Anderson v. All Flex, Inc., 2003-WPC-6 (ALJ Mar. 3, 2004)

USDOL/OALJ Reporter

Anderson v. All Flex, Inc., 2003-WPC-6 (ALJ Mar. 3, 2004)

U.S. Department of Labor

Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002

Issue Date: 03 March 2004
CASE NO: 2003 WPC 6

In the Matter of:

RICHARD ANDERSON,
Complainant,

ALL FLEX, INC.
Respondent.

RECOMMENDED DECISION AND ORDER SUSTAINING CLAIM

Background

Complainant Richard K. Anderson filed a complaint with the Occupational Safety and Health Administration (OSHA) on September 21, 2002, alleging discriminatory action against him by Respondent, All Flex, Inc., under §507 of the Federal Water Pollution Control Act of 1972 ("Clean Water Act"), 33 U.S.C. §1367, (the "Act"). The Act prohibits any person from discharging or otherwise discriminating against an employee who has engaged in activity protected by the Act. The complaint was investigated by OSHA; a Notice of Determination and Order was issued by the Acting Area Director, OSHA, on April 7, 2003; the case was referred pursuant to timely appeal by Respondent dated April 11, 2003, for a de novo hearing which was conducted pursuant to due notice with the parties' consent before this tribunal on July 1, 2003, at the Northfield Community Resource Center, Room 222, 1651 Jefferson Parkway, Northfield, Minnesota. Both parties were represented by counsel.

Complainant seeks back pay from the time of termination through the date of the hearing, damages for emotional damage, and attorneys' fees. He also requested punitive damages. His counsel declared on his behalf at the hearing that reinstatement was not feasible and that he was not seeking reinstatement. (Tr. 9-10)

Issues

(1) Did Complainant's conduct qualify as protected activity under the Act?

(2) Was termination of Complainant's employment by Respondent an unlawful adverse response to protected activity by Complainant?

(3) Were the reasons Respondent gave for the termination sufficient to justify Claimant's termination regardless of any protected activity by Complainant, or were they pretextual?

(4) What is the extent of any remedy or relief to which Complainant might be entitled?

Findings of Fact

1. Respondent All Flex, Inc. (sometimes referred to as "All Flex") is a manufacturer of flexible circuit boards used in a variety of telecommunications, medical, military, computer, automotive, and other applications. It is located in Northfield, Minnesota, and distributes its products in interstate commerce. The company was started in 1991 by Anne Lundstrom, the President and owner. At relevant times it had about fifty employees. (Tr. 89-90)

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2. The Respondent's regular manufacturing processes involve the use of chemicals which cause various metals, including copper and lead, to enter its wastewater. The permissible amounts of such metals which may be discharged into the city's water treatment system is regulated by state and local agencies and is subject to established reporting and testing requirements.

3. Complainant was employed as a wet process technician by Respondent from July 8, 2002, until September 10, 2002, when he was terminated. His hourly pay was $12 per hour for four ten hour days per week. He was scheduled to receive employment benefits, including health insurance, dental insurance, and 401(k) retirement benefits, on October 8, three months after he started work for Respondent.¹ He was terminated after he told management that he thought Respondent might be allowing excessive amounts of copper to be discharged in its wastewater during its manufacturing process. (Tr. 15, 23-24)

4. Complainant, 27 years old at the time of the hearing, has a bachelor of science degree in chemistry. He had worked during school as a hazardous waste site cleanup worker for a paint company. He began work as a student and continued after graduation in a printer circuit board manufacturing facility producing double-sided and single sided printed circuit boards, similar to those produced by Respondent, at a company called Star Circuits, where he was in charge of the wet process engineering parts, and oversaw all of the waste water pretreatment. He was in charge of environmental safety and health, including EPA reporting and testing, and was the emergency response coordinator for about five years from February 1997 until July 2002. His title was process engineering technician, because he did not have an engineering degree.

5. Complainant left Star Circuits to follow his wife's financially advantageous transfer as a registered pharmacist to Rochester, Minnesota, and took a job with Respondent at a reduced salary. His rate of pay at Star Circuits was $36,000 per year, estimated at between $16-18 per hour. His rate of pay as a wet process technician at All Flex was $12 per hour. His work at Respondent was mostly manufacturing work as plater, etcher, stripper, running boards through machines, and putting boards in the plating tank. He did those duties at Star Circuits when he filled in for other employees, and acted in more of a managerial capacity than he did at All Flex. (Tr. 12-14, 32, 38-42)

6. At Star Circuits, Complainant was mostly concerned about copper and lead, which were subject to a total maximum daily load of metal to avoid overloading the city pretreatment waste water system. (Tr. 14-15, 42) Thus, he was familiar with and experienced in dealing with environmental aspects of waste water discharge from the circuit board manufacturing process.

