Date Issued: July 14, 1988
Case No. 87-TSC-2

In the Matter of:

ROBERT L. SIMON,
    Complainant,

    v.

SIMMONS INDUSTRIES, INC.,
    Respondent.

   This matter arises under the Toxic Substances Control Act, 15 U.S.C. § 2622, hereinafter referred to as "the Act." The Act prohibits employers from discharging or otherwise discriminating against an employee who has engaged in an activity protected by the Act.

   Robert Simon, the complainant in this matter, filed a complaint with the Employment Standards Administration, Wage and Hour Division, United States Department of Labor, alleging that he was discharged by Respondent, Simmons Industries, Inc. on January 19, 1987 because he engaged in activity protected by the Act. The Wage and Hour Division issued its notification of findings March 26, 1987, finding that Complainant was terminated as a result of his protected activity. (ALJX 3). Respondent filed a timely telegraphic request for a formal hearing. (ALJX 4).

   A formal hearing was held October 6-8, 1987 in Joplin, Missouri. Each of the parties was offered full opportunity to present evidence and argument at the hearing. In addition, post-hearing briefs filed by both parties have been reviewed and considered. The following findings of fact and conclusions of law are based upon the entire record, including my observation of witnesses and their demeanor.

   Complainant, Robert Simon, worked as a security guard at the Southwest City, Missouri processing plant of Respondent Simmons Industries, Inc. On January 8, 1987 Respondent Simmons suspended the complainant without pay. On January 19, 1987 Complainant was terminated.

   Considerable testimony was directed to the events leading up to Complainant's suspension and ultimate discharge. Mr. Simon testified that in March 1986 he saw a smoldering fire of what appeared to be chicken feed. (Tr. 209-210). He testified that Byron Phillips, the plant manager, was on the premises at the time and that Complainant assumed Mr. Phillips saw the fire, because he was nearby. (Tr. 210-211). For that reason Mr. Simon did not note the fire on his guard sheet. (Tr. 211). Complainant testified that he went to see Hobart Bartley, a USDA grader who was formerly assigned to the Simmons plant, and told Mr. Bartley that he had seen what appeared to be an entire truckload of feed burning at the Simmons plant. (Tr. 212). Complainant testified that Mr. Bartley asked him to keep the incident confidential. (Tr. 212).

   Mr. Simon testified that he was subsequently questioned about the fire by John Eikel, a USDA Special Agent from the Inspector General's office and John Ray, a USDA grader at the Simmons plant. (Tr. 215). John Eikel asked Complainant to keep the matter confidential. (Tr. 215). Complainant testified that in September of 1986 he saw a bulldozer positioned "exactly where the feed was buried," and he assumed that Simmons was going to dig the feed up. (Tr. 216). Mr. Simon reported this to John Ray, who in turn told John Eikel. (Tr. 216). John Eikel then asked Mr. Simon to draw a map of the plant indicating where the feed was buried. (Tr. 217).

   John Ray testified that he took John Eikel to talk to Mr. Simon in May or June of 1986, but John Ray was not involved in their conversation. (Tr. 55). John Ray also testified that in September 1986 Simmons had bulldozers parked in the area where Complainant had told him the feed was burned and buried. (Tr. 56).

   Hobart Bartley testified that after Complainant reported the burned feed to him, he in turn asked John Ray about it. (Tr.

99). Mr. Bartley also testified that John Ray asked him if he thought Mr. Simon would talk to an Office of Inspector General agent and asked where Simon lived. (Tr. 100).

   John Eikel testified that in September 1986 he asked Mr. Simon to provide him with a map showing where the buried feed was located. (Tr. 164). Mr. Eikel testified that Complainant gave him the map the next day. (Tr. 165).

   Mr. Simon testified that in order to complete the map for Mr. Eikel he needed to know the number of feet from the cooling shed to where the feed was buried. (Tr. 220). Bob Applegarth was picking up scrap in the area where the feed was buried, so Complainant approached Applegarth at the cooling shed. (Tr. 220). Mr. Simon testified that Simmons officials were watching him, so he took Applegarth's weight ticket "to throw them off." (Tr. 220). Complainant asked Applegarth how far it was from the cooling shed to a little clump of grass in the field, and Complainant testified that Applegarth responded that it was 125 to 150 feed. (Tr. 221). Mr. Simon testified that Mr. Applegarth remarked that "they've got a lot of stuff buried out there'." (Tr. 221). Complainant also testified that Mr. Applegarth then made some derogatory remarks about the company and noted that he was not given a chance to scrap out the metal in the field prior to being buried. (Tr. 221). Mr. Simon testified that he told Mr. Applegarth, "Yes, there's a lot of things buried out there. There's feed buried out there. There's lumber buried out there. There are electric motors buried out there, fans. You name it, they've got it out there'." (Tr. 221-222). Complainant testified that there were chickens walking around and he remarked to Applegarth that "'those chickens there are kind of white around the beaks and around the legs'," and then he continued, "I think that's more or less -- probably due to the breeding'." (Tr. 222). Mr. Simon testified that he then returned to the guard house. (Tr. 222).

