Dated:  March 3, 1995


IN THE MATTER OF

WALTER MINARD
       Complainant

       v.

NERCO DELAMAR CO.,
       Respondent

Case No.:  92-SWD-1


Before:  JEFFREY TURECK
         Administrative Law Judge


RECOMMENDED DECISION AND ORDER ON REMAND


       On September 17, 1992, I issued a Recommended Decision
and Order ("RD&O") recommending that this case, which arises
under the Solid Waste Disposal Act, 42 U.S.C. 6971(a) ("the Act"),
be dismissed for lack of jurisdiction.  On January 25, 1995, the
Secretary of Labor rejected my recommended decision and, applying
"a reasonableness test for determining whether an employee
complaint ... is protected under the whistleblower provision of the
Act ...", found that this claim fell within the Act.  See
Decision and Remand Order of the Secretary ("D&RO"), slip op.
at 6, 23-24.  The case was remanded to me to determine whether the
complainant was fired due to his complaints.  I find that
complainant has failed to establish a prima facie case, and
it is again recommended that the case be dismissed.


Findings of Fact and Conclusions of Law

       Once jurisdiction is established under the Act and other
similar statutes protecting whistleblowers, it is the complainant's
burden to make a prima facie showing that:


[PAGE 2]
       1.  The complainant engaged in conduct protected by the     
           applicable statute;

       2.  The party charged with unlawful discrimination knew of  
           the employee's protected activity; 

       3.  An adverse employment action was taken; and

       4.  The adverse employment action was motivated, in whole or
           in part, by the employee's protected activity.  
       
See, e.g., Dartey v. Zack Co., 82-ERA-2 (April
25, 1983); see also Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).  
       
       Respondent contends that complainant was fired on November 25,
1991 due to insubordination, as a result of a confrontation
occurring two days earlier between complainant and his supervisor
that day, Aleck Madariaga (see, e.g., TR 92-106, 729-
41, 829; RX A-10).  Regardless of the reason for complainant's
termination, an adverse employment action has been established. 
Nevertheless, the complainant has failed to prove any of the other
elements of his prima facie case.  For I find that
the complainant did not engage in any conduct protected by the Act.

       Complainant recounts three incidents as forming the basis of
his case.  The first occurred in September, 1991, when he was
instructed by his supervisor, Gary Nightingale, to dump five 55-
gallon drums of used antifreeze into a drain leading into the
tailings pond (TR 52-54).  He contends he complained to Nightingale
that they should not be "dumping another poison" into the tailings
pond (TR 54), that he thought it violated EPA rules (TR 137). 
Nevertheless, he did as instructed, and dumped the antifreeze
(id.).  The second incident occurred in October, 1991, when
a machine malfunctioned, causing about 100-125 gallons of oil to be
spilled on the ground (TR 59).  Complainant alleges he told his
foreman at that time, Norman Pruitt, that the oil spill had to be
reported (TR 60), although he had no idea to whom it should be
reported (TR 149-50).  Pruitt reported the incident to Doug
Latteer, the mine maintenance superintendent, who provided Pruitt
with instructions on how to treat the spill (TR 150-52). 
Complainant told Pruitt he disagreed with Latteer's instructions,
but he carried them out (TR 152-55).  The final incident was a
meeting on November 19, 1991 which was attended by complainant,
Nightingale and Latteer.  Complainant alleges that he complained
about the antifreeze dumping at that meeting.    
       

