This case arises under the employee protection provision of the Clean Air Act, 42 U.S.C. § 7622 (herein the CAA or Act) and the implementing regulations thereunder at 29 C.F.R. Part 24. On February 20, 1997, James B. Veasaw (Complainant) filed an administrative

   Respondent presented an oral argument at the hearing but did not file a post- hearing brief. Complainant did not present any closing argument at the hearing or file a brief. Based upon the evidence introduced and having considered the arguments and positions presented, I make the following Findings of Fact, Conclusions of Law and Recommended Order.

A. The applicability of the Clean Air Act.

B. Whether Complainant engaged in activities protected under the Clean Air Act.

C. Whether Respondent discriminated against Complainant in retaliation for his alleged protected activities.

The Testimonial Evidence

James B. Veasaw (Complainant)

   Complainant testified that he is a U.S. citizen who lives in Humble, Texas. Although he attempted to secure an attorney to represent him in this matter, he was unable to do so and proceeded Pro Se. (Tr. 26-27).

   Mr. Veasaw was born on February 24, 1956 and has earned an associate degree as well as a bachelor's degree from Texas Tech University. His past work history reveals that he has worked as a programmer, systems analyst II, and systems analyst III. (Tr. 27). After his employment with Respondent in this matter, he began working for a television station in Austin, Texas, on August 11, 1997, performing miscellaneous computer work. (Tr. 27-28, 146). Mr. Veasaw is presently unemployed. His employment with the television station ended on October 30, 1997. (Tr. 29, 146). He testified that he quit his employment to devote more time to a complaint he filed against the Texas Natural Resource Conservation Commission, a former employer. (Tr. 30).

   Complainant began employment with Respondent on or about July 27-28, 1996. (Tr. 28). Complainant testified that during the Thanksgiving holidays in 1996, he went on a snow skiing trip, during which he developed a cough. He stated that it was not a serious cough, but he suspected that he had breathed some moisture from snow-blowing equipment. (Tr. 31). Upon his return from the holiday, he informed his supervisor, Skip Carruth, that he had picked up a cough. He stated that the coughing problem seemed to be going away, and by lunchtime of the first day back at work, his coughing problems had subsided. (Tr. 31).

   Mr. Veasaw testified that, as an Information Systems Specialist with Respondent, he maintained all the computer systems in the plant. (Tr. 32). His job duties required him to sporadically enter and work in the production plant environment. His primary complaints to Respondent centered around his perception that a lack of proper ventilation existed in the production area of the plant.

   Complainant testified that Jim West, the Environmentalist for Respondent, had problems with employees turning off the environmental fans in the plant which were purportedly designed to remove or eliminate welding fumes and other alleged contaminants from the plant work area. Complainant testified that in December 1996 a cold front came through the area and employees in the shop shut the plant doors to stay warm. With the environmental fans off and the doors shut, all the vapors that were produced in the plant remained within the plant. He stated that he could only describe the environment as "like breathing broken glass." (Tr. 33-34).

He further testified that if the fans were operational and the doors were closed, proper ventilation was still not achieved. (Tr. 34). He affirmed that when the fans are operating and the doors were open, plant fumes were displaced from the work air. Conversely, when the doors were shut, the fans did not remove the plant air. (Tr. 35). To work at its optimum, according to the Complainant, the plant doors must remain open.

   He reported to Mr. West that the Respondent needed some type of vent in the building to allow air to be exchanged because the current design was not adequate to remove the air when the door was shut. (Tr. 35-36). He mentioned this same problem to Mr. West several times before December 1996. (Tr. 36). Mr. West's response was that the haze in the plant work environment was created by employees turning off the fans and that he was going to have to install a "lock-out switch" to keep employees from actually throwing the breaker and turning the fans off. This conversation occurred prior to Complainant's Thanksgiving vacation. (Tr. 37).

   On Friday, December 13, 1996, Complainant went to the Austin Diagnostic Urgent Care Clinic to be examined by a physician for his cough. The physician gave him a steroid inhaler to relieve some of his coughing symptoms. (Tr. 50). Mr. Veasaw subsequently delivered a physician's note to Mr. Carruth indicating that he had been treated at the clinic. (Tr. 51; RX-D; CX-6A, p. 17).

