<DOC>
[DOCID: f:c9607.wais]

 
FALKIRK MINING COMPANY
September 20, 1996
CENT 96-7-D


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                          5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA  22041


                          September 20, 1996

HAROLD HOLTZ,                     :  DISCRIMINATION PROCEEDING
             Complainant          :
                                  :  Docket No. CENT 96-7-D
                                  :
         v.                       :  DENV CD 95-13
                                  :
FALKIRK MINING COMPANY,           :  Mine ID 32-00491
             Respondent           :

                               DECISION

Appearances:  Steven L. Latham, Esq., Bismarck, North Dakota for Complainant;
              Charles S. Miller Jr., Esq., Fleck, Mather, & Strutz, Bismarck,
              North Dakota for Respondent.

Before:  Judge Fauver

     This is a complaint under  105(c) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C.  801 et seq., alleging discrimination on February 23,
1995, when Respondent notified Complainant that he was being placed on
probation for six months because of an incident with its safety manager
at a bar.

     Holtz contends that the safety manager, Archie Gilliss, gave a false
and exaggerated account of the incident as a means of retaliating against
him because of his protected activities under  105(c).  He further contends
that this was part of a pattern of false and exaggerated reports by Gilliss
against him in retaliation of his protected activities.  As evidence of a
pattern, he cites two prior adverse actions in 1993 and 1994.  Falkirk
Mining denies any discrimination or hostility toward Holtz' protected
activities and contends that the prior adverse actions are barred by the
statute of limitations.

     Having considered the hearing evidence and the record as a whole,
I find that a preponderance of the substantial, probative and reliable
evidence establishes the following Findings of Fact and further findings
in the Discussion below:

                           FINDING OF FACT

     1.  On December 17, 1990, Harold Holtz was involved in a fatal accident
at the Falkirk Mine, a surface coal mine operated by Respondent Falkirk
Mining Company in Bismarck, North Dakota.  Falkirk is a subsidiary of the
North American Coal Corporation. The mine produces coal for sale or use in or
affecting interstate commerce.

     2.  The accident involved a collision between a large coal hauler
operated by Holtz and a scraper.  The operator of the scraper was killed.
Holtz suffered shoulder injuries that required surgery and rehabilitation
of several months.

     3.  Holtz had a substantial disagreement with management concerning the
cause of the accident and safety rules he believed were necessary to prevent
future accidents.  Management did not find Holtz at fault in the accident.
The disagreement arose from Holtz' belief that management was covering up its
responsibility for conditions that led to the accident.

     4.  MSHA issued two citations on December 19, 1990, and a third on
January 22, 1991, based on its investigation of the accident.

     5.  Holtz disagreed with MSHA's investigation report as well as mine
management's account of the accident.  He frequently expressed his complaints
to management, especially to Archie Gilliss, the mine safety manager.  Gilliss
advised him to report his concerns to MSHA if he was not satisfied with the
investigation or had more information to assist the investigation.  Holtz had
many contacts with MSHA concerning its investigation and its preparation for a
hearing on its citations.  Holtz was expected to testify at the  hearing.

     6.  The citations were settled on September 22, 1992, with a 90%
reduction in penalties and a major reduction in the charges.  Holtz was 
very upset over the settlement and felt that it was a white-washing of
serious violations.  On a number of occasions, he expressed his opinion 
to persons at the mine and others, including MSHA officials, that there
was collusion between Falkirk's management and MSHA, and that mine management
and MSHA had engaged in a cover-up of serious safety violations.

     7.  On February 24, 1993, more than two years after the accident, MSHA
inspected the Falkirk Mine following a complaint from an unidentified caller.
During the inspection, in which no violations were found, Holtz asked to talk
to the inspectors. Holtz met with Inspectors Larry Keller and James Beam and
again complained about the investigation of the 1990 accident and settlement
in 1992.  This was not a new subject for the MSHA inspectors. Holtz had voiced
the same complaints to Keller and other MSHA officials on a number of
occasions. Holtz testified that he had 8-10 conversations with at least 
three different MSHA officials prior to the February 1993 inspection.

