UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHNNY E. MILLER,
Petitioner,

v.
                                                                      No. 95-3174
THERMALKEM, INCORPORATED;
SECRETARY OF LABOR,
Respondents.

On Petition for Review of an Order
of the National Labor Relations Board.
(94-SWD-1)

Submitted: July 31, 1996

Decided: August 15, 1996

Before HALL, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Johnny E. Miller, Petitioner Pro Se. Langley Richard Shook, Tamara
Renee Parker, Kathryn Ballow Thomson, SIDLEY & AUSTIN,
Washington, D.C.; Vonda Lynette Marshall, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Johnny E. Miller, a "dedicated line technician," was suspended
from his employment with ThermalKEM, Inc. ("KEM") on December
28, 1993, and discharged on January 6, 1994, after he made internal
complaints that reported violations of an environmental statute. KEM
operated a hazardous waste storage and treatment facility which
incinerated both solid and liquid hazardous wastes. At the time of
Miller's termination, he was responsible for pumping liquid waste
from storage drums into the facility's incinerator according to a feed
plan. The feed plan provided for feeding certain types and amounts
of waste at certain time intervals, based on the capacity of the inciner-
ator and federal and state regulations. According to the feed plan,
dedicated line technicians were required to prepare production logs--
feed reports--which showed the types, amount, and time intervals
during which waste was pumped from the storage drums into the
incinerator.

During the early morning hours of his work shift on December 28,
1993, Miller failed to follow the feed plan, which caused the incinera-
tor temperature to rise above its normal operating temperature. The
pollution control device malfunctioned, allowing the pump to con-
tinue feeding waste into the incinerator. The excess heat in the incin-
erator caused the thermal relief stack to vent the unburned materials
into the atmosphere and damaged part of the incinerator. Furthermore,
Miller falsified production logs to show that the waste was fed into
the incinerator in compliance with the feed plan. Miller's immediate
supervisor, Donald Koon, conducted an investigation of the incident
and found that Miller did not follow the feed plan. Koon suspended
Miller from work on the evening of December 28 pending further
investigations.

On January 3, 1994, Miller met with William Scull, the process
control manager, and told management that he fell behind on the feed
plan on December 27 and Koon instructed him to make up the missed
feed. Miller also informed management that Koon must have known
about the making up of feeds as he was aware of mechanical break-
downs and production logs. Miller stated that it was common practice

                     2
for employees to make up missed feeds in violation of the feed plan.
Scull agreed to investigate the allegations. On January 6, Scull told
Miller that his investigation did not confirm Miller's allegations and
Scull fired Miller.

Miller filed a complaint with the Department of Labor under the
whistle blower provisions of the Solid Waste Disposal Act, 42 U.S.C.
§ 6971 (1988) ("SWDA"), claiming that he had been terminated in
retaliation for informing management that employees were routinely
instructed to make up missed feeds and to falsify feed reports in order
to feign compliance with feed plan requirements. Miller also alleged
that he was terminated because he might have been called to testify
at proceedings resulting from KEM's violation of the SWDA. The
Department of Labor informed Miller that its investigation revealed
no evidence supporting his claim. Miller appealed this finding to an
ALJ.

The ALJ found that Miller had engaged in protected activity when
he reported violations of an environmental statute to management.
The ALJ also found that KEM knew that Miller engaged in protected
activity. However, the ALJ concluded that there was no evidence
showing that Miller was about to testify in any state or federal envi-
ronmental proceedings because Miller stated he had no intention of
contacting a federal or state agency. The ALJ further concluded that
Miller had established a prima facie case that his protected activity
was a motivating factor for his termination. However, the ALJ found
that KEM successfully rebutted the presumption that Miller received
disparate treatment, by producing evidence establishing that Miller
was terminated for a legitimate, nondiscriminatory reason. The ALJ
held that Miller failed to demonstrate that KEM's reasons for termi-
nating him were pretextual.

The Secretary adopted the ALJ's factual findings and concluded
that KEM did not violate the employee protection provisions of the
SWDA when it terminated Miller. Contrary to the ALJ's decision,
however, the Secretary found that KEM was unaware of Miller's pro-
tected activity before it reached its decision to terminate his employ-
ment. Furthermore, the Secretary concluded that even if Miller's
alleged protected activity contributed to his termination decision,
KEM met its burden of proving that it would have taken the same

                    3
action even if he had not engaged in the protected activity. Accord-
ingly, the Secretary affirmed the ALJ's dismissal of Miller's com-
plaint. We find that substantial evidence supports the Secretary's
findings that KEM was unaware of Miller's protected activity when
it made its decision to discharge Miller, and Kem had a legitimate,
nondiscriminatory reason for discharging Miller.

The Solid Waste Disposal Act provides in pertinent part:

          No person shall fire, or in any other way discriminate
          against, or cause to be fired or discriminated against, any
          employee or any authorized representative of employees by
          reason of the fact that such employee or representative has
          filed, instituted, or caused to be filed or instituted any pro-
          ceeding under this chapter or under any applicable imple-
          mentation plan, or has testified or is about to testify in any
          proceeding resulting from the administration or enforcement
          of the provisions of this chapter or of any applicable imple-
          mentation plan.

