FILED
United States Court of Appeals
Tenth Circuit
APR 6 1999
PATRICK FISHER
Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
________________________
No. 97-9544
LENARD E. TRIMMER,
Petitioner,
v.
UNITED STATES DEPARTMENT OF LABOR,
Respondent,
- - - - - - - - - -
UNIVERSITY OF CALIFORNIA,
Intervenor.
___________________________
Appeal from the United States
Department of Labor
(No. 96-072)
______________________________
Stephen M. Kohn, of Kohn, Kohn and Colapinto, P.C., Washington, D.C., for Petitioner,
Lenard E. Trimmer.
Lois R. Zuckerman, Attorney, U. S. Department of Labor, Washington, D.C., (Marvin
Krislov, Deputy Solicitor for National Operations, Steven J. Mandel, Associate Solicitor,
and Paul L. Frieden, Assistant Counsel for Appellate Litigation, U. S. Department of
Labor, Washington, D.C. with her on the brief) for Respondent, U. S. Department of
Labor.
Daniel H. Friedman, of Simons, Cuddy & Friedman, LLP, Santa Fe, New Mexico (Tanya
M. Trujillo, of Simons, Cuddy & Friedman, LLP, with him on the briefs) for Intervenor,
University of California.
______________________________
Before ANDERSON, HENRY, and MURPHY, Circuit Judges.
1The Secretary of Labor
created the ARB in 1996. The ARB acts for the Secretary and is responsible for
"issuing final agency decisions on questions of law and fact arising in review or on
appeal" of a variety of matters, including decisions and recommended decisions by
ALJs pursuant to the whistleblower provision of the Energy Reorganization Act of 1974.
See Authority and Responsibilities of the Administrative Review
Board, 61 Fed. Reg. 19,978, 19,978 (1996); see also Varnadore v. Secretary of
Labor, 141 F.3d 625, 629-30 (6th Cir. 1998).
2 The Lab's policy entitled
an employee whose work restrictions could not be easily accommodated in the
employee's existing position to a process for alternate placement. The Lab's policy did
not specify when the alternate-placement process should take place, though it did specify
that the search was to last 90 days, after which the employee would be discharged if he
had failed to find a new position. An individual on alternate placement was not given
preferential consideration for available positions and his medical restrictions were not
considered during the search. Rather, his selection for a new position was to be entirely
merit-based. The only apparent advantage an employee on alternate placement had over
an outside applicant was the networking the employee could conduct while working in a
temporary position during the search.
3 The University of
California, intervenor, contests this interpretation. It argues that there is no evidence the
Lab discussed sending Trimmer an alternate- placement notice letter in March 1992 and
therefore, contrary to Trimmer's assertion, there was no delay. A close review of the
record supports the ARB's conclusion that during the March 1992 meeting, the managers
had agreed the discharge letter should be sent but thought its proximity to the publication
of the article would appear retaliatory.
4 The amendment to
§ 5851 became effective as to claims filed with the Secretary on or after October
24, 1992. See Energy Policy Act of 1992, Pub. L. No. 102-486, § 2902(i),
106 Stat. 2776, 3125. Accordingly, courts which have used the McDonnell
Douglas burden-shifting framework to adjudicate ERA claims did so because the
complaints were filed prior to that date. See, e.g., Kahn v. Secretary of
Labor,64 F.3d 271, 276 & n.4, 277-78 (7th Cir. 1995); Bechtel Constr.
Co. v. Secretary of Labor, 50 F.3d 926, 930, 934 (11th Cir. 1995); see also Stone
& Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (rejecting
McDonnell Douglas burden-shifting framework in favor of amended
§ 5851's burden-shifting requirements).
5 The amendment to
§ 5851 adding the new burden-shifting framework was titled "Avoidance of
frivolous complaints." Pub. L. 102-486, 106 Stat. 2776, 3123.
6 The ARB adopted the
Administrative Law Judge's ("ALJ") findings of fact and agreed with the
ALJ's recommendation of dismissal. See 5 U.S.C. § 557(b) (empowering
agency to permit ALJ to make recommendation, but also providing that agency
"has all the powers which it would have in making the initial decision");
see alsoCarlisle Area Sch. Dist. v. Scott P., 62 F.3d 520, 529 (3d Cir.
1995) (stating that agency or board is free either to adopt or reject ALJ's findings and
conclusions of law).
7Trimmer also argues that
the ARB applied the wrong standard because after it decided that the action did not
constitute an unfavorable employment decision, it noted in the alternative that unless
Trimmer "could further demonstrate that [the Lab] expected and intended [the delay
to result in Trimmer's inability to obtain a job with the Lab], there would be no basis upon
which to establish a violation." Because we agree with the ARB that the delay did
not constitute an adverse employment action, we need not address the ARB's alternate
ground for its decision.
8 Because Trimmer had to
prove some harmful consequences as a result of the delay, his reliance upon Ruggles
v. California Polythechnic State University for the proposition that a complainant
need not prove that he would have obtained a particular position is inapposite.
797 F.2d 782, 786 (9th Cir. 1986).