United States Court of Appeals,
Eleventh Circuit.
No. 94-4067.
BECHTEL CONSTRUCTION COMPANY, Petitioner,
v.
SECRETARY OF LABOR, Respondent.
April 20, 1995.
Petition for Review of a Final Decision and Order of the Secretary
of Labor. (No. 87-ERA-0044).
Before CARNES, Circuit Judge, DYER and GUY*, Senior Circuit Judges.
RALPH B. GUY, Jr., Senior Circuit Judge:
This is an appeal from the Secretary of Labor's determination
that petitioner violated the employee protection provisions of the
Energy Reorganization Act, commonly referred to as whistleblower
provisions. The provisions prohibit an employer from discharging
or otherwise discriminating against any employee who has engaged in
protected activities. On appeal, petitioner Bechtel Construction
Company (Bechtel) claims that the Secretary of Labor's finding that
Bechtel discharged one of its employees for engaging in
whistleblower activities is not supported by substantial evidence.
Petitioner further claims that the employee's conduct was not
protected activity as a matter of law.
Our review of the record convinces us that the Secretary
should be affirmed.
I.
Bechtel is a contractor at the Turkey Point Nuclear Power
*
Honorable Ralph B. Guy, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
Facility at Florida City, Florida. Turkey Point is owned and
operated by the Florida Power and Light Company (FPL), which is
licensed to operate the facility by the Nuclear Regulatory
Commission (NRC). Bechtel built the plant for FPL and continues to
maintain it. The facility is divided into two areas, the radiation
control area and the non-radiation area.
Approximately every 18 months the nuclear units at Turkey
Point are shut down for refueling, maintenance and general repairs.
These periods are called refueling outages, and may last from
several weeks to several months depending upon the work required.
During these periods of increased maintenance work, Bechtel hires
additional workers. In the spring of 1987, during one of these
periods, Bechtel needed an additional carpenter crew for work
inside the radiation control area (RCA), a large area which
includes containment units, buildings, facilities, and grounds.
All persons who work in the RCA must attend and pass a three-day
course known as Red Badge School, which takes place at the facility
and instructs the workers on RCA procedures, including health
physics requirements and handling of radiation-contaminated
objects.
The RCA is supervised and controlled pursuant to NRC
guidelines and regulations. All contemplated work and activity in
the RCA is pre-screened by the licensee, FPL, or its contractor,
Bechtel, to determine the amount of possible radiation exposure,
the necessary protective clothing and the equipment necessary for
such work assignments. Each work activity requires a radiation
work permit (RWP), which provides and identifies necessary
information.
During the spring 1987 outage Larry Williams, the carpenters'
general foreman, decided to form an additional carpenter crew,
elevating John Wright as crew foreman. Bechtel staffed the new
crew primarily by hiring new workers. Williams, however, wishing
to include an experienced, Red Badge-certified carpenter,
approached a non-RCA carpenter foreman, Greg Lilge, and asked that
Russ Smith, one of Lilge's crewmembers, be transferred to Wright's
crew.
Lilge offered Roy Nichols, instead. Except for an eight- to
ten-week layoff, Nichols had worked as a non-RCA carpenter for
Bechtel for 31 months. For the previous six months, however,
Nichols reflected what Lilge described as an attitude problem. A
few weeks earlier, Lilge had recommended to Williams that Nichols
be laid off in the next reduction in force at the end of the
outage. Nonetheless, Williams approached Nichols about this
proposed transfer. He told Nichols that Wright's crew needed some
experienced carpenters, and that it was "more than likely" that
Nichols would return to Lilge's crew when the outage was over. At
the hearing, however, Williams admitted that he did not tell
Nichols the whole truth, and that he actually believed that all of
Wright's crew, including Nichols, would be laid off at the end of
the outage. Nichols transferred to Wright's crew in early March
1987. During the first weeks of the outage, the temporary crew
worked in non-radioactive areas. Later, however, the crew was
assigned to work on a unit that required handling contaminated
tools.
When working in radioactive areas, the crew members would
change into special clothing at the beginning of their work shift.
They would then select tools they needed for the particular task.