     8.  Keller was concerned about Holtz' emotional reaction to the 1990
accident and investigation and Holtz' statement to him that he continued to
have disturbing flashbacks when ever he drove by the scene of the accident.
Keller was concerned that a person driving a coal hauler carrying 300 tons
of coal at 55 m.p.h. needed to be concentrating 100% on what he was doing
in order to operate the equipment safely.

     9.  At the conclusion of the February 1993 inspection, Keller talked to
Archie Gilliss, mine safety manager, about Holtz' continued emotional reaction
to the 1990 accident and investigation, his flashbacks, and how his emotional
state might affect his ability to concentrate fully on operating the large
coal hauler.  Keller noted that the company had an employee assistance program
and asked Gilliss if the company could provide Holtz some assistance, meaning
professional counseling.  Gilliss prepared a memorandum to his files
concerning his discussion with Keller and reported the matter to mine
management.  After consultation with legal counsel, management decided to
take Holtz off the equipment and place him on paid medical leave for
psychological evaluation.  The decision was a collective one and involved
Falkirk's President, Falkirk's Manager of Human September 11, 1996 Resources,
Holtz' line supervisors, and Gilliss.

     10.  Holtz was very upset with Falkirk's decision to require him to
undergo psychological evaluation.  He filed a  105(c) discrimination
complaint against Falkirk on March 22, 1993, contending that Gilliss lied
about Keller's comments in order to retaliate against Holtz' protected
activities.

     11.  MSHA investigated Holtz' discrimination complaint and determined
therehad been no violation of  105(c).  After receiving MSHA's decision,
around November 1, 1993, Holtz elected not to pursue his complaint before
the Review Commission.

     12.  In this proceeding, which involves a later discrimination complaint
(in 1995), Holtz contends that Gilliss demonstrated a pattern of hostility
toward Holtz' protected activities.  As part of the pattern, Holtz contends,
Gilliss lied to Falkirk's management concerning the extent of Keller's remarks
to Gilliss following the February 1993 inspection.  Holtz testified that he
talked to Keller and that Keller had denied stating that he considered Holtz
to be a safety risk to himself and his fellow miners or a "time bomb" ready
to go off, as Gilliss had reported to management. Keller testified that he
expressed to Gilliss his concerns about Holtz' inability to put the accident
behind him and the possibility that he was not able to maintain his concentration while operating the large coal hauler.  Keller also testified
that he mentioned Holtz' flashbacks and asked Gilliss whether there was
something that Falkirk could do in terms of providing Holtz with counseling.
In large part, Keller confirmed Gilliss' account of the conversation, 
although Gilliss may have exaggerated some of Keller's statements.

     13.  In March 1993, Holtz went on medical leave with full pay and
benefits. Dr. Tello, the physician staffing Falkirk's Employee Assistance
Program, referred him to Dr. Peterson, a clinical psychologist who was not
connected with Falkirk. Dr. Peterson saw Gilliss and also had him see a
psychiatrist, Dr. Thakor, who also was not connected with Falkirk.  Following
those consultations, Dr. Peterson reported to Falkirk that Holtz had
unresolved psychological conflicts as a result of the 1990 accident and
strongly recommended that Holtz receive counseling from either a psychiatrist
or a psychologist.  Dr. Peterson noted that there was a significant ongoing
conflict between Holtz and the mine staff. He described Holtz as being a
"worrisome, tense individual who is likely to be rigid and stubborn in
relationships."  He also reported that Holtz "is suspicious of others
and has difficulty trusting."  At the same time, however, Dr. Peterson
reported that he did not consider Holtz to be a danger to himself or
others in carrying out his job responsibilities.

     14.  Following Dr. Peterson's report, Holtz was returned to duty as
a coal hauler operator, but was required to attend further counseling as
recommended by Dr. Peterson.  The additional counseling was performed by
Dr. Hanlon, who was not connected with Falkirk. Although this situation 
was somewhat unique, Falkirk has taken similar actions with regard to other
employees.  In one instance, Falkirk required a dragline operator who was
having emotional problems to obtain assistance and in other instances had
referred personnel to its EAP program when there were unexplained problems
with their job performance.

