Background

   The complainant, Robert Scott, is a 65 year old native of Monroe, Louisiana. His wife, to whom he has been married for 14 years, is originally from the Philippines. Following service in the Navy during World War II, Scott began a career of operating mechanical equipment in various types of plants including chemical and petrochemical plants, electric generating plants, refineries and pipelines (TR 1440-41), located primarily in the South and Southwest United States (TR 1442-43). He worked for many different employers (TR 1444-45). Scott admitted he was fired from several jobs over the years, for reasons such as refusing to comply with a dress code (TR 1722-23), a disagreement over travel expenses (TR 1724-25), medical problems (TR 1726), and refusing to perform work (TR 1726-27). He also resigned from several others due to what can best be described as personality clashes with supervisors or perceived problems with the employer's treatment of him (see TR 1728-47).

   Alyeska Pipleline Service Company is a consortium of companies -- BP Oil, Exxon, ARCO, Mobil, Amerada Hess, Phillips Petroleum, and Union Oil -- which runs the Trans-Alaska Pipeline (TR 70, 74). BP is the major owner of Alyeska, owning more than 50 percent. Exxon and Arco are also substantial owners. The other four companies together own only a small percent of Alyeska (e.g., TR 74). The pipeline transports North Slope crude oil 800 miles to its terminal in Valdez, Alaska, from where it is then shipped by tanker primarily to the lower 48 states (TR 70-71).

   Alyeska currently has about 1400 employees, of whom 350-400 work at the Valdez Terminal (TR 73). Company headquarters are in Anchorage.

   Alyeska is managed by an Owners Committee,

which functions much as a Board of Directors of a traditional company (TR 2067). Each of the owner companies has a representative on the Owners Committee. Since January, 1991, the chairman of the Owners Committee has been William Rusnack, the ARCO representative on the Committee (TR 2067). Mr. Rusnack has been a member of the Owners Committee since September, 1990 (id.).

"difficult relationships" between him and the rest of "B" crew (RX 168, at 4-11).

   Scott first became involved in Alyeska's more formal disciplinary program in 1982, when he was put on a Work Improvement Plan, a form of counselling in which a plan of action designed to improve marginal or substandard performance is set up (TR 2402-03). Specifically,

Scott was placed on a 60 day local work improvement plan on July 15, 1982 in an attempt to correct an unacceptable level of absenteeism in the first six months of 1982.

(RX 36, at RS 0816). This 60-day plan proved unsuccessful, and a 90-day Alyeska (as opposed to "local ) Work Improvement Plan was set up (id.). Apparently Scott successfully completedly this plan (TR 2403).

   The record next reports a series of incidents, which occurred from June to September, 1983 (RX 168, at 40-42, 44-45). Apparently the most serious of these occurred on September 12th, when Scott was slow to respond to reports of black smoke coming out of one of the incinerators. To make things worse, Scott blew up at his supervisor, David Greenlee, when questioned about his performance (id. at 45). On September 26, 1983, Larry Planje, Greenlee's supervisor, requested that Scott be terminated. Even at that early date he noted Scott's "long history of problems" and that all attempts to work these out have failed ..." (id. at 43). In what apparently was an endorsement of this recommendation, "Earl" (probably E.E. Boling, to whom Planje's memo was addressed) stated:

Obviously, this is a hopeless case. I think we are remiss if we don't dump this clown.

(Id.). There is no indication in the record of why Scott was not terminated at that time.

   Scott was next subject to discipline on October 28, 1985, when he was suspended for 5.6 work days for verbal sexual harassment of a female co-worker (RX 51-52; see also TR 2509-10). He was again removed from his work crew and assigned to a different crew following this incident (TR 2404). Moreover, Scott was informed at that time that "future incidents of this nature or any other violation of Alyeska policy will result in further disciplinary action being taken, up to and including termination." (RX 52 -- emphasis added).

   Over the next few years, Scott had continuing problems with absenteeism. On January 21 and April

16, 1986, he was counseled for excessive absenteeism (RX 168, at 167). He also missed over five months of work in 1987 while on medical leave (id. at 120, 127).

   Scott was suspended once again in early 1988, for smoking in two buildings where smoking was unauthorized (TR 2409-10). In at least one of these buildings a significant amount of flammable material was stored (RX 168, at 130). He was suspended for two full work weeks, and again was warned that further violations could result in his termination (id. at 178-79). Kathy Carr, Alyeska's Manager of Human Resource Services, testified that but for some extenuating circumstances (i.e., medication may have impaired his judgment), he would have been terminated (TR 2412). In fact, she stated that she knew of no other Alyeska employee who was ever suspended twice (TR 2413). Scott's suspension letter also cautioned him to improve his work attendance.

   Scott continued to have serious problems getting along with his co-workers, which led to his transfer to maintenance in mid1989. But he was involved in no further significant disciplinary proceedings until June of 1990, when the so-called "break room incident" occurred. At that time, the maintenance crew on which Scott worked was taking a break. Scott's version of this incident is that he was reading a story in a newspaper aloud to another crew member, and the article contained the word "nigger" at least once, and perhaps more than once (TR 1675-76). A member of the crew, Glenn Meidinger (who is white, as was the entire crew), complained about Scott's use of that racial epithet (TR 1677). Scott replied that it was not his word, but was part of the article; nevertheless he apologized for using it. Meidinger continued to protest (TR 1677-78). Nothing further occurred (TR 1678).

   The description of the break-room incident compiled in Alyeska's investigation, and substantiated by the testimony of Scott's co-workers, is quite different. Scott was known by his co-workers to be a member of a white supremacist group (see RX 90, 93; cf. TR 1916-20; RX 103, 108). He frequently used the word "nigger" in conversation (e.g., TR 2312, 2362, 2457; RX 90, 93), and was unapologetic about it (e.g., RX 90). Scott's deliberate use of the word "nigger" in the break room that day in June, 1990 so aggravated two of Scott's co-workers, one of whom was Meidinger, that they complained to a supervisor, John Runnels (id.; see also RX 87; TR 2191-92).

   Since I find Scott to be totally lacking in credibility (see supra), I credit the version of the incident described in Alyeska's records and confirmed by Scatty co-workers. But more importantly, Alyeska credited this

version as well. When Leo Anderson, the new Human Resources Representative at the Valdez Terminal, was informed of this incident by Runnels, he initiated an investigation (TR 2196) conducted by Rod Pugh, the Maintenance Manager at the Valdez Terminal (TR 662), and himself (TR 2197). This investigation included interviews with 11 technicians (TR 2197; RX 90, 93) as well as Scott (RX 93; TR 2201). Anderson then contacted Human Resources in Anchorage to get Scott's file (TR 2202). He was sent a three-page summary of Scott's employment record (RX 88), which he described as the most extensive record of employee misconduct he had ever seen (TR 2203). He could not understand why Scott was still on Alyeska's payroll (TR 2204).

   Anderson described the results of his investigation as follows:

I concluded after the interviews and putting all the material together that in fact Mr. Scott had made racial remarks, that he knew what he was doing, and that in looking at the overall record it was clear to me that Mr. Scott's conduct was not appropriate and had not been appropriate for years, that he had been warned that his conduct was not appropriate and had been given every opportunity to bring that conduct into acceptable limits. For some reason, he chose not to do that.

