ML20205M221
| ML20205M221 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry  |
| Issue date: | 08/18/1997 |
| From: | Reynolds N WINSTON & STRAWN |
| To: | Lieberman J NRC OFFICE OF ENFORCEMENT (OE) |
| Shared Package | |
| ML20205M044 | List: |
| References | |
| FOIA-99-76 NUDOCS 9904150181 | |
| Download: ML20205M221 (37) | |
Text
4 WINSTON & STRAWN ss west wAcKEm DmivE 1400 L STREET, N W.
- e. RUE DU CIROUE CHicAoo. LLuHots aosoi 97e3 WASH!NGTON, D C. 20005-3502 7sooe Pants. rmANCE 200 PARK AVENUE (202) 371 5700
- 43. Aus Du nuoNE NEW YORK. NY 10104,-4193 1204 GENEVA, SWITZERLAND FACSIMtLE (202} 3715950 NICHOLAS S. REYNOLDS (202) 371 P17 v
August 18, 1997 E
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James Lieberman Director, Office of Enforcement W
U.S. Nuclear Regulatory Commission g2.
Washington, D.C.
20555 MO Re:
Doualas Harrisen v.
Stone & Webster Enc'c Co Case No. 95-6850 (11th Cir.)
Dear Mr. Lieberman:
i I enclose a copy of the Petition for Rehearing with Suggestion of Rehearing En Banc which we are filing today with the U.S.
Ccurt of Appeals for the Eleventh Circuit on behalf of Stone & Webster Engineering Corporation.
By way of background, the case concerns a former Stone & Webster employee at Browns Ferry, Douglas Harrison, whom the Secretary of Labor found had been discriminated against by Stone & Webster in violation of Section 211.
On July 2, the Eleventh Circuit affirmed the Secretary's final decision.
I bring this matter to your attention in connection with the separate Notices of Violation issued by NRC Region II on February 14, 1996, to Stone & Webster and the Tennessee Valley Authority.
These notices cite violations of the NRC's employee protection regulation, 10 C.F.R. S 50.7, based on the Secretary of Labor's findings in the Section 211 case.
As in the past, I will apprise you of further developments in this matter.
Since U
1 Nicholas S.
keynolds Enclosure I
h 9904150181 990413 PDR FOIA GUNTER99-76 PDR
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k IN THE UNITED STATES COURT OF APPEALS
(
FOR THE ELEVENTH CIRCUIT No. 95-6850 STONE AND WEBSTER ENGINEERING CORPORATION Petitioner, v.
(
ALEXIS HERMAN, SECRETARY, U S. DEPARTMENT OF LABOR
/
Respondent.
(
On Petition for Review of the Decision and Order of the Secretary of the Un't xi States Department of Labor I
PETITION OF STONE AND WEBSTER ENGINEERING CORPORATION FOR REHEARING WITH SUGGESTION OF REHEARING EN BANC I
NICHOLAS S. REYNOLDS ROBERT M. RADER DONN C. MEINDERT3MA Attorneysfor Stone and Webster Engineering Corporation WINSTON & STRAWN 1400 L Street, N.W.
Washington, DC 20005 August 15, 1997 (202) 371-5700
(
U 4
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT C
STONE & WEDSTER ENGINEERING
)
CORPORATION,
)
)
g Petitioner,
)
}
l v.
)
No. 95-6850
)
ALEXIS HERMAN, UNITED STATES
)
SECRETARY OF LABOR,
)
(
)
1 Respondent.
)
l CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and Rule 26.1-1, 26.1-2, and 26.1-3 of this Court, Stone & Webster Engineering Corporation, by counsel, identifies the following interested parties and corporate parents, subsidiaries, and affiliates, in alphabetical order:
3 Executive Campus Corp. (subsidiary) 3 Executive Campus Realty, Inc. (affiliate) 245 Summer Street Corp. (subsidiary) i 1430 Enclave Parkway Realty, Inc. (subsidiary)
Advanced Technologies (Cayman) Ltd. (affiliate)
AEC International Projects, Inc. (affiliate) l Associated Engineers & Consultants, Inc. (affiliate) i Auburn VPS General Corp. (affiliate) i Auburn VPS Limited Corp. (affiliate) i Bugshan S&W Ltd. (affiliate) 4 C-1 of 6
)
i
Stone & Webster Engineering Corporation
- v. Alexis Herman, Secretary, United States Department of Labor Commercial Cold Storage, Inc. (affiliate)
DSS Engineers, Inc. (subcidiary)
Enclave Parkway Realty, Inc.-(affiliate)
Fast Supply Corp. (subsidiary)
Joan B. Tucker Fife, Winston & Strawn (attorney for Stone &
Webster Engineering Corp.)-
Douglas Harrison (complainant below) j Alexis Herman, Secretary, U.S. Department of Labor (respondent) i George Huddleston (attorney for complainant below, Douglas Harrison) l International Associates (Cayman) Ltd. (affiliate)
International Engineers & Constructors, Inc. (subsidiary of International Associates (Cayman) Ltd.) (affiliate)
The Honorable Richard K. Malamphy (Administrative Law Judge)
Donn C. Meindertsma, Winston & Strawn (attorney for Stone &
Webster Engineering Corp.)
William G. Miossi, Winston & Strawn (attorney for Stone &
Webster Engineering Corp.)
Prescient.Tec.inologies, Inc. (affiliate)
- i Prccess Engineers (Cayman) Limited Process Engineers, Inc. (subsidiary of Process Engineers (Cayman) Ltd.) (affiliate)
C-2 of 6
r C
Stone & Webster Engineering Corporation
- v. Alexis Herman, Secretary, United States
(
Department'of Labor 1
Robert M. Rader, Winston & Strawn (attorney for Stone &
Webster Engineering Corp.)
Nicholas S. Reynolds, Winston & Strawn (attorney for Stone &
Webster Engineering Corp.)
Rockton Associates, Inc. (subsidiary)
Rockton Field Services of Canada Ltd. (affiliate)
Rockton Technical Services Corp. (affiliate)
Rocky Flats Engineers & Constructors, LLC (affiliate)
Sabal Corp. (affiliate)
/
SAW Construction Corp. (affiliate)
SAW Consulting Services, Inc. (affiliate)
/
Sleeper Street Realty Corp. (affiliate)
James H.
Stansell, Jr. (attorney for complainant below, Douglas Harrison )
Selective Technologies Corp. (subsidiary of Advanced Technologies (Cayman) Ltd. ) (af filiate)
Stone & Webster Abu Dhabi (UAE), Inc. (af:?iliate)
Stone & Webster Anadolu Muhendislik Muteahhltlik Dis Ticaret Limited Sirketi (affiliate)
Stone & Webster Asia Corp. (affiliate)
Stone & Webster Auburn Corp. (af f '.liate)
Stone &' Webster Bharat, Inc. (affiliate)
Stone & Webster Binghamton Corp. (affiliate)
C-3 of 6
F-l-
Stone & Webster Engineering Corporation
- v. Alexis Herman, Secretary, United States Department of Labor Stone & Webster Canada Ltd. (affiliate)
Stone & Webster Civil & Transportation Services, Inc.
L (subsidiary)
Stone & Webster Construction Company, Inc. (subsidiary)
Stone & Webster Construction Ltd. (affiliate)
Stone & Webster Development Corp. (affiliate)
Stone & Webster Dominican Republic, Inc. (affiliate)
Stone & Webster Engineering Services Ltd. (affiliate)
Stone & Webster Engineering and Field Services Ltd.
I (affiliate)
Stone & Webster Engineering Corp. (respondent)
Stone & Webster Engineering Ltd. (affiliate)
Stone & Webster Engineering (Mauritius) Ltd. (affiliate)
Stone & Webster Engineers and Constructors, Inc. (affiliate)
Stone & Webster Far East Technical Services Corp.
j (affiliate)
Stone & Webster Group Limited (affiliate) j Stone & Webster, Inc. (parent)
Stone & Webster India Private Ltd. (affiliate)
Stone & Webster Indonesia Corp. (affiliate)
Stone & Webster Industrial Technology Corp. (subsidiary)
Stone & Webster Inter-American Corp. (affiliate)
Stone & Webster International Corp. (affiliate)
C-4 of 6
(.
Stone & Webster Engineering Corporation
- v. Alexis Herman, Secretary, United States g
Department of Labor Stone & Webster International Projects Corp. (affiliate)
Stone & Webster Italia, Inc. (affiliate)
(
Stone & Webster Korea Corp. (affiliate)
Stone & Webster Kuwait, Inc. (affiliate)
Stone & Webster Lithuania Corp. (affiliate)
Stone & Webster Management Consultants, Inc. (affiliate)
Stone & Webster Management Consultants Ltd. (affiliate) g Stone & Webster Michigan, Inc. (subsidiary)
Stone & Webster Middle East Engineering Services Corp.
/
(affiliate)
Stone & Webster Oak Ridge, Inc. (affiliate)
/
Stone & Webster of Argentina Corp. (subsidiary of Stone &
Webster Management Consultants, Inc.)
