DATE: November 9, 1995
CASE NO: 94-SWD-1
IN THE MATTER OF
JOHNNY E. MILLER,
COMPLAINANT,
v.
THERMALKEM, INC.,
RESPONDENT.
FINAL DECISION AND ORDER
Respondent ThermalKem, Inc. fired Complainant Johnny E.
Miller (Miller) on January 6, 1994 from his job as a liquid feed
technician at its Rock Hill, S.C. hazardous waste incineration
facility. For the reasons discussed below, I find that
ThermalKem did not violate the employee protection provision of
the Solid Waste Disposal Act, 42 U.S.C. § 6971 (1988), when
it took this action against Miller.
BACKGROUND
The Administrative Law Judge (ALJ) held an eight-day hearing
and submitted a Recommended Decision and Order (R. D. & O.)
recommending that the complaint be dismissed. R. D. & O. at 21.
The ALJ described the facts in some detail at various points in
the R. D. & O. See, e.g., pp. 6-7, 9-14, and, as to the facts essential to
this decision, I adopt his findings. Miller s job was to feed liquids to the incinerator
through the dedicated line according to a feed plan
provided to him by the process planner. R. D. & O. at 6. The feed plan provided for
feeding certain types and amounts of waste at certain times according to the
capacity of the incinerator and environmental protection regulations. R. D. & O. at
11. Miller s duties also included preparation of production logs showing the types,
amounts and times of waste fed through the dedicated line. R. D. & O. at 6.
In the early morning hours of December 28, 1993, Miller failed to follow the
feed plan, feeding too much waste in too short a time, causing the incinerator
temperature to rise above its normal operating temperature. T. (Transcript of
[PAGE 2]
hearing) 502; C- (Complainant s exhibit) 25
and 26. Excess heat in the incinerator caused the thermal relief stack [1] (TRS) to
open and damaged part of the incinerator. C-25. Miller also prepared production
logs falsely showing that the waste had been fed over a longer time. C-27. Miller
did not dispute that he had fed an improper amount of waste through the dedicated
line or that he had falsified the paperwork, R. D. & O. at 13, but claimed that his
immediate supervisor, Donald Koon, had directed him to take this action.
Id.
William Scull, the process control manager responsible for the receipt, storage,
scheduling and feed planning of waste processed at the ThermalKem facility, first
learned of the December 28 incident on January 3, 1994, when he returned from vacation. T.
2203. Scull reviewed the feed plan for that night and an incident report prepared by Koon
and discussed the incident with Koon. T. 2202-3. Scull concluded that if the informa-
tion was correct, Miller should be fired. However, Scull believed that Miller should be
given an opportunity to tell his side of the story. T. 2206-7. When Scull questioned
him about the incident, Miller did not deny feeding too much waste in too short a time, but
claimed he always did and that he was only doing what everyone else did. T. 2216.
Because Miller made this allegation, Scull interviewed the person who
prepared the feed plan for December 28 and the three other liquid feed technicians.
T. 2220. Each technician told Scull that they would not feed extra material in a short
time if for some reason they missed feeds called for by the feed plan. T. 2221-22;
2226; 2230. The feed planner confirmed that the feed plan given to Miller for
December 28 was the one Koon showed Scull on January 3. T. 2224. Scull met
again with Miller on January 6 and told him he did not believe his allegation. T.
2234. At that meeting Miller, for the first time, alleged that Koon knew he was
making up missed feeds. T. 2235. Scull also did not believe that allegation and fired
Miller. Id; C-27.[2]
DISCUSSION
An essential element of proof under the environmental whistleblower laws, 29
C.F.R. Part 24 (1995), is that, before taking adverse action, the employer had
knowledge of the employee s protected activity. See, e.g., Hasan v. Reich,
963 F.2d 369 (5th Cir. 1993) (decision without published opinion), No. 92-5170, May 4,
1993, slip op. at 9 (finding decision to lay off employee before discovery of protected
activity negates inference of retaliation); Carroll v. Bechtel Power Corp.,
Case No. 91-ERA-0046, Sec. Dec. Feb. 15, 1995, slip op. at 11-12, petition for
review docketed, No. 95-1729 (8th Cir. Mar. 27, 1995) (knowledge of protected
activity essential element of proof ); Scerbo v. Consolidated Edison Company of
New York, Inc., Case No. 89-CAA-2, Sec. Dec. Nov. 13, 1992, slip op. at 3 (same);
cf.Goldsmith v. City of Atmore, 996 F. 2d 1155, 1163 (4th Cir. 1993)
( [P]laintiff must establish that the employer was actually aware of the protected expression
at the time it took adverse employment action. ). Miller asserts that he engaged in
protected activity on January 3, 1994[3] when he told Scull that making up missed feeds was
a common practice at ThermalKem. T. 502. The record is clear, however, that
ThermalKem reached the decision to fire Miller before he made that allegation and
only postponed carrying out that decision because Miller alleged widespread wrong-
doing at ThermalKem.