     15.  After returning to duty, Holtz' relationship with mine management
continued to be poor.  Holtz' immediate supervisor, Mr. Davison, wrote in
Holtz' employee evaluation on October 7, 1993, the following:

     Harold's basic attitude toward his job as a coal hauler is satisfactory.
     It is also satisfactory toward his supervisor.  However, with respect of
     his attitude toward the company as a whole and particularly toward
     members  of management, it is much below average.  Much if not all
     is manifest from his involvement in the fatal accident of 12/17/90 
     and a subsequent evaluation this summer.  There have been times when
     Harold was emotionally upset that I believe Harold was not 100%
     committed to his primary job as Coal Hauler Operator.  I feel Harold
     needs to put these incidents behind him emotionally and move on with
     his job and his future at Falkirk. [Ex. C-4]

     16.  On August 3, 1994, Gilliss had an incident with Holtz in the shift
change area at the mine.  Gilliss reported to Falkirk's management that Holtz
asked him, "Have you talked to your high ranking MSHA official buddy that you
are in cahoots with lately?" Gilliss stated in his report that when he asked
Holtz what he meant, Holtz referred to Inspector Keller and the conversation
between Keller and Gilliss that precipitated Holtz being sent for psychological evaluation.  Gilliss also reported that when Holtz began 
talking about this subject, Holtz got red-faced and angrier and angrier,
pointed his finger at Gilliss, and with a very hard and glaring stare, stated
"I'll see you in court." Tr. 197-200.

     17.  Based upon Gilliss' report, management gave a written warning to
Holtz on August 11, 1994.  The written warning concluded:

     Your comments and behavior towards Mr. Gilliss are totally uncalled for
     and is unacceptable behavior by one employee towards another at the
     Falkirk Mine, thus, any similar behavior in the future will result in
     stronger discipline, up to, and including termination.

     You have been previously advised of your right to pursue legal action
     or avail yourself to the appropriate  state  or  federal  authorities 
     if a problem exists but when you sue [sic] this as a device to threaten
     and intimidate other employees; this behavior is unacceptable and
     subject to disciplinary action. [Ex. C-5]

     18.  On the evening of February 21, 1995, Holtz happened to come across
Gilliss in a bar at the Comfort Inn motel in Bismarck, North Dakota, about
fifty miles from the Falkirk Mine. During "happy hour," Gilliss was in the
bar with his brother-in-law and several of his family members who were 
staying at the motel.  Holtz was in the bar with his wife and another couple.
When Gilliss came into the bar, his party happened to take a table next to
Holtz' table.  Gilliss later reported to management that Holtz glared at him
from Holtz' table and that at one point Holtz stood by Gilliss' table for
several minutes and stared at Gilliss without talking and, finally, when
Gilliss acknowledged his presence (by saying, "Hello, Harold") Holtz simply
walked away without comment.  Gilliss reported to management he felt
threatened by this conduct, particularly given the setting in which it took
place and not knowing what might happen next.

     19.  Holtz testified that he simply stood a few moments at Gilliss' 
table for an opportunity to greet him, and then left. He denied he did so
in a threatening or intimidating manner.

     20.  Several persons testified about the incident in the Comfort Inn 
in addition to Gilliss and Holtz: Gilliss' brother-in-law David Laber, 
Holtz' wife, and one of the individuals who was with the Holtz party,
Mr. Robertson.  Although there were some discrepancies in the accounts
given by these witnesses as to exactly where persons were situated at 
various  points  during  the  evening  and  other  like  details, these 
discrepancies were not unusual.  Considering the testimony of these 
witnesses along with the testimony of Gilliss and Holtz, I find that Holtz
did pause at the table at which Gilliss was seated and did stare at Gilliss
without speaking.  Gilliss' report to management stated that Holtz stood
near his table for "several minutes."  I find that this was an exaggeration
and that Holtz stood at the table about 30 seconds.

     21.  As a result of Gilliss' report to management, management made 
the decision, after consultation with legal counsel, to place Holtz on
six months probation.  The written notice of probation was given on 
February 23, 1995.  The notice referred to the prior warning on August 11,
1994, and stateg that he was being placed on probation because he had 
engaged in further objectionable conduct of an intimidating nature.
Ex. C-6.