T Stone & Webster of Mexico Engineering Corp. (affiliate)
Stone & Webster Oil Company, Inc. (af fili,W-e)
Stone & Webster. Operating Corp. (subsidiary)
~
Stone & Webster Overseas Consultants, Inc. (subsidiary of Stone & Webster Management Consultants, Inc.)
Stone & Webster Overseas Group, Inc. (affiliate)
Stone & Webster Pacific Corp. (affiliate)
Stone & Webster Power Engineering Corp. (affiliate)
Stone & Webster Power Projects Corp. (subsidiary) 1 Stone & Webster Puerto Rico, Inc. (affiliate)
C-5 of 6
.(.
Stone & Webster Engineering Corporation
- v. Alexis Herman, Secretary, United States
(
Department of Labor Stone & Webster St. Jerome Ltd. (affiliate)
Stone & Webster Saudi Arabia, Inc. (affiliate)
Stone & Webster Services Ltd. (affiliate)
Stone & febster Services Sdn. Bhd. (affiliate) g Stone & Webster Taiwan Corp. (affiliate)
Stone & Webster Technology B.V.
(affiliate)
Stone & Webster Technology Corp. (affiliate)
[
Stone & Webster (Thailand) Ltd. (affiliate)
Stone & Webster United Arab Emirates Ltd. (affiliate)
/
Stone & Webster Worldwide Engineering Corp. (eubsidiary)
Summer Street Realty Corp. (affiliate) t SWEC Zainal Sdn.'Bhd.
SWL Corp. (affiliate)
Winston & Strawn (law firm representing petitioner)
C-6 of 6
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ELEVENTH CIR.
R.
35-6fei STATEMENT I
express a belief, based on a
reasoned and studied professional judgment, that the panel decision is contrary to the following decision (s) of the Supreme Court of the United States or the precedents of this circuit and that consideration by the full I
is necessary to secure and maintain uniformity of decisions court in this court: Dvsert v.
United States Secreta v of Labor, 105 F.3d 607 (11th Cir. 1997).
(
I express a belief, based on a
reasoned and studied profeeJional judgment, that this appeal involves one or more questions of exceptional importance: What respective burdens of proof apply in cases arising under Section 211 of the Energy
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Reorganization Act of 1974, as amended, 42 U.S.C. S 5851?
l fl
//t.
Attorney of record for Petitioner Stone and Webster Engineering Corp.
(.
r TABLE OF CONTENTS
(
2.A5 ?.
Certificate of Interested Persons C-1 Eleventh Cir. R. 35-6(c) Statement i
(
Table of Citations iii Statement of the Issue 1
Course of Proceedings and Disposition of the Case 1
(
Statement of Facts 2
Argument 4
I.
The Panel's Decision Is Inconsistent with This
(
Court's Decision in Dvsert v.
Secretarv of Labor 5
A.
In Dvsert, this Court Properly Deferred j
to the Secretary's Interpretation of i
the 1992 Amendments to Section 211 Concerning the Applicable Burdens of Proof 5
B.
The Panel Failed in Determining Stone &
Webster's Burden of Proof to Focus on Whether this Is a Pretext or Dual Motive Case 9
II.
The Panel's Error of Law Resulted in an Unjust Determination in this "Close" Case.
12 Conclusion 15 i
Certificate of Service 16 11
TABLE OF CITATIONS Pace CASES:
Bartlik v.
Dec't of Labor 73 F.3d 100 (6th Cir. 1996) 14
)
Bechtel Constr. Co.
v.
Secretary of Labor 50 F.3d 926 (11th Cir. 1995) 6, 7
i t
Caban-Wheeler v.
Elsea 904 F.2d 1549 (lith Cir. 1990) 14 Chevron USA. Inc.
- v. Natural Resources Defense Council. Inc.
467 U.S. 837 (1984) 4, 7,
11 Dvsert v.
Secretary of Labor j
105 F.3d 607 (11th Cir. 1997) passim Fuller v. Phiens 67 F.3d 1137 (4th Cir.1995) 10, 14 Harris v.
Shelbv County Bd. of Educ.
99 F.3d 1078 (lith Cir. 1996) 10 Havnes v.
W.C.
Cave & Co.
52 F.3d 928 (11th Cir. 1995) 14 Kahn v.
Dec't of Labor 64 F.3d 271 (7th Cir. 1995) 6, 11 Mt. Healthy City School Dist. Bd. of Educ.
v.
Doyle 429 U.S. 274 (1977) 7 Texas Dee't of Community Affairs v.
Burdine 450 U.S. 248 (1981) 6 iii
e
,s.
2 h
TABLE OF CITATIONS fcon'd)
- (
EASA ADMINISTRATIVE DECISIONS:
Dartey v.
Zack Co.
Case No. 82-ERA-2 (Sec'y, Apr. 25, 1983) 6, 8
Dvscrt v.
Florida Power Coro.,
Case No. 93-ERA-21 (Sec'y, Aug.
7, 1995)
Dassim
(
Remusat v.
Bartlett Nuclear. Inc.
Case No. 94-ERA-36 (Sec 'y, Feb. 26, 1996) 8 Seater v. Southern California Edison Co.
Case No. 95-ERA-13 (Admin. Rev. Bd., Sept. 27, 1996) 8, 9
Sanorito v. Florida Power & Licht Co.
/
Case No. 93-ERA-23 (Sec'y, Sept.
7, 1995) 10 t
STATUTES:
42 U.S.C.
S 2000e-2 (m) 10 42 U.S.C.
S 5851, as amended Dassim 42 U.S.C. S 5851(b) (3) 5, 9
42 U.S.C. S 5851(b) (3) (C) 7, 9,
11 42 U.S.C.
S 5851(b) (3) (D) 5, 9,
11, 12 iv
9 STATEMENT OF THE ISSUE
(
Whether the panel, in contrast to this Court's decision in Dvsert v. Secretarv of Labor, 105 F.3d 607 (11th Cir. 1997), failed to defer to the Secretary's interpretation of the bu-dens of proof I
applicable in Section 211 cases and imposed the incorrect burden on Petitioner Stone & Webster Engineering Corp.
COURSE OF PROCFFMINGS AND DISPOSITION OF THE CASE I
After the hree-day hearing in this Section 211
- case, Department of Lat udge Richard K. Malamphy ("the ALJ") found that Stone & Webster demoted Complainant Douglas Harrison from his lead foreman position for a
" legitimate, non-discriminatory reason"--to lessen the imbalance between foremen and jccrneyman
/
ironworkers--and that Harrison's transfer to an outside ironworker crew was also non-discriminatory because it was either "made at (his] reque st or " motivated by (Harrison's] unprotected activity in assembling the ironworkers which resulted in a work stoppage."
ALJ Dec. at 30.
The Secretary reversed the ALJ's determinations in his August 22, 1995 Decision and Order ("Sec'y Dec.").
Opining that "[t]he question is close" (Sec' y Dec. at 6) and agreeing that Stone &
Webster had of fered a " legitimate reason for demoting Harrison,"
(id. at 9), the Secretary nonetheless rejected the ALJ's findings and concluded that Stone & Webster had demoted Harrison for engaging in a protected activity.
The Secretary also held that Harrison's subsequent transfer was retaliatory.
Id. at 17.
l
(
\\
A panel of this court affirmed (panel opinion, 115 F.3d 1568, reproduced as Appendix A).
But the panel blurred the distinction g
made by the Secretary in Section 211 cases between so-called
" pretext" and " dual motive" (or " mixed motive") cases, finding i
instead, on a point neither briefed nor argued by the parties, that the 1992 amendments to Section 211 established a new, free-standing scheme applicable to all Section 211 cases that required Stone &
g Webster to prove by " clear and convincing" evidence that it had demoted and reassigned Harrison solely for nondiscriminatory reasons.
The panel found that Stone & Webster "almost" met this heightened burden of proof, but not quite.
STATEMENT OF FACTS j
Harrison's demotion and reassignment.
Stone & Webster is a t
contractor for the Tennessee Valley Authority (TVA), which operates Browns Ferry, a commercial nuclear power plant.
Harrison held a variety of positions as a journeyman, second lead foreman, foreman, and lead foreman.
Upon his promotion to lead foreman, Harrison's supervisors told him that he would be the first lead foreman cut
- back, when necessary, because of the other lead foreman's seniority.
ALJ Recommended Decision and Order i 11 (hereafter "ALJ 1 _" ).
)
James Butts, the Field Manager for all construction work at Browns Ferry (ALJ 11 69-70), reviewed craft rosters for "prudency" in late January 1993 and concluded that the ironworkers' roster showed too many foremen.
Butts asked Steven Ehele, the Chief 2
~
(
Construction Supervisor, who in turn asked the subordinate
(
supervisors to examine the rosters for possible cutbacks where supervision might be " top heavy."
ALJ 11 82-85.
The subordinate supervisors agreed among themselves that their crews were " top i
heavy with one lead foreman" because Harrison was supervising only a single foreman and crew whose work was drawing to a close.
ALJ 1 88.