These previously contaminated tools were stored in a "hot tool box"
located in a storage building for radioactive materials. Upon
obtaining the tools, a crew member would have the health physics
(HP) staff person on duty measure the amount of contamination and
write the rate of contamination on a tag attached to the bag
containing the tools. The procedure was known as "taking a dose
rate and tagging" the tools. The HP technician also would brief
the employees on the highly contaminated areas and required safety
precautions. He would then give the employee an RWP, listing the
equipment and radiological conditions under which the employee
would be working. The employee was required to sign the RWP, which
indicated agreement to abide by the permit's regulations.
When Wright's crew began working inside the RCA, Nichols and
Wright disagreed over the proper procedure for surveying and
tagging contaminated tools. Nichols had not previously worked in
the RCA, but he had taken five Red Badge courses. Based on his
training, Nichols understood that contaminated tools were to be put
in two double polyurethane bags and carried to the "frisking
station" where the HP technician on duty could take a dose rate and
tag them. Wright told Nichols that the tools could be placed in a
single bag, and if the HP technician was not at the frisking
station, the tools could be taken to the HP technician in the dry
storage warehouse for dosing and tagging. Nichols disagreed and
stated that he believed safety procedures required that the tools
be surveyed at the tool box.
In general, workers within the RCA differed in opinion as to
which procedure was correct. Wright's approach was consistent with
the way another crew operated and with the view of some HP staff
members. Nichols and some other crew members, however, thought the
procedure violated safety requirements. Another crew member on
Nichols' crew testified at the administrative hearing regarding
Nichols' whistleblower claim that he had made an anonymous
complaint to the senior HP supervisor about the practice. Even HP
technicians had given conflicting instructions.
Nichols insisted on waiting at the tool box for an HP worker
to survey the tools before reporting to the work site, contrary to
Wright's instruction. Nichols told his foreman's supervisor,
Williams, that he disagreed with the way Wright said to handle the
tools. Williams told Nichols he would investigate. Nichols also
approached a couple of the HP technicians and the HP supervisor
assigned permanently to Turkey Point to discuss this issue.
Ultimately the HP shift supervisor, Donald Hicks, resolved the
issue of where to survey and tag tools. The HP supervisor told
Wright that Nichols was correct about where the tools had to be
surveyed. Wright indicated that he believed that surveying the
tools at the tool box caused too much delay. Nevertheless, Wright
acceded and told his crew to have their tools surveyed and tagged
at the tool box. Hicks also mentioned to Williams and Wright that
he had received a complaint about the tool handling situation, but
refused to identify the complainant. Wright, however, learned from
other crew members that Nichols had complained to Williams about
how the tools were being handled. Wright confronted Nichols, and
advised Nichols to come to him first with any such problems.
Nichols reminded Wright that he had already come to him about the
issue.
As the outage came to an end in April of 1987, Williams
approached Wright and told him that, as part of the reductions in
force which had begun earlier that month, Wright should pick one of
his carpenters to be laid off. Wright initially selected a crew
member who was absent from work that day. The next day, however,
he told Williams to lay off Nichols. Williams asked Wright if he
was sure. Wright indicated that he was, and Nichols was laid off.
Within 30 days, Wright's entire crew was laid off. Wright
returned to his carpenter position. Bechtel did recall some of the
temporary employees for additional work; it never recalled Nichols
however. Nichols became ineligible for rehire sometime in 1988 or
1989 because Bechtel hires its carpenters through the union, and
Nichols had stopped paying his union dues.
After he had been laid off, Nichols asked Williams why he had
been let go. Williams indicated that Nichols had always been a
good worker, and was laid off at Wright's discretion because Wright
believed he could work better with the other carpenters on the
crew.
In May 1987, Nichols filed an administrative complaint with
the United States Department of Labor (DOL) alleging that Bechtel
unlawfully discriminated against him. He claimed that Bechtel laid
him off because he insisted on following safety procedures.
Following an investigation, DOL's Wage and Hour Division of the
Employment Standards Administration issued a letter concluding that
Bechtel had discriminated against Nichols by terminating his
employment at Turkey Point for activities protected by the Energy
Reorganization Act of 1974, as amended (the Act or ERA), in
violation of 42 U.S.C. § 5851 and implementing regulations
thereunder. Bechtel requested a hearing before an administrative
law judge (ALJ).