   Bob Applegarth testified that Mr. Simon approached him with a scale ticket in September 1986 as he was cutting scrap. (Tr. 365). Mr. Applegarth testified that Complainant asked him how far it was to a grassy spot in the field. (Tr. 365). Mr. Applegarth testified that Mr. Simon then told him there were thousands of tons of heptachlor tainted feed buried out there. (Tr. 365). Mr. Applegarth testified that Complainant said he could tell when they started feeding the heptachlor contaminated

feed because the chickens became white and flabby. (Tr. 366). Mr. Applegarth then asked Mr. Simon what happened to the chickens that were fed the heptachlor feed and he said they were shipped. (Tr. 366).

   Mr. Applegarth testified that he discussed this conversation with his neighbors and his wife. (Tr. 367). About a week before Mr. Applegarth talked to Simmons management, Mr. Simon said he had talked to 60 Minutes, which Mr. Applegarth told his wife and neighbors. (Tr. 369-370). Mr. Applegarth explained that he wanted to think carefully about whether it was appropriate to mention Mr. Simon's comments to Simmons management; he did not want to act precipitously. (Tr. 369-370).

   On January 7, 1987 Mr. Applegarth was at Simmons to pick up some scrap and mentioned Simon's remarks to Ray McKinney, the maintenance superintendent, in order to find out whether Simmons knew Simon was saying these things. (Tr. 270). Mr. McKinney then asked him to repeat the story to Charlie Jordan, the plant manager. (Tr. 371). More people wanted to hear the story and eventually Mr. Applegarth's statement was put in writing and he signed it. (Tr. 372-373). Mr. Applegarth testified that he read the statement, CX6A, before he signed it, although he did not write it. (Tr. 372-373). Mr. Applegarth testified that he was present when the statement (CX6A) was being written and believes that it accurately reflects what he said. (Tr. 373). In addition, Carl Hall, an attorney for Simmons, took Mr. Applegarth's statement and had it typed. (Tr. 373). Mr. Applegarth then signed the typed statement, CX6B. (Tr. 374). Mr. Applegarth testified that CX6B also accurately reflects what he told Carl Hall, although it is a more condensed version than the handwritten statement he signed. (Tr. 374).

   Mark Simmons, president of Simmons Industries, Inc., testified that he found Mr. Applegarth to be straightforward and believable. (Tr. 658). At the time Mark Simmons met and talked to Bob Applegarth, Carl Hall had already talked to both Applegarth and Simon, and had recommended that Simon be terminated. (Tr. 656). Mark Simmons wanted to defer the decision of whether to terminate Mr. Simon until he had a chance to talk to Applegarth himself in order to make his own assessment of Applegarth's credibility. (Tr. 657). Mr. Simmons testified that after talking to Bob Applegarth he believed that Applegarth's statement reflected his conversation with Bob Simon.

(Tr. 705). Mr. Simmons believed that the statements Mr. Applegarth attributed to Mr. Simon were true, in that Mr. Simon really said those things to Mr. Applegarth. (Tr. 707).

   Mr. Simmons testified at the hearing that the company does not have a policy to cover the kind of situation presented by Mr. Simon's statements to Mr. Applegarth because lit's the first time it's ever come up, anything like that." (Tr. 659). Mr. Simmons testified that to be a firable offense a false statement must have the potential to cause significant economic impact. ( Tr. 709). Mr. Simmons testified that what Mr. Simon told Applegarth "was all potentially very damaging." (Tr. 706).

   Carl Hall showed Applegarth's statement to Mr. Simon on January 8, 1987. (Tr. 229). Mr. Simon testified that when Mr. Ball read the sentence stating that Simon had told Applegarth that there was heptachlor contaminated feed buried near the sewage lagoon, Mr. Simon "declined to make any comment in regards to that feed.1 (Tr. 229). Mr. Hall asked Mr. Simon who had advised him not to make any statement and Simon showed Hall John Eikel's business card. (Tr. 229). When Mr. Hall continued to question Mr. Simon, Simon said he had nothing further to say without legal advice. (Tr. 230). Carl Hall also testified about his meeting with Mr. Simon. Mr. Hall testified that Mr. Simon "refused to comment on much of anything," and that he presented John Eikel's business card and said "'this man has been on the premises.'" (Tr. 496).

   Respondent asserts that Mr. Simon was terminated because he made false and potentially damaging statements about Simmons to Mr. Applegarth. Complainant alleges that he was discharged because he was cooperating in a government investigation.