7. At All Flex Complainant was not involved with the water treatment. His duties were primarily processing the flexible circuit boards, including electroplating, stripping, and etching. (Tr. 15) He enjoyed working with circuit boards and, because such jobs were hard to get in Minnesota, was very happy to have a job in the circuit board industry. (Tr. 43)

8. Complainant became concerned about copper in the wastewater discharge soon after he started work for Respondent, because he noticed that Respondent had an ion exchange machine as part of its waste water equipment for treating waste water which was only run one day per month, the day that Respondent would take a sample for the city to be analyzed at a laboratory. The other days of the month the ion exchange machine was off, so that the water was not getting treated. The function of the machine was to take copper, lead, magnesium, and other hard water metals from the water by use of a special resin. Complainant understood how the system worked, but his inquiries to his supervisor, Chris Carlson, regarding its use did not get concrete or satisfactory answers. (Tr. 15-16, 19-21)

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9. Carlson had been employed by Respondent almost six years. Lundstrom, as President of Respondent, testified that she had contact with Carlson three to four times a day, and that he was a very important employee. His job duties as process chemist were to supervise the wet process area, to act as chemical process engineer, and to handle all of the environmental issues for Respondent. His environmental responsibilities entailed all reporting to the city, and state EPA, which was signed off by Lundstrom, and included insuring compliance with permits to discharge water containing numerous and various elements, especially heavy metals, issued to Respondent by the city and state. (Tr. 64-66, 90-91)

10. Carlson had hired Complainant, who was eager for the job of plater at All Flex, but overqualified for the production type tasks in the wet process area such as copper plating, tin plating, resist stripping. Carlson testified that he was Complainant's immediate supervisor and that they got along well, without difficulties until the September incident. (Tr. 71-72)

11. Carlson described the ion exchange unit, which can be turned on and off, as pulling elements, such as metals, out of the water, like a filtering device. (Tr. 67, 69-70) Carlson determined when to turn the ion exchange unit on or off, based on the condition of certain baths containing copper as affected by work flow, and other considerations. Carlson stated that there was no regulation that required Respondent to have the device, which he testified had been purchased to allow wet process area water to be filtered for reuse to reduce water usage. (Tr. 68-69) Carlson testified that the copper being discharged in Respondent's system could fluctuate daily to a certain extent, was not a constant, but he denied that there could be an illegal discharge in one hour and not an illegal discharge two hours later. (Tr. 86)

12. Tests of wastewater discharge were required to be performed monthly for the city and state in a manner prescribed by the permits with a sampling device which held twenty-four sample bottles and was programmed to pull a sample every fifteen minutes for a twenty-four hour period. Test samples pulled monthly were sent out to a government certified laboratory to be tested for all elements that Respondent was required to test for by its permits. On three occasions when Respondent had been over prescribed copper limits, Carlson informed the City of Northfield and state EPA, and retested as required within thirty days to verify compliance after corrective action. Carlson testified that he had never seen a permit revoked for bad tests.

13. Because of his concern over the lack of wastewater treatment, and that excessive amounts of copper would go down the wastewater drain, Complainant took a quick sample in a little paper cup on the morning of September 9, 2002, at about 7:30 a.m., about an hour after he started his shift, and subjected approximately five milliliters of that discharge water to a little copper pillow from the HACH Company that he got from Respondent's laboratory in order to get "a general sense" of the copper content of the water by a change in its color.

14. Complainant did not contend that it was a precise test; it was intended to give a general impression if copper was present by providing a darker color indicator the more of the substance that is present. His test produced what he considered, based on his considerable experience, a reasonably approximate measurement of four part per million at a time of no production when the applicable daily maximum limits were 3.38 parts per million of copper, and was concerned at the possibility of greater amounts going down the drain during production. Claimant had done such testing in the course of his previous employment for about five years, an average of three to four, or sometimes up to six or seven tests a day. He was extremely familiar with the HACH test kit. If a test sample showed a discharge of excess amounts of copper at Star Circuits, production was shut down.

