F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 6 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
LENARD E. TRIMMER,
Petitioner,
v.
UNITED STATES DEPARTMENT OF No. 97-9544
LABOR,
Respondent,
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UNIVERSITY OF CALIFORNIA,
Intervenor.
Appeal from the United States
Department of Labor
(No. 96-072)
Stephen M. Kohn, of Kohn, Kohn and Colapinto, P.C., Washington, D.C., for
Petitioner, Lenard E. Trimmer.
Lois R. Zuckerman, Attorney, U. S. Department of Labor, Washington, D.C.,
(Marvin Krislov, Deputy Solicitor for National Operations, Steven J. Mandel,
Associate Solicitor, and Paul L. Frieden, Assistant Counsel for Appellate
Litigation, U. S. Department of Labor, Washington, D.C. with her on the brief)
for Respondent, U. S. Department of Labor.
Daniel H. Friedman, of Simons, Cuddy & Friedman, LLP, Santa Fe, New Mexico
(Tanya M. Trujillo, of Simons, Cuddy & Friedman, LLP, with him on the briefs)
for Intervenor, University of California.
Before ANDERSON, HENRY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Lenard E. Trimmer brought an administrative action under 42 U.S.C.
§ 5851, the whistleblower provision of the Energy Reorganization Act, against his
employer, the Los Alamos National Laboratory (the “Lab”), which is owned by
the Department of Energy but run by the University of California. Trimmer
claimed that the Lab wrongfully delayed an alternate employment-placement
process because he had engaged in statutorily protected activity. The
Administrative Review Board (“ARB”) of the Department of Labor 1 dismissed
his complaint. Trimmer appeals on the premise that the Lab’s delay in notifying
him of his right to engage in an alternate-placement process constituted an
1
The Secretary of Labor created the ARB in 1996. The ARB acts for the
Secretary and is responsible for “issuing final agency decisions on questions of
law and fact arising in review or on appeal” of a variety of matters, including
decisions and recommended decisions by ALJs pursuant to the whistleblower
provision of the Energy Reorganization Act of 1974. See Authority and
Responsibilities of the Administrative Review Board, 61 Fed. Reg. 19,978, 19,978
(1996); see also Varnadore v. Secretary of Labor, 141 F.3d 625, 629-30 (6 th Cir.
1998).
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adverse employment action. This court has jurisdiction pursuant to 42 U.S.C.
§ 5851(c) and concludes that the ARB correctly decided that the delay did not
constitute an adverse action. Accordingly, we AFFIRM the decision of the
Secretary.
I. Background
Prior to filing his complaint in 1993, Trimmer had worked at the Lab for
almost thirty years. In 1987 he injured his back in a work-related accident. He
subsequently worked intermittently and received workers’ compensation during
six months of rehabilitation. In the summer of 1988 a doctor determined that
Trimmer was fit for light-duty work. In December 1988 Trimmer participated in
the Lab’s “alternate placement” program, a process for finding injured employees
new positions suitable to their new physical limitations and work restrictions. 2
2
The Lab’s policy entitled an employee whose work restrictions could not
be easily accommodated in the employee’s existing position to a process for
alternate placement. The Lab’s policy did not specify when the alternate-
placement process should take place, though it did specify that the search was to
last 90 days, after which the employee would be discharged if he had failed to
find a new position. An individual on alternate placement was not given
preferential consideration for available positions and his medical restrictions were
not considered during the search. Rather, his selection for a new position was to
be entirely merit-based. The only apparent advantage an employee on alternate
placement had over an outside applicant was the networking the employee could
conduct while working in a temporary position during the search.
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Although at the time alternate placement was successful in only about ten percent
of the cases, Trimmer quickly obtained new employment in a different division.
In 1989 and 1990, Trimmer engaged in whistleblowing activity, which
included notifying his supervisors of various safety concerns and contacting a
congressional subcommittee, an investigative team, the Inspector General of the
Department of Energy, and members of the news media to express his safety
concerns.
In the fall of 1990 Trimmer filed a grievance against the Lab based upon
his failure to obtain a promotion. Soon thereafter his supervisors requested that
he stop discussing his grievance with his co-workers because they felt the
discussions were disruptive. This request upset Trimmer and he left work. He
did not return to work and instead exhausted his remaining sick leave and
vacation, eventually going on leave without pay. In early 1991 the Lab notified
Trimmer that he was eligible for alternate placement. He responded that he was
interested in engaging in another alternate-placement process. Because the Lab
concluded he was not able to perform the functions of his previous position,
Trimmer and the Lab’s Medical Director met during February and March 1991.
The two, working together, defined new work restrictions that would allow
Trimmer to work regularly without harming his health.
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In spring of 1991 the Lab commenced a second alternate-placement search
for Trimmer. After a division-wide placement search proved unsuccessful, the
search coordinator began a Lab-wide search. This search was temporarily
aborted at Trimmer’s request because he had applied for early retirement and had
begun to receive disability benefits. The placement coordinator nevertheless
continued to refer suitable job openings to him. Trimmer was granted disability
benefits in August 1991, equivalent to two-thirds of his Lab salary.
Because he did not find a job through the 1991 alternate-placement search
and consequently had not worked for over a year, the Lab managers charged with
monitoring Trimmer’s employment status met on February 13, 1992, and
scheduled a meeting for March 2, 1992, to review his status. In the meantime, on
February 28, 1992, Trimmer was quoted in a Sante Fe newspaper article which
was critical of the Lab’s safety procedures. During the March 2, 1992, meeting,
the Lab managers agreed that the Lab should send a letter to Trimmer to notify
him that he would be discharged unless he actively pursued alternate placement. 3
3
The University of California, intervenor, contests this interpretation. It
argues that there is no evidence the Lab discussed sending Trimmer an alternate-
placement notice letter in March 1992 and therefore, contrary to Trimmer’s
assertion, there was no delay. A close review of the record supports the ARB’s
conclusion that during the March 1992 meeting, the managers had agreed the
discharge letter should be sent but thought its proximity to the publication of the
article would appear retaliatory.
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The managers were concerned, however, that sending this letter so soon after the
publication of the newspaper article could be viewed as retaliatory.
The Lab finally sent a letter to Trimmer on December 9, 1992, notifying
him that his employment would be terminated on January 5, 1993, unless he
expressed some interest in returning to work and participating in another
alternate-placement process. [Hereinafter “discharge letter”]. Trimmer promptly
notified the Lab that he wanted to return to work. The Lab’s response specified
four conditions Trimmer would have to meet in order to continue his employment
with the Lab. One of these conditions was that he return to work at a temporary
assignment, during which he would search for a permanent position. If at the end
of 90 days Trimmer was unable to locate a suitable permanent position, his
employment would be terminated. Trimmer did not comply with this condition
because he assumed the disability benefits would not be reinstated for six to
eight months if he were unable to find a new permanent position. The Lab
acquiesced, allowing Trimmer to remain at home while an alternate-placement
search was conducted. This acquiescence was unusual, if not unprecedented.
This third and final alternate-placement process was unsuccessful and Trimmer
was medically discharged on September 16, 1993.
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II. Administrative Proceedings
The Energy Reorganization Act of 1974 (ERA) prohibits any employer
from discharging or otherwise discriminating against any employee “with respect
to his compensation, terms, conditions, or privileges of employment” because the
employee engaged in protected whistleblowing activity. 42 U.S.C. § 5851(a). In
1992 Congress amended § 5851 of the ERA to include a burden-shifting
framework distinct from the Title VII employment-discrimination burden-shifting
framework first established by McDonnell Douglas Corp. v. Green, 411 U.S. 792,
800-05 (1973). 4 See Energy Policy Act of 1992, Pub. L. No. 102-486, § 2902(d),
106 Stat. 2776, 3123-24 (amending 42 U.S.C. § 5851(b)). Although Congress
desired to make it easier for whistleblowers to prevail in their discrimination
suits, it was also concerned with stemming frivolous complaints. 5 Consequently,
§ 5851 contains a gatekeeping function, which provides that the Secretary cannot
4
The amendment to § 5851 became effective as to claims filed with the
Secretary on or after October 24, 1992. See Energy Policy Act of 1992, Pub. L.
No. 102-486, § 2902(i), 106 Stat. 2776, 3125. Accordingly, courts which have
used the McDonnell Douglas burden-shifting framework to adjudicate ERA
claims did so because the complaints were filed prior to that date. See, e.g., Kahn
v. Secretary of Labor, 64 F.3d 271, 276 & n.4, 277-78 (7 th Cir. 1995); Bechtel
Constr. Co. v. Secretary of Labor, 50 F.3d 926, 930, 934 (11 th Cir. 1995); see also
Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11 th Cir. 1997)
(rejecting McDonnell Douglas burden-shifting framework in favor of amended
§ 5851’s burden-shifting requirements).
5
The amendment to § 5851 adding the new burden-shifting framework was
titled “Avoidance of frivolous complaints.” Pub. L. 102-486, 106 Stat. 2776,
3123.
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investigate a complaint unless the complainant has established a prima facie case
that his protected behavior was a contributing factor in the unfavorable personnel
action alleged in the complaint. See § 5851(b)(3)(A). Even if the employee has
established a prima facie case, the Secretary cannot investigate the complaint if
the employer can prove by clear and convincing evidence that it would have taken
the same unfavorable personnel action in the absence of such behavior. See
§ 5851(b)(3)(B). Thus, only if the employee establishes a prima facie case and
the employer fails to disprove the allegation of discrimination by clear and
convincing evidence may the Secretary even investigate the complaint.
If, as here, the case proceeds to a hearing before the Secretary, the
complainant must prove the same elements as in the prima facie case, but this
time must prove by a preponderance of the evidence that he engaged in protected
activity which was a contributing factor in an unfavorable personnel decision.
See § 5851(b)(3)(C); see also Dysert v. Secretary of Labor, 105 F.3d 607, 609-10
(11 th Cir. 1997) (holding that Secretary’s construction of § 5851(b)(3)(C), making
complainant’s burden preponderance of evidence, was reasonable). Only if the
complainant meets his burden does the burden then shift to the employer to
demonstrate by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of such behavior. See
§ 5851(b)(3)(D).
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The ARB noted the uncontested fact that Trimmer had engaged in
protected activity by exposing health and safety issues regarding the Lab’s storage
and disposal of radioactive and toxic substances. 6 It also held, however, that the
delay in sending the discharge letter did not constitute an unfavorable personnel
action. Instead, the ARB stated that the delay worked to Trimmer’s benefit
because it extended his employment with the Lab and “widened the window
during which he could have found alternate placement with [the Lab].”
In response to Trimmer’s claim that the delay had cost him continued
employment with the Lab, the ARB concluded that a comparison of Trimmer’s
employability in the spring of 1992 with his employability in the spring of 1993
would be too speculative to support his claim. Additionally, the ARB noted that,
through a friend, Trimmer had actual knowledge of the positions open during the
spring of 1992 but had declined to pursue them. Finally, even if Trimmer had
proved the postponement prevented him from securing a job with the Lab, the
ARB stated that “unless [Trimmer] could further demonstrate that respondent
6
The ARB adopted the Administrative Law Judge’s (“ALJ”) findings of
fact and agreed with the ALJ’s recommendation of dismissal. See 5 U.S.C.
§ 557(b) (empowering agency to permit ALJ to make recommendation, but also
providing that agency “has all the powers which it would have in making the
initial decision”); see also Carlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 529
(3d Cir. 1995) (stating that agency or board is free either to adopt or reject ALJ’s
findings and conclusions of law).
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expected and intended this result, there would be no basis upon which to establish
a violation.”
III. Analysis
The Secretary’s decision is reviewed under § 706 of the Administrative
Procedure Act. See 42 U.S.C. § 5851(c)(1) (incorporating standards of 5 U.S.C.
§ 706(2)). Consequently, the decision will be set aside only if it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.
See 5 U.S.C. § 706(2)(A). Consistent with this level of scrutiny, the Secretary’s
factual determinations will be set aside only if they are unsupported by substantial
evidence. See id. § 706(2)(E). The substantial-evidence standard does not allow
a court to displace the agency’s “‘choice between two fairly conflicting views,
even though the court would justifiably have made a different choice had the
matter been before it de novo.’” NLRB v. Walton Mfg. Co., 369 U.S. 404, 405
(1962) (per curiam) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951)). Matters of law are reviewed de novo, giving deference to the
Secretary’s construction of the ERA if reasonable. See Bechtel Constr. Co. v.
Secretary of Labor, 50 F.3d 926, 931-32 (11th Cir. 1995) (deferring to Secretary’s
construction of § 5851 pursuant to Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 (1984)). Because the Secretary’s
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opinion is in agreement with and based in part on the ALJ’s credibility
determinations, it is entitled to great deference. See, e.g., Carroll v. Department
of Labor, 78 F.3d 352, 357 (8 th Cir. 1996) (reviewing § 5851 claim). This court
reviews the entire record, including the ALJ’s recommendation and any evidence
contrary to the Secretary’s decision. See Simon v. Simmons Food, Inc., 49 F.3d
386, 389 (8 th Cir. 1995) (citing Universal Camera, 340 U.S. at 488).
Trimmer challenges the ARB’s holding that the March 2, 1992, decision to
postpone sending him the discharge letter was not an adverse employment
decision. 7 Trimmer argues that the alternate-placement process was a term,
condition, and privilege of employment and that the Lab had a duty to notify him
of his option to engage in the alternate-placement process as soon as it decided he
should be afforded that opportunity. By delaying the notice of the alternate-
placement process until December 1992, Trimmer argues the Lab denied him the
opportunity to be considered for jobs that were open between March and May
1992. He argues that the delay caused him to defer a job search until the spring
7
Trimmer also argues that the ARB applied the wrong standard because
after it decided that the action did not constitute an unfavorable employment
decision, it noted in the alternative that unless Trimmer “could further
demonstrate that [the Lab] expected and intended [the delay to result in
Trimmer’s inability to obtain a job with the Lab], there would be no basis upon
which to establish a violation.” Because we agree with the ARB that the delay
did not constitute an adverse employment action, we need not address the ARB’s
alternate ground for its decision.
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of 1993, when employment opportunities at the Lab were limited because of a
reduction in force. Consequently, Trimmer was unable to find employment during
this final alternate-placement process and was subsequently medically discharged.
These circumstances, Trimmer asserts, necessarily rendered the delay an
unfavorable employment action.
The dispositive issue in this case is whether Trimmer carried his burden of
proving by a preponderance of the evidence that the ten-month delay in sending
him the discharge letter adversely affected his employment. Rather than simply
asserting that his employment opportunities would have been better had the
alternate-placement search been conducted between March and May 1992, instead
of the spring of 1993, Trimmer must prove that he suffered adverse consequences
from the delay which he would not have suffered had the letter been sent in
March 1992. 8 See Montadon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8 th Cir.
1997) (“[T]he action must have had some adverse impact on [the complainant] to
constitute an adverse employment action.”). He cannot simply rely upon his
desire to have been informed earlier of the Lab’s decision to finally determine his
employment status. See Greaser v. Missouri Dep’t of Corrections, 145 F.3d 979,
8
Because Trimmer had to prove some harmful consequences as a result of
the delay, his reliance upon Ruggles v. California Polythechnic State University
for the proposition that a complainant need not prove that he would have obtained
a particular position is inapposite. 797 F.2d 782, 786 (9 th Cir. 1986).
