DATE: MAR 24 1989
CASE NO. 89-TSC-2

In the Matter of

ROY T. DALTHORP,
    Complainant

    v.

ALASKA PETROLEUM
CONTRACTORS, INC.
    Respondent

Roy T. Dalthorp
        Pro Se

Scott J. Nordstrand, Esq.
    Owens & Turner
    1500 West 33rd Avenue
    Suite 200
    Anchorage, AK 99503
       For the Employer

Before: EDWARD C. BURCH
    Administrative Law Judge

    This proceeding arises under the Employee Protection provision of the Toxic Substances Control Act, 15 U.S.C. §2622, (TSCA or the Act) and the regulations which set forth the Procedures for the Handling of Discrimination Complaints under the Federal Employee Protection Statues, 29 C.F.R. Part 24. A complaint alleging discrimination by the respondent was filed with the Employment Standards Administration, Wage and Hour Division, September 26, 1988. The Area Director instituted an investigation concluding

that discrimination was not a factor in the actions comprising the complaint. Complainant made a timely request of a hearing on the record. A formal hearing was conducted in Anchorage, Alaska on February 15, 1989, wherein complainant appeared and was unrepresented by counsel.

    Complainant was employed for approximately ten years as an operator for ARCO Alaska Inc. (ARCO) on a crude oil topping plant in Prudhoe Bay, Alaska. In 1984 he was transferred to another facility for the same company.

    In 1986 complainant was called by ARCO to testify in an employment discrimination action brought by another employee. Complainant revealed that he was witness to incidents of racial prejudice and harassment directed at this co-worker. Shortly after the testimony took place complainant was terminated under what ARCO termed a "reduction in force." He has filed an action (which is now on appeal before the Supreme Court) against ARCO claiming retaliatory discharge.

    In October, 1987 complainant notified an inspector for the Alaska Oil and Gas Commission (AOGC) of certain ARCO practices at Prudhoe Bay which may be in violation of specific environmental codes and regulations. Complainant and another former ARCO employee later discussed these matters in person with the Commissioner of AOGC. Their appearance was entered in the visitor log book. In March, 1988 complainant disclosed this information to a reporter of the Anchorage Daily News.

    An investigation of the environmental record of all oilfield operations at Prudhoe Bay ensued. In response to a letter from Congressman Larry E. Studds, Chairman of the Subcommittee on Fisheries and Wildlife Conservation and the Environment, complainant supplied information regarding unreported spills of oil, contamination of gravel and other soil and of disposal of chemical or hazardous waste in a matter inconsistent with Federal Laws. A copy of of this information was forwarded to Congressman George Miller, Chairman of the Water and Power Resources Subcommittee of the House Interior Committee.

    During this period complainant responded to a newspaper advertisement for contract operators placed by Alaska Petroleum Contractors, Inc. (APC). APC supplies contract labor and machinery

to neighboring oil companies. He was hired April 9, 1988 by APC as a field production operator to work the Eileen West End Project for Standard Alaska Production Company (SAP).

    On June 10, 1988 the Anchorage Daily News carried a story announcing the pending investigation and the complaints of former ARCO employees. Complainant's name and specific allegations were mentioned in the article. Possible federal environmental violations were discussed the previous day at a House Interior Committee Hearing. Local news stations and other media also covered the story.

    As a result of the publicity, claimant became concerned over rumors among co-workers that he was "out looking for violations." He discussed this concern with SAP supervisors and presented to them copies of all correspondence on the matter. He was assured that his actions with respect to ARCO would have no bearing on permanent hiring decisions at SAP.

    On September 1, 1988, complainant was terminated from his position by mike White, an APC contract supervisor. SAP Field Production Supervisor Cecil Chittenden had instructed APC personnel that it would be necessary to lay off a contract employee. White explained that it was necessary for SAP to place a permanent "company" employee in the operator's position, necessitating a reduction in force. Complainant was informed that of the four contract employees working on the Eileen Project, he was considered the "weakest." Complainant responded that he did not believe a reduction in force was the reason behind his termination and that he would pursue action on the matter.

    Part 15 U.S.C. §2622 provides that:

No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has-

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter;

(2) testified or is about to testify in any such proceeding; or

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.

    Complainant alleges that he was discriminated against and discharged from APC in retaliation for his participation in the subcommittee investigation of ARCO. APC maintains that complainant "whistle blowing" activities against ARCO played no role in the decision to terminate him.

    The federal circuit courts of appeal, the Secretary of Labor and the Office of Administrative Law Judges have uniformly recognized that the legal analysis applicable in employment discrimination and retaliatory discharge cases under various federal statutes are also applicable to claims filed under the employee protection provisions of the TSCA and other federal environmental statutory schemes. Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984). To establish a prima facie case in a claim of employment discrimination or retaliatory discharge under the TSCA, complainant must prove the following:

1) that the party charged with discrimination is an employer subject to the Act;

2) that the complainant was an employee under the Act;

3) that the complaining employee was subjected to some adverse employment action by the employer;

4) that the employee engaged in "protected activity;"

5) that the employer knew or had knowledge that the employee engaged in protected activity; and

6) that the retaliation against the employee was motivated, at least in part, by the employee's engaging in protected activity.

    Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983); See also Mackowiak, supra.

