This case is before me for review of the Recommended
Decision and Order (R.D. and O.) of Administrative Law Judge
(ALJ) Richard D. Mills, issued on March 22, 1989, pursuant to the
whistleblower provision of the Solid Waste Disposal Act (SWDA),
42 U.S.C. § 6971 (1988). The ALJ found that Complainant failed
to establish unlawful retaliatory discrimination and, therefore,
recommended that the complaint be dismissed. Although the
parties were afforded the opportunity to file briefs in support
of or in opposition to the ALJ's decision, neither party
responded. Both parties, however, filed briefs before the ALJ
following the evidentiary hearing, which was held on May 17,
1988.
BACKGROUND
Complainant alleges that on October 30, 1987, she was
unlawfully discharged from her position as a store manager
because she had made internal complaints and threatened to report
an underground gasoline leak to the Environmental Protection
Agency (EPA). Respondent contends that the complaint is untimely
and inadequate and, moreover, that the Secretary lacks
jurisdiction over the case. Substantively, Respondent argues
[Page 2]
that Complainant failed to establish either protected conduct or
the causal connection necessary for a prima facie case of
retaliatory discharge. Respondent further maintains that
Complainant was discharged for failing to follow instructions and
company policy to keep accurate gasoline inventory records, for
which she would have been discharged regardless of any protected
conduct.
The ALJ first found that the complaint was timely filed.
Without addressing Respondent's remaining procedural arguments,
the ALJ concluded not only that Complainant failed to establish a
prima facie case, but also that Respondent's reasons for
Complainant's discharge were not pretextual.
DISCUSSION
I agree that the complaint was timely filed and I also find
that Respondent's arguments challenging the Secretary's
jurisdiction and the adequacy of the complaint are without merit.
Furthermore, based on a review of the full record, I adopt the
ALJ's findings of fact, see R.D. and O. at 2-4, as supplemented
hereinafter, and agree ultimately that Complainant failed to meet
her burden of proof.
Jurisdiction
Initially, I note that this case is properly before me
pursuant to the whistleblower provision of the SWDA since the
complaint involves a release or suspected release of petroleum
from an underground storage tank. See 42 U.S.C. § 6971; 29
C.F.R. § 24.1 (1990); see also 42 U.S.C. §§ 6916(f), 6991 (1988);
40 C.F.R. §§ 280-10, 280.12, 280.50 (1989).
1 Section 24.3(b) provides that
"[a]ny complaint shall be filed
within 30 days after the occurrence of the alleged violation.
For the purpose of determining timeliness of filing, a complaint
filed by mail shall be deemed filed as of the date of mailing."
2 I additionally note that the
hearing before the ALJ was
conducted de novo; since Respondent objected to the findings of
the Wage and Hour Administrator, they carried no weight before
the ALJ or me. See 29 C.F.R. §§ 24.4(d)(3)(i), 24.5(e)(2),
24.6(a) and (b)(1).
3 There is no evidence that Kaliher
treated Complainant
dissimilarly from other store managers. Significantly, however,
as pointed out by the ALJ, another district manager for
Respondent credibly testified at the hearing that he had
previously discharged an employee for failing to complete the
inventory forms, under circumstances similar to those presented
here. See Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 339
(5th Cir. 1980).
4 Since Complainant has not
prevailed on her claim, I need not
consider her arguments pertaining to damages.