In a related argument, Thompson asserts that his inquiry to the NRC regarding the terms of the settlement agreement was protected activity under the ERA, and the ALJ erred when he found that Thompson's protected activity was not a contributing factor in Respondent's refusal to turn over the Parker-Coons records. He also argues that HL&P and HII violated the ERA by breaching the Settlement Agreement and by "considering the Parker-Coons records to be outside the scope of the Settlement Agreement." Complainant's Initial Brief (Comp. Br.) at 21. Finally, Thompson argues that the ALJ erred when he rejected Thompson's request to enforce the Settlement Agreement. Thompson's arguments that Respondents violated the ERA are unsuccessful because, having the ultimate burden of proof, Thompson failed to make his case. Additionally, Thompson's assertion that the ALJ and the Board have the authority to enforce the settlement agreement is incorrect.
A. Thompson's arguments that Respondents violated the ERA, either by refusing to turn over the Parker-Coons records, or by breaching the settlement agreement, which assertedly required that Respondents turn over the records.
In order to prevail in an ERA whistleblower case, the complainant must prove by a preponderance of the evidence that he engaged in protected activity which was "a contributing factor in the unfavorable personnel action alleged in the complaint." 42 U.S.C. §5851(b)(3)(C); Dysert v. Florida Power Co., No. 93-ERA-21, slip op. at 4 (Sec'y Aug. 7, 1995) aff'd sub nom. Dysert v. U.S. Dep't of Labor , 105 F.3d 607 (11th Cir. 1997). If the complainant meets his burden, the employer may still prevail if it demonstrates "by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [the complainant's protected activity]." 42 U.S.C. §§5851(b)(3)(D); Makam v. Pub. Serv. Elec. & Gas Co., ARB No. 99-045, ALJ Nos. 98-ERA-22, 98-ERA-26, slip op. at 3 (ARB Jan. 26, 2001); Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999). Because this latter burden, which is in the nature of an affirmative defense, only arises if the complainant has proven that the respondent took adverse action in part because of complainant's protected activity, analysis of the evidence presented pursuant to this burden is typically referred to as "dual motive." As we discuss below, Thompson failed to prove that retaliatory motive was a contributing factor in Respondents' refusal to turn over the Parker-Coons records. For that reason neither the ALJ nor we have cause to engage in a dual motive analysis.
Thompson argues that the temporal proxmity between his contact with the NRC and HL&P's refusal to turn over the Parker-Coons records raises "an inference of causation," and appears to assert that this inference requires a finding that retaliatory animus was a contributing factor in HL&P's refusal. Therefore, Thompson reasons, the ALJ erroneously failed to require the Respondents to prove by clear and convincing evidence that they would have refused to turn over the reports even if Thompson had not engaged in protected activity. Comp. Br. at 22-23. This argument is based upon a fundamental misunderstanding of the role of temporal proximity in establishing retaliatory motive. As we have said before, temporal proximity is "just one piece of evidence for the trier of fact to weigh in deciding the ultimate question whether a complainant has proved by a preponderance of the evidence that retaliation was a motivating factor in the adverse action." Jackson v. Ketchikan Pulp Co., Nos. 93-WPC-7, 93-WPC-8, slip op. at 5 (Sec'y Mar. 3, 1996); accord Bartlik v. U.S. Dep't of Labor , 73 F.3d 100, 103 n.6 (6th Cir. 1996) (temporal proximity by itself found insufficient to establish prima facie case). The complainant's ultimate burden is not to prove that there was temporal proximity between protected activity and adverse action. Rather, a complainant must prove that the protected activity was a contributing factor in the adverse personnel action. See, e.g., Leveille v. New York Air Nat'l Guard, Nos. 94-TSC-3, 94-TSC-4, slip op. at 4 (Sec'y Dec. 11, 1995) (complainant must prove, by a preponderance of the evidence, that the respondent's real motive was intentional discrimination).