15. There was virtually no production at All Flex at the time Complainant took his sample of discharge water other than the morning cleaning preparations, which included cleaning off the etcher rollers that had excessive copper crystals built up on them, cleaning out some tin stripper, and general cleanup activities which included changing rinse baths. However, the sample was of water at a time of reduced or minimal discharge that was used in the cleaning process, rather than production, which would have included plating rinse waters, etching rinse waters, and microetching rinse waters, as well as splashes and over spills and drag out which would have been mixed in the discharge waters. (Tr. 16-19, 30-31, 35-37, 42-45)

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16. When Complainant took the sample, not using the HACH test kit, except for the copper pillow, and got the results, a dark purple coloring of the five milliliters of water sample, he took it to Lundstrom, the owner and President of Respondent, who was the next step up in the chain of command, since Carlson, Complainant's immediate supervisor, had not yet come to work. He had had very little prior contact with Lundstrom. Complainant was not especially close to Carlson, whose position was similar to the position Complainant had at Star Circuits. He showed the results to Lundstrom and explained what he had done and his concerns, and inquired why the waste water treatment equipment, particularly the ion exchange machine, was not on. Lundstrom responded that she would discuss the matter with Carlson, as Complainant testified, or that he should discuss the matter with Carlson, as Lundstrom testified. Lundstrom testified that she responded as she did because Carlson would be the person who would have to address the issue. (Tr. 21, 30-32, 37-38, 43-44, 46-47, 92-93)

17. When Carlson first encountered Complainant on the morning of September 9, 2002, Complainant still had his test sample in his hand, and explained what he had done. Then Complainant and Carlson together took a sample of waste water from the flume, went to the lab, measured the amount of waste water and used the HACH test kit, which, according to Carlson, disclosed copper well below the allowable limit at below one part per million when production was in full force. (Tr. 79)

18. Carlson testified that to perform his test, Complainant had put water in a Dixie cup, had put one packet of powder in it, which, according to Carlson, was the one related to the total copper rather than the free copper and would normally have been used second in a proper test, and which had been taken from a drawer containing packets past their expiration dates. Carlson testified that all these factors would have affected the accuracy of Complainant's test. Carlson testified that Complainant seemed to accept the results of the test performed by Carlson. (Tr. 79-80) Carlson disagreed with Complainant's findings and considered them wrong. (Tr. 87)

19. Carlson testified that the HACH test kit, using a color wheel to compare samples, was the only test for copper used by Respondent in house. He stated that he could not gauge parts per million without using the colorimeter or color wheel, simply by looking at the water, although he had been using such kits for more than ten years, and had been working in the wet process chemical end of the printed circuit board industry for twenty-two years. (Tr. 76-78)

20. Complainant mentioned his concern to coworkers that Respondent was putting too much copper in the waste water, but did not disclose that he had performed a test upon which he based his concern. (Tr. 47-48) When he had previously inquired of his two other coworkers, whom he assumed knew that copper was going into the waste water, why the ion exchange machine was not operating all the time, he had got noncommittal answers. (Tr. 47)

21. Subsequently that day, after Complainant had gone back to work, Complainant met with Carlson, and Makarios, the director of human resources, at approximately 2:00 p.m. to discuss what Complainant had done. Complainant was advised that waste water treatment was Carlson's responsibility, that he was not authorized to do such tests, and needed to concentrate on production. He was admonished not to do such testing again. Complainant expressed concern that the waste water treatment was not being handled correctly and that more needed to be done. Complainant then finished his shift without further incident. (Tr. 22-23, 25, 48, 80)

22. The following day proceeded normally for Complainant until he was summoned to Makarios's office about two or three p.m. where he was informed that his employment at All Flex was terminated. Complainant understood that the reason for the termination related to his pulling the water sample and his concern that things were being done illegally with the waste treatment. His understanding was that taking the waste water sample created a problem, and that as a result he was considered not able to be trusted, and was terminated for that reason. Complainant was presented with a handwritten termination notice. (Tr. 26-27, 49; C-1)

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23. Carlson testified that he felt that Complainant's going to Lundstrom was undermining his relations with Lundstrom and put him in a bad light. He testified that he did not feel that Complainant was happy in his position, because he was way overqualified for it, and it was hard work, and that Complainant wanted Carlson's better job for which he was probably qualified on the basis of experience. (Tr. 81)

24. Carlson met with Lundstrom on September 10, and discussed their mutual uneasiness with the situation, and decided to terminate Complainant in the interest of the company. The underlying reasons for the termination, according to Carlson and Lundstrom, were a lack of trust by Carlson and Lundstrom in an employee willing to undermine Carlson to get his job. (Tr. 82, 87-88)