Ehele reported the supervisors' recommendations to Butts I
either the same af ternoon he had spoken with Butts or the following morning (ALJ T 86)--h, no later than January 30, 1993.
Both the Secretary and the panel agreed that this decisionmaking process s
occurred and constituted a legitimate management response to work conditions (Sec'y Dec. at 6-7; 115 F.3d at 1573-74).
A supervisor notified Harrison of his reduction to foreman on Tuesday, February 2, 1993.
ALJ $$ 52, 55, 60.
Later that day, i
Harrison asked Ehele to transfer him to a different work area.
Ehele agreed.
ALJ 1 64.
Two supervisors corroborated Harrison's transfer request.
Tr. 548-49, 593-94.
Harrison's " protected activity."
The technical issue giving rise to this case involves fire watches at Browns Ferry.
Harrison conceded that, until February 1, 1993, he had never spoken with any supervisor abcut fire watch concerns, and even then his managers perceived the issue not as a safety issue but as a " jurisdictional" one--namely, whether ironworkers as opposed to laborers would be responsible for fire watch dutiea.
ALJ 11 41, 103, 110-113.
It was on February 1 that Harrison first discussed fire watches with 3
l j
r Ehele.
This was after Stone & Webster had already decided to demote him.
The Secretary and panel also found that a conversation
(
about fire watch duties Harrison had with his co-workers on February 3 also constituted " protected activity, " but this came after Harrison had been demoted and it has been Stone & Webster's position that Harrison was later reassigned at his request, not because of the meeting with the co-workers.
I ARGUMENT Proper allocation of the respective burdens of proof is central to just decisionmaking in Section 211 cases.
In this I
"close" case (Sec'y Dec. at 6), where the panel found that Stone &
Webster "almost" met its burden (115 F.3d at 1573),
impropar j
allocation of the burden of proof led to an unjust result.
Rehearing is warranted here because the panel blurred the distinction between pretext and dual motive Section 211 cases, which led to a misallocation of the burdens of proof, and so committed an error of law.
Rehearing en banc is warranted because, in contrast to this Court's decision in Dvsert v.
Secretarv of Labor deferring to the Secretary's interpretation of the burden of proof scheme under amended Section 211, the panel here gave its own interpretation to Section 211 rather than accept the Secretary's evidentiary framework.
Egg Chevron USA. Inc. v.
Natural Resources Defense Council.
Inc., 467 U.S. 837 (1984).
4
I.
THE PANEL'S DECISION IS INCONSISTENT WITH THIS COURT'S DECISION IN DYSERT v.
SECRETARY OF LABOR.
The panel's decision is inconsistent with Dvsert v.
Secretarv of Labor, 105 F.3d 607 (11th Cir. 1997), because the Court there deferred to the Secretary's interpretation of the applicable burdens of proof under amended Section 211, 42 U.S.C.
S 5851, while the panel here did not.
A.
In
- Dysert, this Court-Properly Deferred to the Secretary's Interpretation of the 1992 Amendments to Section 211 concernine the Anelicable Burdens of Proof.
Congress added Section 211(b) (3) to Section 211 in 1992.
In
{
I Dvsert v. Florida Power Corn., Case No. 93-ERA-21, the Secretary j
held that this amendment made only one change in the order and a
)
allocation of burdens of proof and burdens of production in
- hearings" under Section 211.
Sec'y Final Decision and Order, at 1 (Aug.
7, 1995).
Dysert had argued that, once he established a
" prima facie" case of discrimination, the burden shifted to his employer to show by " clear and convincing evidence" that it would have taken the same personnel action in the absence of Dysert's protected ' activity.
The Secretary rejected Dysert's contention that "the 1992 ERA amendments significantly altered the burdens of the parties" (Sec'y Dec. at 3), finding instead that the " clear and convincing" burden in amended Section 211 (211 (b) (3) (D) ) applies only in dual motive cases-- h,
where both legitimate and discriminatory actives led to the adverse employment action.
5
E Thus, according to the Secretary, the 1992 amendments did not alter the burdens of proof in pretext cases.
In such cases, if the
(
complainant establishes a prima facie case of discrimination--that i
is, presents evidence sufficient to infer that discriminatory i
I
(
motive was the resson for the adverse action taken--the employer's burden is to articulate a legitimate, nondiscriminatory reason for the adverse action.
Once the employer does so, the complainant
(
must show that the legitimate reason proffered is a pretext for discrimination, or a " phony" reason, Kahn v.
Deo't of Labor, 64 F.3d 271, 278 (7th Cir.
1995),
and that the true motive was retaliatory.
Bechtel constr. Co.
v.
Secretarv of Labor, 50 F.3d 926, 933-34 (11th Cir. 1995).
t The Secretary made plain in his ruling in Dvsert that this
~
burden of proof scheme, which had been applied in literally hundreds of Section 211 cases, would continue to apply in Section 211 adjudications after the 1992 amendments. In his brief to this Court in Dvsert, the Secretary detailed the long standing burden of proof allocation that applies in Section 211 cases.
Brief for the Secretary of Labor in Dy3I.!;.,
at 18-20 (Mar.
18, 1996). The Secretary noted that this standard draws on the body of general employment discrimination law.
M.
at 19 (citing Secretary's seminal burden of proof case, Darrev v. Zack Co., Case No. 82-ERA-2 (Sec'y, Apr. 25, 1983)).
The Secretary noted that he "has adcpted the pretext and dual motive analyses utilized by the courts under the anti-discrimination statutes. "
M. at 19-20 (citing Texas l
6 l
Dee't af community Affairs v.
Burdine, 450 U.S. 248 (1981), and L Healthy City School Dist. Bd. of Educ.
v.
Dovle, 429 U.S.
274 (1977) ).
The Secretary explained that "(t]he 1992 amendments heightened the standard in mixed motive cases by which an employer must prove that it would have taken the adverse action in the absence of protected activity" and rejected Dysert's argument that the 1992
[
amendments incorporated an entirely new burden of proof scheme.
M. at 20, 23-24.
"There is nothing to indicate that Congress wanted the Secretary to rely [on anything other) than the general principles that have arisen under established discrimination case
- law, which the Secretary generally has used in analyzing
/
whistleblower cases."
M. at 24.
On this point, the Secretary t
argued that the Court should defer to his reasonable interpretation of the burden of proof allocation.
M. at 14, 25 (citing Chevron).
While noting that the 1992 amendments added new provisions regarding burden of proof, 105 F.3d at 609, this Court did not l
question the Secretary's determination that the amendments made "only one change" regarding burden of proof.
Specifically, the panel deferred to the - Secretary's interpretation of the term
)
- demonstrated" in Section 211(b) (3) (C), as it relates to the' burden t
on a compi;u inant in dual motive cases.
M. at 609-10 (citing chevron; Bechtel,-50 F.3d at 931-32).
Thus, as interpreted by the agency to which Congress entrusted Section 211 adjudications, the 1992 amendments did not alter the 7
scheme of applicable evidentiary burdens in pretext cases.
Where the complainant establishes a prima fa'ie case in such cases, the c
employer's burden is to offer a legitimate, non-discriminatory i
basis for the adverse action.
Stone & Webster did so here, to the
(
satisfaction of the Secretary (Sec'y Dec. at 8-9) and the panel (115 F.3d at 1574)
To prevail, the complainant must prove that the explanation offered by the respondent is pretextual, either as t
unworthy of belief or that discrimination more likely than not motivated the adverse action.
Dartev v.
2ack Co.,
supra.
In such cases, the " clear and convincing" evidentiary standard simply does j
not come into play.
The Secretary has continued to interpret the 1992 amendments j
as altering only the employer's standard of proof in dual motive cases under Section 211.
In Remusat v.
Bartlett Nuclear.
Inc.,
Case No. 94-ERA-36 (Sec'y, Feb. 26, 1996), the Secretary relied on his decision in Dvsert in explaining:
The ALJ also improperly concluded that the " clear and convincing evidence" s'.andard of Section 231 was applicable to evidence of legitimate reasons for Bartlett's adverse action that was proffered in response to Remusat's prima facie case.
The " clear and convincing evidence" standard of Section 211 is reached only if the evidence establishes that both legitimate and discriminatcry factors contributed to the decision to take the advarse action, thus invoking the dual, or mixed, motive doctrine (Sec'y Dec. at 3).
Likewise, in Senter v. Southern California Edison Co., Case No. 95-ERA-13 (Admin. Rev. Bd., Sept. 27, 1996), the Department of Labor's 8
Administrative '. Review Board 1 rejected the complainant 's argument that in a " pretext" case the employer was required to ' establish a legitimate basis for the adverse action by clear ar.d convincing evidence."
Citing the Secretary's decision in Dvsert, the Board l
g held:
Contrary to Seater's contention, the clear and convincing evidence standard applies only if the complainant establishes by a preponderance of the evidence that the adverse action was motivated, at least in part, by retaliatory intent; the amended Section 211(b) f 3) of the ERA heichtens an emniover a burden of eroof en2v under a
the dual, or mixed. motive doctrine.
. see_.Dvsert v.
Florida Power Corn.
