asked Mr. Tung to sign his name to a hazardous waste report she had written and submit it to Mr. Noble. complainant thought this would show that Mr. Noble picked apart her reports only because she wrote them, not because of the

quality of the work. T. 1213-14. Mr. Tung refused to do this because he thought it was unprofessional. T. 1214.

   Mr. Loyberg testified that on one occasion when he and Complainant were to go into the field, he pointed out that she was not wearing any safety equipment - safety glasses, hearing protection, and safety shoes. T. 1883. When she got the equipment, she boasted to Mr. Loyberg that her safety shoes did not look like safety shoes. Complainant said she enjoyed having people question her about the shoes and being able to say they were in fact safety shoes. T. 1884. Mr. Loyberg thought this would set a bad example and was an immature attitude. T. 1884- 85.

   On another occasion, Complainant told Mr. Loyberg she would include an assessment of a site that was not noise hazardous in one of her reports just "to show she had been doing things." T. 1878. Other employees also complained to Mr. Noble about being misled and taken advantage of by Complainant. See discussions supra at 35 and 45. Mr. Loyberg gave his opinion of Complainant that she was "manipulative," "combative" and expended a great deal of effort in getting out of her assigned task. T. 1885. Mr. Loyberg compared Complainant to his "ten-year-old daughter [who] sometimes exhibits some of these same characteristics." T. 1886.

   One of the crucial events in this case was Complainant's letter to the Mare Island Commander. R-48. Complainant asserts that this letter, which charged a cover-up of hazardous waste problems at Mare Island, was the key protected activity that motivated Mr. Noble's actions against Complainant. Mr. Noble testified that he thought Complainant's letter was the report of her hazardous waste concerns which she had mentioned to him on November 14, 1986, and which he had directed her to reduce to writing and send through Mr. Tung, himself, and Mr. Tatum. The ALJ simply did not believe that Mr. Noble thought the letter and the report were one and the same. The ALJ also did not believe that Mr. Noble was disciplining complainant not for the content of the letter but for insubordination in not sending it "through channels." As noted Above, however, to the extent that this letter to some extent motivated Respondent's actions against Complainant, I find that Respondent has carried its burden of proving it would have taken the same actions even if complainant had not written the letter. See discussions above at 51-67.

V. Conclusion.

   Having found that Complainant has failed to establish that Respondent violated the CERCLA, I do not consider the other issues, including the applicability of other statutes, remedies, or attorneys fees, raised by the parties and the ALJ's recommendations, since consideration of them is not necessary to this disposition.

   Accordingly, the complaint in this case IS DISMISSED.

   SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.