   Claimant returned to work the following Monday, December 16, 1996, and began working on the welding machine terminal problem, at which time he was paged to meet with Mr. Carruth, Dee Banes and Vernon Pontes, whose position is not reflected in the record, in the conference room regarding his response or amendment to the written reprimand. He recalled that during this meeting a discussion ensued about the problems he thought were present in the plant with the air quality and its conditions. They also talked about his career ladder within the company. The meeting lasted about 30 to 45 minutes. (Tr. 55). It was during this meeting that Complainant presented to Mr. Carruth the December 13, 1996 clinic note that revealed he did not have an infection from his coughing symptoms. (Tr. 56).

   He next returned to the doctor on January 7, 1997, at which time he was not having any coughing symptoms. He requested that the doctor write a specific note as to what caused his cough and the physician wrote "exposure to unknown environmental allergen or irritant caused cough, now resolved." Complainant acknowledged that this notation was made based upon his history as reported to the physician, and that the physician had no independent information upon which to base that conclusion. (Tr. 57; CX-6A, p. 17).

   Complainant testified that his understanding of "ambient air," as raised by Respondent in its Motion To Dismiss, was air quality that causes a public concern or affects the safety of the public which is covered by the Clear Air Act, whereas environmentally inclosed areas, such as a working environment, are regulated by OSHA and are not covered by the Clean Air Act. (Tr. 113). He further stated it was his belief that, if the quality of air at issue was outside the building, it came under the Clean Air Act. (Tr. 114).

   He testified that not only was the Respondent affecting its own employees with what he believed to be highly carcinogenic materials without a permit, but "when the doors were opened, various gases or vapors are being expelled into the general public." As an example, Respondent painted the interior of its north plant and thereby exposed employees to vapors that could not be breathed. (Tr. 114). He stated that the painting occurred in December 1996 or January 1997. He complained to Jim West who attempted to alleviate the vapor problem by setting up fans to evacuate the air from the building. (Tr. 115). He further stated that when the fans evacuated the vapors from the work area, the vapors were blown out of the door where the "general public" had access. He definitely remembered being sick on that particular day of painting. He, however, did not go to a dispensary or clinic for his symptoms. (Tr. 116).

   On cross-examination, Claimant testified that he had mentioned the welding fumes and air environment to Mr. West and Mr. Carruth informally prior to the Thanksgiving 1996 vacation. (Tr. 117). He also mentioned his displeasure with the quality of air to employees Sherry Morgan, Dee Banes and Lenelle Mercioski before and after his Thanksgiving ski trip. He testified, however, that his complaints regarding the air quality were not the reason for his termination. (Tr. 118). He stated that he believed he was fired because he "started to document what was going on" in the plant. He stated that he had not made any reports to the EPA before his discharge because he was collecting evidence. (Tr. 118). He mentioned the EPA and the Clean Air Act to Dee Banes and Sherry Morgan "in passing" because he believed they were more of an ally than an adversary and "just fellow employees." (Tr. 119).

   He testified that he believed Respondent was conducting illegal activities and engaged in an attempt to cover up those illegal activities, such as electroplating. (Tr. 119). He admitted, however, that the electroplating he observed on one occasion was performed on a regular shift, out in the open of the plant, in the presence of 30 to 40 other employees working on the second shift. (Tr. 120). He believed that when he complained about the electroplating he "set off alarm flags," and when he began looking around and found "copper sulfate and the nickel sulfate," Respondent knew he was "looking around and trying to document what was going on." (Tr. 120-121).

   He testified that before Thanksgiving 1996 he did not become ill or seek any medical attention because of the exposure problems about which he complained. Before

Thanksgiving, temperatures outside had not fallen dramatically low so the plant doors remained open. It was only when a real "heavy cold front" occurred that Respondent would actually shut the doors all the way. (Tr. 121). He testified that before October 1996, he mentioned to Mr. Carruth several times that it was "kind of dusty out there [in the plant]" to which Mr. Carruth would respond with his "classic thing that they had tested the air." (Tr. 121). Claimant acknowledged that Respondent's standard response was the air had been monitored, reviewed by both the workers' compensation carrier and tested by the Texas Natural Resource Conservation Commission or under their supervision, which was his prior employer, and that the results had been sent in and the air quality was found to be well within acceptable limits. (Tr. 122).