(TR 2206)

   On August 6, 1990, Anderson drafted a memo for the signature of Pugh addressed to the terminal superintendent, Charles O'Donnell, recommending that Scott be fired due to a history of overall unacceptable performance culminating in the break room incident (see RX 93). He signed off on the memo, as did O'Donnell. The memo was then forwarded to Kathy Carr, Alyeska's Manager of Human Resources in Anchorage, on August 8, 1990 (id.). Accordingly to Pepper Smith, Alyeska's Labor Relations Supervisor (TR 622) who was assigned to look into this matter by Carr, O'Donnell was pressing Human Resources "to take really strong disciplinary action." (TR 653).

   When Carr received the recommendation to terminate Scott, she followed her usual procedure and discussed the matter with Lon Trotter, Alyeska's in-house counsel whose responsibilities include personnel matters (TR 2416). Trotter, however, asked Carr to hold up on any action against Scott, stating that some other information ... might be forthcoming." (TR 2417) He gave her no further details. She related this information back to Anderson (TR 2417). Similarly, Rick Collins, who was in the process of taking over O'Donnell's duties as terminal superintendent (TR 2254), had a brief meeting with Wellington in the second week of August, 1990. Wellington asked Collins not to pursue

Scott's termination, and told him that there was legal action pending regarding Scott (TR 2256). He provided no further information to Collins (id.).

    Anderson tried to find out exactly why the hold was being placed on terminating Scott, but was unsuccessful (TR 2209). When, by early September, no action had yet been taken on the recommended termination, he and Pugh decided to give up on the termination and instead suspend Scott for a week (TR 2210-11; see also CX 128). However, that suspension was not implemented, because by then another incident regarding Scott had occurred (TR 2213). This was the "parking lot incidental.

   But first, between the break room and parking lot incidents was the retool room incident". This involved a series of pranks between Scott and his counterpart on the opposite shift, Don Blackburn (TR 896), over a 2 1/2 - 3 month period apparently ending in late August, 1990 (see RX 168, at 199). Scott and Blackburn, at the end of their respective weekly shifts, would hide the other's tool box or hide the cart on which they put their tool boxes (TR 897; RX 168, at 199). On one occasion, Scott glued Blackburn's tool box to a cart ( RX 168, at 199). It got to the point where Scott had used a crane to hide Blackburn's tool box in the ceiling (TR 898). Finally, Blackburn brought these events to the attention of his shift supervisor, and it ultimately was brought to the attention of Rod Pugh on August 29, 1990. There is no indication that any discipline against either Scott or Blackburn was recommended due to the tool room incident until it was listed as one of the reasons for Scott's termination on the termination letter given to Scott on October 24, 1990 (see CX 12).

to security and then to Pugh's office. Since Pugh was not in, Perry had Scott and Zecevic return to work (RX 94). When Pugh returned to his office, Perry told him what had transpired. He asked Perry to prepare a memo for him, which Perry did (RX 94). On the following day, Pugh and Leo Anderson interviewed Perry, Zecevic and Scott (see RX 96-97). Perry and Zecevic, who were interviewed separately, reported similar versions of the incident (RX 96); Scott came up with his own version, in which he blamed everthing on Zecevic (RX 97). Pugh clearly believed Perry's and Zecevic's version, and tried to explain to Scott how frustrated he was with Scott's failure to improve his relations with his coworkers (id.). But Scott would not back down (id.).

   Following these interviews, it was Anderson's opinion that he should recommend Scott's termination (TR 2213-14). It was his view that Scott was responsible for elevating the incident into a confrontation that resulted in Scott striking Zecevic (TR 2214). Further, he believed that Scott was not justified in striking Zecevic since Scott admitted that he had not felt threatened (id.). Anderson then put together a binder (RX 168) that provided a history of the parking lot incident and previous events regarding Scott's performance (see TR 2261) and presented this to Rick Collins, the new terminal manager. He recommended to Collins that Scott be terminated (TR 2216).

   Based on the investigation conducted by Anderson, as well as his own investigation of the incident, Collins instructed the maintenance manager, Pugh, to suspend Scott without pay pending further review of Scott's "complete work record." (CX 11) A letter of suspension was issued on October 8, 1990 (id.). That letter simply stated that:

Based on recent incidents with fellow employees, you are indefinitely suspended from work without pay beginning October 9, 1990 pending Alyeska management review of your complete work record. You will be advised of the outcome when the review is completed.

(CX 11 -- emphasis added). Collins then conducted a further investigation, including a review of Scott's entire work history at Alyeska, and had a telephone conversation with Scott on October 12th "to get his side of the story." (TR 2260) He also had further discussions with Anderson. At that point, it appears that Collins had decided to terminate Scott. He then consulted with his supervisor, Theo Polasek, Alyeska's Vice-President of Operations, as well as with Human Resources personnel in Anchorage and Lon Trotter (TR 2261). In order to terminate Scott, it was necessary to get the concurrence of Kathy Carr, the Human Resources Manager

(id.). But Carr would not commit herself to termination (TR 2262-63). In fact, both Carr (e.g., TR 716) and Pepper Smith (TR 698) favored another suspension rather than termination.

   In order to resolve this conflict, and a similar conflict involving another employee, a meeting of Alyeska's Management Committee was set for October 22, 1990 (TR 2263-64). Respondent's Management Committee is composed of Alyeska's President; its four Vice-Presidents; the General Counsel; the Director of Control and Quality Assurance; and the Director of Corporate Affairs (see CX 80, at RS 2979). Actually attending the meeting were Alyeska's President and C.E.O. James Hermiller (e.g., TR 22i, 2264); Vice-President for Operations Theo Polasek (id.); Vice-President of Engineering & Projects Bill Howitt (id.); Lon Trotter, the in-house counsel responsible for personnel matters (id.); Kathy Carr and Pepper Smith of Human Resources (TR 2264-2421-22); Rick Collins, the Valdez Terminal Manager (TR 2263-2267); Beverly Michaels, the manager of Direct Communications who was standing in for an unfilled vice-president position (TR 222-23, 2264; see also CX 80, at RS 2991); and Steve Whetmore, who served as secretary for the meeting (TR 2264-65). Hermiller, Polasek, Howitt and Michaels attended as members of the Management Committee; the others were there to advise the Committee (see, e.g., CX 69).

   At the meeting, Collins presented the case for terminating Scott, while Kathy Carr presented Human Resources' concerns regarding that course of action, principal among which was that Scott would sue Alyeska for age discrimination or wrongful discharge if he was terminated (TR 2265, 2422-23, CX 69, at RS 2818). Nothing was mentioned about Scott's leaking documents to Hamel; the entire discussion concerned Scott's conduct and behavior (TR 2424). Polasek and Howitt, both of whom either knew Scott personally or knew of him from earlier experiences (TR 2422-23, 2851), strongly supported his termination (TR 2265-66). Hermiller did not take an active part in the Committee's deliberations until the others had finished expressing their opinions (TR 730, 2265-66, 2423). The Committee decided to terminate both Scott and the other employee. Since the Committee members appeared to be in agreement, a formal vote was not taken TR 233, 731, 2267; CX 69).

   Following the Management Committee meeting, at the request of Cathy Carr, Collins scheduled a meeting with Scott to be held the next day, October 23, 1991, to give Scott one last chance to express his side of the story (TR 2267-68). Collins met with Scott for about 1 hours on the 23rd and, together with Human Resources, concluded that Scott raised "no further information that would warrant us to delay or

stop the termination ...." (TR 2269) Accordingly, a letter of termination prepared by Human Resources in consultation with Collins, under whose signature the letter issued, was hand-delivered to Scott on October 24, 1990, to be effective that day (see TR 2269-70; CX 12). That letter stated as follows:

Your termination is the result of a recurring pattern of misconduct that you are either unable or unwilling to correct. Two incidents in June and one incident in September: (1) when you offended co-workers with your racial slurs and comments (2) when you initiated a series of events involving a large tool box which ultimately was glued to the free store cart and (3) the parking lot incident in September. These were further and final indications of the chronic performance and interpersonal skills Problems that you have displayed in the past.

