Bechtel Constr. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995)
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
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 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 NRCthe body
primarily responsible
for nuclear safety regulationbut 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 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]
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'tI 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 tuused 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]