42 U.S.C. § 6971(a).

Generally, a plaintiff must establish a prima facie case of retalia-
tory discharge by establishing that: (1) he engaged in protected activ-
ity; (2) the employer had actual or constructive knowledge of the
protected conduct; (3) the alleged discrimination occurred; and (4) a
causal connection existed making it likely that the protected activity
resulted in the alleged discrimination. See Ross v. Communications
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985) (retaliatory dis-
charge under Title VII); Simon v. Simmons Foods, Inc., 49 F.3d 386,
389 (8th Cir. 1995) (citing various Acts with various whisteblower
provisions). Where there is evidence that reasons other than retalia-
tion may also have accounted for the employee's discharge, the
employer has the burden of proving, by a preponderance of the evi-
dence, that it would have terminated the employee even if the
employee had not engaged in the protected activity. See Ross, 759
F.2d at 365; Simon, 49 F.3d at 389.

This court's review of the Secretary's order is controlled by the
Administrative Procedure Act, under which an agency decision will

                    4
be set aside if it is unsupported by substantial evidence, or is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
the law. 5 U.S.C. § 706(2)(A)-(E) (1988); Duke Power Co. v. United
States Nuclear Regulatory Comm'n, 770 F.2d 386, 389 (4th Cir.
1985). In reviewing the Secretary's decision, this court must consider
the entire record, including the ALJ's recommendation and any evi-
dence that is contrary to the agency's determination. Kellough v.
Heckler, 785 F.2d 1147, 1150-51 (4th Cir. 1986). Great deference is
accorded to an agency's expertise and discretion when the agency
adopts the ALJ's findings. Duke Power, 770 F.2d at 389-90. How-
ever, an agency departing from the ALJ's findings must show that it
gave attentive consideration to the ALJ's conclusions. King v.
Califano, 615 F.2d 1018, 1020 (4th Cir. 1980); Citizens State Bank
of Marshfield, Mo. v. FDIC, 751 F.2d 209, 214 (8th Cir. 1984). Thus,
the agency decision must reflect an awareness of the ALJ's findings
and give reasons for reaching a different conclusion with respect to
those findings. Id.

The ALJ found that Miller engaged in protected activity when he
made internal complaints which reported violations of an environ-
mental statute. The ALJ also found that KEM knew that Miller
engaged in protected activity based on the serious nature of Miller's
allegations. The ALJ concluded that in view of Miller's protected
activity and his discharge shortly thereafter, Miller established a
prima facie case that his protected activity was a motivating factor in
his discharge. See Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981). However, the ALJ found that KEM also had a legiti-
mate, nondiscriminatory reason for discharging Miller because Miller
had previously violated company rules. Miller violated company rules
on December 15 by sleeping on the job. His offense was written up
as taking excessive breaks. He was suspended without pay from
December 19 through December 21 and informed that another viola-
tion of any safety policy could result in his discharge. Furthermore,
after the December 28 incident, Miller admitted that he falsified feed
reports in violation of company policy. Lastly, the ALJ concluded that
KEM supervisors did not authorize or condone making up missed
feeds or the falsification of records.

While ultimately agreeing with the ALJ that KEM had a legitimate
reason for discharging Miller because of his previous violations of

                     5
company rules, the Secretary found that KEM decided to fire Miller
before it was aware of any protected activity, and only delayed carry-
ing out the decision to discharge Miller because he had raised allega-
tions of widespread wrongdoing by other employees. The Secretary
found that Miller's alleged protected activity occurred on January 3,
when he told Scull that making up missed feeds was a common prac-
tice at KEM, but that the decision to fire Miller had already been
made.

Substantial evidence supports the Secretary's finding that KEM
was unaware of any protected activity when it made its decision to
discharge Miller. Duke Power Co., 770 F.2d at 389. Koon investi-
gated the cause of the overheating of the incinerator on December 28.
He concluded that Miller had not followed the feed plan and Koon
filled out a Corrective Action Form on the same day to that effect.
Koon also suspended Miller on the same day pending further investi-
gation. Before Scull met with Miller on January 3, Koon strongly rec-
ommended to Scull that Miller be fired. Koon told Scull that he met
with Miller only two weeks earlier to stress the importance of com-
plying with the feed plan and noted that Miller had recently been sus-
pended for three days for taking excessive breaks. Koon also told
Scull that Miller had been informed that his next violation of com-
pany rules would result in his termination. Also, Scull modified the
description of Miller's infraction on the Corrective Action Form to
state that Miller had fed more waste than was authorized by the feed
plan for a period of two hours; Miller admitted that he was trying to
catch up on earlier missed feeds against company policy and proce-
dure; and Miller documented feed reports falsely to show that he had
complied with the feed plan. All of these events occurred before Mil-
ler arguably engaged in any protected activity on January 3 by report-
ing to Scull that employees frequently failed to comply with feed
plans. Scull delayed carrying out the decision to discharge Miller on
January 3 because he wanted the opportunity to investigate Miller's
allegations of company-wide wrongdoing.

Lastly, the Secretary correctly agreed with the ALJ's conclusion
that even if Miller's alleged protected activity was a motivating factor
in his discharge, KEM had dual motives for the discharge. KEM
showed that Miller had violated company rules by previously sleeping
on the job and failing to comply with the feed plan. Thus, KEM estab-

                    6
lished that it would have taken the same action even if Miller never
engaged in protected activity. See Ross, 759 F.2d at 365; Simon, 49
F.3d at 389. Accordingly, we affirm the Secretary's dismissal of Mil-
ler's complaint. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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