My review of your record indicates that you have not made any significant attempt to conform your actions to Alyeska's procedures and rules of conduct. Intermediate disciplinary actions have apparently had no affect [sic]. I, therefore, see no alternative to your termination.

(CX 12 -- emphasis added). Collins noted that, unlike the earlier attempt initiated by O'Donnell in August to terminate Scott, he was not requested to hold up on Scott's termination (TR 2273).

   Under Alyeska's problem resolution procedure, Scott appealed his termination on November 9, 1990 (RX 109). That appeal was rejected by Collins on November 28, 1990 (RX 110), and was referred by him to the next level, in which J.M. Dossinger, the Vice-President for Human Resources, and Theo Polasek, the Vice-President for Operations (TR 778), were the decision makers. Dossinger and Polasek held a meeting with Scott on Jaunary 18, 1991 in Anchorage (see CX 161; TR 1715). His termination stayed in effect (TR 1715-16).

   Scott's performance appraisals over the years further illustrate his troubled employment history at Alyeska. The earliest appraisal reflected in the record covered the period from March 12th - June 5, 1990 (RX l). His supervisor, whose name is illegible, noted result of conflicts with undoubtedly appraisal. standard -that Scott "was moved to this crew as a 'B' crew. (Id. at RS 867). This accounts for the short period covered by the In this appraisal, Scott was rated a "C" -- below on two items -Job Knowledge and Productivity -- and was rated a "B" meets the standard -- for the other eight categories, including Interpersonal Relationships (see id.). In the "Technician Progression

Indicator" list, where l is the highest rating and 6 the lowest, he was rated a 4, which states: "Employee needs additional training at current level before progressing to next level." (Id. at 867)

   His next evaluation covered the period June 5, 1980 April, 1981 (RX 2), and was probably his best. He was rated a "B" or "B+" in every category, and the supervisor's comments noted an improved attitude. The only cautionary notes were warnings to Scott not to allow "personality conflicts" to interfere with his work, and "to be careful of kidding sensitive crew members." (Id. at 1482-83)

   His next appraisal (RX 3), prepared by David Greenlee, and dated May 11, 1982, also was basically a good one. Although he did receive a "B-" rating in Initiative, where it was noted his attitude needed to improve, his overall rating was "Meets Standard." (Id. at 1477) However, it was noted that Scott "can be quick-tempered and excessively candid with his opinions." (Id. at 1476)

   His next appraisal, in June, 1983 (RX 4), indicates a serious deterioration in Scott's performance. Greenlee, who was still Scott's supervisor, noted that Scott had been placed on a work improvement plan due to excessive absenteeism, lack of productivity and his interpersonal relationships (id. at 782). He further stated that, although Scott had completed the work improvement plan, his performance was sliding again (id.). He rated Scott as "C" for both Interpersonal Relationships and Initiative, and a "B-" in Productivity. He stated that Scott:

Expresses frequent negativism to people in positions of authority in the company. Use of profanity and verbal expression are often excessive to others.

(Id. at 781)

    Despite all these negatives, Greenlee charitably found Scott to be meeting job expectation (a "3" rating) (id. at 782). However, he was overruled by his supervisor, Larry Planje, who found Scott's performance to be below standard, and rated him a "5 -- Employee not meeting current expectations" (id.).

   Over the next two months, Scott's performance deteriorated further. In an appraisal apparently written on September 26, 1983 (RX 5), only two months after his previous appraisal Greenlee gave Scott "C" ratings in Productivity, Interpersonal Relationships and

Initiative, a "C+" in Safety, and a "B-" in Ability To Work Under Pressure. The other five categories produced "B" ratings (id. at 766). Greenlee cited Scott's refusal "to change unacceptable areas of job performance . . .", adding that Scott refuses to accept constructive criticism and undermines "shift morale." (Id. at 767) He rated him a "6 -Employee is not meeting current job requirements. Consider for termination in one month." (Id.) In an accompanying note to his supervisor, Planje, Greenlee stated that he believed they had "reached the point of no return." (Id. at 765) In response, Planje noted that "I see no alternative except to request termination of this employee." (Id. at 930) As noted above, for some unexplained reason Scott was kept on.

   Scott's next performance appraisal (RX 6), dated February 7, 1984, was good. His new supervisor, Mac McKay, found that Scott's work was satisfactory (a "3" rating), and found that he got along well with his co-workers (id.) However, Planje noted that Scott had worked for McKay for only a short time (id. at RS 1459). McKay also did Scott's next performance appraisal, which covered the period through February 8, 1985, again rating him a '3' (see RX 8). Planje signed off on this appraisal without comment. It is significant, however, that McKay rated Scott a "C" (below standard, the lowest rating) in Interpersonal Relationships, stating:

Bob is quick tempered and excessively candid with his opinions[.] At times he has caused excessive discontent on the crew[.] For this reason he is not very well liked.

(Id. at RS 1450)

   Between this performance appraisal and his next, Scott was transferred to D crew from C crew due to the sexual harassment incident discussed above (see CX 1, at 7369). Accordingly, that incident is not reflected on his February, 1986 performance appraisal, which was by his new supervisor, Bob Miller. That appraisal, including the rating for Interpersonal Relationships, was satisfactory (see CX 1). So was Scott's February, 1987 appraisal, also by Miller (see CX 2).

   In mid-1987, Joel Williams became Scott's supervisor, and remained his supervisor until Scott was transferred to maintenance (TR 2611). Williams rated Scott below standard.' (CX 3, at 7507), noting he was the first person he rated in that category (TR 2623). Although he stated on the appraisal form that this low rating was due primarily to Scott's attendance problems, Scott was given

"C" ratings both in Safety and Interpersonal' Relationships, the Safety rating for smoking in a non-smoking area, and the Interpersonal Relationships rating for creating disharmony among his peers (CX 3, at 7506). He was rated a "C" in Interpersonal Relationship only because Alyeska had no lower rating (TR 2623). The following year, in February, 1989, Williams rated Scott a "3" -- meeting job expectations (CX 4). His rating in Interpersonal Relationship rose to a "B-", although Williams noted that Scott "often exasperates and/or aggravates co-workers." ("Id. at 7510)

   Shortly after the February, 1989 appraisal, Scott's performance deteriorated to the point that he was transferred to maintenance in July of that year (TR 2628-34). His next (and best) performance appraisal, dated January 14, 1990 (see CX 5), was prepared by his new supervisor, John Comacho (TR 2441). Camacho rated Scott as "meets standard", although rating him a "4" (employee needs additional training) rather than a "3" (meeting job expectations) (id. at RS 1232). He also gave Scott a "B" rating (and one "B+") in each performance category (id. at RS 1231). However, Comacho, who was moving to another position at the time, testified that Scott's performance was not up to standard (TR 2442), that the appraisal was overly generous (TR 2444). His cryptic comments regarding some of the performance categories confirm this. For example, in Interpersonal Relationships, his comment was "[u]sually gets along with some of the techs [technicians];" in Initiative, "[n]eeds to be told and instructed on how to perform most tasks"; and in Productivity, "[v]ery slow in completing maintenance tasks." These are not the comments one would expect to accompany a satisfactory rating.

