Delaney v. USDOL

Opinion

USCA1 Opinion

November 6, 1995      [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



          No. 95-1487



                                   ROBERT DELANEY,



                                     Petitioner,



                                          v.



                          UNITED STATES DEPARTMENT OF LABOR,



                                     Respondent.



                                 ____________________


ON PETITION FOR REVIEW OF A FINAL DECISION AND ORDER



                       OF THE UNITED STATES SECRETARY OF LABOR



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Cyr, and Lynch, Circuit Judges.
                                           ______________



                                 ____________________



               Randall  E. Nash,  with whom  Matthew E.  Dwyer and  Dwyer &
               ________________              _________________      _______

          Jenkins were on brief, for petitioner.
          _______

               Mary  J. Rieser,  Attorney, U.S.  Dept. of Labor,  with whom
               _______________

          Thomas S. Williamson,  Jr., Solicitor of Labor,  Gail V. Coleman,
          __________________________                       _______________

          Deputy Associate Solicitor, U.S.  Dept. of Labor, and  William J.
                                                                 __________

          Stone,  Counsel for  Appellate Litigation,  U.S. Dept.  of Labor,
          _____

          were on brief, for respondent.


____________________


____________________



Per  Curiam.    Robert  Delaney,   an  employee  of
                      Per  Curiam.
                      ___________



            Massachusetts    Correctional    Industries   ("MCI"),    was



            transferred  from his  position at  the Walpole  state prison



            after complaining  about being exposed to  toxic chemicals on



            the  job.   He  now appeals  from  the Secretary  of  Labor's



            dismissal of his complaint under the whistleblower protection



            provisions of  the Toxic Substances Control  Act ("TSCA"), 15



            U.S.C.     2622 et seq.  (1988).1  We  affirm the Secretary's
                            __ ____



            determination  that  it   was  not  Delaney's  whistleblowing



            activity  that  resulted  in  his transfer,  but  rather  the



            perceived  security  problem he  posed  for  the prison  (his



            employer's client) by the  manner in which he chose  to voice



            his concerns.  In so doing, we reject Delaney's attack on the



            Secretary's finding as not  supported by substantial evidence



            and his attempt to recharacterize this case as  one requiring



            a "mixed motive" analysis.


The Department of Labor's Findings
                          __________________________________



                      Robert Delaney works  for MCI,  which contracts  to



            provide services  for the Massachusetts state  prisons.  From



            1987  to 1990, Delaney worked as an instructor in the license



            plate  shop  of  the  maximum  security  prison  in  Walpole,



            Massachusetts.    He  complained repeatedly  to  his employer



            (MCI, not the prison)  from 1988 to 1990 about  being exposed


____________________



            1.  We have jurisdiction under 15 U.S.C.   2622(c)(1).



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to toxic  chemicals in the  shop, and did so  first orally to



            his supervisor and then  by formal grievance.  He  also filed



            complaints  with the  United States  Environmental Protection



            Agency,   the   Massachusetts  Department   of  Environmental



            Protection,  and the Walpole Board of Health in the spring of



            1990.2



                      On August 14,  1990, MCI involuntarily  transferred



            Delaney to a position  at Norfolk Industries, a manufacturing



            operation at an adjacent prison in Norfolk.  Although Delaney



            retained the  same job title  and pay he  had enjoyed at  the



            Walpole shop, he considered  the transfer to be adverse:   he



            believed that  the new  job carried responsibilities  that he



            would  not be  able  to  fulfill and  so  felt that  his  job



            security was threatened.



                      The  issue  is  whether  the  transfer  constituted



            retaliation  by  MCI   (Delaney's  employer)  for   Delaney's



            chemical exposure grievances.  Delaney was transferred  after



            Robert  Duval,  the  acting  superintendent  of  the  Walpole



            prison, sent a  letter to the  MCI Director, Hutch  Aghjayan,



            following up on earlier conversations.  Duval's letter stated



            he had  obtained information  that inmates  were increasingly



            showing   concern  and   becoming  anxious   about  hazardous



                                
            ____________________



            2.  Those agencies  then investigated the shop conditions and

            ordered remedial measures to be  taken by MCI.  As a  result,

            several changes  were made in ventilation  and procedures for

            disposing of toxic  chemicals.   There has been  no claim  of

            ongoing toxic exposure hazards in the MCI shop.



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materials  in  the license  plate shop.    Duval said  he had



            ordered  interviews with  staff  and had  learned that  while



            Delaney had  not been seen  talking directly to  any inmates,



            Delaney had been seen  discussing the chemical exposure issue



            openly  with other staff and on the phone even though inmates



            were  clearly present  to  overhear those  discussions.   The



            letter concluded:



                      At  this  juncture,  this controversy  is

                      affecting   the   overall   climate   and

                      security   of    this   Institution   and

                      immediate steps must be taken  to prevent

                      further escalation.   If we  fail to take

                      immediate  action the  possibility exists

                      that we could face a reaction on the part

                      of   inmates  that  may  include  a  work

                      stoppage or  other forms  of protest.   I

                      therefore   recommend   that  until   the

                      controversy is  settled as to the  use of

                      the chemicals and the safety of their use

                      is confirmed, strong consideration should

                      be  given  to  the  reassignment  of  Mr.

