DATE: March 15, 1996
CASE NO. 94-WPC-4
IN THE MATTER OF
KEVIN JAMES,
COMPLAINANT,
v.
KETCHIKAN PULP COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER[1]
Complainant Kevin James alleged that Respondent Ketchikan
Pulp Company (KPC) violated the employee protection provision of
the Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. § 1367 (1988), when it suspended and discharged him.
In a Recommended Decision and Order (R. D. and O.), the
Administrative Law Judge (ALJ) found that KPC violated the Clean
Water Act when it suspended James, but also found that the
company discharged him for lawful reasons. The ALJ recommended
that James was not entitled to reinstatement or back pay, that
attorney fees and costs be paid, and that antidiscrimination
notices be posted at KPC plants. I accept the ALJ's findings and
recommended remedies.
BACKGROUND
The ALJ's factual findings, R. D. and O. at 3-9, are
supported by the record and I adopt them. Briefly, James worked
as a lab assistant performing tests on the effluent waste water
flowing from KPC's pulp mill. James accused a chemical engineer
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of manipulating the flow levels to influence the outcome of tests
and of misstating the volumes of flow listed in reports to the
Environmental Protection Agency (EPA). James complained about
the alleged manipulation to his superiors, the Sierra Club, and
the EPA. He also provided the EPA with documents and samples.
James met with EPA investigators on several occasions and, at the
joint request of the EPA and FBI, wore a hidden tape recorder
when he interviewed a fellow worker.
EPA and FBI investigators raided the pulp mill on
November 18, 1992. Two days later, KPC suspended James with pay
until further notice, pending the outcome of its internal
investigation into "pertinent events." CX 1, 2.[2] KPC's
investigation revealed that James may have falsified certain
expenses he claimed in 1990 while traveling to another state for
plastic surgery to repair damage from a work injury. Although
given the opportunity to provide proof of payment of his lodging
bill, James offered none. KPC discharged James on April 19, 1993
because of the submission of a falsified claim for reimbursement.
DISCUSSION
Where a respondent has introduced evidence to rebut a
primafacie case of a violation of an employee
protection provision, it is unnecessary to examine the question
of whether the complainant established a prima facie case.
See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and Order, Feb. 15, 1995, slip op. at 11 and n.9
(under employee protection provision of Energy Reorganization
Act), petition for review docketed, No. 95-1729 (8th Cir. Mar.
27, 1995). "The [trier of fact] has before it all the evidence
it needs to determine whether 'the defendant intentionally
discriminated against the plaintiff.'" USPS Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983), quoting Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 253.
KPC initially said that James was suspended pending an
investigation of "pertinent events." CX 1, 2. The personnel
director identified the pertinent event by referring to the EPA
raid in James' lab. T. 971. No other lab employee was
suspended, however. The personnel director also testified that
the suspension was necessary because the company feared for
James' safety after the raid, in which "a lot of employees"
believed James had some involvement. T. 970. He explained that
employees were concerned that the plant would close and they
would lose their jobs. Id.
I agree with the ALJ, R. D. and O. at 16, that the
articulated reason of protecting James was not very credible.
Only the personnel director testified that the company feared for
James' safety. No other employees corroborated that fear.
Moreover, neither of the written notices listed James' protection
as a reason for the suspension. CX 1, 2. Nor was it credible
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that James was suspended so the company could do its own
investigation of conditions in the laboratory because the company
did not suspend the other lab employees.
Moreover, a respondent's shifting explanations about the
reason for taking an adverse action often reveal that the real
motive was unlawful retaliation. See, e.g., Hobby v. Georgia
Power Co., Case No. 90-ERA-30, Dec. and Remand Ord., Aug. 4,
1995, slip op. at 21 (finding no legitimate, nondiscriminatory
reason for a supervisor's rating the complainant's performance as
"excellent" and "commendable" in late 1988, but testifying that
he never had a high opinion of the complainant's skills). See
also, Edwards v. United States Postal Service, 909 F.2d 320,
324 (8th Cir. 1990) ("In light of this record, filled with
changing and inconsistent explanations, we can find no
legitimate, non-discriminatory basis for the challenged action that is not mere
pretension.").
In this case, KPC's shifting reasons for the suspension,
from a need to investigate to a need to protect James, indicate
that the real reason for suspending James was retaliation for his
protected activities that led to the EPA/FBI raid. Accordingly,
I find that James established by a preponderance of the evidence
that his suspension violated the Clean Water Act.
The employee protection provision does not apply "to any
employee who, acting without direction from his employer . . .
deliberately violates" any effluent limitations or standards
established under the Clean Water Act. 33 U.S.C. § 3367(d).
Relying on that provision, KPC contends that the ALJ erred in
finding that the company violated the Act when it suspended
James. KPC argues that James deliberately violated the Clean
Water Act on many occasions by falsifying the results of
laboratory tests required under its EPA-issued pollution
discharge elimination permit. Resp. Br. 5-20. KPC further
contends that it was held to an impossible standard of proof when
the ALJ found that KPC had not "conclusively proven that [James]
deliberately violated the Clean Water Act." R. D. and O. at 12.
In a case arising under the ERA's similar employee
protection provision, the ALJ recommended dismissing the
complaint because the complainant had caused a violation of the
Atomic Energy Act of 1954 (AEA) and also because the complaint
was untimely. McKinney v. Tennessee Valley Authority,
Case No. 92-ERA-22, Recommended Order Dismissing Complaint, Mar.