[PAGE 3]
Shortly after the incident, on the morning of December 28, Koon investigated
the cause of the overheating of the incinerator. T. 1411. He concluded that exces-
sive waste had been pumped through the dedicated line with a total BTU content
that was too high. The same morning, Koon filled out an Incident Report in which
he described the incident as follows:
Johnny Miller started the dedicated line up @ [sic] 2:30, which should have
been running most of the night [Dec. 27-28]; being behind on the # [sic] of
drums or weights needed, to keep weight up on feed, he ran 6 drums through
in about 2 hours. which [sic] cause [sic] the temp. in the upper chamber to
exceed 2800 , the boiler inlet to reach 2400 , water tank to drop to 36%, &
[sic] the TRS to open.
C-25. Koon also filled out a Corrective Action Form on December 28 which described
the Infraction as Failure to follow feed plan & [sic] feed rates for dedicated line
feed. Didn t follow times or feed rates given by feed tech . . . .
Koon suspended Miller on December 28, describing this action in the process
control supervisor s logbook: Had to suspend Johnny Miller again tonight until
Monday morning . . . . This is for poor performance and compliance issues. He was
trying to make up lost production
. . . . Koon told Miller he was suspended and stated that it didn t look too good.
T. 1437.
On January 3, before Scull met with Miller, Koon strongly recommended
that Miller be fired. T. 1440; 2206. Koon informed Scull that he had met with Miller
only two weeks earlier to emphasize the importance of complying with the feed plan
and pointed out that Miller had recently been suspended for three days for taking
excessive breaks. T. 2206. Miller had been warned then that the next violation of
company rules would result in his termination. R (Respondent s Exhibit) 2F. Scull
told Koon that if the facts were correct, he would agree wholeheartedly with the
recommendation to fire Miller. T. 2206-7. Before meeting with Miller on January 3,
Scull added the following to the description of the Infraction on the Corrective Action
Form:
Mr. Miller fed more than was indicated by feed the plan [sic] for a period of 2
hrs. [sic] He admitted that he was trying to catch up with earlier missed feed
which is against policy and procedures. Also, the earlier period called for
no feed. He documented paperwork falsely indicating that the feed
took place earlier than actual. . . .
All of the events described above, from the time of the incident on December
28 to the morning of January 3 before Scull met with Miller, occurred before Miller
arguably engaged in any protected activity.[4] I find that ThermalKem reached a
decision to fire Miller before it was aware of any protected activity on his part and
only delayed carrying out that decision because Miller raised allegations of wide-
spread wrongdoing by other employees. As Scull testified I fully expected to
terminate Johnny Miller on Monday morning [January 3]. . . . [I]t was only because
he had raised these allegations that I ve [sic] decided to investigate and wait until
the results of that investigation were complete. T. 2220. Furthermore, even if
Miller s alleged protected activity, reporting that many other employees made up
[PAGE 4]
missed feeds, contributed to the decision to fire him, that is, that ThermalKem had
dual motives, I find that ThermalKem has shown that it would have taken the same
action even if he had never made that allegation. Dodd v. Polysar Latex,
Case No. 88-SWD-0004, Sec. Dec. Sep. 22, 1994, slip op. at 2. Since Miller admitted
his own wrongdoing, absent the charge that others engaged in the same wrongdo-
ing, he would have been dismissed on January 3.
Accordingly, the complaint in this case is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The thermal relief stack (TRS) is a means of releasing excess heat to the
atmosphere when temperatures rise too high to keep from burning the unit down
or . . .[causing] a boiler explosion. T. 1110. When this occurs, unburned material is
released into the atmosphere. R. D. & O. at 6.
[2] The parties expended a considerable amount of energy and a great amount of
time attempting to prove whether or not Miller rigged a bypass of the normal
pumping mechanism on the dedicated line, whether or not employees at
ThermalKem regularly made up missed feeds and whether management condoned
the practice. Because of my findings below concerning the timing of the alleged
protected activity and because bypassing the dedicated line was not alleged by
ThermalKem as a ground for Miller s termination, C-27, I find these issues largely
irrelevant.
[3] Miller testified this meeting was on December 30, 1993, but the record shows
that the meeting in question took place on January 3, 1994. See, e.g., T.
2177; 2202; 2203; 2207; 1438.
[4] Miller asserts in his brief that he engaged in protected activity on the night of
the incident, December 28, by alleging to Koon and Koon s supervisor that other
employees improperly made up missed feeds. Complainant s Initial Brief at 7-8. But
in his own testimony at the hearing, Miller asserted his protected activity consisted of
making this allegation to Scull on January 3.
T. 503.