During that hearing, Nichols testified on his own behalf and
called three former co-workers. Deposition testimony of the health
physics supervisor also was admitted. Bechtel called five of its
supervisors, including Wright and Lilge, and four carpenter crew
members.
At the hearing, Wright testified that Nichols was slow in
getting dressed in the required protective gear and prolonged work
by working slowly on some assignments. He further testified that
he believed that he could get more work out of the other crew
members. Wright did not tell Nichols that his work was too slow,
nor did he report his performance to Wright's superiors, except for
once mentioning to Williams that Nichols was slow in getting
dressed and ready for work in the morning.
Nichols testified that the only time he ever intentionally
stretched out a job was when his foreman directed him to do so.
Fellow crew members attested to Nichols having performed his work
according to procedures and testified that he did not stretch out
jobs or fail to get along with his foreman.
One crew member who had worked for Bechtel as a temporary
worker during five outages testified that based on his experience
the temporary and less experienced workers were usually laid off
ahead of more senior experienced workers. Nichols, however, was
the first laid off from Wright's crew, ahead of other less
experienced crew members.
Two of Nichols' fellow crew members testified that Wright had
directed them to violate established safety procedures.
The ALJ recommended against relief for Nichols. He concluded
that Nichols had not engaged in protected activities but, rather,
had merely questioned a supervisor about the correct method of
handling tools. According to the ALJ, Nichols was "unfamiliar with
the procedures" and "wondered" about the proper way to handle the
contaminated tools. The ALJ determined that even if Nichols had
engaged in protected activity Bechtel's termination of Nichols was
not discriminatory, as Nichols was unable to show that protected
conduct was a motivating factor in the employer's decision.
Bechtel laid off Nichols "in a bona fide force reduction," noting
that "Wright's reason for dismissing Nichols did not concern his
skills, but his attitude."
On appeal, in 1992, the Secretary of Labor (Secretary) issued
a final decision and order concluding that the ALJ's decision was
not supported by the evidence. The Secretary found that Nichols
had met his prima facie burden for showing that Bechtel had
discriminated against him. The Secretary concluded that Nichols'
questioning of the tool handling procedures was "tantamount to a
complaint that correct safety procedures were not being observed."
In referring to the record, the Secretary noted the dispute between
Nichols and Wright over proper procedures and Nichols' going to
Wright's supervisor, Williams, about his concerns that the correct
procedure was not being followed. The Secretary also found that
Bechtel's reasons for Nichols' layoff "were not believable" and
that Nichols "sustained the burden of persuasion that the real
reason for his selection [to be laid off] was his protected
activity." The Secretary ordered that Nichols be reinstated and
remanded the case to the ALJ for determination of back pay.
On remand, the ALJ determined that Nichols was not entitled to
reinstatement and was due back wages for one month. In reaching
this decision, the ALJ reasoned that the entire crew had been laid
off within 30 days of Nichols' termination. Although Bechtel might
have later recalled Nichols, the ALJ declined to award back pay for
such wages because the amount could not be determined with
reasonable certainty.
On appeal of the relief determination, the Secretary issued
his final decision and order. He accepted the ALJ's recommendation
regarding back pay and concluded that Nichols was not entitled to
reinstatement. Bechtel appeals.
II.
A. Protected Activity
We review questions of law on a de novo basis. See Cornelius
v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991). Bechtel claims
that general inquiries regarding safety do not constitute protected
activity. We agree. Our inquiry does not end there, however, as
we agree with the Secretary that the record clearly supports that
Nichols did not merely make general inquiries regarding safety but,
rather, he raised particular, repeated concerns about safety
procedures for handling contaminated tools. Specifically, Nichols
questioned his foreman, Wright, about the correct safety procedure
for tool handling. He also raised the issue with Wright's
supervisor. The Secretary correctly characterizes questioning
one's supervisor's instructions on safety procedures as "tantamount
to a complaint."