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984 (8 th Cir. 1998) (“‘[N]ot everything that makes an employee unhappy is an
actionable adverse action.’” (quoting Montandon, 116 F.3d at 359) (intermediate
quotation omitted)); see also Fortner v. Kansas, 934 F. Supp. 1252, 1267 (D.
Kan. 1996) (holding that speculative harm will not constitute adverse employment
action), aff’d subnom. Fortner v. Rueger, 122 F.3d 40 (10 th Cir. 1997).
The following uncontradicted evidence disposes of Trimmer’s claim: the
ten-month delay in initiating yet another alternate-placement process neither
precluded nor hindered him from requesting an alternate-placement process
himself or conducting his own job search at the Lab. Indeed, Trimmer was at all
times free to apply for positions within the Lab. Moreover, during the time he
alleges an alternate-placement search should have been conducted, he was aware
of open positions within the Lab through a friend and he was notified about an
available position but declined to apply at the very time he claims the Lab should
have been conducting an alternate-placement search.
Because his employment opportunities with the Lab were neither eliminated
nor even restricted, Trimmer’s reliance upon Artrip v. Ebasco Services, Inc., and
Sibley Memorial Hospital v. Wilson is unavailing. In both cases the employer
completely eliminated the complainants’ employment opportunities. See Ebasco,
Case No. 89-ERA-23, at 15 (Sec’y Labor, Mar. 21, 1995) (holding that
employer’s “retaliatory refusal to refer Complainant’s name on the [available-
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employee] list eliminated Complainant’s chance of being hired”) (emphasis
added); Sibley, 488 F.2d 1338, 1342-43 (D.C. Cir. 1973) (noting that by refusing
to refer any female patients to male nurse, hospital excluded him from those
employment opportunities).
Even were this court to compare the hypothetical spring of 1992 alternate-
placement search with the 1993 alternate-placement search, Trimmer has
produced no evidence to show that his employability would have been greater in
the spring of 1992. The evidence showed that alternate-placement searches were
successful only approximately ten percent of the time. Furthermore, it appears
that the delay benefitted Trimmer. Because alternate-placement searches ended in
medical discharge more often than not, had the discharge letter been sent to
Trimmer in March of 1992, he likely would have been discharged a year earlier.
Trimmer would thus not have been able to extend the disability status he sought
to maintain. A claim manager for Trimmer’s private insurer met with him in
November 1992 and reported that he had no intention of returning to work at the
Lab. Trimmer seemed “comfortable in his current state and . . . not motivated for
change.” Rather than fully participating in an alternate-placement search in 1993
as requested by the Lab, Trimmer received special accommodation to conduct the
search from home so that he would not, as he claimed, jeopardize the continuous
flow of disability benefits.
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IV. Conclusion
Whistleblower provisions “are intended to promote a working environment
in which employees are relatively free from the debilitating threat of employment
reprisals for publicly asserting company violations of statutes protecting the
environment.” Passaic Valley Sewerage Comm’rs v. Department of Labor, 992
F.2d 474, 478 (3d Cir. 1993). They are not, however, intended to be used by
employees to shield themselves from the consequences of their own misconduct
or failures. See Kahn v. Secretary of Labor, 64 F.3d 271, 279 (7 th Cir. 1995)
(rejecting “[plaintiff’s] attempt to hide behind his protected activity as a means to
evade termination for non-discriminatory reasons”). Trimmer cannot use his
whistleblower status to avoid the consequences of his inaction in seeking gainful
employment.
Substantial evidence supports the conclusion that Trimmer failed to carry
his burden of proving that the delay in sending the discharge letter constituted an
adverse employment action. Accordingly, the Secretary’s decision is
AFFIRMED.
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