    There is no dispute that the complainant and respondent are subject to the Act and that complainant's termination constituted an adverse employment action. It is, as well, clear that complainant's cooperation with the House subcommittees' investigation of TSCA violations is within the scope of protected activity under §2622.

    The employer acknowleged that it was aware complainant was engaged in protected activity. (Transcript (TR) p. 128).

    Thus, the primary issue to be determined is whether complainant's termination was, at least in part, motivated by his participation in the ARCO investigation. This may be proven by direct or circumstantial evidence. John Hancock Mutual Life Ins. Co. v. NLRB, 191 F.2d 483 (D.C. Cir. 1951); See also Mackowiak, supra. However, the evidence must, at a minimum, imply a causal link between the protected activity and the adverse job reaction. EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1092 (9th Cir. 1983).

    During the course of events surrounding this case complainant kept a diary and entered into evidence a chronological calendar documenting his experiences from the time be began cooperating with the subcommittees up to his APC termination and beyond. (Complainant's Exhibit (CX) 13).

    Shortly after the Daily News Story circulated, complainant noted that an operator and other SAP personnel had "discussed" him and the news coverage while dining. He also states that he was "quizzed" on the subject and that "rumors" by co-workers concerned him. (CX 13). He approached his SAP supervisor but received no negative statements or attitudes regarding the publicity or any whistleblowing activities. (CX 13). In fact, SAP Supervisor Chittenden (the man who made the decision to terminate "an" employee) applauded complainant's approach to "fighting the ARCO problem." He also assured complainant that the case had no bearing on the fact that complainant was not being considered as a finalist in the current SAP hiring decision. (CX 13, Emphasis added).

    As stated earlier, SAP was using APC employees on a temporary contract basis. Thus, when permanent positions became available some APC employees qualified to be hired on permanently and to work directly for SAP. Based on Chittenden's statement, complainant was apparently not being considered for permanent employment at that time (July 29, 1988).

    Complainant argues that a conspiracy to terminate him had formed between SAP and APC people. August 29, 1988 (two days before he was terminated) he recorded that a co-worker told him of a rumor that a change of contract was eminent and that one person would be let go. The implication was that the person would be complainant. This co-worker also stressed the importance of secrecy out of fear of losing his job. (CX 13).

    Complainant also submitted a cassette tape of a conversation he had with Mike White the day after his termination. However, the tape was inaudible and thus not supportive of complainant's position. (CX 28).

    What transpired after complainant was terminated may be complainant's strongest evidence of discriminatory motive. Complainant was told that a permanent SAP employee would be replacing him to make operations more productive. Several months later complainant discovered that an SAP employee filled the position for approximately one week and then was relocated to another field area. An APC contract operator was placed in the position immediately thereafter. (CX 13). SAP's stated reasons for firing complainant could appear less credible in light of the fact that a temporary contract employee, like complainant, filled his position shortly after he was terminated.

    However, the opposing evidence presented by the employer on this issue is convincing. Even assuming I were to find proof of an inference of discriminatory motive, there exists legitimate business reasons for APC's actions.

    Mike Hein, the General Manager for APC, testified that APC is retained to find essentially temporary employees to fill jobs that many permanent employees won't accept. (TR p. 94). Complainant knew when he was hired by APC that he would be doing contract labor, not permanent work. (CX 14). Thus, the nature of the position was temporary and always subject to termination.

    In addition to complainant, APC hired seven operators in April, 1988 and two in May, 1988. Complainant was released in September and two more were released in October, but were given permanent employment by SAP. (CX 14). Thus, complainant was not the only employee to be terminated during this period. As stated, he was considered for permanent employment by SAP, but simply not selected.

    Complainant had considerable knowledge and experience in turbine operation, which was valuable during the start-up phase of the project. However, once oil production began, the need for turbine operators declined while the demand for experienced field operators grew. (TR p.83, p.117). Complainant admitted he was not as experienced in field operations. (TR p.83). Upon evaluation, White found complainant lacked needed field experience and scored lower than his co-workers in presenting a positive attitude and showing initiative. (CX 17). It was thus White's opinion that complainant was the least valuable employee and the logical choice for termination.

    Complainant's initial replacement was a permanent SAP employee who had been promoted to the operator position. As stated, he was shortly replaced by a contract APC employee. White testified that SAP personnel requested the transfer as part of a routine placement process performed for rotational trainang purposes. (TR p.121). Additional testimony from Steve Snider (the APC employee that eventually filled the position) supports this explanation. The SAP employee had facility and platform expertise but was lacking in other areas, Snider stated. (CX 18). The switch would expose both employees to different tasks and responsibilities.

    Finally, the protected acitivity engaged in here was not directed towards APC or any of its subcontractors. ARCO was the target of complainant's whistleblowing and the more likely employer to take any retaliatory action. While not dispositive, this is clearly a factor in determining non-discriminatory motive on the part of APC.

    In total, the evidence does not demonstrate discriminatory motive by APC or its personnel. Mr. White was acting at the direction of SAP management in terminating complainant. The employer's testimony as to why it had to reduce its force was highly credible. I conclude that the decision to terminate complainant was justified and reasonable under the circumstances and clearly not in retaliation for any protected activity. Accordingly, I recommend that the Secretary of Labor enter the following:

    The complaint of Roy T. Dalthorp is denied, and this matter is dismissed.

       EDWARD C. BURCH
       Administrative Law Judge