   Thus, Scott's performance appraisals clearly reflect his tumultuous employment history at Alyeska.

Scott's Whistleblowing Activities

    Scott testified that he realized it was pointless to make internal complaints to Alyeska following an incident in which he believed Alyeska stole notebooks from an employee who allegedly was keeping records showing that oil shipments to Charles Hamel (see infra) contained excess water (TR 1513, 1518-20). He believes this was in the summer of 1985 (TR 1520). In seeking other avenues to express his concerns, Scott testified that he first went to the press (TR 1520). He stated that he did this on one occasion, probably also in the summer of 1985 (id.). However, he thought he was too conspicuous going there, and was sure that if Alyeska found out he was reporting grievances to the press he would be fired (TR 1520-22). He next considered reporting grievances directly to State and Federal agencies such as the Environmental Protection Agency ("EPA") or the Alaska Department of Environment Conservation ("DEC"). However, he said he was afraid that his confidentiality would not be maintained (TR 1522-23).

1523-24). Therefore, in about July, 1985 he started telephoning Hamel, first anonymously and, when he gained confidence in him, subsequently identifying himself (TR 932-33, 1524-25). Scott's first complaint to Hamel concerned the alleged theft of the worker's notebooks mentioned above (TR 932-33). He continued to complain to Hamel up to the time of the hearing, noting that his complaints covered

[t]he whole gauntlet. My concern about the deterioration of the whole facility, which was absolutely just -- it was repugnant to me, the worker atmosphere, the unsafe work conditions, the lack of concern.

... Their training was just a farce. They were putting people in danger, putting equipment in danger. I saw the pollution, the air pollution, the vented gases going straight into the atmosphere, the incomplete combustion, the spills and the leaks that at that point in time no one seemed to give a hoot about.

   (TR 1525-26). He also started turning over to Hamel various Alyeska documents (TR 934-35, 1527), including a magazine, interdepartmental memos, company correspondence, minutes of safety meetings, and an operating manual regarding the power vapor area (TR 1528). He also provided Hamel with documents such as trade publications and booklets which were not produced by Alyeska but which contained information somehow relevant to Alyeska (id; for example, see CX 33). He also sent Hamel his own hand-written notes (TR 1529). Scott testified that all of the Alyeska documents he turned over to Hamel were generally available to Alyeska employees; he never took anyone's private papers (TR 1530). Nor did he send Hamel any attorney-client privileged documents (TR 1531-32).

   Scott testified that he did not know the details of any environmental regulations that were applicable to Alyeska, nor was he aware of the requirements of any EPA or DEC permits under which Alyeska operated (TR 1544-45). Because of this, he tried to send Hamel information which he believed applied to Hamel's concerns (TR 1544). For example, he provided Hamel with information regarding the waste gas incinerator he operated (see, e.g., CX 135) because Hamel believed Alyeska was violating emissions standards (TR 1546-47); the various documents contained in CX 108 because they reference oil spills (CX 108, at A-94) and hazardous waste (id. at A-107); and CX 133 because he believed it indicated Alyeska was planning to try to burn sludge in the oily waste incinerator at Valdez (TR 1574), a procedure he believed could be hazardous (TR 1577). Scott offered similar explanations regarding other documents he turned over to Hamel. However, this decision is too long even without adding a lengthy discussion referencing all of these

documents; and such discussion is unnecessary in any event in light of the ultimate decision I reach in this case.

   Hamel specifically identified many of the documents turned over to him by Scott (see TR 944-1024). Hamel testified that, when he received documents from Scott and others, he generally passed the information contained in those documents to EPA and DEC (TR 935). He usually did not send the agencies the actual documents because he was afraid it would compromise the confidentiality of his sources (TR 936, 955). He did, however, show many of the documents he had received from his sources to Mike Frank, an Assistant Attorney General of Alaska (TR 986), and the Valdez DEC supervisor, Dan Lawn, who visited him at his home in Alexandria, Virginia (TR 936-37). He also turned over some documents to John Hohn, an attorney for EPA in Seattle (TR 917), which Mr. Hohn indicated were critical to TSCA and Clean Water Act investigations he was conducting (TR 938; see also CX 114). Hamel also testified before the Senate Energy Committee in 1987, during its Arctic National Wildlife Refuge hearing, regarding environmental problems about which Scott had provided him information (TR 942-43); and in that same year he filed another citizen's suit against Alyeska with EPA, and provided EPA with additional information he obtained from Scott (TR 953). In addition, on one occasion, at the request of EPA and/or DEC, Hamel provided Scott with photographs of facilities at the Valdez Terminal for which specific information was requested. Scott provided the information to Hamel (see CX 117), who turned it over to EPA and DEC (TR 949-50). He also provided information given to him by Scott (see CX 145) to the Wall Street Journal in 1989 (TR 989). This led to an article in the Wall Street Journal (CX 149) subsequent to the Exxon Valdez oil spill (TR 990). In connection with the preparation of that article, the Wall Street Journal reporter talked to Scott, anonymously, in a conference call set up by Hamel (TR 991). Further, Hamel gave information provided to him by Scott to the General Accounting Office ( GAO"), which prepared a report based in part on this information (see CX 147).

   Hamel indicated that Scott sent him information about every two weeks (TR 1005). During his testimony, he identified in great detail the documents and information provided to him by Scott which he provided to various outside sources, including those discussed immediately above, as well as the particular violation of law that he believed this information involved. However, as noted in regard to Scott's testimony concerning these documents, no purpose would be served in discussing all of these documents with more specificity. Suffice it to say that Hamel contends that the information he received from Scott and forwarded to State or Federal agencies and Congress concerned possible

violations of each of the environmental statutes addressed in Scott's complaint in this case.

The Wackenhut Investigation

   As early as the mid-1980's Alyeska was aware that Charles Hamel was representing that he had sources inside the company who were providing him documents, and it began investigating those leaks (TR 301). Alyeska's Manager of Corporate Security, James "Pat" Wellington, testified that Alyeska's first such effort was an internal investigation, initiated by Alyeska's then President, George Nelson, of Alyeska's internal telephone records to see if anyone was phoning Hamel in Virginia (TR 301-02, 307). This investigation, which took place in late 1987 (see CX 105), failed to turn up anything (TR 307-09). Although Wellington stated that he was told by Ivan Henman, Alyeska's Vice-President for Engineering in this same time period (TR 268-69), that Scott was suspected of being one of Hamel's sources (TR 318), he does not remember why Henman believed this (id.). In any event, no investigation of Scott was undertaken at that time (TR 230-22).

   A second investigation to identify a source of a leak of an Alyeska document occurred in May, 1988. Wellington testified that Henman asked him to see if he could determine who had made and distributed a diagram of the Valdez terminal facility (CX 72) which apparently had found its way to a local television station (TR 326-27). After Henman gave Wellington a list of employees who would have had the knowledge to draw that diagram and possibly have a motive to do so, Wellington had a handwriting expert compare the drawing with handwriting samples of the designated employees (TR 332). Apparently there were five employees on the list, including Scott (see CX 19). The handwriting expert stated that four of the employees could be ruled out as the author of the diagram (id.). Although he stated that Scott's writing samples were the closest of the five to the handwriting on the diagram, and he was a very strong possibility, he needed more evidence of Scott's handwriting in order to resolve discrepancies, particularly regarding the letters "M" and "U", between the diagram and Scott's handwriting (id.). Due to this inconclusive determination, no action was taken (see CX 18; see also TR 337).

