DATE: November 20, 1990
CASE NO. 87-TSC-4

IN THE MATTER OF

STEVE WAGONER,
    COMPLAINANT,

    v.

TECHNICAL PRODUCTS, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and order (R.D. and O.) of Administrative Law Judge (ALJ) Robert L. Cox, issued on October 29, 1987, in the above-captioned case which arises under the employee protection provision of the Toxic Substances Control Act (TSCA) , 15 U.S.C. § 2622(a) (1982).¹

   Complainant Wagoner alleges that Respondent discharged him in violation of TSCA because he made environmental (safety and health) complaints. After a hearing on the merits, the ALJ recommended that the complaint be dismissed because Complainant had not established that he had engaged in conduct protected by TSCA, a necessary element of a prima facie case of discrimination under TSCA. The ALJ also found that Respondent's officials involved in Complainant's discharge were not aware of Complainant's alleged protected conduct and that the alleged protected conduct was not the motivating factor for Complainant's discharge.

   Upon review of the entire record in this case, including the briefs submitted by the parties, I conclude that Complainant has failed to establish a prima facie case of retaliation for the exercise of his protected conduct. I reach this conclusion because I find that Complainant failed to establish a causal relationship between his protected conduct and his discharge.

   I.

   The facts in this case are set out in great detail by the ALJ. R.D. and O. at 3-17. Briefly, Complainant was initially employed by Respondent, in January of 1985, as a truck driver at Respondent's facility in Lexington, Kentucky.² Respondent is a chemical distribution firm. From time to time, Complainant would work in Respondent's warehouse, filling in for the warehouse supervisor. In June or July of 1986, Complainant was promoted to warehouse foreman with the following duties: general maintenance of the warehouse; pouring acid from a tank into drums; loading and unloading chemicals on trucks; preparing orders for delivery; dispatching and supervising the drivers; waiting on walk-in customers; and occasionally driving one of Respondent's trucks. The parties dispute whether Complainant was responsible also for safety at the warehouse. As warehouse foreman, Complainant's on-site supervisor was Area Manager David Devine, who was also a company salesman.

   Complainant alleges that, both when he was a driver and when he was a warehouse foreman, he made environmental complaints. Specifically, in March of 1986, while he was a driver, Complainant attended a meeting called and attended by Respondent's president, Thomas Gillespie. During this meeting, at which Devine was also present, Complainant made complaints concerning the safe operation of the warehouse. These complaints pertained to the lack of respirators, the need for eye wash stations and the existence of electrical problems where highly flammable liquids were stored. Complainant also alleges that, during his tenure as warehouse foreman, he regularly complained to Devine about environmental conditions at the warehouse, such as poor ventilation, the manner in which chemicals were stored and the lack of safety equipment. Most of Complainant's complaints to Devine and attendant requests for correction, it appears, were in the nature of casual statements rather than formal requests. For example, when pouring acid and the fumes were bad, the need for respirators would be mentioned. On one occasion, however, when Complainant got hydrochloride acid in both eyes and a garden hose had to be used to cleanse his eyes, he made, he alleges, a specific request for better eye protection equipment. The environmental conditions at the warehouse, Complainant contends, gave him headaches daily and bad chest pains. Complainant maintains that the conditions he complained of, both when a driver and when warehouse foreman, remained uncorrected by Respondent. Complainant further alleges that, during the entire period of his employment with Respondent, he complained to Devine about illegal shipments of chemicals - specifically, the hauling of cyanide and acids together, although cyanides are required to be shipped alone.

   On May 22, 1987, Complainant was discharged. Respondent contends that Complainant was discharged because of insubordination, excessive absenteeism, inefficient management of warehouse operations and disinterest in his job. Complainant contends that he was discharged because of his environmental complaints.

   II.

   The ALJ concluded that the applicable burdens of proof to determine whether Complainant's discharge was discriminatory under the whistleblower provision of TSCA are the same burdens as have been applied in cases arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1982). The ALJ applied these burdens in analyzing the record evidence.

   I agree with the ALJ that the ERA burdens of proof are applicable to claims arising under the TSCA whistleblower section. Although such application has not been heretofore set forth as a proposition of law, the ERA burdens have been applied in fact in TSCA cases. See Hassel v. Industrial Contractors, Case No. 86-CAA-007, Sec. Final Decision and Order, February 13, 1989, a case arising under both TSCA and the Clean Air Act, where I agreed with the ALJ that Complainant had failed to establish a prima facie case but did not comment on the ALJ's ruling that the ERA burdens of proof were applicable to claims under both statutes; Lopez v. West Texas Utilities, Case No. 86-ERA-25, Sec. Final Decision and Order, July 26, 1988, which applied the ERA burdens to a claim under TSCA.