At the time Nichols filed his complaint in 1987, § 210(a) of
the ERA prohibited nuclear industry employers from discharging or
otherwise discriminating against their employees because the
employee:
(1) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under this
chapter or the Atomic Energy Act of 1954, as amended [42
U.S.C.A. § 2011 et seq.], or a proceeding for the
administration or enforcement of any requirement imposed under
this chapter or the Atomic Energy Act of 1954, as amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any other
manner in such a proceeding or in any other action to carry
out the purposes of this chapter or the Atomic Energy Act of
1954, as amended.
42 U.S.C. § 5851(a). The Act did not define the term "proceeding"
or the phrase "any other action to carry out the purposes of this
chapter."
Although this circuit has not addressed the scope of protected
activity under § 5851(a), numerous other circuits have. Every
circuit, except for the Fifth Circuit, has agreed with the
Secretary's interpretation that under circumstances such as these,
when an employee makes informal complaints, such acts constitute
protected activity. See, e.g., Jones v. Tennessee Valley Auth.,
948 F.2d 258, 264 (6th Cir.1991); Couty v. Dole, 886 F.2d 147, 148
(8th Cir.1989); Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505,
1510 (10th Cir.1985), cert. denied, 478 U.S. 1011, 106 S.Ct. 3311,
92 L.Ed.2d 724 (1986); Mackowiak v. University Nuclear Sys., Inc.,
735 F.2d 1159, 1163 (9th Cir.1984); Consolidated Edison Co. v.
Donovan, 673 F.2d 61 (2d Cir.1982); but see Brown & Root, Inc. v.
Donovan, 747 F.2d 1029 (5th Cir.1984) (filing of internal safety
reports is not protected activity under ERA). Consistent with the
majority of circuits that have decided this issue, the Third
Circuit held that a similar whistleblower provision of the Clean
Water Act (33 U.S.C. § 1251 et seq.) covered internal complaints.
Passaic Valley Sewerage Comm'rs v. DOL, 992 F.2d 474, 478 (3d
Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 439, 126 L.Ed.2d 373
(1993).
The Secretary has interpreted the phrase "any other action"
under § 5851(a)(3) to extend beyond mere participation in a
"proceeding" to include internal complaints made to supervisors and
others. See, e.g., Kansas Gas, 780 F.2d at 1510; Mackowiak, 735
F.2d at 1162. Otherwise, the phrase would be mere surplusage,
adding nothing to the protection already granted to participation
in "proceedings."
Under Chevron v. Natural Resources Defense Council, Inc., 467
U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must defer to
an agency's interpretation of a statute committed to it for
administration if, absent a clear and unambiguous indication of
congressional intent, the agency has construed the statute
reasonably. If "Congress has not directly addressed the precise
question at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the absence
of an administrative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based on
a permissible construction of the statute." Id. at 843, 104 S.Ct.
at 2782 (footnote omitted).
We agree that the statute does not directly address whether
internal complaints are protected activity, and therefore we
consider whether the Secretary's construction is permissible. The
Secretary bases his construction in part on legislative history.
For example, the legislative history suggests that Congress was
aware at the time the provision was enacted that analogous statutes
had been interpreted to include internal complaints. The Senate
Report accompanying the bill states that this section is
"substantially identical" to provisions in the Clean Air Act and
the Federal Water Pollution Control Act, and that these acts were
themselves "patterned after the National Labor [Relations] Act and
a similar provision in Public Law 91-173 [the Federal Coal Mine
Health and Safety Act of 1969]." S.Rep. No. 848, 95th Cong., 2d
Sess. 29 (1978), reprinted in 1978 U.S.C.C.A.N. 7303. The "similar
provision" referred to in the Coal Act had previously been
construed to cover a miner's presentation of safety complaints to
his employer. E.g., Phillips v. Interior Bd. of Mine Operations
Appeals, 500 F.2d 772 (D.C.Cir.1974), cert. denied sub nom.,
Kentucky Carbon Corp. v. Interior Bd. of Mine Operations Appeals,
420 U.S. 938, 95 S.Ct. 1149, 43 L.Ed.2d 415 (1975). Moreover, the
same Congress that enacted the ERA's whistleblower provisions
amended the Coal Act to clarify expressly its approval of the
Phillips interpretation. S.Rep. No. 181, 95th Cong., 1st Sess. 36
(1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3436.1
Even without Chevron, it is appropriate to give a broad
construction to remedial statutes such as nondiscrimination
provisions in federal labor laws. See, e.g., Jones v. Metropolitan
Atlanta Rapid Transit Auth., 681 F.2d 1376, 1380 (11th Cir.1982),
cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984).