17, 1992, slip op. at 3, aff'd on timeliness grounds,
Final Dec. and Order, Nov. 16, 1993. In that case, upon finding
that the complainant's actions were deliberate and done without
the direction of the respondent employer, the ALJ noted that "the
remaining question is whether complainant's actions in disarming
the interlock
[PAGE 4]
caused a violation of the [AEA]." Id. The ALJ found that
the employer's payment of a civil penalty for the disarmed
interlock established that a violation of the AEA had occurred.
Id., slip op. at 4.
In this case, KPC offered extensive testimony that James
often did not perform required laboratory tests or conducted them
improperly, and James did not rebut that testimony. The evidence
also showed that James' sloppy practices may tend to cause a
violation of KPC's EPA-issued permits. But KPC did not show by a
preponderance of the evidence that James intended to cause a
violation or that an actual violation resulted. Accordingly,
Subsection 3367(d) does not prevent a finding that KPC violated
the Clean Water Act as to James. See Creekmore v. ABB Power
Systems Energy Serv., Inc., Dec. and Remand Ord., Feb. 14,
1996, slip op. at 15 (ERA's similar deliberate violation
subsection did not prevent finding a violation where complainant
neither knew about nor condoned practice that Nuclear Regulatory
Commission cited as a violation).
Concerning the discharge, KPC introduced convincing evidence
that James falsified the lodging expenses he claimed for his
1989-90 plastic surgery and recovery. The falsification was a
legitimate reason for firing James. KPC, however, did not
investigate the truth of the claimed expenses until after the
raid, which occurred two years after James submitted the claimed
expenses. I therefore find that KPC also had an unlawful
motivation for discharging James.
Since James has established that there were both legitimate
and discriminatory reasons for the discharge, the dual motive
doctrine applies and KPC had the burden of proving by a
preponderance of the evidence that it would have discharged James
for the legitimate reason alone. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 250 (1989); Carroll, slip op.
at 10 and n.7; Dartey v. Zack Co. of Chicago, Case No. 82-
ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 8.
KPC's rules of conduct provide that employee dishonesty may
result in discharge. RX AD. The company's industrial relations
manager testified that after James' discharge, it discharged a
different employee for falsifying expense claims. T. 1109-1110.
KPC demonstrated by a preponderance of the evidence that it would
have discharged James for submitting false expense claims, even
if he had not engaged in protected activities. Consequently, I
find that KPC did not violate the Clean Water Act when it fired
James. See R. D. and O. at 16-17.
This case also concerns after-acquired evidence since KPC
learned of the false expense claim only after it violated the
Clean Water Act by suspending James. I agree with the ALJ, R. D.
and O. at 16, that KPC lawfully could act upon the dishonesty it
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discovered. As the Supreme Court explained concerning after-
acquired evidence in an age discrimination case:
Once an employer learns about employee wrongdoing that
would lead to a legitimate discharge, we cannot require
the employer to ignore the information, even if it is
acquired during the course of discovery in a suit
against the employer and even if the information might
have gone undiscovered absent the suit.
McKennon v. Nashville Banner Pub. Co., 115 S.Ct. 879, 886
(1995). The ALJ correctly followed the McKennon decision
concerning the remedies for an employee whose suspension was
discriminatory but whose discharge, based on after-acquired
evidence, was lawful. James is not entitled to any back pay
because he received full pay until the time of his lawful
discharge. R. D. and O. at 17. Nor is he entitled to
reinstatement or front pay. Id.; McKennon, 115
S.Ct. at 886.
I adopt as well the ALJ's finding that deterrence of
discrimination is an important object of whistleblower statutes.
R. D. and O. at 17-18. See DeFord v. Secretary of Labor,
700 F.2d 281, 286 (6th Cir. 1983) (statutory purpose of analogous
whistleblower provision of the ERA is to deter employer
intimidation that would dry up channels of information to
investigating agency). KPC's unlawful suspension of James likely
was particularly chilling to other employees' exercise of their
rights to complain to the EPA.
The Clean Water Act authorizes me to issue orders to abate
violations. 33 U.S.C. § 1367(b). Therefore, to help
protect the rights of KPC's employees, I shall order the posting
at KPC's offices and plants of the antidiscrimination notice that
the ALJ recommended. R. D. and O. at 18.
Since James proved that his suspension violated the Clean
Water Act and I have ordered KPC to take action to abate the
violation, KPC shall pay James' reasonable attorney's fees and
costs in instituting and prosecuting the complaint. 33 U.S.C.
§ 1367(c); see also 29 C.F.R. § 24.6(b)(3).
Accordingly, the ALJ shall afford James the opportunity to submit
to him an itemized petition for attorney's fees and costs, shall
afford KPC the opportunity to respond, and shall issue a
supplemental order setting forth the amount.
ORDER
1. Respondent shall post and display prominently at its
principal office and at the situs of each employee time-clock continuously for a duration of one hundred eighty (180) days a
copy of the notice appended as Appendix A.
2. Respondent shall pay the reasonable fees and costs
incurred by Complainant in bringing this complaint.
SO ORDERED.
[PAGE 6]
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] This decision is final with the exception of a limited
remand to the ALJ to establish the amount of attorney's fees and
costs.
[2] "CX" refers to Complainant's exhibits, which were numbered.
"RX" refers to Respondent's exhibits, which were identified by
letters.
