The
Secretary of Labor adopted the ALJ's recommendation and dismissed
the suit. Dysert appealed.
Dysert claims that the ALJ and the
Secretary are misapplying the burdens set forth in §
5851(b)(3) as amended in 1992. He argues that after the
amendments, Dysert was only required to make a prima facie showing
of discrimination before the burden of persuasion shifted to FPC to
prove by clear and convincing evidence that it would have
terminated him in the absence of his protected activity. Dysert
relies on the statement of Rep. Ford that "[o]nce the
complainant makes a prima facie showing that protected activity
contributed to the unfavorable personnel action ... a violation is
established unless the employer establishes by clear and convincing
evidence that it would have taken the same unfavorable personnel
action in the absence of such behavior." 138 Cong.Rec. H
11444 (Oct. 5, 1992). See also 138 Cong.Rec. H. 11409 (Oct.
5, 1992) (statement of Rep. Miller). Thus, the court must
determine what burden § 5851(b)(3)(C) places on plaintiffs
before the Secretary may find a violation.
DISCUSSION
The proper interpretation of a statute is a
question of law that the court will review de novo on appeal.
Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 931
(11th Cir.1995); Marano v. Department of Justice, 2 F.3d
1137, 1141 (Fed.Cir.1993).
Section 211 of the Energy Reorganization
Act (formerly Section 210) was amended in 1992 to add an entirely
new paragraph governing burdens of proof. That paragraph provides
in part:
(C) The Secretary may determine that a violation of
subsection (a) of this section has occurred only if the
complainant has demonstrated that any behavior described in
subparagraphs (A) through (F) of subsection (a)(1) of this
section was a contributing factor in the unfavorable personnel
action alleged in the complaint.
(D) Relief may not be ordered under paragraph (2)
if the employer demonstrates by clear and convincing evidence that
it would have taken the same unfavorable personnel action in the
absence of such behavior.
42 U.S.C. § 5851(b)(3)(C) and (D). The statute does not
define "demonstrated" as it appears in subparagraph C.
Both the ALJ and the Secretary interpreted
"demonstrated" to mean proved by a preponderance of the
evidence. As this court recently recognized:
[the court] 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."
Bechtel, 50 F.3d at 932 citing Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984).
The court must first determine whether
the term "demonstrated" is ambiguous leaving room for
administrative interpretation. The term is not defined in the
statute and may be subject to more than one interpretation. Thus,
the court concludes that "demonstrated" as it appears in
the statute is ambiguous. As a result, the court must determine
whether the Secretary's construction of the statute is reasonable.
The court concludes that it is.
The Secretary first considered the
language of the statute and noted that the ordinary meaning of the
word "demonstrate" is to prove or make evident by
reasoning or adducing evidence. Based on this meaning, the
Secretary believed that something more than a prima facie showing
was required.2 The Secretary
emphasized that Congress had demonstrated in other subparagraphs of
the statute that it knows how to require either a prima facie
showing or proof by clear and convincing evidence. 3 The Secretary noted that it is
an accepted rule of evidence that the party with the burden of
persuasion must establish the elements of its case by a
preponderance of the evidence.
Having engaged in a careful analysis, the
Secretary concluded that the term "demonstrate" means to
prove by a preponderance of the evidence. This is a reasonable
interpretation of the statute and is entitled to deference by this
court.
Because the Secretary concluded that Dysert had
failed to prove by a preponderance of the evidence that his
protected activity was a contributing factor in FPC's decision to
terminate him, the Secretary properly dismissed the complaint. For
these reasons, the decision of the Secretary is AFFIRMED.
[ENDNOTES]
F*F*F*F*F**F*F*F*HF*oF*nF*oF*rF*aF*bF*lF*eF* F*LF*yF*lF*eF* F*EF*.F* F*SF*tF*rF*oF*mF*,F*
F*
Senior U.S. District Judge for the District of Nebraska, sitting by
designation.
1 Although the Secretary
mistakenly used the phrase "motivating factor" in the
last paragraph of his decision, the body of the opinion
demonstrates that the Secretary properly employed the new
"contributing factor" test to reach his conclusion.
2 The Supreme Court has
recognized that "prima facie case" may be used to
describe the plaintiff's burden of producing enough evidence to
permit the trier of fact to infer that fact at issue. Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 7,
101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207 (1981). However, in the
Title VII context, that term means the establishment of a legally
mandatory, rebuttable presumption by proving all of the elements of
the prima facie case by a preponderance of the evidence.
Burdine, 450 U.S. at 252-53 and 254 n. 7, 101 S.Ct. at 1093-94 and 1094 n. 7.
3 For example, the statute
provides in part:
(A) The Secretary shall dismiss a complaint filed under
paragraph (1), and shall not conduct the investigation required
under paragraph (2), unless the complainant has made a prima
facie showing that any behavior described in subparagraphs (A)
through (F) of subsection (a)(1) of this section was a contributing
factor in the unfavorable personnel action alleged in the
complaint.
(B) Notwithstanding a finding by the Secretary that
the complainant has made the showing required by
subparagraph (A), no investigation required under
paragraph (2) shall be conducted if the employer
demonstrates, by clear and convincing evidence,
that it would have taken the same unfavorable personnel
action in the absence of such behavior.
42 U.S.C. § 5851(b)(3)(A) and (B) (emphasis added).