Of course, temporal proximity may provide powerful evidence of retaliatory animus. However, although in the circumstances of a given case a fact-finder might conclude that the temporal proximity between protected activity and adverse action establishes that the adverse action was motivated by the protected activity, such a conclusion is not ineluctable. Here the ALJ determined, based upon all of the facts presented to him, that HL&P was not motivated by retaliatory animus when it refused to turn the Parker-Coons records over to Thompson. These facts included HL&P's belief that, having settled Thompson's complaint, it was under no obligation to produce the records, and that the records were subject to the attorney work product privilege. The ALJ did precisely what was required by the circumstances of this case: he weighed all of the relevant evidence regarding HL&P's motivation, including the evidence regarding temporal proximity, and determined that Thompson had not proven his case. We agree with that determination. Because Thompson failed to prove that his contact with the NRC was a contributing factor in HL&P's refusal to produce the records, the ALJ correctly declined to engage in the ERA's prescribed dual motive analysis.
For similar reasons Thompson's second argument that HL&P's refusal to turn over the Parker-Coons records was a breach of the settlement agreement, and therefore constituted a violation of the ERA must fail. For even if HL&P's refusal were a breach of the agreement (a factual issue we decline to resolve), in order for that breach to constitute unlawful retaliatory action, it was incumbent upon Thompson to prove that the refusal was motivated by retaliatory animus. As we have demonstrated above, Thompson failed in that endeavor.
B. Thompson's argument that the ALJ and the Board have the authority to enforce the settlement agreement.
One final issue merits comment. Thompson asserted before the ALJ that the Department has inherent jurisdiction over settlements approved by the Secretary. Therefore, according to Thompson, the ALJ could consider whether certain material terms in the settlement agreement were void as contrary to public policy and federal law or, in the alternative, that there was no settlement with regard to these terms because they are illegal, against public policy and, therefore, void. The ALJ essentially concluded that Thompson was seeking enforcement of the Settlement Agreement. Inasmuch as Department regulations do not provide for an administrative enforcement of a settlement agreement, the ALJ concluded that a review of these matters was beyond his jurisdiction. November 27, 1996 Decision and Order on Various Motions for Summary Decision, slip op. at 5-6.
About one year later, in an unrelated case, the Third Circuit held that the Secretary lacked authority to enforce a settlement agreement because, under the ERA, enforcement authority is vested exclusively in the U.S. district courts. Williams v. Metzler, 132 F.3d 937 (3d Cir. 1997). Thompson points out that, although Williams is binding on cases arising in the Third Circuit, it is not binding on cases arising in the Fifth Circuit. Inasmuch as his case arose in the Fifth Circuit, Thompson urges us to follow Orr v. Brown & Root, Inc ., Case No. 85-ERA-6 (Sec'y Oct. 2, 1985),7 a case in which the Secretary found that the Department does have jurisdiction to enforce a settlement agreement. 8 Alternatively, Thompson requests that the Department initiate or join an enforcement action against Respondents for breach of the settlement agreement and notes that he has already filed a "pro se Complaint for Enforcement in U.S. District Court for the Southern District of Texas, Galveston Division."
In our view, the ERA makes it unequivocally clear that a settlement agreement is enforceable only through U.S. District Court. 42 U.S.C. §5851(e). Thus, we agree with the Third Circuit that the Department has no authority, either express or implied, to enforce a settlement agreement in an ERA case.
Finally, as to Thompson's request that the Secretary initiate or join an enforcement action, DOL regulations do not confer on this Board any role in the enforcement process; we therefore offer no opinion on Thompson's request.
VI. CONCLUSION.
For the foregoing reasons we accept the ALJ's recommendation and DISMISS these cases.
SO ORDERED.
CYNTHIA L. ATTWOOD
RICHARD A. BEVERLY
[ENDNOTES]
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7 Orr was based upon Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir. 1976) (courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them). However, in Langley v. Jackson State Univ. , 14 F.3d 1070, 1074 (5th Cir. 1994), the Fifth Circuit specifically rejected the Sixth Circuit's holding in Aro .
8 Chase v. Buncombe County , Case No. 85-SWD-4 (Sec'y Nov. 3, 1986). However, this case is inapposite because it was brought under the employee protection provision of the Solid Waste Disposal Act, 42 U.S.C. §6971, which does not contain a provision placing enforcement authority within the exclusive jurisdiction of the U.S. district courts.