(Sec'y Dec. at 21 (emphasis added)).
B.
The Panel Failed in Determining Stone & Webster's Burden I
cf Proof to Focus on Whether this Is a Pretext or Dual Motive Case.
J The panel's blurring of the distinction between pretext and dual motive cases resulted in the failure to examine whether Harrison's complaint presented a pretext case as Stone & Webster has contended all along.
The panel assumed that Sections 211 (b) (3) (C) and (D) apply in all Section 211 cases, such that employers will always be held to a " clear and convincing" standard of proof.
But as the Secretary has interpreted Section 211, in pretext cases the employer's only burden is to articulate a 3
The Secretary of Labor delegated his authority to issue final orders in Section 211 cases to a newly created Administrative Review Board.
Egg Seater, Sec'y Dec. at 1 n.1.
9
t a
legitimate reason for the complained-of action; the complainant must then prere that the reason offered is a pretext and that the true reason was discriminatory.
In fact, the Secretary has plainly articulated that the 1992 amendments did not alter the
.c.ognlainant's ultimate burden to prove discrimination at all.
"Whether this is a pre-amendment or post 1992 amenoment complaint, the Complainant's ultimate burden of proof is the same."
Sacorito v.
Floyida Power & Licht Co., Case No. 93-ERA-23 (Sec'y, Sept.
7, 1995), Sec'y Dec. at 4 n.2 (citing Secretary's decision in Dvsert y_. Florida Power Coro.).
In blurring the critical pretext / dual motive distinction, the panel improperly set aside the evidentiary burdens that previously f
had applied in Section 211 cases and on which both the Secretary and Stone & Webster relied in litigating this case before the Department of Labor and briefing the case to the panel.
Rejecting the notion that the " body of general employment discrimination law" regarding the burdens of proof applies in this case, the panel stated that Section 211 " supplies its own free-standing evidentiary framework" (115 F.3d at 1572).
Comrare Harris v.
Shelby County Bd.
J l
~
of Edh, 99 F.3d 1076 (11th Cir. 1996) (Anderson, J.)
(applying
{
McDonnell-Dcu.glag burden-shifting scheme in Title VII actions even after 1991 amendments regarding evidentiary burdens in dual motive cases, agg 42 U.S.C.
S 2000e-2 (m)) ; see also Fuller v.
Phires, 67 F.3d 1137, 1141-42 (4th Cir.1995) (noting "important distinction between mixed-motive and pretext cases" even after Title VII 10
amendment codifying " motivating f actor" burden).
The panel then
{
interpreted the burden of proof provisions of Section 211 as if the statute had not been consistently and repeatedly interpreted by the
)
Secretary in substantial and well-developed Section 211 case law.
l The panel did not attempt to conceal that it was substituting for the Secretary's its own interpretation of the burden of proof scheme added to Section 211 in 1992.
The panel took it upon itself "to dispel some of the seeming perplexity" of the evidentiary scheme in Stction 211 (115 F.3d at 1572), viewing the Secretary's interpretation r.ot as the reasoned interpretation of the statute he j
administers but rather as a "quarre1[]" with Stone & Webster (id.).
Whether the Secretary's interpretation of Sections j
211 (b) (3 ) (C) and (D), and distinction between pretext and dual motive cases for evidentiary
- purposes, were a
permissible construction of the law under the f amiliar Chevron standard was not briefed or argued by the parties.
It was error for the panel to supplant the established burden of proof allocation without i
determining whether the Secretary's interpretation is reasonable, as did the panel in Dvsert.
San Eahn, 64 F.3d at 277 & n.7 l
l (deferring to Secretary's burden of proof allocation under Section 211).
I Stone & Webster respectfully requests rehearing, and suggests rehearing en bane, on the distinction between pretext and dual motive cases for evidentiary purposes under Section 211 and the proper application of the burdens of proof in such cases.
The 11 i
Secretary has adopted and continues to implement an evidentiary framework under amended Section 211 that is substantially the same as the framework that has applied since Congress enacted Section 211 in 1978.
Dozens of Section 211 complaints are filed each year
(
against utilities and other employers in the nuclear industry, and clarification of the burdens of proof is central to correct application of the law.
These important issues command careful
(
briefing by the parties and reconsideration by this Court.
II.
THE PANEL'S ERROR OF LAW RESULTED IN AN UNJUST DETERMINATION IN THIS "CLOSE" CASE.
I Armed with an incorrect evidentiary framework, the panel then determined whether the Secretary's findings were supported by
/
substantial evidence.
But without determining whether this case is t
one of pretext or dual motive, the panel could not fairly look to the " clear and convincing" burden of Section 211(b) (3) (D) as the standard.
This lead the panel to test Stone & Webster's case against the wrong standard--clear and convincing evidence that it l
l would have demoted and reassigned Harrison even if he had not engaged in protected activity.
That standard is inappropriate here
% cause Harrison's demotion and reassignment present the classic pretext case.
Harrison argued that he had been demoted because of the fire watch concerns he expressed; Stone & Webster demonstrated that those concerns could not have influenced the demotion decision because it had been made prior to the time Harrison raised any concerns.
Under established law in pretext cases, Stone & Webster I
12
maintains that Harrison was required to prove that the legitimate reasons offered by Stone & Webster were pretextual.
i This Harrison could not do because five Stone & Webster managers and supervisors provided consistent, credible accounts of the legitimate, non-discriminatory reasons why Stone & Webster g
decided in late January 1993 to demote Harrison.
The ALJ found that unimpeached testimony credible. The Secretary did not disturb g
the ALJ's findings that Stone & Webster had decided to demote Harrison prior to his protected activity and there was no evidence to the contrary.
The panel's decision leaves little doubt that Stone & Webster would have prevailed had the proper standard of proof been j
observed.
Examining Stone & Webster's "exculpatory evidence," the I
panel found that Stone & Webster had "almost" proven its case (115 F.3d at 1573), even against the higher standard incorrectly imposed
)
on Stone & Webster.
The panel concluded:
S&W's points are well-taken.
We do not doubt that S&W had legitimate reasons for demoting Harrison.
If the review were de novo, we micht acree with S&W that it had met its burden of rebuttal.
In our eyes, S&W might have demoted Harrison had he never uttered a word about fire safety to anyone (id. at 1574 (emphasis added) ).
While the Secretary treated this case as a dual motive case, the panel's blurring of pretext and dual motive cases deprived I
Stone & Webster of judicial review on its argument that this is a pretext case.
Tne circumstances on which the Secretary relied to transform the case to a dual motive case (Sec'y Dec. at 9) fall far 13
short of the type of evidence that the courts have used to determine whether the more stringent dual motive analysis applies.
For example, this Court has explained that the dual motive analysis does not apply until the plaintiff in an employment discrimination case provides " direct evidence" of discrimination.
Caban-Wheeler 2 _Elsea, 904 F.2d 1549, 1555 (lith Cir.1990) ; gge also Havnes v.
W.c. Cave & Co.,
52 F.3d 928, 931 (lith Cir. 1995) (Anderson, J.).
Yet the panel in the present case expressly found that Harrison "cannot satisfy [his burden) through direct evidence" (115 F.3d at 1573).
See also Bartlik v.
Den't of Labor, 73 F.3d 100, 102-03 &
l n.5 (6th Cir. 1996)
(" direct evidence" shifts burden of proof in Section 211 r:ase) ; Fuller, 67 F.3d at 1142 (Title VII plaintiff f
" earn [s] a mixed-motive instruction" only with " direct evidence").
Thus, Stone & Webster also petitions for rehearing of this case to address its argument that this is a pretext case and that Stone & Webster accordingly had no obligation to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of protected activi*,y.
14
CONCLUSION For the foregoing
- reasons, Petitioner Stone Webster respectfully requests that rehearing be granted, and suggests rehearing en banc.
Respectfully submitted, hk Ew, n-I Nicholas S. Reynolds Robert M. Rader Donn C. Meindertsma WINSTON & STRAWN 1400 L Street, N.W.
Washington, DC 20005 (202) 371-5700 Attorneys for Petitioner Stone and Webster Engineering Corporation l
Date:. August 15, 1997
(
)
15
i CERTIFICATE OF SERVICE The undersigned certifies that he has caused a copy of the foregoing PETITION FOR REHEARING WITH SUGGESTION OF REHEARING EN BANC to be served on the following by depositing the same in the United States mail, first class postage prepaid, this 15th day of August, 1997:
George Huddleston, Esquire 5133 Selkirk Drive Birmingham, AL 35242 The Honorable Alexis M. Herman Secretary of Labor U.S. Department of Labor Room S.2018 200 Constitution Avenue, N.W.
Washington, D.C.
20210
/
Carol Feinberg U.S. Department of Labor i
Office of the Solicitor Room N2716 l
200 Constitution Avenue, N.W.
Washington, D.C.
20210
.- ( b DONN C. MEINDERTSMA l
l 16 0
w-g
[
1568 115 FEDERAL REPORTER, Sd SE.