The Secretary's interpretation promotes the remedial purposes of
the statute and avoids the unwitting consequence of preemptive
retaliation, which would allow the whistleblowers to be fired or
otherwise discriminated against with impunity for internal
complaints before they have a chance to bring them before an
appropriate agency. See, e.g., Macktal v. Secretary of Labor, 923
F.2d 1150, 1152 (5th Cir.1991). This construction encourages
safety concerns to be raised and resolved promptly and at the
lowest possible level of bureaucracy, facilitating voluntary
compliance with the ERA and avoiding the unnecessary expense and
delay of formal investigations and litigation.
We are not convinced otherwise by the Brown & Root decision.
First, we note that the Fifth Circuit did not mention the Supreme
Court's then-recent decision in Chevron, relying instead on
1
In 1992, Congress amended the ERA's whistleblower
provisions to provide explicitly that an employer may not
discriminate against employees for making internal complaints
about safety procedures. 42 U.S.C. § 5851(a)(1)(A) and (B). The
amendment applies to all complaints filed after the effective
date of the statute, October 24, 1992.
pre-Chevron principles according less weight to agency
interpretations. 747 F.2d at 1032-33. Second, the Fifth Circuit
accorded less weight to the Secretary's interpretation in part
because "the Secretary of Labor does not appear to have great
expertise in matters of nuclear safety." 747 F.2d at 1032. As the
Supreme Court has observed more recently, however, "while [ERA's
whistleblower provisions] obviously [bear] some relation to the
field of nuclear safety, [their] "paramount' purpose was the
protection of employees." English v. General Elec. Co., 496 U.S.
72, 83, 110 S.Ct. 2270, 2277, 110 L.Ed.2d 65 (1990). Indeed,
Congress entrusted the enforcement and administration of ERA's
whistleblower provisions "not to the NRC—the body primarily
responsible for nuclear safety regulation—but to the Department of
Labor." Id. at 83 n. 6, 110 S.Ct. at 2277 n. 6. Therefore the
Secretary's expertise in employee protection entitles his view to
deference. Moreover, the Brown & Root Court ignored relevant
legislative history indicating the statutory models upon which ERA
was based and instead compared the statute to the Federal Mine
Safety and Health Act, enacted in 1977, which expressly protected
internal complaints.2
B. Substantial Evidence
Given that we find the Secretary correctly determined that
Nichols engaged in protected activity, we also must address whether
the Secretary properly found that Bechtel had discriminated against
2
Even Bechtel seems to concede that informal complaints are
protected under the Act. It carefully limits its
characterization of Nichols' complaint as mere "general
questioning." We do not address whether mere general questions
regarding safety measures are protected activity under the Act.
him by firing him because of that activity. A Secretary's findings
of fact and credibility choices must be supported by substantial
evidence. NLRB v. Datapoint Corp., 642 F.2d 123, 126 (5th
Cir.1981). We find that there is substantial evidence to support
such a determination. Substantial evidence has been defined as "
"such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.' " Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206,
216, 83 L.Ed. 126 (1938)); see also Northport Health Serv., Inc.
v. NLRB, 961 F.2d 1547, 1550 (11th Cir.1992). As in this case,
when there are disagreements between the Secretary and the ALJ
involving questions of fact and credibility, the court may examine
the evidence more critically in determining whether there is
substantial evidence to support the Secretary's decision. Syncro
Corp. v. NLRB, 597 F.2d 922, 924-25 (5th Cir.1979). Under that
standard, we are not required to choose between the ALJ's and
Secretary's determinations. Rather, we merely require that the
Secretary's choice in adopting two fairly conflicting views, "be
supported by articulate, cogent, and reliable analysis."