   It is clear that Mr. Simon was cooperating in a government investigation of heptachlor problems in the area. John Ray and John Eikel both testified about Mr. Simon's involvement in helping provide information for the heptachlor task force.

   I am persuaded by the contention that once Complainant produced Eikel's business card and declined further comment during his meeting with Carl Hall, a reasonable inference may be drawn that Respondent was aware of his cooperation with a government investigation. The presence of a retaliatory motive is a legal conclusion and provable by circumstantial evidence. Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563

(8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981). Circumstantial evidence can include a suspicious sequence of events. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). In this case Complainant was terminated shortly after Respondent became aware of his protected activity, an arguably suspicious sequence of events. I find this sufficient to suggest the presence of at least a partially retaliatory motive.

   However, once an employee shows that illegal retaliatory motives played some part in the discharge, the employer may prove that it would have discharged the employee even if he had not engaged in protected activity. Mackowiak, 735 F.2d at 1164, (citing Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977)). The First Circuit previously provided for the burden to shift to the employer to show that the legitimate reason offered for the employee's discharge was not a pretext to disguise retaliation for protected conduct in NLRB v. Wright Line, a Division of Wright Line, Inc., 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982). The Eighth Circuit, in which this case arises, has adopted the Wright Line analysis, noting that its application will protect the rights of employees while preserving an employer's right to discharge an employee for a valid cause. NLRB v. Fixtures Manufacturing Corp., 669 F.2d 547 (8th Cir. 1982); see also NLRB Vincent Brass & Aluminum Co., 731 F.2d 564 (8th Cir. 1984).

   In this case Respondent asserts that Complainant was discharged because of false statements he made to Bob Applegarth. Complainant denied making the statements Applegarth reported to Simmons about heptachlor contaminated feed buried on the plant site and fed to chickens. However, I note that while Mr. Simon was an extremely sincere and forthright witness, he did not deny having a conversation with Bob Applegarth, but only denied discussing heptachlor contaminated grain. Indeed he agreed that the rest of the remarks Applegarth reported were made. Thus the only part of Mr. Simon's testimony that I do not find credible is his denial of mentioning heptachlor. I note, for example, that Mr. Simon agreed that he remarked about the chickens looking white and flabby, but not in the context Applegarth reported. (Tr. 262).

   Mr. Applegarth was also a sincere and credible witness. I note that his testimony remained specific and consistent even

when he was subjected to extensive and pointed cross examination. Moreover, Mr. Applegarth testified that Tom Devine arranged a meeting between Mr. Applegarth and Mr. Simon in Rogers, Arkansas. (Tr. 385). Mr. Applegarth was upset that Mr. Simon had denied saying some of the things he told Applegarth. (Tr. 386). Mr. Applegarth testified that when he asked Simon why he denied making those statements, Simon's response was "I had to," rather than disagreeing with Applegarth over whether the statements had been made. (Tr. 387). I note that although Mr. Simon was called as a rebuttal witness, he did not contradict Applegarth's version of their meeting in Rogers; he did not refer to it. (Tr. 812-814). I therefore find that Respondent's management made a reasonable credibility assessment when they believed Mr. Applegarth's report of his conversation with Mr. Simon, who declined comment rather than denying it.

   Respondent contends quite plausibly that Complainant was discharged because of the false statements he made to Applegarth. There is no evidence of record to suggest that the statements he made regarding Simmons burying and feeding heptachlor contaminated grain were not false; John Eikel testified that the "inquiry was inconclusive" into whether Simmons had ever purchased heptachlor contaminated grain. (Tr. 178). Indeed John Eikel admitted that heptachlor contaminated grain would not have been effective for raising protein levels. (Tr. 178). Moreover, given Mr. Applegarth's credible testimony that Complainant told him Simmons had fed heptachlor contaminated grain to chickens which were shipped, I find it reasonable to characterize those false statements as potentially very damaging.

   For these reasons I find that Respondent has successfully met its burden of showing that Complainant would have been discharged even if he had not engaged in protected activity. In light of the facts presented here I find that Respondent discharged Mr. Simon for a valid reason -- because he made potentially damaging false statements about his employer to a member of the general public. What Mr. Simon told the government investigators with whom he was cooperating is not at issue here, and the fact that he made the false statements to Mr. Applegarth in the course of attempting to gather information for an investigation is irrelevant. I find that Respondent had a legitimate reason to discharge Mr. Simon, which was not a pretext for a retaliatory motive. In this case Respondent exercised its right to fire an employee for a valid reason, a right which must

be protected along with those of employees. See NLRB v. Fixtures Manufacturing Corp., 669 F.2d 547 (8th Cir. 1982). I therefore in that Complainant has failed to prove that he was wrongfully discharged by Respondent.

   IT IS ORDERED that the Complaint be and hereby is DISMISSED.

       RICHARD D. MILLS
       Administrative Law Judge