   Complainant testified that he received an Employee Performance Appraisal on October 28, 1996 from Mr. Carruth. (Tr. 123; RX-A). He received both good ratings and poor ratings for the various characteristics of performance. Mr. Veasaw denied that he had problems maintaining and servicing computers, which was part of his job responsibility. (Tr. 124). He testified that he solved every problem "that came my way." He disputed the ratings received from Mr. Carruth regarding his skill level in Novell Netware as well as his organizational skills, for which he received a rating of 2 and 1, respectively, on a scale of 1 to 5, 5 being the highest rating. (Tr. 125). Mr. Veasaw testified it was not his position that his employee appraisal performance ratings were in response to his complaints about the quality of air. (Tr. 127).

   Complainant conceded that his termination in January 1997 followed a problem that existed with the mail server which is part of the computer process that was his responsibility as an Information Systems Analyst. (Tr. 127). The server permitted Respondent to communicate with its parent company, Dover Industries, in Chicago and allowed Dover to communicate with Respondent in Temple, Texas. He attested that the mail server was a very important piece of equipment. Complainant was able to verify that the mail server last worked on January 13 and remained inoperable through the day of his discharge on January 27, 1997. He acknowledged that he was not able to fix the problem with the mail server. (Tr. 128).

   With respect to Mr. Veasaw's coughing symptoms, Mr. Carruth informed him initially to go see a doctor and that "we want to get you well. Go to a doctor. Find out what's bothering you. We want to get you fixed." (Tr. 136). He further acknowledged that Mr. Carruth did not criticize, reprimand him or fuss at him for going to the doctor. (Tr. 137).

   Mr. Veasaw agreed that his job involved responsibility for maintaining and securing the Respondent's computer system. (Tr. 137). He also stated that he could have fixed the mail server, but he was more interested in "finding out what was going on first." He waited a period of almost two weeks during which time this critical piece of equipment was inoperable so that he could document the usage by various operators. (Tr. 138). Mr. Veasaw testified that when he was terminated, he was not told he was terminated because of a problem with the mail server. (Tr. 138).

   Complainant testified that his primary complaints about air quality were concerns affecting himself, his fellow employees and the general public, in that order. His complaints related to conditions in the plant which, in his opinion, were hazardous. (Tr. 140). Complainant believed it was his duty to report the air handling system and its failures to management. (Tr. 142-143). He stated that, although he was given the standard response by Mr. Carruth regarding the air being monitored, he was not certain that it was actually being monitored. (Tr. 143). He confirmed that OSHA inspected the plant and rendered a report in which they did not find any complaint or citation regarding the exposure to fumes as raised by Mr. Veasaw. Mr. Veasaw claims that the inspection occurred after a two week notice to clean up the plant and Respondent was on its "best behavior." (Tr. 143-144). He affirmed that, although numerous health and safety violations were noted, they related primarily to the spray paint booths. (Tr. 144).

   Mr. Veasaw acknowledged that Respondent manufactures and sells hydraulic cylinders which are used in any kind of lifting operation, such as a bulldozer, elevator or fork lift. (Tr. 144). He further stated that the hydraulic cylinder is a piston or rod which is chrome-plated. The electroplating of these rods is performed at a facility in Waco, Texas and any electroplating performed in Temple, Texas is patch or touch-up work on rods which may have been damaged or blemished in transit or in handling. (Tr. 144-145).

   Mr. Veasaw testified that he did not threaten to report the electroplating because he was then investigating what was going on. He began investigating and documenting events after he received the December 11, 1996, written reprimand and when it became obvious that Respondent was not concerned about his safety. (Tr. 146). He stated that he wanted to know what he was being exposed to as well as to what other employees and the general public were being exposed.

Glenda G. Williams

   Ms. Williams began working for Respondent in August 1996 as a computer operator and voluntarily terminated her employment on or about July 1, 1997. (Tr. 156). On March 11, 1997, after Complainant's termination, she wrote a letter to DOL complaining about the air quality in Respondent's facility. (Tr. 155-156). Ms. Williams was concerned about the air quality in the plant during her entire tenure with Respondent and stated many employees complained to each other about the air quality conditions in the plant. (Tr. 160).

   Ms. Williams testified that during cold weather or inclement weather, when the doors to the plant were closed, there was no ventilation and "the exhaust and everything just hung in the air," which the employees were breathing. (Tr. 160). She stated that it was difficult to breathe "sometimes" and she experienced a burning sensation in her nose and throat "sometimes." (Tr. 161). She experienced "a lot of respiratory problems and sinus problems." (Tr. 161).