     22.  Holtz filed a second  105(c) discrimination complaint against
Falkirk, dated March 24, 1995, which is the subject of this proceeding.
The complaint was investigated by MSHA, which concluded that there had
been no violation of  105(c).

     23.  During probation, Holtz continued working but was denied a wage
increase and a yearly bonus paid to other employees.  The wage increase 
was given as of the date of his completion of probation and the bonus for
the prior year was then paid.

     24.  At the time of the hearing, May 1996, Holtz was employed at
the Falkirk Mine and there had been no further incidents in his employment
relationship. Management had installed traffic safety rules and Holtz 
was performing his job well.

            DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

     Section 105(c)[1] of the Act protects miners and others from
discrimination because of the exercise of rights under the Act, 
including making safety complaints to the mine operator or to MSHA.

     A miner alleging discrimination under  105(c) establishes a prima
facie case of discrimination by proving that he or she engaged in protected
activity and the adverse action complained of was motivated in part by 
that activity.  Secretary on behalf of Pasula v. Consolidation Coal 
Co., 2 FMSHRC 2786, 2797-800 (1980), rev'd on other grounds, sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); 
Secretary on behalf of Robinette v. United Castle Coal Co. 3 FMSHRC
803,817-18 (1981). The operator may rebut the prima facie case by 
showing either that no protected activity occurred or that the adverse 
action was in no part motivated by protected activity.  If the operator
cannot rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it is also was motivated by the 
miner's unprotected activity and would have taken the adverse action
for the unprotected activity alone.  Pasula, 2 FMSHRC at 2799-2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. CoalCorp. v. 
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).

     As the Commission and Courts have repeatedly noted, direct evidence
of discriminatory motive is rare.  Usually discrimination can be proven 
only by circumstantial evidence upon which the trier of fact draws an
inference regarding the employer's motivation.  Secretary of Labor on
behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508, 2510 (1981).

     The most common circumstances upon which such an inference may be
based are the employer's knowledge of the protected activity, hostility
towards the protected activity (animus), nearness in time between the
protected activity and the adverse action, disparate treatment of the
complainant and similarly situated employees, and the resort to
pretextual grounds for the adverse action against the complainant.

     Section 105(c) protects the exercise of rights under the Act, but
not misconduct.  Abusive or threatening conduct toward a supervisor or
management staff in raising a safety complaint may run the risk that 
the operator will take disciplinary action for conduct that is not 
protected by  105(c).

Protected Activities

     Holtz was engaged in numerous protected activities.  He disagreed
with the company's account of the 1990 accident and raised complaints 
about safety rules needed to prevent similar accidents.  His voicing of
these concerns to mine management and the mine safety manager was
protected against retaliation under  105(c).

     His numerous contacts with MSHA concerning its investigation and
its preparation for a hearing on citations were protected under  105(c).
His status as a prospective witness at the hearing was protected.

     His filing of a  105(c) complaint of discrimination in 1992 was a
protected activity.

     Finally, his complaints about the 1992 settlement of the citations
and penalties were protected activities to the extent that they raised
questions of a violation of the Act or regulations for the proper 
enforcement and administration of the Act.

Disposition of the Issues

     Holtz contends that Falkirk's probation decision was based on
Gilliss' account of the incident in the Comfort Inn on February 21, 
1995, and that Gilliss gave a false and exaggerated account to 
retaliate against Holtz because of his protected activities.  Holtz 
contends that Gilliss demonstrated a pattern of hostility toward his
protected activities as evidenced by the probation decision and
Falkirk's two prior adverse actions of placing Holtz on medical
leave for psychological evaluation in 1993 and its written reprimand 
in 1994.  Holtz contends that all three actions were based on Gilliss'
accounts of the facts which were false or  exaggerated by Gilliss to
retaliate against Holtz' protected activities.  The company denies
any discrimination or hostility because of Holtz' protected activities
and asserts that the 1993 and 1994 actions are barred by a60 day 
statute of limitations.

     The two prior adverse actions are not part of Holtz' present
complaint of discrimination, and will not be adjudicated here as
liability claims.  However, they will be considered under the issue
whether management through Gilliss demonstrated a pattern of 
hostility toward Holtz' protected activities.

