UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60798
Summary Calendar
FRANK BAUSEMER,
Petitioner,
VERSUS
ROBERT REICH, Secretary of Labor, and TEXAS UTILITIES ELECTRIC Co.,
Respondents.
Appeal from a Final Decision and Order
of the Secretary of Labor
(91-ERA-20)
October 14, 1996
Before GARWOOD, JOLLY, DENNIS, Circuit Judges.
PER CURIAM:*
Frank Bausemer, a nuclear industry quality control inspector,
filed a complaint with the Administrator of the Wage and Hour
Division (“Wage-Hour”), U.S. Department of Labor, alleging that TU
Electric had engaged in a pattern of blacklisting him for rehire at
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
the Comanche Peak Nuclear Power Plant, because of his role in
reporting safety violations to the Nuclear Regulatory Commission.
Wage-Hour conducted an investigation and issued a notice of
determination, indicating that it did not find that TU Electric had
denied Bausemer employment for this reason. At Bausemer’s request,
a hearing was held before an administrative law judge. Thirteen
witnesses were called to testify and documentary evidence was
admitted.
The administrative law judge recommended dismissal of
Bausemer’s complaint on the basis that it was untimely filed, and
that Bausemer had failed to establish a causal connection between
his protected activity and TU Electric’s decision not to rehire
him.
The Secretary issued a final decision and order dismissing the
complaint. The Secretary disagreed with the administrative law
judge’s finding that the complaint was time-barred, concluding that
the limitations period was tolled under the doctrine of equitable
tolling. The Secretary found, however, that although Bausemer
established a prima facie case of discrimination, he did not
sustain his burden of proving that the employer’s reason for
denying him employment as a receiving inspector was pretextual
under the analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The Secretary determined that the dual motive
analysis applied in Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977), “does not come into play because
[Bausemer] did not prove by a preponderance of the evidence that
[TU Electric] was motivated by an illegitimate reason.”
After considering Bausemer’s appeal, we uphold the Secretary’s
decision because it was not arbitrary, capricious, an abuse of
discretion, or otherwise in conflict with law. Hawkins v.
Agricultural Mktg. Serv., Dep’t of Agriculture, U.S.A., 10 F.3d
1125, 1128 (5th Cir. 1993). The Secretary’s factual findings are
supported by substantial evidence. “Under the substantial
evidence review standard, this Court may not displace the
factfinder’s ‘choice between two fairly conflicting views, even
though the court would justifiably have made a difference choice
had the matter been before it de novo.’” Dunham v. Brock, 794 F.2d
1037, 1040 (5th Cir. 1986) (quoting NLRB v. Walton Mfg. Co., 369
U.S. 404, 405 (1962)). In sum, the court “may not reweigh the
evidence, try the issues de novo, or substitute [its] judgment for
that of the Secretary.” Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994), cert. denied, 115 S.Ct. 1984 (1995) (citing
Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989)).
Accordingly, the decision of the Secretary is AFFIRMED.