Northport, 961 F.2d at 1553-54.3
3
The length and complexity of the trial are relevant to the
issue of deference due an ALJ. Bechtel argues that the
Secretary's review of the evidence from a cold record cannot
compare with the ALJ who "was an impartial and experienced
examiner who lived with the case." Bechtel, who is urging that
this court reverse the Secretary's decision in favor of the ALJ's
recommendation, erroneously states that the ALJ conducted a
hearing "from October 15, 1987 through November 5, 1987." The
record reflects, however, that the hearing lasted for two days,
beginning on October 15, and continuing on November 5.
To show discrimination, an employee must establish that (1)
the employer is governed by the Act; (2) the employee engaged in
protected activity as defined in the Act; and (3) as a result of
engaging in such activity, the employee's terms and conditions of
employment were adversely affected. 42 U.S.C. § 5851. The
Secretary addressed whether Nichols made out a prima facie case,
showing (1) the employer is covered by the act, (2) the employee
engaged in protected activity, (3) the employee suffered adverse
action, and (4) there is an inference of causation between the
protected activity and the adverse action. Proximity in time is
sufficient to raise an inference of causation. Couty, 886 F.2d at
148.
Once an employee has made a prima facie showing, the burden
then shifts to the employer to produce evidence that its action was
motivated by a legitimate, non-discriminatory reason. Bechtel did
this when Wright suggested that Nichols was slow, and had an
attitude problem. The burden of production then shifts to the
employee to establish that the employer's proffered reason is
pretextual by establishing either that the unlawful reason, the
protected activity, more likely motivated Bechtel or that the
employer's proffered reason is not credible and that the employer
discriminated against him. Although the Secretary's decision was
issued before the Supreme Court's decision in St. Mary's Honor
Center v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993), the Secretary determined that Nichols had "sustained the
burden of persuasion that the real reason for his selection was his
protected activity."
We first address whether Nichols established a prima facie
case of discrimination. Bechtel concedes that it is an employer
covered under the Act and that Nichols suffered an adverse action
in being laid off. As discussed above, we conclude Nichols engaged
in protected activity. Since Nichols was terminated shortly after
he complained, an inference of causation was permissible.
We next address whether there was substantial evidence to
support the Secretary's determination that Nichols rebutted
Bechtel's explanation for his termination. Of the witnesses who
testified about Nichols' performance in March and April, only
Wright and foreman Trantham stated that Nichols was a slow worker
who exhibited a poor attitude.
Foreman Trantham, who was not Nichols' foreman, indicated that
he observed Nichols working slowly on one occasion. Although he
further testified that Nichols was slow to dress in protective
gear, he admitted that the dressing area was "tight" and often
contained about 50 carpenters at a time and the workers
occasionally had to wait for clothing in their size.
Wright's criticism of Nichols was either vague or
insignificant. For example, in explaining why he retracted one
crew member's name in favor of Nichols' when asked for a candidate
for a layoff he stated: "Nichols was slowing down the work....
The way he was doing it, it just didn't—I wasn't pleased." The
examples of problems with Nichols' job performance, all of which
supposedly related to his being slow, are not worthy of credit. In
one example, Wright testified that he told Nichols' partner that a
scaffold needed to be completed that day, but that the partner
later told Wright that Nichols said they should take the day to
tear the scaffold down. Wright further testified that on another
occasion it took Nichols eight hours to perform an assignment that
should have taken "half-a-day." Wright also mentioned having to
reassign an asbestos removal task because Nichols insisted on
wearing a respirator while performing the work. Regarding the
scaffolding incident, the record does not establish that Nichols
ever knew of the one-day deadline which he exceeded. The half-day
assignment was prolonged in part due to delay caused by waiting for
an available respirator to perform the task. Relative to the
reassignment, Wright did not explain what Nichols had done wrong.
If Nichols' concerns involved safety matters, the reassignment
would not weigh legitimately against him.
Wright did not discuss Nichols' slow work with him or with
Wright's superiors, except for once mentioning to Williams that
Nichols was slow to begin working in the morning. Delay by Nichols
in getting to the work site was at least in part attributable to
safety procedures, which required the surveying of tools, and at
times entailed waiting for an HP worker to come to the tool box.
In support of Nichols, three fellow crew members testified
that Nichols was diligent, did not work slowly, and did not
demonstrate attitude problems about his work or supervisors. The
Secretary found that their testimony undermined the ALJ's finding
that Nichols did not get along with carpenters in Wright's crew,
since three of the six other carpenters in the crew indicated that
they did get along with Nichols.
We also find substantial evidence to support the Secretary's
conclusion that the record contained unconvincing evidence of
Nichols' poor work attitude. In this case, the witnesses agreed
that Nichols got along with his superiors. Wright said that he had
no problems getting along with Nichols as a person. Foreman
Trantham said that the carpenters in Wright's crew "were good
friends to [Nichols]."
The pretextual nature of Bechtel's terminating Nichols is
further demonstrated by Bechtel's shifting explanations for its
actions. During the proceeding, the ALJ asked Bechtel whether
Nichols' job performance or medical condition of arthritis were
issues in the case. Bechtel indicated that they were not,
attributing his dismissal rather to his attitude, his "gung ho
nature."
Yet, on appeal, petitioner's argument is cast entirely as if
the layoff was due to poor job performance, exacerbated by Nichols'
arthritic condition. On appeal Bechtel argues that it laid off
Nichols before any other crew members because "his job performance
paled in comparison to the other crew members." Given that, on the
record, Bechtel has indicated that these issues were not factors in
Nichols' termination, we will not now consider them.
We next consider whether substantial evidence exists to
support the Secretary's conclusion that Nichols' actions regarding
safety procedures were the motivating factor in laying off Nichols.
The ALJ's characterization of the tool procedure dispute as "minor"
is undermined by the record which shows that Wright was preoccupied
with getting work started quickly at the expense of proper safety
procedures. The importance of this issue to Wright is corroborated
by the testimony of two of Nichols' fellow crew members who also
had difficulties with Wright over delays caused by adhering to
safety procedures. Wright himself admitted that he was "a little
upset" at Nichols' having raised the issue about tool safety
procedures with Wright's superior.
The Secretary, having considered the record, concluded that
Nichols satisfied the burden of persuasion in establishing that the
real reason for his being laid off was his having engaged in
protected activity. The Supreme Court held in St. Mary's that
rejection of defendant's proffered reason for taking an adverse
action does not compel judgment for the plaintiff, however, the
Court also stated:
The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.
Thus, rejection of the defendant's proffered reasons, will
permit the trier of fact to infer the ultimate fact of
intentional discrimination, and the Court of Appeals was
correct when it noted that, upon such rejection, "[n]o
additional proof of discrimination is required...."
Id. at ----, 113 S.Ct. at 2749 (footnote omitted) (quoting Hicks v.
St. Mary's Honor Center, 970 F.2d 487, 493 (8th Cir.1992)).
Although St. Mary's had not been decided at the time the
Secretary rendered the decision on liability in this case, we find
nevertheless that the decision is consistent with the Supreme
Court's opinion. The Secretary specifically held that Nichols
"sustained the burden of persuasion that the real reason for his
selection was his protected activity," based on the record
discussed above.4
AFFIRMED.
4
Bechtel argues that the Secretary's determination that the
remedy of reinstatement is not appropriate in this case as
somehow supporting its contention that the Secretary's liability
determination is in error. The determinations are not
inconsistent. The Secretary, determining relief, relied on
uncontroverted testimony by Nichols former foreman, Lilge, that
he thought Nichols for the past six months that he had worked for
him had an attitude problem and because of that he would not have
wanted Nichols back after his layoff from Wright's temporary
crew. The Secretary, in disposing of the liability issue, found
that Lilge's opinion of Nichols, however, had no relevance as to
why Wright, Nichols temporary foreman, chose to lay off Nichols.
There is no suggestion on appeal that Lilge's opinion was a
factor in Wright's decision to lay off Nichols. Lilge's
uncontroverted testimony regarding his opinion of Nichols as a
worker therefore was rejected for purposes of liability but was
relied on as relevant testimony for the separate issue of relief.