1.  Medical leave for psychological evacuation

     In March 1993, Gilliss reported to management that MSHA Inspector
Keller had expressed concerns about Holtz' emotional state and safety
as a heavy equipment operator. Based upon Gilliss' account of Keller's
remarks, management decided to place Holtz on medical leave for
psychological evaluation.

     Holtz testified that Keller told him that he did not tell Gilliss
that Holtz was a danger to himself or others, or a "time bomb" waiting
to go off, as Gilliss had reported to management.  Keller testified that
he expressed concerns about Holtz' inability to put the accident behind
him and the  possibility  that  he  was  not  able  to  maintain  full 
concentration while operating the large coal hauler. Keller also testified
that he mentioned Holtz' flashbacks about the accident and asked Gilliss
whether there was something that Falkirk could do in terms of providing
Holtz with counseling. I find that the essence of the inspector's
safety concerns about Holtz' emotional state was conveyed in Gilliss'
report tomanagement, even though Gilliss may have exaggerated or
misstated some of Keller's remarks.

     The evidence does not indicate that Gilliss' report to management
was motivated in any part by Holtz' protected activities.  Gilliss did 
not demonstrate hostility toward Holtz' protected activities.  Instead, 
he recommended that Holtz contact MSHA if he had any further complaints 
or facts to assist the investigation of the 1990 accident.  Gilliss'
report about Keller's remarks was in March 1993, which was about six 
months after the settlement of the citations and almost two years after 
Holtz first started complaining to the company and to MSHA about the 
accident and the investigation.  There is no close relationship in time
between Holtz' protected activities and Gilliss' report of Keller's
remarks.[2]  The evidence indicates that Gilliss was motivated to 
alert management to Keller's safety concerns about Holtz because of
the significance of a federal mine inspector expressing concerns aboutthe emotional state and possible safety risk of a heavy equipment operator.

2.  Written warning on August 11, 1994

     Gilliss wrote a memorandum to his files on August 3, 1994, 
concerning a confrontation with Holtz in the shift change area.
Based upon Gilliss' report to management, management issued a 
written warning to Holtz on August 11, 1994.

     This incident was long after the 1990 accident and 1992 settlement
of the citations with MSHA.  The evidence indicates that Gilliss'
motivation in reporting the August 3 incident to management was his 
concern about abusive and intimidating behavior by Holtz rather than
Holtz' protected activities.

3. Letter of probation on February 23, 1995

     The controlling issue in this case is whether Gilliss' account 
of the Comfort Inn incident, which induced management's probation
decision in February 1995, was motivated in any part by Holtz' 
protected activities.

     On February 22, 1995, Gilliss prepared a memorandum of an incident
with Holtz at the Comfort Inn bar on February 21, 1995.  Ex. C-12. 
This memorandum was the basis of his report to management, which led to
management's decision to place Holtz on probation for six months. 
Gilliss' report to management is an integral part of management's 
decision because it provided the facts accepted by management as the 
basis for its probation action.  If Gilliss' report is found to be 
tainted by discrimination, management's decision would be similarly
tainted.

     Although Gilliss' memorandum of the incident contains some
exaggerations, I find that the essence of Holtz' conduct that disturbed
him, i.e., standing at his table and staring at him without talking,
was conveyed in his report.  The evidence does not preponderate to show 
a nexus between Gilliss' report to management and any protected 
activities by Holtz.  Instead, the evidence indicates that the 
motivation of Gilliss and management was to address conduct they 
perceived as intimidating and a violation of the August 11, 1994, 
written warning.

     In summary, after proving his protected activities, Holtz had the
burden to prove that there was some nexus between his protected 
activities and the challenged adverse action.

     The evidence does not show a nexus between any of the three 
adverse actions (in March 1993, August 1994, and February 1995) and
Holtz' protected activities. First, the evidence does not show that 
Respondent had hostility toward Holtz' protected activities. Gilliss
and management on several occasions told Holtz that if he had
continuing concerns about the 1990 accident or the investigation
he should contact MSHA.  The accident occurred in December of 1990 
and the settlement of the citations was approved in September 1992. 
During this time Holtz had a number of contacts with both MSHA and
Falkirk management and Gilliss concerning his complaints about the
investigation and his perceptions that Falkirk had misrepresented the
facts and  covered up serious violations and was "in cahoots" with 
MSHA and its attorneys. Yet during this period Holtz was not 
disciplined by Falkirk and was given good evaluations for his job
performance. Secondly, the evidence indicates that each of the three 
adverse actions had a close relationship in time with conduct that 
was not protected by  105(c). The decision to place Holtz on medical
leave for psychological evaluation in March 1993 directly followed the
concerns raised by MSHA Inspector Keller about Holtz' emotional state
and possible safety risk as a heavy equipment operator. The written 
warning on August 11, 1994, was triggered by an August 3 incident
that the operator perceived as employee misconduct, not an activity 
protected by  105(c). Finally, the probation decision on February 23, 
1995 was based on conduct on February 21 that the operator perceived
as a violation of the August 1994 written warning and not an 
activity protected by  105(c).

     For the above reasons, I find that the evidence does not establish
a violation of  105(c).  Even if the evidence were found to prove that
the probation decision was motivated in some part by Holtz' protected
activities, I find that the operator affirmatively proved that it 
considered Holtz' unprotected conduct and would have put him on
probation for that conduct alone.

Respondent's Motion to Recover Attorney Fees and Costs

     Respondent contends that Holtz' discrimination complaint is without
merit and was filed as a tactic to forestall or chill legitimate personnel
actions and to re-litigate claims barred by the statute of limitations. 
It requests a finding that Holtz has abused the discrimination complaint
process and moves for recovery of attorney fees and costs under the
Commission's Rules of Practice, 29 C.F.R.  2700.1, and Fed. R. Civ.
P.11.

     I find that the complaint rests upon substantive contentions, and
was not frivolously brought.  Holtz had good faith, substantial concerns
about what he perceived to be management's failure to acknowledge its
own role in contributing to the fatal accident, its delays in adopting 
and following traffic safety rules, and its participation in a 
"white-washing" settlement of MSHA's charges and civil penalties. 
Holtz also felt frustrated by management's failure to spend time with
him after the accident to get his input on the facts and safety issues
he perceived about the accident and concerns he felt about the loss of
a co-worker's life.  He felt isolated by management after a traumatic
accident that he believed could have been prevented through the 
observance of proper traffic safety rules.  On good faith grounds, 
although not meeting his burden of proof, Holtz believed Gilliss and
management retaliated against him because of his protected activities.
Factual issues as to the two prior adverse actions were relevant in
considering whether Gilliss, a key management agent, demonstrated a
pattern of hostility toward Holtz' protected activities.  In sum, I 
find that Holtz has not abused the discrimination complaint process.

                          CONCLUSIONS OF LAW

     1.  Respondent's Falkirk Mine is subject to the Act.

     2.  Complainant, Harold Holtz, has failed to prove a violation
of  105(c) of the Act.

     3.  In bringing this action, Complainant has not abused the
discrimination complaint process.


                                ORDER

     WHEREFORE IT IS ORDERED that:

     1.  The complaint is DISMISSED.

     2.  Respondent's motion to recover attorney fees and costs is 
DENIED.


                                 William Fauver
                                 Administrative Law Judge


Distribution:

Steven L. Latham, Esq., P.O. Box 2056, Bismarck, ND  58502-2056 
(Certified Mail)

Charles S. Miller, Jr., Esq., Fleck, Mather & Strutz, P.O. Box 2798,
Bismarck, ND 58502 (Certified Mail)

/nt


**FOOTNOTES**

     [1]: Section 105(c)(1) provides in part:

          No person shall discharge or in any manner discriminate against or
          causeto be discharged or cause discrimination against or otherwise
          interfere with the exercise of the statutory rights of any miner...
          ...because such miner... has filed or made a complaint under or
          related to this [Act] including a complaint notifying the operator
          ...of an alleged danger or safety or health violation in a coal or
          other mine....

     [2]: Holtz' statements to Keller during the February 1993 inspection
were protected activities.  However, the evidence indicates that Gilliss'
motivation in reporting Keller's safety concerns about Holtz was to alert 
the company to a federal inspector's concerns, not to retaliate against 
Holtz for protected activities.