   Another incident involving a leak of Alyeska documents occurred in October, 1989 when a box of Alyeska operating manuals was discovered in a car impounded by the Anchorage Police Department (see, e.g., CX 70). This box of manuals had been mailed by EPA's Seattle Office to Charles Hamel in care of the Trustees of Alaska (TR 338), an

quot;take appropriate legal action against the individuals who were stealing our property." (TR 387) Wackenhut assigned the investigation to its Special Investigations Division, headed by Wayne Black (TR 390). At that point, in early February, 1990, Wellington went to meet with Black and other Wackenhut officials, including its Chairman of the Board, President, Senior Vice-President for Domestic Operations, and in. house counsel (TR 390-91).

   At that meeting, Wellington explained the scope of the investigation (TR 391). He also stressed that the investigation

had to be legal, we would not use any alcohol, we would not use any drugs, we would not use any women ....

   (TR 391). Wellington was apprised of at least some of Wackenhut's proposed investigative methods at the Coral Gables meeting. They discussed the proposed undercover aspects of the operation, including setting up a "phony environmental group" called 'Ecolit'" (TR 393-94). They also discussed Wackenhut's proposal to take people's trash which is put out for collection (TR 403-04), and to plant phony memos in Alyeska's legal department (TR 439).

(see CX 41, at 1). First, Wackenhut somehow obtained Hamel's telephone toll records for the period from approximately December 1989 or January 1990 through May 1990 (TR 1269, 1336). Analysts from Wackenhut's Special Investigations Division, using a computerized date base search called DBASE 4 (TR 1262), then analyzed the telephone numbers reflected on Hamel's records to determine if Hamel had called Alyeska employees (whose telephone numbers were provided to Wackenhut by Alyeska -- TR 1269), including Scott, and to determine any other patterns in Hamel's calls (e.g., TR 1267-70). Later, some of Scott's telephone records were obtained by Wackenhut and analyzed (TR 1271; CX 42). As early as March 30, 1990, Scott was identified through these telephone toll records as having been communicating with Hamel (see CX 29; TR 1290; CX 32, at 8).

   Another technique utilized by Wackenhut was to collect and search the trash of Hamel and Scott (see, e.g. CX 32, at 13-14; CX 38; CX 46-47). Scott's trash was taken on two occasions (see CX 32, at 7, 13), and an inventory of the "items of general interest found on April 9, 1990 was prepared (id. at 13; see also CX 38). Hamel's trash was taken on three occasions (see CX 47, Exhibit List), and Hamel foiled another attempt (TR 1059). It is not clear if any evidence of leaks of Alyeska documents was found through this dubious practice.

   Wackenhut also conducted surveillances of Scott and Hamel. In regard to Scott (see CX 32), two Wackenhut investigators spent over a week in Valdez surreptitiously following him around. During this period they twice took his trash, as noted above, and also did a background check of Scott's business and property interests. In an attempt to trick Scott and other Alyeska employees into revealing their connection to Hamel, the investigators set up an undercover audio-video camera in their hotel suite. They tried to lure Scott and the others there by running classified advertisements and placing fliers on car windshields (including Scott's) in locations such as the Valdez terminal employees' parking lot which noted that an organization doing ecological research and litigation (see infra) had set up an office there. This ploy was unsuccessful.

   In regard to Hamel, Wackenhut sent "an RV loaded with cameras, wires, telephones, computer equipment up to Virginia for use as a listing post." (TR 1264) The RV also contained a scanner, which could read entire pages of documents and load them into a computer's memory (TR 1267). This vehicle was parked near Hamel's house (TR 1264). The record contains little information regarding the use to which this camper was put, but the implications are chilling.

   All of these techniques pale in comparison to Wackenhut's investigation conducted under the guise of a fictitious organization called "Ecolit". In an effort to win the confidence of Hamel and identify his sources, Wackenhut opened offices in the name of Ecolit, supposedly an organization engaged in ecological litigation, near its office in Miami and in Crystal City in Arlington, Virginia, near Hamel's Alexandria home (TR 1054, 1061, 1262). To maintain the appearance of a functioning entity, Wackenhut had mail and newspapers delivered to Ecolit's offices, set up an answering machine, opened bank accounts, brought in computer equipment, and provided a receptionist (TR 1262-63, 1286-88, 1333-34).

documents" obtained from Hamel into their Virginia computer (CX 47, at p. 2). They also obtained an extensive amount of surreptitiously recorded audio and video tapes of conversations with Hamel (id., at Exhibit List). Hamel also accepted $4000 from Ecolit. Half, Hamel testified, was used to defray some of the expenses of his credit card telephone calls; the other half he gave to Sound Watch, a Seattle environmental group (TR 106668). Although Hamel testified that despite "Jenkins'" constant prodding, he never knowingly identified any of his sources (TR 1068-69), it is clear that Black was able to confirm Scott's association with Hamel through the Ecolit "sting" operation.

Timeliness of the Complaint

   Under each of the statutes at issue in this case, a complaint alleging the occurrence of an adverse employment action relating to an employee's engaging in protected conduct must be filed within 30 days of that adverse employment action. See 15 U.S.C. §2622(b)(1)(TSCA); 42 U.S.C. §7622(b)(1)(CAA); 42 U.S.C. §6971 (SWCA); 33 U.S.C. §1367 (WPCA); see also 29 C.F.R. §24.3. There is no contention on the complainant's part that his complaint was filed within 30 days of an adverse employment action -- either his suspension by the respondent on October 8, 1990 (see CX 11) or his subsequent termination on October 24, 1990 (see CX 12). For Scott's complaint giving rise to this case was not filed until September 5, 1991.

    Scott is relying on the doctrine of equitable tolling to support the timeliness of his complaint. He contends that the complaint was filed within 30 days of his "becoming aware of information that led him to believe that the reasons he had originally, and repeatedly, been given by Alyeska for his termination were not true." (Complainant's Proposed Conclusions of Law, at 15). He argues that the 30-day period in which to file his complaint was tolled until he became aware of this information. It is Scott's burden to establish that he is entitled to invoke the doctrine of equitable tolling. See, e.g., Rhodes v. Guiberson Oil Tools Division, 927 F.2d 876, 879 (5th Cir.), cert. denied, 112 S. Ct. 198 (1991). He has failed to meet this burden.

   First, even if I were to find that equitable tolling applies to this case, the claim was nonetheless untimely. Where equitable tolling is applied, the 30-day limitations period starts running

when the facts which support the discrimination complaint were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to complainant.

Attorney General of Alaska at the time, and could not represent Scott. Scott first talked to Hellen over the telephone, then he brought documentary materials to Hellen's office for his review. He testified that he did not meet personally with Hellen. Hellen stated that he reviewed the material which he was provided and decided not to take the case because it was not economically viable. The record fails to disclose whether Scott's whistleblowing activities were raised in connection with Scott's consultation with Hellen. But for Scott to consult an attorney for the purpose of suing Alyeska for wrongful termination and not mention his whistleblowing activities is highly unlikely, particularly since, having already been fired, he had nothing to lose if his activities in this respect became known to Alyeska.

   I find that Scott and any reasonably prudent person in his situation had sufficient information, no later than early July, 1991, even prior to the time the Wackenhut investigation was becoming known, to believe that his termination may have been caused by Alyeska's discovery that he was leaking documents to Hamel. Scott's September 5, 1991 complaint was untimely under these circumstances.

   Further, I find that Scott had actual knowledge of the Wackenhut Investigation, and its connection to Alyeska, no later than August 4, 1991. Hamel testified that he first became aware in about the middle of July, 1991 that he had been investigated (TR 1157), and that he told Scott about it, probably by the end of that month (TR 1168) In fact, Hamel admitted that he had two telephone conversations with Scott both on July 25 and July 26, and probably discussed the Wackenhut investigation (TR 1167-68). Then Anna Contreras, a Wackenhut employee from May 15 through August 1, 1990 who worked on its investigation of Hamel and his sources performing telephone toll analyses and working at the

investigation had identified a least one of Hamel's sources (TR 1357), and probably indicated that in her statement to the Congressional investigators (TR 1369-70). Although Hamel disputes what Conteras told the investigators regarding the degree of Alyeska's participation in the Wackenhut investigation, he confirmed that she stated to the Committee investigators that Alyeska was involved in it (TR 1145-46). Further, Hamel did not dispute Conteras' testimony regarding the content of her affidavit. Clearly, by August 3, 1991, Hamel was fully aware that he had been the target of a major undercover investigation by Alyeska (and, he believed, Exxon). He also knew that his sources may have been identified (cf. TR 1147).

    On August 4, 1991, Scott telephoned Hamel from his home in Anchorage using Hamel's credit card number (see RX 136; cf. TR 1163, 1174). This call lasted 14 minutes. Hamel testified that the Wackenhut matter was discussed, including Alyeska's relation to the investigation (TR 1174-75). Although he denies telling Scott any of "the details" because he feared Scott "was at risk" (TR 1175), it is unclear what he meant by "the details." Moreover, his sudden concern for Scott flies in the face of his earlier testimony in regard to Contreras' August 2nd statement:

    Q. Well, now, when you heard the word Alyeska, though, did that cause you to have concern or renewed concern about people like Mr. Scott?

   A. It caused me concern for many people and Mr. Scott wasn't on top of the list because he didn't have a job. He wasn't even there any more. My concerns were for some other people and their familes ....

    (TR 1147).

- He was fired by Alyeska on October 24, 1990;

- He had been leaking Alyeska documents to Hamel and providing Hamel other information for over five years;

- Alyeska would fire him if they knew he was leaking documents to Hamel;

- Alyeska had been involved in a surreptitious investigation by Wackenhut designed to identify those employees who were leaking documents to Hamel; and

- Hamel's trash had been stolen.

He may also have known that specific informants had been identified. Moreover, he had consulted an attorney regarding an action for wrongful termination.

   This knowledge clearly was sufficient for a reasonable person to believe that Scott's termination by Alyeska was related to his whistleblowing activities. It was even more so for Scott, given his suspicious nature and willingness to file suit at the drop of a hat. Scott's self-serving testimony that he had no idea he may have been fired for his whistleblowing activities until he read abut it in the newspaper (e.g., TR 1910, 1922) is simply not credible, both because none of his testimony at this trial was believable, and because there is no doubt (see infra) that he was aware he may have been terminated for turning documents over to Hamel prior to reading the September 5, 1991 Anchorage Daily News article. Accordingly, under any conceivable standard, Scott had sufficient knowledge to file his complaint on August 4, 1991. His September 5, 1991 claim was two days late.

   Scott's lack of credibility regarding the filing of the complaint is further illustrated by his testimony regarding the preparation of the complaint. Scott testified that he first went to see Baily after his name appeared in an Anchorage newspaper in connection with the Wackenhut investigation (TR 1718), either the day the article appeared or the following day (TR 1718-20, 1944). He further stated that the complaint was filed the day after he first went to see Baily in response to the article (TR 1718, 1948-50).

Attached to the complaint was an article from the Anchorage Daily News dated September 5, 1991, which stated that recently obtained affidavits disclosed Scott was fired at the close of the Wackenhut investigation. Scott identified that article as the one which led him to see Baily (TR 1952-53).

   Scott further stated that the only thing he brought with him when he first met with Baily was the newpaper article, since Baily already had all his files (id.). The day he first met with Baily they worked late into the night drafting the complaint (TR 1949). The complaint was finished the following day (TR 1950, 1954-55). Since the complaint was filed on September 5, 1991, and Scott testified that it was not finished until the day after he first went to see Baily, he could not have gone to see Baily in response to reading the September 5, 1991 article in the Anchorage Daily News.

   Rather, it appears that Hamel contacted Baily on September 3rd or 4th, 1991, and asked him to meet with Scott (see TR 2947). Baily apparently first met with Scott on September 4, 1991, and filed the complaint the next day. The appearance of the Daily News article on the morning the complaint was filed appears coincidental.

   Apparently realizing that his testimony that the September 5th Daily News article prompted him to first see Baily was inconsistent with the filing of the complaint on that day Scott, on redirect (TR 1985-86) and then re-cross (TR 1987), changed his testimony. He stated that there were articles prior to September 5th which mentioned his involvement in the Wackenhut investigation and which, rather then the September 5th article, led him to see Baily. He stated that he "was fairly certain" he had this article or articles at home (TR 1989). Since this testimony represented a complete about-face from his testimony earlier in the day, Scott was ordered to produce the article(s) to which he was referring (TR 1994-97), either from his own records or from any other source. None were produced.

   In sum, Scott had all the information necessary to base a claim under the various whistleblower protection statutes under which this case was brought as early as the time he was fired, but certainly not later than August 4, 1991. Therefore, his claim had to be filed not later than September 3, 1991, which was 30 days from August 4th. By the time he first met with Baily on September 4, 1991, it was already too late to file the claim. Accordingly, even if equitable tolling applies to this case, the claim nonetheless was untimely filed, and must be dismissed.

   The foregoing discussion is predicated on a

finding in the complainant's favor on the issue of whether equitable tolling should be applied in this case to stay the 30-day limitations period under TSCA, CAA, SWDA, and WPCA. As was just noted, the claim was not timely even if equitable tolling is applied. However, Scott has failed to establish that equitable tolling should apply to this case.

   The leading case concerning the doctrine of equitable tolling in a DOL whistleblower case brought under environmental legislation (in that case, TSCA) is School District of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981)("Allentown"). In that case, the court reversed the Secretary of Labor's application of equitable tolling, holding that the restrictions on equitable tolling Must be scrupulously observed." (Id. at 19) The court, citing Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978), held that tolling is applicable when:

"[1] the defendant has actively misled the plaintiff respecting the cause of action,

[2] the plaintiff has in some extraordinary way been prevented from asserting his rights, or

[3] the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum."

...

We do not now decide whether these three categories are exclusive, but we agree that they are the principal situations where tolling is appropriate."

(Id. at 19-20). Scott is not contending that any category other than the first is applicable to this case.

   Scott's argument that the 30-day limitations period should be tolled fails on two grounds. First, there is no evidence that Alyeska "actively mislead the plaintiff respecting the cause of action ...." Scott contends that Alyeska's notice of termination did not disclose the discriminatory reason for the termination, stating instead that the termination was for cause. But since employers rarely if ever tell employees they are being subjected to adverse action for reasons which are in violation of the law, holding that there is equitable tolling because an employer informs the employee of a different reason for an adverse action would virtually eliminate the periods of limitation in the various environmental statutes at issue in this case. Congress could not have intended such a result. As the court stated in an analogous age discrimination case,

This [argument]...implies that a defendant is guilty of fraudulent concealment unless it tells the plaintiff, "We're firing you because of your age." It would eliminate the statute of limitations in age discrimination cases.