   Ms. Williams confirmed that after Mr. Veasaw's termination Respondent hired other employees to perform computer work. (Tr. 164). She was unfamiliar with the training or expertise of any of the employees hired, although she stated that one employee was hired to be trained on the system. (Tr. 166). She testified that the computer work "crashed" once or twice a week after Mr. Veasaw's termination. (Tr. 168).

   On cross-examination, Ms. Williams testified that she mentioned her concerns about air quality to management "in discussion in passing." She never made a formal complaint to management. (Tr. 169). She mentioned her concerns of air quality to her supervisor, Sherry Morgan, and talked about air quality in the plant at meetings. She acknowledged that she was not fired because of her expression of such concerns. (Tr. 170).

   Ms. Williams sought medical care and treatment for her respiratory and sinus problems during her employment with Respondent. She did not report to her doctors that the air quality in the plant caused her respiratory or sinus problems. (Tr. 172). She further acknowledged that she did not report her medical treatment to Respondent while employed with Respondent. (Tr. 173).

   Ms. Williams recalled an occasion in December 1996 or January 1997 when the employees had to evacuate the building because the interior walls of the computer office were being spray painted. (Tr. 179). Because the fumes were strong inside the office, the employees went out into the parking lot. Respondent set up fans and opened the doors after the employees left to move the air out of the offices. (Tr. 180). She suffered a headache as a result of this event, but did not receive any medical attention therefor. (Tr. 181).

   She acknowledged that most of her complaining was made "hopefully to raise the consciousness of management. I did not go and complain directly that I thought the air was bad." She further stated that she did not do so because she did not want to lose her job. (Tr. 181). Ms. Williams could not attest that the evacuation of the office because of paint fumes had anything to do with Mr. Veasaw's termination. (Tr. 187). Ms. Williams testified there were "constantly complaints about not being able to get onto the server." However, she could not recall whether or not that situation existed when Mr. Veasaw was employed by Respondent. (Tr. 185).

Wybert (Skip) Carruth

   Mr. Carruth testified that he began employment with Respondent in 1985 as an engineering and quality manager. He worked for Respondent until 1994 when he left for approximately one to one and one-half years to work for another company. Upon his return he has been responsible for quality programs, information systems and the development of an Information Systems Department. (Tr. 199).

   Mr. Carruth hired Mr. Veasaw and it was his decision to terminate Mr. Veasaw. (Tr. 200). Mr. Carruth testified that Complainant was terminated because he had not demonstrated an ability to support the systems that were in place, an ability to solve problems and respond in a timely manner, as set forth in his October 28, 1996 Employee Performance Appraisal.

   With respect to the Employee Performance Appraisal (RX-A), Mr. Carruth testified that knowledge and skills were characteristics which Mr. Veasaw needed to improve and that his organizational skills were very poor. Because of poor organizational skills, Mr. Veasaw had problems getting things done in a timely manner, "working to meet deadlines." (Tr. 202). Mr. Carruth testified that these same shortcomings were the cause of Mr. Veasaw's termination in early 1997.

   Mr. Veasaw was given an unsatisfactory performance notice on December 11, 1996 as a result of a problem in the welding area with a terminal that had become inoperable and was not printing documents. The problem began on December 2, 1996 according to Mr. Carruth and Mr. Veasaw was asked to fix the problem. On December 10, 1996, Mr. Carruth received a call from the welding supervisor asking him to intervene because Mr. Veasaw was not solving the welding terminal problem. (Tr. 203-204). After looking into the issues, he concluded that Mr. Veasaw was demonstrating the same problems he had exhibited in his pre-October 1996 performance, which were responding in a timely manner, staying focused and problem solving skills. He documented those shortcomings in the unsatisfactory performance notice which Mr. Veasaw received on December 11, 1996. (Tr. 204; RX-B).

   Mr. Carruth concluded that Mr. Veasaw needed to develop a method of prioritizing his time and, if he was using a prioritization method, it was not effective. He placed a deadline on Mr. Veasaw to develop a system of prioritization and to place that system into effect by December 20, 1996. He also asked Mr. Veasaw to identify, at a minimum, the top five issues, to a maximum of ten issues, that he was then facing in an attempt to assist Mr. Veasaw determine what priority to place on each issue. (Tr. 204-205). The prioritization of issues was given a deadline of Friday, December 13, 1996. (Tr. 205). According to Mr. Carruth, as of Mr. Veasaw's date of termination, January 27, 1997, he had not complied with either deadline. (Tr. 206).