S
- 3. Labor Relations p26.5 STONE & WEBSTER ENGINEERING li worker clears pnma facie gatekeeper CORPORATION. Petitioner, test under 1sw prohibiting retslisdon ag::nst whistleblowers in nuc!est industry and is not g.
knocked out by preemptery " clear and con.
Alexis HERMAN, Secretary, U.S.
vincing" response from employer, burden to Department of Lacor, persuade Secretr.ry of Labor by preponder-Respondent.
ance of evideace falls upo1 worker. Energy No. 95-4850.
- II#
" ^#I '
- I ed, c C3.CA i 5851.
g United States Court of Appeals' Elmnd Cirm Labor Relations a=26.5 Secretary of Labors decision that nue!e-July 2,1997, sr industry workets complaints about dre safety were contnbuting factor in his demo-don, as required to support pnms fac:e esse Engmeering f!rm conduednc construe. of retslisden ag:ur.st whistleblower, was sup-tien and maintenance work on nuclear power ported by substancs! evidence that worker plant pet:tioned for review of decision and was demoted one day after majeng com-order of the Secretary of Labor, revening plaint. Energy Reorgani:adon Act of 1974 administrative law judge and Ending that i 210, as amendec,42 U.S.CA i 5851.
Srm violated prohibicon on retaliatien
- 5. Labor Relations e=26.5 against nuclear industry workers. The Court of Appeals, Cudshy Senior Cire.ut Secretary of Labor's decision that em-Judge, s:teng by designation, held that work. ployer wou!d not have demoted nuclear in-efs cominunicat: ens to coworkers regarding dustry worker had he not complained about E
sdety, u d to rebut workers Ere safety m plant's drywell were protected
/
conduct.
facie esse d du for b wbde-bloweg, was suppcrted by substandal em Alfrmeu.
dence; sithough employer claimed to have made de=ction decision before workers com-plaints, worker was not informed of decision L Labor Relations e*31 for severs! days. Erergy Reorgani:stion If Administradve Law Judge and Secre. Act of 1974, i 210(b)U)(B), as amended, 42 tary of labor differ in their conclusions re.
US.CA i 5851(b)(3)(B).
gsrding allegaton that employer retslisted
- 6. Labor Relations t=26.5 agamst wh:stleblower in nuclear industry, Secretary's order is reviewed more endes!!y, Probbidon on retdaden against wb-I but court ensures only that Secretary's con-tieblowers in :.u4 v industry does not pro-clusion ts supported by ardealate, cogent, teet every act that tmployee comrmts under and reliable analysis. Energy Reorgani:a-g,,, apices d sde rader, wbdelmg must occur through prescribed channels.
tion Act of 1974, i 210, as amended, 42 US.CA i 5651.
Energy Reorganization Act of 1974, i 210, as l
ascended,42 U.S.CA i 585L
- 2. Labor Relations e=26.5
- 7. Labor Relations e=26.5 Law prohibiting retaliation against whis.
Werker was acting in furtherance of tieblowers in nuclear industry supplies its safety compliance when, aner speaking to his own free-otanding evidentiary frarnework employer about his concerns retarding Ere that is nLt p2bject to AtcDewnell Douplos safety in nuclear power plant's drywell, he burden shl%g analysis commonly employed spoks to his co-workers about those same in evil nyhts taaes. Energy Reorganizadon oneerns, and thus communication to those Act of 19 4, i 210, as amended,42 US.CA cowork rs was protected by prohibition on i 585L retaliation against whistleblowers in nuclear i
l i
1 l
I j
l
~ ~
STO.*
% WEBSTER ENGINEERING CORP. v.
A31AN Cha se its FJd Isee titih cle, t997) 1569 industry. Energy Reorganization Act d
ees who act in proenbed ways to ensure 1974.6 210, as amended. 42 U.S.C.A. I 5 L safety. 42 U.S.C. I 5551.
S. I, abor Relations c=26.5 This esse is about one such aUeged rets!!s-Prohibition on retslisu.on sgsinst whis-tien, at the Browns Ferry Project, a three-t!eblowers m nuclear mdustry shields e ;tes-reactor nuclev plant operated by the Ten.
5 mon of safety-related concer::s to feUow usm VaDey Audor.y (TVA) ou*Jde workers when expression has public d!=en-HuntsviLe. Alsbama. Browns Feny is no sion and Sta closelyinto extended pattern of strapr to de depr of ke, b 1975. a otherwise protected actMty. Energy Reor-f.n at the plant f20ed (narrowly) to enuse a con.
f 1974. I 210 as amended. 42 meltdown. but did result in the coining of an bd'm byword fu a dism Mp-g tion.' Further incidents forced the TVA to shut down all three reactors in 1985. In Roben M. Rader. Joan B. Tucker Fife. 1991, the Nue! ear Regulatory Commission M*.ston & Strswn. Wash:ngton, DC. for Pe- (NRC) let the TVA start up one of the 33,g,3,p;3,s And den in 1996. a*.4r de events in this case, an unused cooling tower I
Vonda L. Marshall. U.S. Dept. of Justice, burned up.8 Odee of the Solicitor. Washmgton. DC, George Huddleston. III. Birmingham. AL.
There wen no hes in this cue -yet the for Respondent.
ssue is he safety. The TVA enpged the petitioner. the engmeer:ng &m of Stone &
Pennon for Review of the Decision and Webster (S&M to perform construction and Order of the &cessry of the U.S. Deput-msintensnee work at Browns Ferry. The I
ment of Labor.
dispute before us was bom in the Srst days of February 1993, when S&W was overhaul-Before ANDERSON and CARNES.
ir.g the pistfor.r. steel in the dryweu of Unit
/
Circuit Judges, and CUDAHY *. Senior
- 3. one of Browns Fer y's three reactors.
Cc r.ut.h:;s.
One of S&W's lead foremen. Doug!as Esr.-
son, was woricng on the d pell upgnde.
CUDAHY. Senior Circuit Judge:
Hamson complains that S&W arst demoted j
Made of steel sad concrete. the dryweU of him to plain foreman and then transfered a nuclesr power plant encases the resetor him out of the dryweu (a desirable p!see to work).
itself. It is the containment structure. It is Each time, he says. S&W was rets!-
a!so a bulwark spinst a vasty of disasten. inds.g because Harrison had enpged in pro-A ke in a drywell is a senous matter, for tected activity under i 5851: he had spoken enmguishing a he gone out of controlis not out about he ha:a-ds to S&W and TVA easy.
omeials, as weu as to his co-workers.
Among the people best positioned to pre-S&W tells a different story. Harrison did vent &es are the workers who tend to nucie-not enpge in any protected activity, and even if he did. S&W was not retaliating ar plante. But if fear of retsliation kept spinst him. Hamson's demotion foUowed workers from speaking out about possible from a re-shufning of the labor force, a com-hasards, nuclear safecy wuld be jeopardized.
To protect whistleblowen. Congress forbade mon happening at S&W, As for Hamson's employers from retaliating against employ. transfer out of the drywell. S&W argues that Harrison had been disrupting S&W's drywel!
- Honorable behard D. Cudahy. Serior U.S. Cir.
- 2. Chns Wohlwend. 7VA Assierrs Arveu Ferm csut Judee for the Seventh Csrcwt. ssmng by l!nst: Ala Nuclue Plant Shut 6 Years. Atlansa designanon.
Journal and Lu.ssatunen. May 24.1991 at A.2.
1.
Davsd stellfox. Crstnes fear Another " Bro *u Feny" as NRC Okavs Condustate Fire StorL
- 3. Tom Harruen. hrs Destwys Another Coolsnt s
inside N.R.C.. Jan. 8.1996.
Tow at TVA's Bmws Fer y. Inssde N.lLC May 27.1996
1570 115 FEDEKE MuonTER,3d SE 3
(
projIct. Under cover of safety concerns, he under these circumstances would thwart the had incited his fellow iron workers to halt purpose of 42 U.S.C. 6 5851. We aff.rm.
work over a laber dispute. And in any case, even if Estr. son did ts!k about asfety w:th I. Summar/ of fsets his co-workers,5 5851 does not treat discus.
Doug!ss Harnson hsd begun working for g
sions with co workers as a protected actmty. S&W as an ironworker journeyman in June Harnson fJed a complaint with the De-1992. Six weeks hter he uns promoted to partment of Labor, which wended its way to foreman, and on October 6.1992, he ad.
the Secretary of Labor. Reversmg an Ad-vanced to second lead foreman on the dry-ministrative Law Judge (ALJL the Secretary we!! proje:t. As p t of a rounne force entered a victor / for Harnson. S&W pen-reduction in !ste Nvember of that year, g
cons this ecun to overturn the Secretary of S&W demoted Harnson back to foreman.
Labots decision. Why S&W is pursuing the Har. son recognised that his infener semon-case may seem someding of a mystery. The ty meant he would be f.rst to be demoted.
Secretary of Labor ordered S&W to compen-and he offered no complaint. Then, in early sate Harnson only for ten weeks' diminished January of 1993. S&W pushed him back up wages at two tio11ses too little per hour-to second lead foremsn, again under the I
about $800 by our reckoning-plus Harn-same understanding about Harnson's &st-son's attorney's fees. For S&W, Harr. son is to-go seniority. So when the dispute in this not the point. The NRC is. After S&W lost esse started. Hunson was the number two before the Secretsry of Labor, the NRC lead foreman, overseeing the upgnding of tentatively adopted the Secretary's f.nding of one of two platf:rms.
ret.alistion and imposed a civil f.ne of $80.000, plus other, unspecified enforcement On Februsr/ 1,1993. Harrison held a mes-sures. S&W now petitions this coun be*
weekly safety meeting, one of his job's re-spensibdities. Harr. son's ironworkers had cause, if S&W pnvsils, the NRC states that it will re-consider its actions.
one gnpe: hewsteh. After wrsppeg up a sh:ft's het work, someone had to make sure
/
Beyond trymg to c!snfy the endentiary that no &es broke out, as one might fer.r framework for 42 U.S.C. i 5551, we elsbo-with welding gest, cooling steel and de like nte one pnneiple mth import beyond the 1;.ng about. Until October 1992. Isborers t
doegs at Browns Ferry in early 1993. The (not ironworkers) had been charged with this Secretary of Labor would have us issue a duty. Under S&W's new f.rewatch scheme, i
bisnket ruling that i 5851 protects an em-ironworkers assumed pnmary responsibility
{
ployee's speech to co workers. S & W urges for the task, a!thouh two laborers on a the equr.2y bread but opposite nde. But we " roving Sewst:h" wocId help on each elevs-j need not decide today whether i 5851 pro-tion or level of the drywell. At the week!y tects an isolated or pnvate communication, safety meeting, the irvnworkers insisted that because the circumstances of Harrison's the new scheme was unsafe. Afterwards, transfer pose, it seems to us, a rower their foremen told Hs.-.sen dst the new question: one of viewmg acts ir.
nte.tt.
scheme did not comply nith the WA's he We frame it this way. Assume ' hat an prevention rules.
employee has already raised the alarm about Harnson went to tell the 'lVA fire mar-nuclear safety within the presenbed channels shal, Gary Wallace, about the ironworkers' of 42 U.S.C. I 5851. The employer then frewatch complaints. Harrison then joined commits another closely-related and public the laborars' lead foreman, David Sparks.
act of alarm-raising, but this time i 5851 and went to talk with Steven Ehele.' Ehele may or may not have protected that act-had was S&W's drywe!! manager. He had also it occurred in isolation or as a private com-attended the weekly safety meeting that day.
munication. Can the employer smgle out Harrison told Ehele that he had spoken with that particular act and punish the employee the TVA f.re marshal and that the marshal without fear of sancuon under i 5851? We wanted to talk to Ehele. Ehele, who seems think that to allow the employer to ret.'liate to have a 3 ft for memorable phrases, re-
(~'
STONE & WEDSTER ENCINEERLNG l can.us ru insens ca. m
?. v. EER*N 1571 sponded tnat Hanison and Sparks *were o
esting (himi slive on man hours in (thel Hour Division of the U.S. Depst ment of Labor under 42 U.S.C. 6 5351(bt drywell now on fire watches."
He 21-leged that both his demotion and his transfer The demotion. When Harrison smved at were diser.minator/ sad ret.2!i
~
work the next day, Febnar/ 2. he learned Wage and Hour Division sided m I
dat the drewatch problem remained unre-and Hamson appealed. In 1994, the ALJ solved. He also learned thet Ehele had not als came d wn f r S&W. The ALJ found centseted Ere marshal Wa!!sce, whereupon that the demotion was not an adv Harrison went straight to the NRC deld apnst Hamson on de greeds es of5ee across the street and Eled a complaint not diser.=inatory. The tran mth the NRC representacve. At about 2:00 de/we!!, however, the ALJ did c i
pm, one of Hamsen's superp. sors, Wayne an adverse aedon stemming from H Tennyson (Ehele's subordinste), told Ham. Febman 3 mecng me his em son that he had been demoted to foreman. But even if the transfer was retal The transfer. At work on the third dsy, AI.J concluded that i 5851(a) did not encom-Febr.tsr/ 3. Har. son s ud he 6d not msh to pass meeting with co-workers. Seedon use his semor:ty to bump s foreman down to 5551(a) thus did not protect Hamson 4cm journeyman and he volumarJy took a place est pardeular act of ntaliston. The ALJ I
as a journeyman himse!!. He also told the recommended dism:ssal of the cue.
ironworkers about his demotion and the fail.
Harrison appealed agsin. this time to the ure to resolve their Erewatch concerns. The Seentary of Labor, On Augast _,1995 the ironworkers then refused to work.
Ehele Semtsn unmd W W and fod e.st implored them to return to work, which they Hamson s 4modon and trsnskt M
[
did. That afternoon, S&W nsnsgement and scn:ted retaliation under i 5851(s).
union representatives decided that isborers de demodon. 6e Seentsq found est i As for would re-assume full responsibility for dre. ben an advem aen hs nnW de ALJ), and that it had been rets!! story. With
/
Fins!n, on Februsry 4. Ehele had Harti-respect to the transfer, the Secretsr/ agreed son removed f em the devel!. S&W's 35 that it resulted from Hamson's February 3 stewstd for the ironworkers, Larry Morrow. meeting with his co-workers. The Secretary delivered the message to Esmson. Morrow reversed the ALJs conc!usion that i 5851(s) repeated the ever evocative Ehele's remark did not cover such meetings. In the Secre-i that he wanted Har. son transferred beesuse tary's judgment, it did.
"[Hamson) wu a troublemsker, and that (1) S&W's timely petid;n for review foi-
[Hamson) wu like Moses standing at the lowed.
We have furtsdiction to review the Red Ses to the ironworkers in (the) drjwell.- Secretary's 1993 ceder under 4 Har. son would begin ironwork outside the 1 5351(c).
On matters of law, we review de drywell on less prestigious, less essential novo. keeping in mind the def tasks like putting up chain-link fences. OrJy Harrison was demoted; only Hamson was to be Seentan of Labor m consming the transferred' statutes he is charged mth administermg.
Chem ESA & n NatW Rems There is more to this story. Missing are Defense Council lac., 467 U.S. 837,104 c Ct.
some unpersuasive claims (mostly by S&W), 2778, 31 L.Ed.2d 694 (1984); Bechtel Con-but also some partly exculpatory evidence. semetio s Co. v. See, of Labor. 50 F.3d 926.
We reserve those facts until they Et more 931. 633 (lith Cir.1995). On matters of fact.
nudyinto the estysis.
we revsew the Secretary's order for substan-tial evidence. 5 U.S.C. I 706(3XE) (A6nin-IL Procedars! posture istradve Procedure Act). We ask whether This court ofers the third.ayer of review such relevant evidence e:csts "'as a reason.
for this case. In 1993, Hamson Eled an able mind might necept as adequate to sup.
admaustradve complaint with the Wage and port a conclusion.** Richardson v. Perales-402 U.S. 339, 401, 91 S.Ct.1420,1427, 2S 3
)
1572 113 FEDER.U. REPORTER, ao IES L Ed.2d M2 (1071) (quoung Consolidated led.2d 268 (IDE0n Mt Healthy City SeAool Edison Co. u. NLRB. 305 U.S.107, 229, 59 D4t Bd. of Ed. v. Doyle, 420 U.S. 274, 97 S.Ct. 206, 217, 83 led.126 (1308)). Here S.Ct. %1,50 led.2d 471 (10 7); McDonnell the A1.J and the Secretsr/ of Labor differed. Doug!cs Corp. u. Green, 411 US. 732, 33 This disagreement causes us to renew the S.Ct.1317,36 L Ed.2d 668 (1973). The Sec-Secretsr/s order "more cr. cWly." Bechtel, retary of Labor and S&W have qustreled
(
50 F.3d at 933. Chimately, however, the over how these esses and the:r innumerable decision is the Secretary's. Id. at 932. We progeny afect Seccon 5551's endentry ensure orJy that the Secretu-/s conc!usion, if burdens. But Secten 5851 is clear and sup-diferent from the AI.Js, is supported by plies its own free standing endentry hme-u tculate, cogent, and reliable analysis.'" work. After a compla.inant has cleared the Id. at 933 (quoting Nonhport Hncith Serv.,
lne v. NLRS. 961 F.2d 1547,1553-~>4 (11th pr.ma facie catekeeper test--and assum:ng Cir.1992)).
she has not been knocked out by a preempto-ry " clear and convincing" response from the III. Adverse netons agsinst Hr:. son employer.--the Secretar/ is to investgate whether the complainant's behanor actusily Befere turning to these happemngs at was "a contnbudng fsetor in the urJaverable 3
Browns Ferry, a word is in order about how personnel action."
42 US.C.
the endencry hmework of 42 US.C.
5 5851tbX3XC). The burden to persuade the I 5551 operstes. The Secretary and S&W Secretuy fs!!s upon the complainant, and she i
have evtnced considerable disagreement over must do so by a prepondersnee of the evi-the e.nent to which th;s framework draws on dence. Dysen u. Sec. ofLebor.105 F.3d 607, the gener21 law of employment disc =ina-610 (11th Cir.199-). If the complainant suc-con. We thi.nk it important to dispel some of ceeds, the employer has a second chance to
]
tne seeming perple cty of 42 US.C. I 5851. offer " dear and connn=ng evidence" that it In 1992 Congress amended i 5851 to codi. would have done the same thing anyway. Le.,
fy a parceular framework reguding burdens "in the absence of such behavior."
of proof wnere no statutory gu:dann essted i 5851(bX3XD).
f before. Energy Policy Act of 1992 P.L 102-For e. ;ioyers, th:s is a tough sunded.
456. I 2902fdI: see cho Mackovtch v. Uni
- and not by accident. Cong ess appears to ver:nty Nuclect Systema Inc 35 F.2d 1159, 6
1164 (9th Cir.19M) (upholding s=ilar frame-have intended that companies in the nue!eu work). Under the sututory framework, a industry face a difficult time defending them-se!ves. "Recent ae:ounts of whistleblower complaine.t must Erst pass a gatekeeper test hsrsssment at both NEC licensee and before an inqu:ry may commence. The See-(Department of Energy) nudear facilities retary may investigate on]y if the complain-suggest that whistleblower harassment and ant succeeds in making a "pnma facie show.
ing" that reta!!ation for protected ac vity retslistion remain all too common in parts of "was a contnbunng factor in the unfavorable the nudeu indusuy."
H. Rep. No.102-4;43111), at 79 (1992), repmsted in 1992 personnel action a!!eged in the complaint."
US.C.C.A.N. 1953, 22S2, 2297. "These re-42 U.S.C. i 5851(bX3XA). Then the investi-ro7m3, the House Report condnues. "are gation must go forward, unless the employer
" demonstrates, by cler and convmeing e5 intended to address those remaining pockets of resistance." Id.
. dence, that it would have taken the same unfavorable personnel action in the absence We turn to address the specia of Harri-of such behanor." 42 US.C. i 5851(bX3XB). son's demotion and transfer.
[2,3] Section 5851's reference to a "pri-ma facie shomag" has bred some confusion.
A. Harnson,s demotion chiefly because the phrase evokes the sprawl-
[4] Under 42 US.C. i 5851(bX3XC), the ing body of general employment disenmina-burden of persuasion falls first upon Harri-tion law. See. e.g., Pree Waterhouse v. Hop-son to demonstrate by a preponderance of ktns, 490 US. 223, J3 S.Ct. 1775, 104 the endence that retaliation for his protected
'NE & WEBSTER ENGINEERING COR
. HER.%1AN 1,g3 ca. us r.as is a ma ca. se,1) activity was a " contributing fsetor" in the ily (and not usually) disenminatory.
dec:sion to demote him. Harrison esanot The utisfy this requirement through direct en-Secretar/ corrected this error and concluded S&W did and said notfung that thrt Har: son's demotion w.ts an adverse se.
dence.
tion.
would indieste it sought to retsliste against Hamson by demoting htm en February 2.
I
Drywell manager Ehele did say that Ham-burden under i 5851(bx3XC), we ask wheth.
son was canng him alive on man-houn. But E
Ehele's remark does not suggest a desire to
- I*
'I suppress Hamson or his complamt. S&W n t a "contnbuting factor" to his demoten.
argues that Ehele was tallcag about over. The Secretary said yes, for orJy one day I
exposure to radionct:vtty; and even if Ehele sepan e Amse s ptecte enduct Sm meant wage costs. S&W wu not forbidden to
- E
'7 U **
consider expenses in weighing safety con-cerns. That said, the etrnimstances do seem m M Aun a fu symg de Sem-suspicious. A man starts complaining about W he safety. The next day he is demoted.
The burden the shif.ed to S&W to dem.
(
The Secretar;' of Labor found that by a onstnte, "by clear and convincing ende prepondersnee of the endence Hamson had that it would have taken the same untsvo made his showing. Reviewing for substantial ble personnel action in the absence o evidence to support this Ending, we af&m. behscor." 42 UAC. 5 5851(bx3XB). Th After hesnng his ironworkers' grausing is a Wh standard to begin with; and on about &twstch. Hamson spoke to the TVA rev ew nly r substantial endence support-I Ere marshal, the drywell manager (Ehele) W de Setw, S& has a steep M to snd ulumarsly to the NRC 5 eld represents-climb.
tive.
If an employee ts!ks about safety to a S&W almost makes it. Its prmeipal argu-
/
plant he odeia!, an employer and an indus-enent is to snap the temporal link that the try reg.tlater, he or she acu squarely wnhm Secretary i.fers. Five S&W managers the zone of conduct that Congress marked fered una= peached tes mony that S&
out under 42 U.S.C. ) 33M(sX1). S&W also knew of Hamson's centset w.th the TVA &e c:ded to oemote Hamson days before he t
o5cial and with Ehele (though not of Ham. raised any Ere toneerns. For in late Janu-ary the Seld manager for all construccon son's complaint with the NRCh By Febru.
ary 2, Har. son had told Ehele (his supervi-work at Browns Ferry, James Butts, had rmewed the roster of drywell employees.
sor) of his TVA contact and Ehele obviously Butta surmised that the project w knew Erst hand of the approach to him.
I S&W would have us believe that S&W om-heavy the ratio of foremen to ironworkes cials thought Hamson was e.c sng about was 9:38, double the 1:8 ratio that S&W generally targets. On either Janusty 2" or labor issues, but we End this unlikely. Har-nsen's vint to the TVA Ere marshal should
- 29. Butts asked his subo&ates, including have put at least Ehele on notice of Harri. Ehele, to review their resters for top-heavi-son's i 5851-shielded conduct.
Ehele turned to his own subordinate ness.
managers (Tennyson, Sertway, and Fonte)
So far the ALJ and the Secretary were in for suggestions, but named no one himself.
agreement. When they considered whether Ehele's subordinates picked three fore-demotion was an adverse action, however, they parted ways. The ALJ decided that the Tommy Willis, Ttcy Faulks and Har-men:
demotion was not an adverse action because rison (a lead foreman). The reasons the demotion, in the AIJs eyes, was not picking Hamson were manifold: Hamson di:crunmatory. But disenminatory and ad-supervised a lone foreman and crew; the work on his partitilar platform was drawmg vene have distinct meanings. An " adverse action" is simply something unpleasant, det-to its endt his seniority put hun below the nmental, even unfortunate, but not necessar. other lead foremu, Eugene Hant.ah. By Saturday, January 30. Ehele had informed l
P h
j
1574 113 FEDER.U. REPORTER, 3d S
ES field manager c:utts of these three recom.
mendations.
son's forrner ironworker crews. Har son sr.nounced to the assembled workers that he
[5] Be
- i. was not until Tuesdsy, Febra-had been demoted and that nothing had tr/ 0-der the questions of f.re safety had changed cn the Erewstch. The ironworkers
'arsen-dst Hamson was ace: ally informed then deeded am ng themselves to refuse to g
of his demodon. This gap in cme in:roduced wd und S&W mdW the En salen s the Secretsr/s crtocal doubt about Sa%"s'ue. Ehele esme and moni5ed them enough S&W responds reasonsbly enough mccves.
t nwnt ni but War est same day that its mansgers had bigger matten on S&W and the union agreed to retum to the their minds than maktng sure Har:. son's de-old Erewatch procedure. Firewstch again modon was prompt. But another problem bec2=e de laboms' nspons@.
I for S&W is that of the three recommenda.
cons for democon. S&W acted only on Har-The next day Ehele sent job steward Mor.
row to fetch Harrison and send him to work
- r. son. The ather two. Winis and Faulks. had outside the drywell. As we menconed be-been slated for reduction to ironworker jour-neyman. Ehele's subordinates Tennyson fore, non-drywell work was anciHan, enjoyed sad Ser:way intervened on February 2, how-less sti.tus and seems to have been less inter-esting. Morrow reported to Esmson that i
ever, to penuade Ehele and Butts not to demote them, on the grounds that their work Ehele had compared Harrison to Moses at the Red Sea.
was too sophistiested for journeyman's pay.
S&W points out that Hamson was orJy de-Here Harrison can build his esse on direct moted to foremsn at $2 less an hour and evidence of S&%" sr.imus. We do not un-would evenee the same crew in the same derstand Ehele to have undencored Ham-location. Is it p!susible that, if S&W wanted son's moral courage. Esther, we thmk Ehele g
to squelch Hamson, i: would have chosen saw Hamson as a " troublemaker,"in Ehele's such a mDd and ineffecove technique? S&W own words. The Secretary did not err in s!so says that it did not replace Hamson, g.y n,gg 3,, pg, eg.g which supports its contention that hart: son fsetor to Hamson's transfer out of sight and was demoted because of the roster review. out of de drywen.