Cada v. Baxter Healthcare Corp., supra, at 451. In the same vein, the court held-that fraudulent concealment requires more than that the defendant failed to disclose "the wrongdoing upon which the plaintiff's claim is founded ...." (Id.)

   Perhaps the case most directly on point with Scott's is Blumberg v. HCA Management Co., 848 F.2d 642 (5th Cir. 1988), another Age Discrimination Act case. In declining to apply the doctrine of equitable tolling in that case, Judge Rubin stated:

Unlike the plaintiffs in the cases upon which she relies, however, Blumberg was advised at the time of termination that she was being discharged for cause, and she was able to evaluate the propriety of the reasons for her dismissal immediately. Blumberg's suggestion that the Hospital somehow misled her by not expressly declaring that her discharge was due to her age is tantamount to asserting that an employer is equitably estopped whenever it does not disclose a violation of the statute. This would make the 180-day period virtually meaningless.

(Id. at 645 -- footnote omitted). See also Pruet Production Co. v. Ayles, 784 F.2d 1275 (5th Cir. 1986).

   The cases that have applied equitable tolling to a statute of limitations in discrimination cases have been cases in which the employer was found to have misled the employee into believing he or she has no cause of action. For example, in McConnell v. General Telephone Co., supra, at 1317, the employer misled the employee into believing he had been temporarily laid off rather than terminated. Similarly, in Charles A. Kent, 84-WPC-2 1 O.A.A. 2, at 441 (Remand Decision and Order of Secretary of Labor, April 6, 1987), and Reeb v. Economic Opportunity Atlanta Inc., 516 F.2d 924 (5th Cir. 1975), the employees were misled by the employers into believing they had not been terminated. In all these cases, since the employees were misled into believing that no adverse action had been taken against them, they could not have been aware that a cause of action existed.

    A similar decision was reached in Cooper v. Bell, 638 F.2d 1208 (9th Cir. 1980). In Cooper, a race discrimination case, the court remanded the case for consideration of whether the limitations period

should be tolled on the basis of the employee's contention that his employer, the United States Government, misled him into believing that a white male could not file a discrimination complaint.

   Therefore, Alyeska's failure to inform Scott that he was being terminated for leaking company documents to Hamel is not evidence that Alyeska actively misled Scott respecting the cause of action.

   Scott also appears to be contending that, even if Alyeska did not actively mislead him into failing to file his claim, equitable tolling still is appropriate. In this respect, Scott argues that the limitations period did not start running until he became aware, or reasonably should have become aware, that he was a victim of discrimination, i.e., until he became aware both of his termination and the discriminatory cause of the termination. That is a misreading of the case law. In fact, the limitations period started running no later than when he was notified that he was terminated, October 24, 1990.

   Scott cites several cases in support of his position. Most, however, stand only for the proposition that the limitations periods in various statutes prohibiting employment discrimination are not jurisdictional, and can be tolled in appropriate instances. See Miller v. ITT Corp., 755 F.2d 20 (2d Cir. 1985); Hart v. J.T. Chemical Corp., 598 F.2d 829 (3rd Cir. 1979); Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978); Doyle v. Alabama Power Co., 87-ERA-43, 3 O.A.A. 5, at 42 (Final Decision and Order of Secretary of Labor, Sept. 29, 1989). In each of these cases, equitable tolling was rejected.

   Scott also cites Reeb v. Economic Opportunity Atlanta, Inc., supra. In Reeb, the court states that:

the statute of limitations ... does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.

(Id. at 930 -- emphasis added); see also McConnell v. General Telephone Co., supra; McGough v. U.S. Navy, ROICC, supra, 2 O.A.A. 3, at 213. However, it is clear from these and other decisions that the phrase "the facts which would support a cause

of action" refers only to knowledge of the discriminatory act, in this case Scott's termination by Alyeska, not to the knowledge of the employer's illegal motive for that act. As the Secretary stated in McGough:

Moreover, the implementing regulation at 29 C.F.R. §24-3(b)(1987) states clearly: "Any complaint shall be filed within 30 days after the occurence of the alleged violation." (emphasis added). Thus, "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Chardon v. Fernandez, 454 U.S. 6, 8 (1981)(emphasis in original).

McGough, supra, 2 O.A.A. 3, at 214-15. See also Merrill v. Southern Methodist University, 806 F.2d 600 (5th Cir. 1986); Pruet Production Co. v. Ayles, supra, at 48-49.

   Scott was fully aware that he was terminated on October 24, 1990. He was also aware that he has been providing Alyeska documents to Hamel, and he believed he would be fired if Alyeska found this out. There is no basis for equitable tolling in this case.

   Under any rationale or legal theory, Scott's complaint in this case was untimely. Therefore, this case must be dismissed.

Scott's Termination

   Even if the complaint in this case had been timely, it must nonetheless be dismissed. For Scott's termination was unrelated to his whistleblowing activities. The irony in this case is that, rather than cause Scott's termination, his whistleblowing delayed and almost prevented it.

   Initially, in cases brought under the statutes at issue in this case and other similar statutes protecting whistleblowers, it is the complainant's burden to make a prima facie showing that:

1. The complainant engaged in conduct protected by the applicable statute;

2. The party charged with unlawful discrimination knew of the employees protected activity; and

3. The adverse employment action was motivated, in whole or in part, by the employee's protected activity.

See, e.g., Dartey v. Zack Co., 82-ERA-2 (April 25, 1983); see also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). If

the complainant can establish each of these elements, then the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. I find that Scott has failed to meet his burden of proof. In the alternative, I find that Alyeska has carried its burden of proving a legitimate, non-discriminatory reason for its action.

   First, for the purposes of this decision, it is being assumed that Scott's conduct was protected by one or more of the statute under which this case was brought. Second, although most of the key players involved in Scott's disciplinary proceedings during the relevant period were unaware that Scott had been engaged in whistleblowing activities (see infra), the person who held the ultimate authority in regard to Scott's termination, Alyeska President James Hermiller, was fully aware that Scott had been providing information to Charles Hamel.

   However, Scott has failed to meet the third criterion for establishing a prima facie case -- that his termination was motiviated, in whole or in part, by his whistleblowing.

   As was noted in great detail above, Scott had an extraordinarily stormy employment history at Alyeska. He had been suspended for misconduct twice previously, in 1985 and 1988, which was unique among Alyeska employees, and had to be transferred from operations to maintenance in 1989 because he could not get along with any of the operations crews.

   In June, 1990, the break-room incident occurred. As noted above, that incident precipitated proceedings to terminate Scott by Leon Anderson, the new Human Resources Representative at the Valdez Terminal, who noted that Scott's employment record was the worst he had seen in his 36 years in employee relations (e.g., TR 2203), and Charles O'Donnell, the terminal manager at that time. After O'Donnell was promoted, Rick Collins, who succeeded O'Donnell as terminal manager, continued to push to have Scott fired. None of these men were aware of the Wackenhut investigation, or that Scott had been identified as a whistleblower, while they were attempting to fire him following the break room incident (see, e.g., TR 2170, 2209, 2224, 2256-57). Likewise, Kathy Carr, the head of Human Resource Services in Anchorage, through whose office the recommendation to fire Scott was referred, was not one of those who were informed of the investigation (see supra), and there is no indication that she was aware of it even at the time of the Management Committee meeting (e.g., TR 2424). O'Donnell, when he was promoted to a position in Anchorage in August, 1990, assumed that Scott was going to be terminated (TR 2170).

   This recommendation was not carried out, however. For the Wackenhut investigation was coming to a head and, disclosing only that a non-specified investigation was under way, both Wellington and Trotter put a hold on any disciplinary actions against Scott at that time (see supra). Therefore, were it not for the Wackenhut investigation, Scott probably would have been fired in August, 1990, following the break room incident. Alyeska's knowledge that he was providing information to Hamel, obtained through the Wackenhut investigation, actually stopped Alyeska from proceeding with his termination at that time.

   Then, on September 19th, the parking lot incident occurred Again, it was Anderson who initiated the effort to terminate Scott, and he was strongly supported in this action by the new terminal manger, Collins. There is no evidence to indicate that Anderson had found out about the Wackenhut investigation when he recommended for a second time that Scott be fired; and Collins specifically stated that he was still unaware of the Wackenhut investigation at this time (TR 2273). Kathy Carr, who disagreed with Collins regarding this action, also does not appear to have found out about the investigation. However, it should be noted that her disagreement primarily was based not on the appropriateness of termination in relation to Scott's conduct, but on her fear that Scott, who was only about a year away from retirement, would sue Alyeska if he was fired (TR 2418-19, 2423 cf; CX 69). Obviously, she was correct in her belief.

   Thus, at the time the issue of Scott's termination or suspension was brought before the Management Committee on October 22, 1990, none of the proponents -- Anderson, Collins or Carr -were aware that anything more was involved other than Scott's misconduct on the Job. Moreover, although the Human Resources Department in Anchorage may have disagreed with the Valdez Terminal Manager and his Human Resources Representative regarding whether Scott should be fired or suspended, it cannot be argued that termination would have been an unreasonable action in light of Scott's overall employment history at Alyeska culminating in the break room, tool box and parking lot incidents.

   At the Management Committee meeting, the Wackenhut investigation was not mentioned (TR 2424-25; cf. TR 2273, 2854). Only work histories of the employees were discussed (TR 2263-67, 2422-24; 2850-52). Of the Committee members present, the record contains little information about Ms. Michaels, who apparently took no part in the discussion (see TR 2266, 2851). In any event, there is no evidence in the record to suggest she would have had any knowledge of the investigation. Howitt testified in no uncertain terms that he was unaware of the investigation until August, 1991 (TR 2849, 2854); and the evidence indicates that

Polasek was out of the loop on the investigation as well (see supra). Although Mr. Trotter, who did know of the Wackenhut investigation by that time, attended the meeting, it does not "appear that he took an active role. Moreover, he was not a member of the Management Committee.

   At that meeting, after Collins and Carr presented their positions, Howitt and Polasek spoke. Howitt was the Valdez Terminal Manager when Scott was suspended first in 1985 and then in 1988, and personally signed Scott's 1985 suspension letter (RX 168, at 84; see also id. at 130). He addressed Scott's disciplinary history, and supported the recommendation to terminate him (TR 2851). Polasek also knew of Scott's history. In fact, when Hermiller became Alyeska's President, it was' Polasek who first brought Scott to his attention, mentioning Scott's "terrible performance" at the Valdez Terminal (TR 87). Polasek also supported termination (TR 2422). Michaels did not take a position (e.g., TR 2851). Up to this point, Hermiller had not actively participated in the discussion (TR 2423, 2852).

   The only two members of the Management Committee in attendance who expressed an opinion at the meeting prior to Hermiller's active participation (and the only regular members of the Committee in attendance aside from Hermiller) strongly supported termination. Moreover, since both were quite familiar with Scott's employment history at Alyeska, their opinions were entitled to strong consideration. At that point, Hermiller stated that, in light of the discussion, he believed termination was appropriate (TR 2423, 2852). No vote was taken (TR 2853).

   Thus, the Committee had reached a consensus before Hermiller, the only Committee member who knew about the Wackenhut investigation, expressed an opinion. Further, this decision was clearly reasonable, based on the specific incidents arising since June, 1990 considered in light of Scott's overall employment history, a history with which two of the Committee members were personally familiar. That Hermiller, who had knowledge of Scott's whistleblowing, ratified this decision is not evidence that Scott was fired because of his protected conduct. The whistleblower protection legislation is not intended to insulate whistleblowers from legitimate disciplinary actions resulting from their misconduct. As the Secretary stated in Lopez v. West Texas Utilities, 86-ERA-25, 2 O.A.A. 240, Secretary's Final Decision and Order (July 26, 1988):

Although whistleblowers are protected from retaliation for blowing the whistle, the fact that an employee may have blown the whistle does not afford him protection from being disciplined for reasons other than his whistleblowing activities nor does it give such an employee carte blanche to ignore the usual obligations involved in an employer-employee relationship.

(Id. at 8-9, 2 O.A.A. 4, at 243, citing Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986).

terminate activities

secure materials

hold on Scott/others

(Id. at 5). It is not clear from Burns' memo which of

   As stated in note 24 above, Burns, notes of the October 11, 1990 meeting and the interview summaries of Warner and Garibaldi were confidential, non-discoverable documents prepared by attorneys retained by the Owners Committee to assess the legal ramifications of the Wackenhut investigation. It would have been to the Committee's benefit for Warner and Garibaldi to have been candid with their counsel. Similarly, there would have been no reason for Burns to take inaccurate notes at the October 11th meeting.

That there were inconsistencies in the testimony in regard to the importance of the tool box incident in the decision to terminate Scott is not surprising. There are innumerable inconsistences in the record of this case, as there are in any record of this length. Considering that 32 people testified at the hearing over 13 days of trial, and the recollections of numerous others are contained in the almost 200 documentary exhibits, inconsistencies are bound to arise. Futher, the tool box incident clearly was not a major factor in Scott's termination in any event. Instead, it was the break room and parking lot incidents that precipitated the disciplinary actions leading to Scott's termination. Further, was disciplined for the parking lot incident is the fact that Scott struck Zecevic. Finally, that only Scott consistent with Scott's totally unsupported allegation that See was not disciplined to provide Alyeska with an alibi for terminating Scott smacks of desperation. If anything, that See was not fired supports Alyeska's position that Scott was fired for his misdeeds rather than for leaking information to Hamel.

Dual Motive Analysis

   If one were to find, as I did not, that Hermiller's participation in the Management Committee meeting at which Scott was terminated constituted a significant role in the termination, and were to infer that animus against Scott for leaking documents to Hamel was a mayor reason for Hermiller's desire to terminate him, an issue I do not have to reach, then this case could be considered a dual motive case.

The dual motive doctrine is implicated when it is found that the employer's adverse action against the employee was motivated by both prohibited and legitimate reasons,-i.e., that the employer had dual motives. See Generally Wilson v. Bolin Associates, Inc., 91-STA-4, Final Dec. and Order, Dec. 30, 1991, slip op. at 4; Palmer v. Western Truck Manpower, Case No. 85-STA-6, Sec. Dec. and Order on Remand, Jan. 16, 1987, slip op. at 9-10; McGavock [v. Elbar, Inc., Case No. 86-STA-S, Sec. Final Dec. and Order, July 9, 1986] at 12. In such a case, in order to avoid liability, the employer has the burden of showing by a preponderance of the evidence that it would have made the same decision as to the employee's discharge even in the absence of the protected conduct. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-58 (1989); Wilson at 4.

Park v. McLean Transportation Services, Inc., 91-STA-47 (Final Decision and Order, Sec'y of Labor June 15, 1992).

   The evidence in the record clearly shows

   It is recommended that this case be dismissed.

      JEFFREY TURECK
      Administrative Law Judge