   Mr. Carruth testified that the problem which existed with the mail server required repair because a mail server is used to communicate with the headquarters of Dover Industries in Chicago, Illinois. The mail server was used as a method of transferring information between Dover Industries and all of its subsidiary offices, including Respondent in Temple, Texas. (Tr. 207). Mr. Carruth testified that, at some point in January 1997, the mail server quit working and its repair was a duty or responsibility of Mr. Veasaw. The controller of the company, Sherry Morgan, may have asked that the mail server problem be fixed. Later, Ms. Morgan reported to Mr. Carruth that the problem wasn't being fixed; that Mr. Veasaw had been working on it, but Respondent was unable to communicate with Dover Industries and Dover Industries was not happy because they were not getting the information they needed on a timely basis. Ms. Morgan indicated that the problem had to be solved. (Tr. 208-209). Ms. Morgan asked that Mr. Carruth take charge and resolve the mail server problem.

   Mr. Carruth testified that he spoke with a Dover Industries consultant who provided suggestions and direction which Mr. Carruth followed to resolve the mail server problem within a matter of one-half hour. (Tr. 210). Mr. Carruth testified that the last transmission prior to the mail server becoming inoperable occurred on January 13, 1997 and the server was fixed on Friday, January 24, 1997. (Tr. 211). Mr. Carruth testified the mail server problem was another example of Mr. Veasaw's skill levels not matching what Respondent thought he possessed in terms of skills. Mr. Carruth's concern was that Mr. Veasaw was not demonstrating appropriate urgency, knowing what was important and did not spend enough time on this particular problem, thus, a prioritization problem remained prevalent as late as January 1997. Based on the foregoing, Mr. Carruth decided to terminate Mr. Veasaw. (Tr. 211).

   On Monday, January 27, 1997, Mr. Veasaw met with Mr. Carruth, at which time Mr. Carruth informed him that his skills sets,

    "the abilities that he had did not intersect with the problems, . . . the things that we needed at [Respondent]. He didn't--he was not able to meet the requirements for [Respondent] in terms of his performance. And that based on those reasons, he was being terminated." (Tr. 212).

   Mr. Veasaw did not make any comments about the termination nor ask any questions. (Tr. 212). Mr. Carruth hired only one person, Tim Wilson, to replace Mr. Veasaw subsequent to his termination. (Tr. 213). He testified that no complaints or threatened complaints or hearsay complaints about air quality or Mr. Veasaw's illness or the conditions in the plant played a role in his decision to terminate Mr. Veasaw. (Tr. 214).

   On cross-examination, Mr. Carruth was presented a document which purported to be a response to his request for prioritization of issues, but testified that he was neither familiar with the document nor did he ever remember seeing such a document. (Tr. 215-216). Mr. Carruth

testified that he consulted with Mr. Veasaw prior to initiating his unsatisfactory performance notice in December 1996. (Tr. 223-224).

   Mr. Carruth testified that he was aware that electroplating was being conducted at the facility to repair chromium devices. (Tr. 230). He further stated that electroplating occurs on a regular basis on both shifts. He acknowledged that before December 13, 1996, Mr. Veasaw reported problems he was having with the air quality in the plant. (Tr. 231). He attested that Mr. Veasaw raised air quality problems with him on December 2, 1996 after returning from a Thanksgiving ski trip. Mr. Veasaw returned with some respiratory problem and coughing symptoms and made a comment to Mr. Carruth that he thought the ski resort was blowing snow, and the lake water probably had something in it which caused his infection. He further stated that, because his lungs were raw from breathing clean air, the smells in the shop bothered him. (Tr. 232). Mr. Carruth stated that was the substance of Mr. Veasaw's complaint. He further stated that Mr. Veasaw did not ask him to do anything about his complaint.