[PAGE 3]
       In regard to whether complainant ever made the complaints he
alleges, the complainant was not a credible witness.  First, he is
extremely distrustful, and seems to believe everyone is out to get
him (see, e.g., TR 81-82, 168-69, 181, 185-87, 197-200, 203,
210-11, 224, 225-28; CX 13, at 48; see also TR 406-
07, 422, 426).  This undoubtedly accounts for his surreptitiously
taping conversations with supervisors and other employees during
the course of his employment at Nerco Delamar (TR 162-63, 204-06). 
Second, he is very jealous of any of his co-workers who have done
better than he has or have received benefits he believes he should
have received.  For example, he is resentful that it took him seven
years to get promoted from mechanic three to mechanic one, whereas
some others have done so in two years or less (e.g., TR 179-
81).  He also resented having to perform jobs that he felt were not
worthy of his position and which he believed he was assigned
disproportionately, such as janitorial work (TR 164-65) and
repairing chains (TR 172-73).  He was particularly upset that Aleck
Madariaga received a raise and he did not (TR 182-84), and that
Madariaga "stole" his days off, i.e., that Madariaga was
reassigned to take off on Mondays and Tuesdays, and he had to
switch his days off to Tuesdays and Wednesdays and then Saturdays
and Sundays (TR 185-89).  Third, complainant seems to think the
worst of everyone.  He believed that Latteer was hired as
maintenance superintendent for the purpose of firing the top paid
employees (such as himself) (TR 217-18; CX 13, at 46); that anyone
who succeeded at Nerco Delamar did so for reasons other than merit
(TR 180-83; CX 13, at 69); that the employees would not help each
other because they feared they were in competition with each other
(TR 170); and that there was something sinister behind every
situation (e.g., TR 52-54, 56-58, 131-33).   
       
       To say that the complainant was a disgruntled employee would
be charitable.  This was clear not only from the substance of his
testimony, but from his demeanor.  The longer he testified, the
more upset he became.  He was so emotionally involved that he could
not possibly be objective.  In sum, I find that his testimony was
inherently unreliable, and absent corroborating evidence, is
insufficient to establish that the alleged complaints were made.
        
        The only evidence in the record supporting complainant's
contentions in any way is the testimony of complainant's friend and
co-worker at Nerco Delamar, John Hager.  Hager testified that after
complainant met with  Nightingale and Latteer on November 19, 1991
to discuss his concerns regarding the workplace, complainant told
him that one of the things discussed at the meeting was the dumping
of antifreeze (TR 272).  But this evidence, which is based solely
on complainant's statement to Hager, is no more credible than 
[PAGE 4]
complainant's testimony.  Moreover, even if fully credited, it does
not support complainant's allegations that he complained to his
supervisors when the antifreeze dumping and oil spill incidents
were taking place.  In any event, the only evidence that the
alleged protected activity occurred is the complainant's testimony
and his statement to Hager.  None of this evidence is reliable. 
Accordingly, complainant has failed to establish that any protected
activity took place. 

       But even if complainant's testimony has probative value,  the
evidence that none of these complaints were made as alleged is far
stronger.  In regard to the oil spill, Norman Pruitt was the shift
supervisor on duty that day whom complainant allegedly told that
the spill had to be reported.  But Pruitt denied that the
complainant said anything to him about reporting the oil spill (TR
359).  Further, Pat Sims, who worked with the complainant cleaning
up the oil spill (see TR 291-93), did not mention during his
testimony that complainant told anyone the spill had to be
reported.  Significantly, he was called to testify by the
complainant.  Similarly, Gary Nightingale, complainant's supervisor
to whom he allegedly complained about dumping used antifreeze into
the drain leading to the tailings pond, testified that he did not
recall complainant saying anything to him about disposing of the
antifreeze into the drain (TR 414).  In addition, Nightingale
attended the November 19th meeting, and stated that complainant did
not complain about the disposal of antifreeze at that time (TR 432,
501-02).  His summary of that meeting, which was prepared the next
day (TR 429), is consistent with his testimony in that it does not
mention complaints regarding the disposal of antifreeze (see
RX G).  Nightingale added that he does not recall complainant ever
making a complaint regarding environmental matters (TR 449).
Nightingale's testimony is particularly pertinent since he is a
social friend of complainant's and has been for many years (TR 391-
92).  Doug Latteer, the other person attending the November 19,
1991 meeting, also testified that the issue of dumping antifreeze
never came up (TR 723).  His notes of that meeting, prepared the
same day, also fail to reflect that this issue was raised
(see RX K). 

       All of these people--Pruitt, Sims, Nightingale and Latteer--
were very credible witnesses.  Although they all still work for the
respondent, I nonetheless found their testimony forthright and
consistent.  Based on their testimony, I find that the complainant
did not engage in conduct protected by the Act; accordingly, he
could not have been fired due to protected activity.  It is
therefore recommended that this complainant again be dismissed.

Recommended Order  
                                    
                              
[PAGE 5]

       It is recommended that this case be dismissed on remand from
the Secretary.




                                _____________________________
                                JEFFREY TURECK
                                Administrative Law Judge


Dated:  March 3, 1995


IN THE MATTER OF

WALTER MINARD
       Complainant

       v.

NERCO DELAMAR CO.,
       Respondent

Case No.:  92-SWD-1


Before:  JEFFREY TURECK
         Administrative Law Judge


RECOMMENDED DECISION AND ORDER ON REMAND


       On September 17, 1992, I issued a Recommended Decision
and Order ("RD&O") recommending that this case, which arises
under the Solid Waste Disposal Act, 42 U.S.C. 6971(a) ("the Act"),
be dismissed for lack of jurisdiction.  On January 25, 1995, the
Secretary of Labor rejected my recommended decision and, applying
"a reasonableness test for determining whether an employee
complaint ... is protected under the whistleblower provision of the
Act ...", found that this claim fell within the Act.  See
Decision and Remand Order of the Secretary ("D&RO"), slip op.
at 6, 23-24.  The case was remanded to me to determine whether the
complainant was fired due to his complaints.  I find that
complainant has failed to establish a prima facie case, and
it is again recommended 
[PAGE 6]
that the case be dismissed.


Findings of Fact and Conclusions of Law

       Once jurisdiction is established under the Act and other
similar statutes protecting whistleblowers, it is the complainant's
burden to make a prima facie showing that:

       1.  The complainant engaged in conduct protected by the     
           applicable statute;

       2.  The party charged with unlawful discrimination knew of  
           the employee's protected activity; 

       3.  An adverse employment action was taken; and

       4.  The adverse employment action was motivated, in whole or
           in part, by the employee's protected activity.  
       
See, e.g., Dartey v. Zack Co., 82-ERA-2 (April
25, 1983); see also Mackowiak v. University
Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).  
       
       Respondent contends that complainant was fired on November 25,
1991 due to insubordination, as a result of a confrontation
occurring two days earlier between complainant and his supervisor
that day, Aleck Madariaga (see, e.g., TR 92-106, 729-
41, 829; RX A-10).  Regardless of the reason for complainant's
termination, an adverse employment action has been established. 
Nevertheless, the complainant has failed to prove any of the other
elements of his prima facie case.  For I find that
the complainant did not engage in any conduct protected by the Act.

       Complainant recounts three incidents as forming the basis of
his case.  The first occurred in September, 1991, when he was
instructed by his supervisor, Gary Nightingale, to dump five 55-
gallon drums of used antifreeze into a drain leading into the
tailings pond (TR 52-54).  He contends he complained to Nightingale
that they should not be "dumping another poison" into the tailings
pond (TR 54), that he thought it violated EPA rules (TR 137). 
Nevertheless, he did as instructed, and dumped the antifreeze
(id.).  The second incident occurred in October, 1991, when
a machine malfunctioned, causing about 100-125 gallons of oil to be
spilled on the ground (TR 59).  Complainant alleges he told his
foreman at that time, Norman Pruitt, that the oil spill had to be
reported (TR 60), although he had no idea to whom it should be 
[PAGE 7]
reported (TR 149-50).  Pruitt reported the incident to Doug
Latteer, the mine maintenance superintendent, who provided Pruitt
with instructions on how to treat the spill (TR 150-52). 
Complainant told Pruitt he disagreed with Latteer's instructions,
but he carried them out (TR 152-55).  The final incident was a
meeting on November 19, 1991 which was attended by complainant,
Nightingale and Latteer.  Complainant alleges that he complained
about the antifreeze dumping at that meeting.    
       
       In regard to whether complainant ever made the complaints he
alleges, the complainant was not a credible witness.  First, he is
extremely distrustful, and seems to believe everyone is out to get
him (see, e.g., TR 81-82, 168-69, 181, 185-87, 197-200, 203,
210-11, 224, 225-28; CX 13, at 48; see also TR 406-
07, 422, 426).  This undoubtedly accounts for his surreptitiously
taping conversations with supervisors and other employees during
the course of his employment at Nerco Delamar (TR 162-63, 204-06). 
Second, he is very jealous of any of his co-workers who have done
better than he has or have received benefits he believes he should
have received.  For example, he is resentful that it took him seven
years to get promoted from mechanic three to mechanic one, whereas
some others have done so in two years or less (e.g., TR 179-
81).  He also resented having to perform jobs that he felt were not
worthy of his position and which he believed he was assigned
disproportionately, such as janitorial work (TR 164-65) and
repairing chains (TR 172-73).  He was particularly upset that Aleck
Madariaga received a raise and he did not (TR 182-84), and that
Madariaga "stole" his days off, i.e., that Madariaga was
reassigned to take off on Mondays and Tuesdays, and he had to
switch his days off to Tuesdays and Wednesdays and then Saturdays
and Sundays (TR 185-89).  Third, complainant seems to think the
worst of everyone.  He believed that Latteer was hired as
maintenance superintendent for the purpose of firing the top paid
employees (such as himself) (TR 217-18; CX 13, at 46); that anyone
who succeeded at Nerco Delamar did so for reasons other than merit
(TR 180-83; CX 13, at 69); that the employees would not help each
other because they feared they were in competition with each other
(TR 170); and that there was something sinister behind every
situation (e.g., TR 52-54, 56-58, 131-33).   
       
       To say that the complainant was a disgruntled employee would
be charitable.  This was clear not only from the substance of his
testimony, but from his demeanor.  The longer he testified, the
more upset he became.  He was so emotionally involved that he could
not possibly be objective.  In sum, I find that his testimony was
inherently unreliable, and absent corroborating evidence, is
insufficient to establish that the alleged complaints were made.

[PAGE 8]
        
        The only evidence in the record supporting complainant's
contentions in any way is the testimony of complainant's friend and
co-worker at Nerco Delamar, John Hager.  Hager testified that after
complainant met with  Nightingale and Latteer on November 19, 1991
to discuss his concerns regarding the workplace, complainant told
him that one of the things discussed at the meeting was the dumping
of antifreeze (TR 272).  But this evidence, which is based solely
on complainant's statement to Hager, is no more credible than
complainant's testimony.  Moreover, even if fully credited, it does
not support complainant's allegations that he complained to his
supervisors when the antifreeze dumping and oil spill incidents
were taking place.  In any event, the only evidence that the
alleged protected activity occurred is the complainant's testimony
and his statement to Hager.  None of this evidence is reliable. 
Accordingly, complainant has failed to establish that any protected
activity took place. 

       But even if complainant's testimony has probative value,  the
evidence that none of these complaints were made as alleged is far
stronger.  In regard to the oil spill, Norman Pruitt was the shift
supervisor on duty that day whom complainant allegedly told that
the spill had to be reported.  But Pruitt denied that the
complainant said anything to him about reporting the oil spill (TR
359).  Further, Pat Sims, who worked with the complainant cleaning
up the oil spill (see TR 291-93), did not mention during his
testimony that complainant told anyone the spill had to be
reported.  Significantly, he was called to testify by the
complainant.  Similarly, Gary Nightingale, complainant's supervisor
to whom he allegedly complained about dumping used antifreeze into
the drain leading to the tailings pond, testified that he did not
recall complainant saying anything to him about disposing of the
antifreeze into the drain (TR 414).  In addition, Nightingale
attended the November 19th meeting, and stated that complainant did
not complain about the disposal of antifreeze at that time (TR 432,
501-02).  His summary of that meeting, which was prepared the next
day (TR 429), is consistent with his testimony in that it does not
mention complaints regarding the disposal of antifreeze (see
RX G).  Nightingale added that he does not recall complainant ever
making a complaint regarding environmental matters (TR 449).
Nightingale's testimony is particularly pertinent since he is a
social friend of complainant's and has been for many years (TR 391-
92).  Doug Latteer, the other person attending the November 19,
1991 meeting, also testified that the issue of dumping antifreeze
never came up (TR 723).  His notes of that meeting, prepared the
same day, also fail to reflect that this issue was raised
(see RX K). 


[PAGE 9]
       All of these people--Pruitt, Sims, Nightingale and Latteer--
were very credible witnesses.  Although they all still work for the
respondent, I nonetheless found their testimony forthright and
consistent.  Based on their testimony, I find that the complainant
did not engage in conduct protected by the Act; accordingly, he
could not have been fired due to protected activity.  It is
therefore recommended that this complainant again be dismissed.

Recommended Order  

       It is recommended that this case be dismissed on remand from
the Secretary.




                                _____________________________
                                JEFFREY TURECK
                                Administrative Law
Judge