25. Lundstrom testified that she was increasingly concerned as she thought about the testing incident, particularly about the way Complainant had performed the test in a manner that seemed inconsistent with his chemical background, which suggested ineptness or alternative motive, and that he was a safety risk for himself and other employees in a context of dangerous chemicals in the laboratory and production areas. (Tr. 93-94, 96) Ineptness, safety, and dangerous chemicals, however, were admittedly not mentioned in Complainant's termination notice. (Tr. 98)

26. Lundstrom testified that it was her decision to terminate Complainant. (Tr. 95) She denied that Complainant's pulling water samples from the flume and expressing concern that Respondent was doing things illegally with water treatment was the basis for the termination, and declared that the basis was Complaint's doing things outside his job, which engendered a lack of trust or respect that he could do his job anymore. (Tr. 98-99)

27. Carlson testified that Respondent's employees had raised problems related to producing circuit boards, but never about environmental or safety issues. (Tr. 83-84) He stated that he and Lundstrom welcomed employees who brought perceived problems to them or to supervisors, but he thought Complainant was motivated, not by environmental concerns, but by a ploy to undermine him in his position. He said he was concerned by the way that the issue was brought up, not about the possibility of an illegal discharge of wastewater, which he was certain was not occurring. He and Lundstrom made the decision to terminate Complainant, and passed that decision on to Makarios in human resources for execution. (Tr. 84-86)

28. Complainant's termination notice, which was dated September 10, 2002, and signed by Dawn Makarios as supervisor and by Complainant as employee, to acknowledge its receipt, provides the documented basis for the discharge. It stated, "Rich was released from work today. He was performing tasks that he was not asked to do, outside of his job duties as plater. I believe he does not have the trust and/or respect of his supervisor Chris Carlson at this time. I do not believe it is in the best interest of our company to keep Rich employed here. Rich pulled water samples from the "flume" in the morning, took samples and went to Anne with it before Chris was in yesterday morning. He is concerned we are doing things illegally with water treatment." (C-1; Tr. 27-28)

29. Makarios was the Respondent's employee responsible for human relations or personnel administration, and she was responsible for employee termination notices. (Tr. 52) She had been told about Complainant's taking the water samples from the flume by Chris Carlson and Anne Lundstrom. Complainant had informed Makarios that he was concerned that Respondent was doing things illegally with water treatment. (Tr. 52-53) Makarios admitted that Complainant's termination was the result of the prior day's discussion regarding water sampling, and that the sole reason that Complainant was terminated was outlined in Complainant's Exhibit 1.

30. Makarios testified that in a small company the fact that an employee does not have the trust or respect of his supervisor is an important factor. She opined that Carlson began to distrust Complainant because of his reporting to Lundstrom, even though under company policy Complainant was free to report to any supervisor. Lundstrom also expressed distrust with Complainant for running the test sample and reporting to her, rather than to his supervisor. (Tr. 54-58; C-1)

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31. Makarios testified that at her meeting with Carlson on September 9 or 10, the discussion focused on the fact that Complainant had gone out of his job description; that he was using the copper HACH test incorrectly; that testing and relevant training was Carlson's responsibility; that Carlson felt his authority was being undermined; and that Carlson had been knowledgeably running the chemical laboratory and the wet process area for many years.

32. Makarios conceded that there was no mention in the discharge memorandum criticizing Complainant for not doing any tests correctly. She was not aware that Complainant should be doing testing. (Tr. 59-60) She was unaware that Carlson was threatened in any manner by Complainant's actions. (Tr. 61)

33. Makarios testified that if an employee observed what he perceived to be an illegality, he should report it to Carlson, her, or Lundstrom, which is what Complainant did. (Tr. 62)

34. Makarios and Complainant also signed a paper dated September 10, 2002, prepared at Complainant's request, which recited, "Rich Anderson has no documented disciplinary actions taken as of today in his employee file. 9/10/02" (C-1; Tr. 28-30) Makarios confirmed that there was nothing negative in Complainant's personnel file before this incident, and that there were no documents other than Claimant's Exhibit 1, which was in her handwriting, concerning the termination. (Tr. 54-55)

35. Respondent contends that Complainant's report was not made in good faith, regardless of its accuracy, and that the circumstances of Complainant's conduct surrounding the report of the copper in the water provide a legitimate nondiscriminatory reason for his termination. (Tr. 11). However, Complainant's entire working career had been involved with environmental waste. His demeanor and the substance of his testimony were credible and convincing. Neither the witnesses' demeanor nor the substance of either Carlson's or Lundstrom's testimony was sufficiently convincing to establish that Complainant acted in bad faith in expressing his concern or that his motive was to steal Carlson's job. Nor was the demeanor or the substance of the testimony of Carlson or Lundstrom such that their descriptions of the reasons for terminating Complainant are credible or convincing.

36. Complainant testified credibly that he suffered adverse emotional and professional consequences from the termination. He did not require medical treatment. But he was emotionally upset and angry for a significant period. His self-confidence was seriously impaired because he reasonably believed that disclosure of the gap in his employment history attributable to his termination by Respondent adversely affected his interviews for employment, and ability to present himself favorably in interviews or to obtain another job in his chosen field. He was required to disclose that he had been fired from his previous job, which he believed explained his failures to get responses to applications. He was finally forced to take a job started on January 29, 2003, unrelated to his chemistry background, making $8.75 per hour, without benefits, substantially less than he had made while working for Respondent. He had been completely frustrated in his continuing active pursuit of jobs related to waste water treatment or chemical, laboratory work or circuit boards, with which he was familiar and qualified and which he liked.

37. Complainant was aware that he had been offered reemployment by Respondent on May 6, 2003, but that there had been no response to his inquiry as to what pay and hours would obtain. (Tr. 32-35, 50-51) Consequently the offer was not shown to be other than incomplete, defective, and ineffective.

Conclusions of Law

1. It is undisputed that Complainant and Respondent are subject to this tribunal's jurisdiction under the Clean Water Act.

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2. Complainant filed a timely complaint following his termination by Respondent on September 10, 2002, alleging retaliatory discharge on September 21, 2002, because of conduct protected by the Act. To establish a prima facie case supporting his complaint, Complainant must prove that, as an employee of Respondent, he engaged in activity protected by the Act; that the Respondent Employer was aware of Complainant's protected activity; that Respondent Employer took some adverse action against Complainant as an employee; and that there is a reasonable inference that the adverse action was motivated by the protected activity. See Hightower v. Martin Gas Sales, Inc., 2001 WPC 23 (ALJ Nov. 7, 2001); Guttman v. Passaic Valley Sewage Commissioners, 85 WPC 2 (Sec'y Mar. 13, 1992), aff'd 992 F.2d 474 (3rd Cir. 1993), cert. denied, 114 S. Ct. 439 (1993); Dartey v. Zack Co. of Chicago, 82 ERA 2 (Sec'y Apr. 25, 1983). With respect to proof of the prima facie case, temporal proximity between the protected conduct and the adverse action by the employer may be sufficient to establish the inference that the protected activity was the motivation for the adverse action. See Nichols v. Bechtel Constr., Inc., 87 ERA 44 (Sec'y Oct. 26, 1992); see also Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989)(temporal proximity sufficient as matter of law to establish final element in a prima facie case).

3. Complainant's communication of his concern to Lundstrom as the President of Respondent that Respondent might be discharging excessive and illegal amounts of copper in its wastewater was protected activity under the Clean Water Act. Respondent had knowledge of that protected activity because the communication of concern by Complainant was to the President of Respondent, who in turn discussed the complaint and its source with other employees, including Carlson, Complainant's supervisor.

4. Complainant's background, experience, and chemical expertise render his particular test of the wastewater sample upon which he based his expression of concern an integral part of his protected activity under the Clean Water Act.

5. There is no credible evidence of bad faith on Complainant's part with respect to his expression of environmental concern that would impeach the protected status of his complaint or expression of concern.

6. Complainant's discharge one day after his expression of concern to management constitutes an adverse action against him by Respondent. The close temporal proximity of the termination following Complainant's expression of concern supports the inference that the termination was in retaliatory response to Complainant's expression of concern which was protected activity. The inference is not rebutted.

7. Complainant has thus established a prima facie case of discriminatory action against him by Respondent in violation of the Clean Water Act. Respondent is therefore required to go forward with the production of evidence that it had legitimate, nondiscriminatory reasons for its adverse action in terminating the Complainant's employment, or that the same unfavorable personnel action would have been taken against the Complainant in the absence of his protected activity. See Hightower, supra; Guttman, supra; Dartey, supra.

8. Respondent has adduced evidence that purports to prove that Complainant's test of the wastewater sample was incorrectly done, not in conformity with the normally prescribed HACH test used by Respondent for such test purposes; that Complainant used old materials and imprecise methodologies as the basis for his concern. Respondent also adduced evidence that such testing was not a proper activity within Complainant's job description or prescribed duties. The suggestion by Respondent's witnesses that Complainant's investigation and expression of concern were beyond the scope of his assigned job duties is not a valid cause for discipline or adverse action under the environmental protection statutes. See Helmstetter v. Pacific Gas &Elec. Co., 91 TSC 1 (Sec'y Jan. 13, 1993). None of this evidence invalidates the protected status of Complainant's conduct.

9. Respondent also suggested that Complainant's timing of the test and communication of concern to the President and owner of Respondent before he communicated the concern to Carlson, his supervisor, who was responsible for environmental testing and reporting of wastewater discharges, was motivated by self-

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interest and an attempt to undercut his supervisor, rather than a justifiable environmental concern. Respondent adduced evidence that Complainant was overqualified for his work for Respondent, was paid substantially less than he had been paid in his prior employment in the industry, and was capable of performing the duties of his supervisor, Carlson. Respondent's motive for filing the complaint is irrelevant to its protected status, even if it is misguided, insufficiently informed, or self-aggrandizing. See Guttman v. Passaic Valley Sewage Commissioners, supra (underlying motive for reporting violations not relevant). In any event, Respondent's witnesses, Lundstrom, Carlson, and Makarios, testified categorically that reporting of such environmental concerns was not inconsistent with established procedures or practices of Respondent. The fact that the report might have been made out of the normal chain of command is without consequence. See Carson v. Tyler Pipe Co., 93 WPC 11 (Sec'y Mar. 24, 1995); Leoville v. New York Air Nat'l Guard, 94 TSC 3 (Sec'y Dec. 11, 1995); Dutkiewicz v. Clean Harbors Envtl. Servs., 95 STA 34 (ARB Aug. 9, 1997), aff'd, Clean Harbors Envtl. Svcs. v. Harmon, 146 F.3d 12 (1st Cir. 1998). Indeed, such a rationale for discipline under the environmental statutes has been recognized as pretextual. See Talbert v. Washington Public Power Supply System, 93 ERA 35 (ARB Sep. 27, 1996.

10. Respondent adduced evidence that Complainant was discharged because Carlson, his supervisor, and Lundstrom, the President of Respondent, had concluded that he was untrustworthy and posed a risk to the safety of the company because of the allegedly unprofessional manner in which he performed the wastewater test, and the manner in which he had reported the results of the test and his concerns to management. Neither the demeanor of the witnesses nor the substance of their testimony render these alleged concerns plausible or credible.

11. Respondent thus adduced evidence to meet Respondent's burden of going forward with the evidence in response to Complainant's prima facie case which is not credible or convincing to this tribunal, and which is deemed to be pretextual. Complainant has the ultimate burden of proving that the reasons articulated by Respondent were pretextual, either by showing that the unlawful reason more likely motivated Respondent or by showing that the proffered explanation is unworthy of credence. Nichols, supra; Dartey v. Zack Co. of Chicago, 82 ERA 2 (Sec'y Apr. 25, 1983). This tribunal has determined that Respondent has not proved by a preponderance of the evidence that Respondent would have terminated Complainant without regard to his expression of concern related to the discharge of copper in Respondent's wastewater. Respondent has not established a valid independent and unrelated justification for Complainant's discharge. This tribunal concludes that the alleged loss of trust by Carlson in Complainant and other reasons advanced for Complainant's termination are pretextual and not credible.

12. Complainant's termination was a discriminatory action by Respondent in violation of the Clean Water Act. There is no substantial or convincing evidence that Complainant's protected conduct was motivated by bad faith. Complainant was under no obligation to establish the validity of his substantive allegations that excessive copper was in the Respondent's discharge water on the morning of September 9, 2002. See Oliver v. Hydro-Vac Services, Inc., 91 SWD 1 (Sec'y Nov 1, 1995). While he is required to have had a good faith belief that an actual violation occurred based on reasonably perceived violations of the applicable law or regulations, there is substantial evidence in the circumstances of record that indicate that Claimant's concerns were reasonably founded, based on his professional experience, his observations at All Flex, his rough test and his observation of the erratic pattern of use of the ion exchange machine and there is no credible evidence to the contrary. See Keene v. Ebasco Constructors, Inc., 95 ERA 4 (ARB Feb. 19, 1997). The evidence establishes that Complainant was professionally qualified and thoroughly familiar with the wastewater testing process because he had conducted the same or similar tests regularly and frequently for his prior employer in the normal course of his employment and exercise of his employment responsibilities. The test which Complainant performed, which led to his discharge, did not purport to be definitive, and the circumstances suggest it was intended only to be sufficient to suggest reasonably that there might be a problem. The uncontroverted evidence that the ion exchange machine which was designed to filter or collect such metals as copper from the wastewater was only used at certain times, primarily when wastewater was been collected for monthly laboratory samples suggests that Complainant's concern was not irresponsible or frivolous, regardless of its ultimate validity.

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13. Complainant's communication of concern was clear. The response of termination the next day was almost immediate. The explanation for the termination corroborates and does not contradict the claim that the termination was related to and in retaliation for the Complainant's expression of concern regarding the possible illegal discharge of wastewater.

14. Complainant affirmatively established without contradiction that there was no evidence of prior misconduct or discipline or troubled prior employment or interpersonal relationships between Complainant and Respondent or its other employees, or other basis for Complainant's termination in Complainant's personnel file that was maintained by Respondent. The assertion of loss of confidence or mutual trust made by Respondent is not convincing except to the extent that it may be inferred that such loss is attributable to disapproval of the protected activity by Respondent's management.

15. Complainant is entitled to back pay at the rate of $12 per hour for a forty hour week from the date of termination, Tuesday, September 10, 2002, until the date of the hearing, July 1, 2003, when his counsel declared on the record that Complainant would not accept reinstatement because reinstatement was deemed infeasible. (Tr. 10). Cf. Williams v. TIW Fabrication & Machinery, Inc., 88-SWD-3 (Sec'y June 24, 1992).

16. Respondent's offer of reinstatement dated May 6, 2003, which was referred to in Complainant's testimony, but not corroborated by documentary evidence, was not shown to be explicit and unconditional, and is deemed ineffective and immaterial because Complainant's testimony that there was not response to his inquiry as to rate of pay and hour was not contradicted, and suggests that the offer was incomplete. There is insufficient evidence to establish that a sufficiently explicit and unconditional offer of reinstatement was made in good faith. A statement of unwillingness to accept reinstatement is only effective after a good faith and unconditional offer of reinstatement to comparable employment. There is a need for some explicit act or concrete event to cut off back pay, extinguish the right to reinstatement, or toll employer's liability. See Francis v. Bogan, Inc., 86 ERA 8 (Sec'y Apr. 1, 1988). Complainant's general declaration at the hearing that reinstatement would be infeasible, and, therefore, was not sought, is deemed to have such an effect. Front pay was not sought.

17. Complainant was not required to lower his sights and seek positions outside those for which he was especially qualified by predilection, education, and experience, any sooner than he did, in light of Complainant's uncontradicted and credible testimony that he searched diligently for an extended period for employment for which he was qualified before he was forced to take a job at lesser pay which did not use his particular qualifications and experience. See Holby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001); West v. Systems Applications Int'l, 94 CAA 15 (Sec'y Apr. 19, 1995)(Respondent has burden of establishing that the back pay award should be reduced because Complainant did not exercise diligence in seeking and obtaining other employment.).

18. Back pay must be calculated in accordance with Johnson v. Old Dominion Security, 86 CAA 3 (Sec'y May 29, 1991) slip; Wells v. Kansas Gas & Elec., 85 ERA 22 (Sec'y Mar. 21, 1991); see Blake v. Hatfield Elec. Co., 87 ERA 4 (Sec'y Jan. 22, 1992). However, overwhelming exactitude is not required in damage awards, and any uncertainty must be resolved in favor of Complainant. See e.g. Lederhaus v. Donald Paschen, 91 ERA 13 (Sec'y Oct. 26, 1992) Normally an award of back pay continues either until reinstatement or final judgment. In this case, Complainant's claim for back pay ends with his waiver of reinstatement at the hearing. See Doyle v. Hydro Nuclear Services, 1989 ERA 22 (ALJ Dec. 17, 1998). Complainant's back pay must be offset by his interim earnings. See Sprague v. American Nuclear Resources, Inc., 92 ERA 37 (Sec'y Dec. 1, 1994.

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19. Complainant is entitled to lost fringe benefits to which he would have been entitled. See Williams v. TIW Fabrication & Machinery, Inc., 88 SWD 3 (Sec'y June 24, 1992). Thus, since Complainant testified that he would not have accepted the health insurance benefit because his wife's health insurance from the Mayo Clinic was better, he was entitled to the Respondent's $75 per month incentive payment in such circumstances, beginning October 8, 2002, and continuing during the period when he was entitled to back pay.