   On December 13, 1996, Mr. Veasaw telephoned Mr. Carruth and again reported he was sick; that he had been working out in the shop and the air in the welding area bothered him. (Tr. 233). Mr. Carruth informed Mr. Veasaw that he needed to see a doctor and get to the bottom of his problem and that he needed to have a doctor "clear him" before returning to work. (Tr. 234). Mr. Carruth again affirmed that Mr. Veasaw never asked him to do anything to resolve the air quality in the plant. Mr. Veasaw never suggested that a different ventilator system was required in the plant to clear the air, nor did he complain that the shop ventilator system was not properly working. (Tr. 235). Mr. Carruth acknowledged that Mr. Veasaw may have mentioned "the thing about the doors being closed and the fan not drawing, which was why . . . he was breathing in the welding area." (Tr. 235). Mr. Carruth testified Mr. Veasaw did not mention to him that he was going to file any complaints about the air quality in the plant with an outside agency nor did he indicate that he wanted to file an internal complaint concerning the ventilator system in the plant or about his illness. (Tr. 235-236).

   Mr. Carruth testified that the written termination notice reflecting the reasons for Mr. Veasaw's termination was not signed, dated or presented to Complainant (RX-F) and the payroll change notice reflected Mr. Veasaw was "terminated for insufficient skills to meet job requirements." (Tr. 244; RX-G).

The Contentions of the Parties

   Complainant contends that he engaged in protected activity under the employee protection provision of the Clean Air Act when he voiced concerns about the air quality in the Respondent's facility.

   Complainant further contends that he was subjected to adverse employment action when Respondent reprimanded and subsequently discharged him for engaging in protected activities under the Act.

   Respondent asserts Complainant's contentions that he was terminated because of "a report or threatened report, or complaint or threatened complaint under the Clean Air Act" is baseless. Respondent avers that nothing in Complainant's complaints about the plant's ventilation system was "a cause, or contributing cause or producing cause of his termination." Respondent contends that Complainant was terminated because his "skills did not match what [Respondent] needed" in terms of "prioritization, urgency, staying on task, [and] being focused."

   Moreover, in its pre-hearing Motion To Dismiss for failure to state a cause of action (ALJX-4), which was renewed at the conclusion of Complainant's case-in-chief, it is contended that the Clean Air Act "seeks to prevent and control air pollution by regulating emissions into the atmosphere. Regulations implementing the Act establish ambient air quality standards. 40 C.F.R. Part 50." Therein, ambient air is defined as "that portion of the atmosphere, external to buildings, to which the general public has access." 40 C.F.R. § 50.1(e).

   Prefatory to a full discussion of the issues presented for resolution, it must be noted that I have thoughtfully considered and evaluated the rationality and consistency of the testimony of all witnesses and the manner in which the testimony supports or detracts from the other record evidence. In doing so, I have taken into account all relevant, probative and available evidence and attempted to analyze and assess its cumulative impact on the record contentions. See Frady v. Tennessee Valley Authority, Case No. 92-ERA-19 (Sec'y Oct. 23, 1995)(Slip Opinion at 4).

   Credibility of witnesses is "that quality in a witness which renders his evidence worthy of belief." Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). As the Court further observed:

Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe . . . Credible testimony is that which meets the test of plausibility.

442 F. 2d at 52.

   It is well-settled that an administrative law judge is not bound to believe or disbelieve the entirety of a witness' testimony, but may choose to believe only certain portions of the testimony. Altemose Construction Company v. NLRB, 514 F.2d 8, 16 and n. 5 (3d Cir. 1975).

   Moreover, based on the unique advantage of having heard the testimony firsthand, I have observed the behavior, bearing, manner and appearance of witnesses from which impressions were garnered of the demeanor of those testifying which also forms part of the record evidence. In short, to the extent credibility determinations must be weighed for the resolution of issues, I have based my credibility findings on a review of the entire testimonial record and exhibits with due regard for the logic of probability and the demeanor of witnesses.

A. The Applicability of the Clean Air Act

   Although commonly known as the Clean Air Act, the statute was passed by Congress as the Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970), amending the 1967 Air Quality Act, Pub. L. No. 90-148, 81 Stat. 485 (1967). The 1970 legislation was later amended in 1977 and 1990.

1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed 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.

   The Secretary of Labor has repeatedly articulated the legal framework under which parties litigate in retaliation cases. Under the burdens of persuasion and production in whistleblower proceedings, the Complainant must first present a prima facie case of retaliation by showing:

1) that the Respondent is governed by the Act;

2) that Complainant engaged in protected activity as defined by the Act;

3) that the Respondent was aware of that activity and took some adverse action against Complainant; and

4) that an inference is raised that the protected activity of Complainant was the likely reason for the adverse action.