S&Ws points are weU-tsken. We do not
{
doubt that S&W had legttunate reasons for little m rej inder. Eh.le mentions that Har.
demo: r.g Hamson. If the review were de mn er npested a transfer to an novo, we might agree wtth S&W that it had out Me enw.
b a p usM, e contencon, met its burden of rebuttal. In our eyes, S&W might have demoted Hamson had he might prefer a t t w rk alongside people he never uttered a word about are safety to had just recently supervised. But S&W fans i
anyone. But it is not our task to make this shon of conencing us, as he failed to con-judgment. Congress has charged us w:th a vmee the ALJ or the Secretary, that S&W much more limited scope of review. Our would have transferred Hamson had he nev-task ts to determme whether substantial evi-er provoked trouble for S&W at the iron-dence supports the Secretary's decision. %e g, meeting. Substantal evidence up-agree with the Secretary that such evidence bids de Sm+@ W d neanasn.
a:csts. We cannot say that it was unreason-
[6] Our conclusion leaves an assumption able for the Secretary to hold that S&W had failed to rebut under i 5851(bX3XD).
hanging. Section 5851 does not protect ev-ery act that an employee commits under the B. Harrison's transfer auspices of safety. Whistleblowing must oc-The circumstances t,f Harrison's transfer eur through prescraed channels. Did Harri-son's adv. sing his co-workers of his are wor-out of the drywen are less muddled. t.in February 3-after his demotion-Harrison ries constitute a protected sedvity under 5 5851(an If not, the whistleblower provi-asked the remaining lead foreman, Eugene sion wruld not avan Hardson, and S & W:
Hannah, to gather the members of Harri-ntaliation would be permissible. We are
F*"'NE & WEDSTER ENGINEERING CO!1 '
IIElt.stAN 1575 Cue as t i3 F.M is*G It hh Car. I997) unswsre of any cae law that guidis our whether the Secretsr/s reading is a permis-response to this panicular question. We de-sible reading of the ststute. h4 st St1 cide it arresh todsy.
Section 5851(s) lists six ways that an em.
[7]
W. do not need to adopt as broad s playee may act under its segis. List:ng only reading of the ststute as the Secretsr/ would the three relevant provuions, an employee n sh however. The Isets of Hamson'a
(
ecmmits a protected actmty if he:
transfer permit a less ambitious dec:sion.
(A) notifed his employer of an sUeged vio.
Hamson's discus.sion w:th his feDow iron.
lation of this caspter or the Atomic Ener. workers was, in the context in whaca it oc.
gy Act of 1954.
er ed, an secon "to es:Ty out the purposes" (D) commenced. caused to be commenecd. of the Atomic Energy Act and Chapter ~,1 uf g
or is about to commence or cause to be Title 42 (Development of Energy Sour:es)-
commenced a proceeding under this chap, and to guarantee nue!est safety in prtica!r.r.
ter or the Atomic Energy Act of 194, as Hamson may very well have been wrong amended, or a proceeding for the adrair.is. about the concrete dangers posed by the new cration or erJorcement of any requirement drewatch scheme at Browns Fen /. We do imposed under this chspter or the Atornic not know. The importsnt queston, however, Energy Act of 1954, as amended [or]
- is not whether he was r:ght, but whether he I
tF) assisted or prticipated or is about to was acting in furthersace of safety compli-assist or parncipate in any manner in such snee when ha spoke to the co-workers. We a proceeding or in any c.her msnner in conclude he was. The meeting with the iron-such a proceeding or in any other action to workers was included in a senes of communi-carry out the purposes of this chapter or cations to employer representatives sad to the Atomic Energy Act of 19M, as amend. W A eMeisJs. AU of these complaints were, t
ed.
under the circumstances, mutually reir. fore.
We note as a starting point that Congress g.
e mut ng ud t-ironworken nat-dr:?ed subps agnph (F) in broad terms. ersted publicly and in an emphatic way what
/
De statute shivida sny employee who "is Es-. son had said in the earlier commun:cs-about to assist or parucipate in any manner u ns. As a prac maner, Hamso(s or in any otAer action to carry out the staternects at the meeting served as another Purposes of this chapter or the Atomic Ener. notice to the employer. To exclude the gy Act of 1954, as amended." 42 U.S.C.
meedng as a nro@d don at stash i 5851(aXIXF) (emphasis added). " Par. blowing would seem at Scial: to denude the pose" is an open-ended word. We presume meet:ng of its context would seem to stnp it that Congress used this word advisedly. In ofits na conten In a context dnedy and fset, when Congress revtsed i 5851 whole-6.medately invohr.ng other commumcadens sale in 1992, it le?. this wording intset. See that i 5851(a) explicitly recognizes as pro-42 U.S.C. i 5851(sX3)(1991).
tected activity, the Secretary of Labor has permissibly construed i 5851(a) to include The Secretary of Labor argues that i 5851(a) is elastic enough to cover Harri-Harnson's meeting with his co-workers.
son's speech to his co-workers. The Secre-S&W retorts that tras position ignores that tary administers i 5851, and we accord his Congress felt it necessary in 1992 to insen a or her interpretations dae deference. En-partcular sub-paragnph to cover internal Fitsh v. General Electric Co., 496 U.S. 72, S3 complaints to employers.
42 U.S.C.
- n. 6,110 S.Ct. 2270,227/ n. 6.110 L.Ed.2d 65 i 5851(aXIXA). If Congress inserted a pro.
(1990): Bechtet 50 F.3d at 932. In Bechtel, vision for speech to employers, why not for this coun acceded to the Secretary's conten-speech to fe!!ow employees? Because. S&W tion that the pre-1992 version of i 5851 cov-says, Congress did not want to extend pro-ered internal complaints "made to supervi-tection this far. S&%"s interpretation is not sors and others," a position Congress rati5ed imolausible on its face. At the time of the with the current statute's subparagraph (A).
1992 amendments, several circuits had ruled Id. at 932, 932 n.1. As in Bechtet we ask that i 5851(a) encompassed complaints to l
i F
(
C 1576 las rEDERAI. REPORTER,3d SEE.i employers. Bechtel, 50 F.2d at 931-32 (re-i counting history of cae law). Nonetheless, the Fifth Circuit had ruled the other way. O.L CORPORATION, Plaintiff-Appellant, Bmum & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir.1980. The legtslauve history v.
of the 1992 Energy Policy Act, too, makes TEDIAR COMP.O*Y INCORPORATED, clear that Congress intanded the amend-Defendant-Appellee.
ments to codify what it thought the law to be already. Congress sought "to c pliettly pro-vide whisdeblower protecten for nuclear in-dustry employees [who) (1) nocty the:r em-United States Court of Appeals, player of an aDeged violation rather than a Federd CM*
federal regulator." H.R. No. 102-474(VIID, at 78, nprinted in 1992 U.S.C.C.A.N.1953, May 22,1997.
22S2, 2296 (emphasis a!ded). In other words, Congress thought the stan: tory lan-1 guage broad enough already, but recogni:ed Patentee brought aedon agsinst compet-that it required explication.
itor, aDeging infhngement of its patents re-We recognize that the policy implications lanng u appancas and method for removing of the Secretary's construe on may not be water vapor from sample to be analyted in j
flawless.
There may be some di5culty in gss chromatograph. The United States Dis-disenguishing between offering a shield be-ciet Court for the Southern Distnet of Tex.
hind which some employees may incite trou.
as, Samuel B. Kent, J., entered summary ble about a host of non-safety issues, includ-ing labor (sputes, and one behind which judgment in favor of compactor, and paten-well-intentir ad employees may raise an tee appealed. The Cou:t of Appeals, Lourie, Circuit Judge, held that " passage" within abrm ag:V safety ha::rds. But this is a balance fu ie Seretary of Labor to at.
meaning of claim did not encompass smooth.
I wa!!ed, completely cylindrical structure.
tempt to - Ge in the f.rst instance. The only quesu. la whether the Secretary's bal.
Afrmed.
ance here, as we have cast it, is a permissible reading of the whisdeblower provision. We think it is.
- 1. Patents #101(10)
IV. Conclusion Statute permittir.g element in patent
[8] Tne Secretary of Labor found that claim for combmadon 2 be expnssed as Stone & Webster impermissibly retaliatei means for performing specided functions y
against Douglas Harrison at Browns Ferry without rectal of supper.ing muccet
{
in Febrwy 1993, f.rst through demotion and material applied to apparatus claim with or then through transfer. On the facts, we means-plus-function clauses that ree:ted no decide that substantal evidence supports the struen re in support of any means. 35 Secreta:/s f.nding. On the law, we uphold U.S.C.A. I 112.
the Secretarfs inte.pntation of i 5831(a) as shielding the expression of safery related
- 2. Patents *101(2) coticerns to fellow workers, when, as here, that expression has a public dimension and wg g,,, %d b claim of pat tha closely into an extended pattern of other-ent for appm fx mW w vp wise pmtected medvity, from sample to be analyzed in gss chromato-AFFIRMED.
graph was not part of means-plus-f,2nction clause and was not subject to limitation of o f*' **'""*)
statute permitting element in claim for ecm-bination to be expmssed as means for per-fonning specific funedone without recital of supporting struemare; recited function in
.