   There are persuasive reasons why the same burdens of proof should apply to TSCA claims as to ERA claims. The TSCA whistleblower provision and the ERA whistleblower provision are virtually identical. Compare 15 U.S.C. § 2622(a) and 42 U.S.C. § 5851(a). Both are implemented by the same procedural regulations. 29 C.F.R. Part 24. The objective of each provision is to afford protection from retaliation or discrimination to employees who make safety complaints. See generally English v. General Electric Co., 110 S. Ct. 2270 (1990), noting that the "'paramount' purpose (of the ERA whistleblower provision) was the protection of employees." 110 S. Ct. at 2277. Moreover, the ERA burdens of proof have not been limited solely to ERA cases; they have been applied in cases arising under other environmental whistleblower statutes, including all the other statutes implemented in 29 C.F.R. Part 24. See Devine v. Buncombe County Department of Engineering Service, Case No. 87-SWD-1, Sec. Final Decision and Order, June 28, 1990 (Solid Waste Disposal Act); Pogue v. U.S. Department of the Navy Mare Island Naval Shipyard, Case No. 87-ERA-21, Sec. Final Decision and Order, May 10, 1990 (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)), appeal docketed, No. 90-70318 (9th Cir., June 28, 1990); Sherrod v. AAA Tire & Wheel, Case No. 85-CAA-3, Dep. Sec. Decision and Order, November 23, 1987 (Clean Air Act); McGavock v. Elbar, Inc., Case No. 86-STA-5, July 9, 1986 (Surface Transportation Assistance Act). See also, Lopez v. West Texas Utilities, slip op. at 1-2, applying ERA burdens to all statutes mentioned in 29 C.F.R. § 24.1. As noted in Pogue, "[t]he courts of appeals have endorsed these elements [of proof]. Roadway Express v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983)." slip op. at 47.³ See also Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986). There is nothing in the TSCA whistleblower provision nor in its legislative history to suggest that different burdens and standards of proof should apply to TSCA from those applicable to complaints covered by other whistleblower statutes.

   The applicable burdens and order of presentation of proof are set forth fully in Dartey v. Zack Company, Case No. 82-ERA-2, Sec. Decision, issued April 25, 1983, slip op. 7-9. Initially a complainant is required to present a prima facie case establishing that the complainant engaged in protected conduct, that the employer was aware of that conduct, and that the employer took adverse action against the complainant. A complainant further is required to present evidence sufficient to raise the inference that the likely motive for the adverse action was the complainant's protected conduct. If each of these elements is established, the complainant has presented a prima facie case of retaliation or discrimination.

   III. a.

   The ALJ concluded that Complainant Wagoner had failed to establish a prima facie case because Complainant had not engaged in protected conduct. R.D. and O. at 19. I do not accept this conclusion. Rather, I find that Complainant had engaged in conduct protected under the TSCA whistleblower provision.

   The ALJ acknowledged that the record evidence established that Complainant, on at least one occasion, made oral environmental complaints to company officials. R.D. and O. at 18-19. This evidence consists of Complainant's testimony that he made such complaints at the meeting with Gillespie and Devine in March of 1986, and the admission of both of these individuals that such complaints had been made. Transcript (T.) at 20-21, 34-37, 113, 126.

   The ALJ also noted that Complainant "asserted that he complained to his supervisor about a variety of conditions on almost a daily basis." R.D. and O. at 19. The ALJ made no explicit finding as to this assertion. The ALJ, however, apparently credited⁴ Complainant's testimony to the effect that, during the period he served as warehouse foreman, "[i]t was almost daily routine" for him to complain about how chemicals were stored, the lack of safety equipment and other similar matters, T. at 19, over Devine's repeated denials that any environmental complaints had been made by Complainant when he worked in the warehouse. T. at 126, 142, 145. The record evidence suggests no reason for a contrary credibility finding. Rather, support for Complainant's allegation is found in the testimony of the three other employees at the Lexington facility that they frequently heard Complainant complain about warehouse environmental conditions and believed that Complainant had made the same complaints to Devine. T. at 67, 74, 90. Further, Devine's testimony is not necessarily contradictory to that of Complainant. Devine's admission that Complainant had told Devine that he (Complainant) did not like working in acid fumes, T. at 130, 147, coupled with the circumstances under which Complainant made most of his safety complaints to Devine - i.e., "sort of miscellaneously,"⁵ T. at 37, serves as a basis for the inference that Devine failed to recognize Complainant's statements as complaints, and explains Devine's testimony that Complainant had not made environmental complaints to him. I, therefore, agree with the ALJ that Complainant made environmental complaints to Respondent's officials in March 1986, and that, during the period that Complainant was employed as warehouse foreman, he made environmental complaints to Devine.⁶

   Citing Mackowiak v. University Nuclear Systems, Inc., and Kansas Gas and Electric Co. v. Brock, the ALJ recognized that Complainant's "claim cannot be dismissed merely because the complainant complained internally." R.D. and O. at 19. The ALJ, however, relying on the decision of the United States Court of Appeals for the Fifth Circuit in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), which interpreted a similar provision of the ERA, ruled that Complainant's internal complaints did not constitute a "proceeding", and, therefore, were not protected conduct. The ALJ recognized that the United States Court of Appeals for the Ninth Circuit in Mackowiak and the United States Court of Appeals for the Tenth Circuit in Kansas Gas had reached a contrary view, but distinguished these holdings on the ground that they involved quality control inspectors. The distinction, according to the ALJ, is that "Complainant was not under a duty to enforce any regulations . . . and that the filing of internal safety reports was determined [in Mackowiak and Kansas Gas] to be the first step in the initiation of an enforcement proceedings [sic]." R.D. and O. at 19.

   The ALJ erred in following the Brown & Root ruling. In Nunn v. Duke Power Company, Case No. 84-ERA-27, Dep. Sec. Decision and Order of Remand, July 30, 1987, and in Poulos v. Ambassador Fuel Oil Co. Inc., Case No. 86-CAA-1, Sec. Decision and order of Remand, April 27, 1987, it had been made clear that "[t]he applicable precedents are Mackowiak and Kansas Gas and not Brown & Root."⁷ Nunn, slip op. at 11. Both Nunn and Poulos rejected the contention that the Mackowiak and Kansas Gas rationale was limited to quality control inspectors. Nunn, id.; Poulos, slip op. at 6-7. Both Nunn and Poulos recognized the internal reporting of safety complaints by non-quality control employees as the initial step in achieving compliance with the environmental requirements of the applicable statute. Nunn, slip op. at 11; Poulos, slip op. at 11.

   I also reject the additional reasons given by the ALJ for his finding that Complainant did not engage in protected activity - namely, that the March 1986 meeting was not requested by Complainant, that Complainant made no written complaint and that Complainant only raised safety issues with his immediate supervisor. R.D. and O. at 19. At whose request the March 1986 meeting took place is immaterial to a determination of whether Complainant made safety complaints, particularly where, as here, the fact that he did is not contested. Neither the TSCA provision nor whistleblower case law requires that internal complaints be written. Oral complaints have been found to be protected conduct. See, e.g., Consolidated Edison Co. of New York v. Donovan, 673 F.2d 61, 63 (2d Cir. 1982). In addition, the ALJ erred in concluding that Complainant complained only to Devine since Gillespie admitted that Complainant complained to him (Gillespie) at the March 1986 meeting. T. at 113.

   Finally, while evidence that a complainant complained only to certain company officials may be relevant to the issue of employer awareness of the protected activity, it is not relevant to a determination of whether a complainant made any safety complaints. Accordingly, I find that Complainant established that he had engaged in protected conduct.

   b.

   Having established that he engaged in protected conduct, Complainant must also establish that Respondent was aware of such conduct. The record reveals that Complainant was discharged by President Gillespie on the recommendation of Eddie Trimmer, Vice-President in charge of purchasing and operations. T. at 99. Trimmer recommended that Complainant be discharged after learning from the warehouse foreman of the Louisville facility that one of his drivers had reported that there were unloading and delivery problems at the Lexington facility, after speaking with that driver and after discussing Complainant's attitude and behavior with Devine. From Devine, Trimmer learned that Complainant intended to continue to work for Respondent only until he found another job. T. at 153-6. Before discharging Complainant, Gillespie spoke to Devine and then to Complainant. T. at 102, 115-6. The ALJ found that Complainant had not met this element of his prima facie case.

To establish discriminatory intent, the Complainant must first establish that the employer knew of his alleged whistleblowing activities. (Citations omitted.) Although the Complainant meet [sic) with Mr. Gillespie in March, 1986 and voiced his complaints and safety concerns at this time, Mr. Gillespie testified that be believed that the complaints had been corrected. Furthermore, there is no evidence of record that Mr. Trimmer was aware of any of the Complainant's complaints. Without further knowledge of the complainant's alleged continuous complaining, I find that the Complainant has failed to establish that either Mr. Gillespie or Mr. Trimmer had a discriminatory intent in the termination of the Complainant from TPI.

R.D. and O. at 20.

   The ALJ obviously has intertwined his finding on Respondent's awareness of the protected conduct with his finding on whether the protected conduct motivated the adverse action. Nevertheless, I agree with the ALJ that, as to Complainant's environmental complaints while a warehouse foreman, the record evidence does not support a finding that Gillespie or Trimmer had any actual knowledge of these complaints. Gillespie testified that, other than at the March 1986 meeting, he had never discussed safety or the lack of it with Complainant, and that he (Gillespie) did not remember Devine's relaying any of Complainant's environmental complaints to him, although Devine may have done so. T. at 107, 110. Trimmer testified that he had never been advised by anyone about Complainant's safety complaints. T. at 156. Trimmer recalled only one conversation with Complainant and that was when Trimmer promoted Complainant to warehouse foreman. T. at 152. Decisive on the issue of whether Gillespie or Trimmer had knowledge that Complainant had been complaining about warehouse conditions is the absence of any testimony by Complainant that he relayed his concerns and requests to Gillespie or Trimmer. Complainant testified to only one meeting with Trimmer, which took place when he was hired, and to one telephone conversation with Trimmer shortly thereafter during which Complainant discussed "overall operations" at the warehouse and complained about Devine's interference with scheduled deliveries. T. at 50-51. Complainant does not contend that the discussion of "overall operations" and his complaints about Devine included any mention of warehouse environmental conditions. Accordingly, it is clear that neither Gillespie, who made the ultimate decision to discharge Complainant, nor Trimmer, who recommended that Complainant be discharged, were aware of the safety complaints Complainant made while a warehouse foreman.⁸

   Nevertheless, I cannot agree that Complainant has failed to prove that Gillespie was aware of any protected conduct by Complainant. As already noted, Gillespie admitted that Complainant made environmental complaints at the March 1986 meeting. Because of this evidence, I find that Complainant has met his prima facie burden of establishing that Respondent had knowledge that Complainant engaged in protected conduct.

   c.

   Complainant's discharge having constituted the adverse action, Complainant must then present evidence of causation - i.e., evidence from which it can be inferred that his discharge was probably the result of his protected conduct. I agree with the ALJ that "Complainant has failed to establish that either Mr. Gillespie or Mr. Trimmer had a discriminatory intent in the termination of the Complainant . . . ." R.D. and O. at 20. The record does not contain any evidence to support an inference that the likely motive for the adverse action was Complainant's protected conduct. To the contrary, there is evidence which belies such an inference. Of particular note is Gillespie's testimony to the effect that he believed that the safety problems raised by Complainant at the March 1986 meeting had been taken care of. According to Gillespie, at that meeting he ordered the correction of the problems, subsequently approved the purchase of safety equipment, and when he inquired of Devine if every one of the safety violations had been corrected, was told by Devine that they had been. T. at 107, 113. Gillespie testified that he directed Devine to correct the safety violations. T. at 113. Gillespie also testified that he directed Complainant to correct the violations. T. at 110. Although Complainant at first denied that he had been directed to obtain the necessary safety equipment to correct the conditions he complained of, T. at 36, he admitted, when confronted with a purchase receipt, that he had purchased safety equipment as a result of the March 1986 meeting. T. at 44. In view of this admission and in the absence of any evidence that Gillespie later learned of any uncorrected violations, I credit, as did the ALJ, Gillespie's testimony. Since Gillespie believed that Complainant's March 1986 complaints had been resolved, such complaints could not have motivated his decision to discharge Complainant.

   Other evidence also negating a causal relationship between Complainant's March 1986 complaints and his adverse action is: the fact that more than a year elapsed between Complainant's protected conduct and his discharge with no intervening action against him, T. at 38, 142; the fact that Trimmer, who first recommended Complainant's discharge was not aware of Complainants' safety complaints, T. at 155-156; and, the fact that the inquiry, which surfaced unfavorable comments as to Complainant's attitude and performance, was triggered by a complaint from a driver of another facility as to loading and delivery problems at the Lexington facility. T. at 153-4.

    IV.

   Accordingly, I find that Complainant has failed to meet his prima facie burden of establishing a causal relationship between the adverse action and his protected conduct. For this reason, I find that Complainant has failed to establish a prima facie case of discrimination⁹ in violation of Section 2622(A) of TSCA, and I DISMISS the complaint WITH PREJUDICE.

   SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.

¹ § 2622. Employee Protection

(a) In general. - 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.

15 U.S.C. § 2622 (a).

² The Lexington facility had five employees: an Area Manager, two drivers, a warehouse foreman and a secretary/receptionist.

³ The courts of appeal have interpreted in the same manner whistleblower statutes which "share a broad remedial purpose of protecting workers from retaliation based on their concerns for safety and quality." Kansas Gas, 780 F.2d at 1512, quoting Mackowiak. Secretarial decisions also have applied the same law to different environmental whistleblower provisions within the secretary's jurisdiction. See, e.g. McGough v. United States Navy, ROICC, Case Nos. 86-ERA-18 through 20, Sec. Remand Decision and Order, June 30, 1988, applying the same equitable tolling standards to a complaint filed under TSCA, Clean Water Act, Safe Drinking Water Act, Solid Waste Disposal Act and CERCLA.

⁴ That the ALJ credited Complainant's testimony is indicated by the fact that Complainant's assertion is a part of the ALJ's legal discussion of internal complaints and by the ALJ's factual finding that Complainant failed "to raise safety issues with someone other than his immediate supervisor." R.D. and O. at 19.

⁵ To be protected, internal complaints need not be couched in formal terms.

⁶ In view of this finding, I do not rule on whether Complainant complained about the illegal transportation of chemicals. The ALJ made no finding on this allegation. He simply reviewed in detail the evidence as to whether there actually had been illegal shipments of chemicals. R.D. and O. at 4-5. The ALJ does not state what he concluded from the evidence, although his discussion of the evidence suggests that the ALJ felt that Complainant failed to establish that illegal shipments had been made. Id. Such failure, however, would not automatically negate Complainant's allegation that he complained about illegal shipments nor make the act of complaining unprotected conduct. See, e.g., Aurich v. Consolidated Edison Company, Case No. 86-CAA-2, Sec. Remand Order, April 23, 1987, slip op. at 4.

⁷ As noted in Lopez, slip op. at 6, "[t]his has consistently been the Secretary's ruling on internal complaints."

⁸ In reaching this conclusion, I have considered whether Gillespie or Trimmer had constructive knowledge of Complainant's protected conduct. "[C]onstructive knowledge of Complainant's protected activities on the part of one with ultimate responsibility for personnel action may support an inference of retaliatory intent." Frazier v. Merit Systems Protection Board, 672 F.2d 150, 166 (D.C. Cir. 1982). With regard to the whistleblower provision of the Civil Service Reform Act, the Frazier court noted that "[t]here can be no doubt that a rule limiting retaliation findings to situations in which the top agency official has knowledge of protected activities would seriously undercut the CSRA's goal . . . . " 672 F.2d at 166. So, too, would the purpose of the environmental whistleblower statutes be undercut were the discharging official able to hide behind the shield of a lack of actual knowledge where the discharge had, in fact, been effected by a subordinate because of the employee's protected conduct. The record before me, however does not support a finding of constructive knowledge. Although Devine had knowledge of Complainant's protected conduct, he did not instigate Complainant's discharge but merely reported on Complainant's job performance. T. at 134. Moreover, after speaking with Trimmer and Devine, Gillespie was not 100 percent sure that he would terminate Complainant until Complainant told him he was not interested in the job. T. at 115-6. Nor does the record support a finding that workplace conditions were so pervasive that Respondent should have been aware of them. See Taylor v. Jones, 653 F.2d 1193, 1199 (5th Cir. 1981). Similarly, although the Lexington facility was a small shop, Gillespie and Trimmer's offices were located off the premises and Gillespie visited the facility "not more than twice" a month. T. at 988. There was, therefore, an absence of a close working environment which would permit an inference that Gillespie likely knew of Complainant's post March 1986 complaints. See D & D Distribution Company v. N.L.R.B., 801 F.2d 636, 641 (3d Cir. 1986).

⁹ The ALJ also found that Complainant was terminated for insubordination and thus, even if he had engaged in protected activity, Complainant had failed to carry his burden of proving "by the preponderance of the evidence that the protected activity was a motivating factor in the employer's decision to discharge." R.D. and O. at 20. While I agree that the record evidence supports a finding that Respondent discharged Complainant for legitimate business reasons and that, therefore, Complainant has failed to meet his ultimate burden of proof, I note that Complainant need not establish as part of his prima facie case that Respondent had no legitimate reason to discharge him.