See Hoffman v. Bossert, Case No. 94-CAA-4 @ 3-4 (Sec'y Sept. 19, 1995); Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995).

   The Respondent may rebut the Complainant's prima facie showing by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Complainant may counter Respondent's evidence by proving that the legitimate reason proffered by the Respondent is a pretext. See Yule v. Burns International Security Service, Case No. 93-ERA-12 (Sec'y May 24, 1994)(Slip Op. at 7-8). In any event, the Complainant bears the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993); Dean Darty v. Zack Company of Chicago, Case No. 82- ERA-2 (Sec'y Apr. 25, 1983) (Slip Op. at 5-9) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981)).

performance appraisal was not in response to his pre-Thanksgiving complaints about the air quality in the plant which may have arguably shown animus toward Complainant.

   The earliest date on which Respondent may have been on notice of Complainant's external filing of a complaint was subsequent to February 20, 1997, well after his January 27, 1997, termination.

   I find and conclude Complainant failed to establish by the weight of the record evidence that he was subjected to adverse action by Respondent because of his alleged protected activity. The weight of the probative, credible evidence compels a conclusion that Complainant was not terminated because of his alleged protected activities. Contrary to Complainant's assertions, he was unable to "fix" all the problems that came his way. Admittedly, the welding machine terminal computer remained unrepaired from December 2 through December 10, 1996, when the welding supervisor requested Mr. Carruth to intervene. Complainant was unable to repair a faulty notebook computer used by a sales manager. More importantly, he was unable to repair the mail server, a vital communication link for Respondent. He professed that he could have fixed the mail server, but was more interested in "finding out what was going on first," by documenting its usage by various operators.    Complainant was terminated by Mr. Carruth because he had not demonstrated an ability to support Respondent's computer systems or to solve repair problems in a timely and efficient manner. The foregoing failings are the examples proffered by Mr. Carruth as motivation for his actions against Complainant. I find and conclude that Mr. Carruth had legitimate, nondiscriminatory business reasons, as abundantly detailed in his testimony, for taking adverse action against Complainant. Additionally, Complainant failed to exhibit the expectations sought by Respondent in terms of knowledge and skills and organizational abilities. The written warning issued to Complainant on December 11, 1996, was based upon his failure to repair the welding machine terminal computer. Complainant admitted he did not fix the problem. He further demonstrated a lack of urgency or focus in failing to respond to deadlines set to devise a prioritization plan and compose a list of his five to ten most important ongoing tasks.

   The burden is on the Complainant to establish that adverse action was meted out because of his protected activity. He clearly has not shown by the weight of the evidence that his written warning and termination were imposed because of his internal complaints regarding air quality, ventilation or health hazards emanating from noxious fumes, vapors or gases. I so find and conclude. Moreover, it is noted that Ms. Williams, who also complained to Respondent about the plant air quality, was not similarly disciplined or terminated.

   Lastly, I find Complainant could not have reasonably perceived Respondent was in violation of the Clean Air Act since he admittedly knew the Act was not applicable to indoor air quality. He further acknowledged that only "outside" air was regulated by the CAA. Since he has not shown by a preponderance of the evidence that the plant air displaced into the atmosphere through open doors may have had an environmental impact on the general public, I find his alternative theory of a violation expressed at the hearing is also without merit.

   For the reasons discussed above, I find and conclude that the Clean Air Act is inapplicable to the extant circumstances of this case. I further find and conclude that Complainant failed to present any evidence to establish he was subjected to adverse employment actions because of his protected activity or that Respondent's proffered reasons for issuing a written warning and terminating his employment were a pretext for discriminatory retaliation. Thus, I find and conclude, based on the foregoing analysis, that Respondent terminated Complainant for legitimate business reasons and not because of his alleged protected activity.

   Accordingly, I find and conclude, based on the record evidence, that Complainant has not met his burden of proof to demonstrate Respondent's proffered reasons for terminating him were pre-textual rather than motivated by his alleged protected activity. I further find and conclude that Respondent lawfully terminated Complainant for legitimate business reasons.

   Based upon the foregoing Findings of Fact, Conclusions of Law, and upon the entire record, Respondent has not unlawfully discriminated against James B. Veasaw because of his alleged protected activity and his complaint is hereby DISMISSED.

   ORDERED this 5th day of October, 1998, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge