In the Matter of

RONALD J. HANEY,
    Petitioner

    v.

NORTH AMERICAN CAR
CORPORATION,
    Respondent

   Ronald J. Haney filed a complaint alleging that he was discharged because of activity protected by the Solid Waste Disposal Act (42 U.S.C. 6901, et seq.) in violation of the employee protection provisions of that Act (42 U.S.C. 6971).

   A hearing was held before an Administrative Law Judge, hereinafter sometimes referred to as the Judge. Thereafter, the Judge issued a recommended decision dated August 10, 1981, containing his recommended findings of fact and conclusions of law. He found that the petitioner was discharged by the respondent for acts protected by 42 U.S.C. 6971, in violation of that section. The Judge directed the petitioner to file a supplementary statement clarifying the scope of the relief sought.

   Thereafter, the petitioner filed a supplemental brief, as directed, and the respondent filed a response.

   On December 15, 1981, the Judge issued a supplemental recommended decision relating to the affirmative relief to be provided. The order contained in such decision directed that respondent shall:

1. Take affirmative action to effectuate the policy of the employee protection provisions of the Solid Waste Disposal Act, 42 U.S.C. § 6901, 697[1], by offering to Ranald J. Haney back pay, with interest, and immediate and full reinstatement to his former job, or, if such job no longer exists, to a substantially equivalent job, thereby making him whole in the manner set forth in the section of [the supplemental decision] entitled "Remedy";

2. Pay directly to William S. Friedlander, Esq., the sum of $6,429.50, as attorney fees reasonably incurred by Mr. Haney in connection with these matters; and

3. Preserve, and, upon request make available to the U.S. Department of Labor or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the back pay due under the terms of this Order; and

4. Within 35 days of receipt of this order, notify the Area Director, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, 228 Walnut Street, Harrisburg; Pennsylvania, 17108, of what steps Respondent has taken to comply herewith.

   In arriving at his conclusion with respect to whether Haney was discharged because of activity protected by 42 U.S.C. 6971, that is, whether the discharge was retaliatory, the Administrative Law Judge applied certain principles respecting the burden of going forward with the evidence and the burden of proof in cases such as the present one. (See pages 14-18 of the Judge's decision.) The principles he followed have been applied in cases involving alleged retaliation against employees arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000(e)), Texas Department of Community Affairs v. Burdine, 450 U.S. 248(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation, 545 F.2d 222 (1st Cir. 1976); also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979), a case under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621), cited and discussed by the Judge, and NLRB v. Wright Line, 662 P.2d 899 (1st Cir. 1981); Behring International, Inc. v. NLRB, 675 F.2d 83 (3rd Cir. 1982). Pursuant to these principles, the employee must make out a prima facie case of discrimination. The employer then has the burden of articulating some legitimate, nondiscriminatory reason for the employee's discharge. The employee must have the opportunity to prove that the reasons offered by the employer were not its true reasons but were pretexts. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains with the employee. Texas Department of Community Affairs v. Burdine, supra. These principles are applicable to this case.

   Here the Judge found (at pages 15 and 16) that Haney had made a sufficient showing that there was retaliatory motivation in his discharge, While the employer did articulate an ostensibly non-discriminatory basis for the discharge, the Judge found that the complainant established that the several specific justifications given by the respondent for firing Haney constituted "post hoc rationalizations" and pretexts, and that "Haney would not have been fired but for his assisting the government by his secret tape recording of conversations concerning alleged illegal dumping practices" engaged in by the respondent. Based on the evidence in its entirety, the Judge held that Haney was fired for activity that was protected by 42 U.S.C. 6971, and that his discharge was therefore in violation of that section. I conclude that these findings and conclusions are consistent with the evidence and are proper.

   On the basis of the entire record, it is my conclusion that, except insofar as they are inconsistent with anything contained herein, the recommended findings of fact, conclusions of law, and order contained in the Administrative Law Judge's recommended decision and supplemental recommended decision dated August 10, 1981, and December 15, 1981, are supported by the evidence, are in accordance with applicable law, and are proper, and I adopt them as my own. Accordingly, the respondent is hereby ordered to take the actions directed in the Judge's supplemental decision and order dated December 15, 1981. The notification provided for in paragraph 4 of the order contained in such supplemental decision shall be performed within 35 days of receipt of my decision.

Dated at Washington, D.C.
this 30th day of June, 1982.

       RAYMOND J. DONOVAN
       Secretary of Labor