20. September 10, 2002 � July 1, 2003 totals 41 40-hour weeks (four 10 hour days per week) and 3 days, or 1640 hours plus 30 hours, a total of 1670 hours at $12.00 per hour, or $20,040. He is entitled to nine months of health insurance bonus at $75, a total of $675. There is not direct evidence as to the dollar amounts of dental insurance. Since the Respondent would have matched Complainant's 3% contribution to the 401(k) retirement plan, that contribution would have amounted to 3% of 37 weeks at $180 per week, a total of $199.80. He is entitled to statutory interest on the total of these amounts, $20, 914.80, less the amount of his offset earnings. The evidence of record shows that from January 29, 2003, until the July 1, 2003 date of hearing, he would have earned $8.75 per hour for 21 40-hour weeks, $7350.00, plus 4, presumably 8-hour days, $280, a total of $7630.00. The net amount of back pay totals $13,284.80, plus statutory interest.

21. Complainant is entitled to interest on his back pay calculated in accordance with 29 CFR §20.58(a) at the rate specified in the Internal Revenue Code §6621 until the date of compliance with the applicable order. See Sprague v. American Nuclear Resources, Inc., 92 ERA 37 (Sec'y Dec. 1, 1994); Wells v. Kansas Gas & Elec. Co., 85 ERA 22 (Sec'y Mar. 21, 1991)

22. Complainant requested, and is entitled to, damages in the amount of $5000 for mental and emotional anguish. His detailed and credible testimony regarding his damaging loss of confidence, and the injury from his inability to obtain interviews with possible employers upon unavoidable disclosure of his termination which was wrongful establishes injury and is a legitimate basis for the award of such damages. His testimony is also corroborated by the change in his financial circumstances evidenced by the substantially lowered pay from $12 per hour to $8.75 per hour in his new employment, amounting to approximately $130 per week or $520. per month. Compensatory damages may be awarded a whistleblower complainant under 29 CFR Part 24 for pain and suffering, mental anguish, embarrassment and humiliation, as supported by circumstances of the case and testimony regarding the physical and mental consequences of the retaliatory action. See Pillow v. Bechtel Constr. Inc., 87 ERA 35 (Sec'y July 19, 1993. Complainant provided credible evidence of substantial subjective injuries, including emotional distress such as his embarrassment in explaining his gap in employment and why he had been terminated, his extended period of unemployment while he searched for new employment, his loss of self-confidence, and other predictable stress. The amount of $5000 which Complainant has requested is reasonable, and reasonably relates to the extent of such damages proved. (Tr. 8-10) 29 CFR §24.7(c)(1); see Creekmore v. ABB Power Systems Energy Services, Inc., 93 ERA 24 (Dep. Sec'y Feb. 14, 1996); Crow v. Noble Roman's, Inc., 95 CAA 8 (Sec'y Feb. 26, 1996), citing Blackburn v. Martin, 982 F.2d 125, 131 (4th Cir. 1992)(ERA).

23. Claimant is not entitled to punitive or exemplary damages under the Clean Water Act or other applicable law, because of the negative implication derived from the express affirmative grant of the remedy in 29 CFR Part 24 with respect to cases rising under the Safe Drinking Water Act and the Toxic Substances Control Act. §24.7(c)(1). No other authority for such damages under the Clean Water Act has been suggested.

ORDER

Pursuant to the Clean Water Act and 29 CFR Part 24 it is ORDERED that

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1. Respondent take affirmative action to abate the violation related to Complainant's unlawful termination of employment, including expurgating Respondent's personnel and other records relating to Complainant's employment of any and all adverse references, including indications that Complainant's employment by Respondent was involuntarily terminated or that the termination was effected for unsatisfactory performance or conduct or other adverse cause. Respondent is prohibited from giving directly or by implication any unfavorable or negative employment reference, or effecting any other adverse publication, including any suggestion of unsatisfactory performance or inability to give a favorable reference, relating to Complainant's employment or discharge to any person or entity, orally or in writing or by any other means.

2. Respondent shall pay Complainant back pay and other employment benefits, less interim earnings, in the amount of $13, 284.80, with interest calculated in accordance with 29 CFR §20.58(a) at the rate specified in the Internal Revenue Code §6621, from the date of his discharge, September 10, 2002, until the date of the hearing, July 1, 2003.

3. Respondent shall pay to Complainant compensatory damages for mental pain and suffering in the amount of $5000.00.

4. Respondent shall pay complainant's reasonable attorney fees and costs in the amount of $13,400.00.

EDWARD TERHUNE MILLER
Administrative Law Judge

NOTICE OF REVIEW: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and Order, and shall be served on all

[ENDNOTES]

¹ Claimant testified that he would probably have declined the health insurance because his wife had better coverage through her employment at the Mayo Clinic and Respondent offered a $75 per month bonus if an employee declined the health insurance. Dental insurance was separate. The company would have matched Complainant's three percent contribution to the retirement plan. (Tr. 24-25)