                      Delaney to another facility.



            On the same day he received this letter from Duval, Aghjayan,



            in turn, sent a letter to Delaney,  notifying him that he was



            to be  transferred "in the interest  of institution security"



            based  on reports  that he  was "a  source of  information to



            inmates through indiscretion in [his] conversation with staff



            and while on the telephone."3 


____________________



            3.  Delaney did  not report  for work  at  his new  position.

            Instead,  he  filed  an industrial  accident  claim asserting

            disability based  on exposure  to toxic substances  and filed

            the complaint  with the Department  of Labor from  which this

            appeal  arises,  alleging  whistleblower  discrimination  and

            seeking reinstatement and damages.



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Following hearing and  a Recommended Decision  from



            an  Administrative  Law  Judge,  the  Secretary   found  that



            Delaney's  transfer   had  indeed  been   adverse,  but   not



            retaliatory.  He concluded that MCI was "motivated by concern



            for  'the overall climate and security' of the prison when it



            transferred  Mr. Delaney,  not by  his protected  activities.



            . . .  Even  though  the  substance of  Mr.  Delaney's  . . .



            [chemical exposure] complaints was protected  under TSCA, the



            indiscreet   manner  in  which   [he]  openly  discussed  the



            situation within earshot of prisoners was not protected."


Delaney's Challenge
                                 ___________________



                      The  Secretary's decision  must be  affirmed unless



            Delaney  meets his burden of showing that the decision is not



            supported by substantial  evidence, is arbitrary,  capricious



            or  otherwise  not  in accordance  with  law.    15 U.S.C.   



            2622(c)(1)  (setting standard  of  review by  reference to  5



            U.S.C.    706); Boston Edison v. FERC, 885 F.2d 962, 964 (1st
                            _____________    ____



            Cir. 1989).



                      Delaney assigns  an error of  fact and an  error of



            law.  He  asserts that there  is no factual  support for  the



            Secretary's  determination  as to  his  employer's motive  in



            transferring him.  Further,  he says, the Secretary erred  in



            not analyzing his claim under the "mixed-motive" analysis set



            forth in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
                     __________________________________________    _____


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429 U.S.  274 (1977), and thus  applied inappropriate burdens



            of proof and production.4



                      The first claim fails and the second falls with it.



            The  Secretary's  factual finding  was  adequately supported.



            "Substantial  evidence"  is  "such  relevant  evidence  as  a



            reasonable  mind  might  accept  as  adequate  to  support  a



            conclusion."  Richardson v. Perales, 402 U.S. 389, 401 (1971)
                          __________    _______



            (internal  quotation  omitted).    Substantial   evidence  is



            something more  than a scintilla, but something less than the



            weight  of the evidence.   See Gouveia v.  INS, 980 F.2d 814,
                                       ___ _______     ___



            818 (1st  Cir. 1992);  see also Consolo  v. Federal  Maritime
                                   ________ _______     _________________



            Comm'n, 383 U.S. 607, 619-20 (1966).
            ______



                      The  letter  expressing  concerns  about  Delaney's



            indiscretions with prison inmates was sent to Aghjayan not by



            another employee  of MCI (Delaney's employer),  but by Ronald



            Duval,  the acting  superintendent of  the prison.   Aghjayan
                                                       ______



            testified at the hearing before the ALJ  that he had to defer



            to prison officials on matters of security.  Thus, because he



            saw Duval's letter as an urgent matter of prison security, he



                                
            ____________________



            4.  It  appears that  the Secretary  has adopted,  in actions

            brought  under the TSCA, the  burdens of proof and production

            established by the Supreme Court in employment discrimination

            actions, e.g. McDonnell Douglas Corp. v. Green,  411 U.S. 792
                     ____ _______________________    _____

            (1973).  See Simon v.  Simmons Foods, Inc., 49 F.3d  386, 388
                     ___ _____     ___________________

            (8th  Cir.   1995)  (applying  burden-shifting   analysis  to

            retaliatory discharge claim under  TSCA).  The Secretary does

            not  dispute  that  in  an  appropriate case  a  dual  motive

            analysis  would  apply.   He  says this  is  not such  a case

            because plaintiff  failed to establish  the factual predicate

            for such analysis.



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took it seriously.  Although Aghjayan  had discretion to make



            hiring  and firing decisions at MCI, he testified that he did



            not  feel free to disregard  Duval's letter: "[I]t  was not a



            letter that I could ignore."



                      Aghjayan's  testimony and the  Duval letter provide



            substantial evidence to support  the Secretary's finding that



            Aghjayan's  decision to  transfer  Delaney was  based on  his



            receipt  of the  Duval letter  and the  concerns communicated



            therein.  Delaney has offered no credible evidence to support



            a conclusion  that this  articulated reason for  the transfer



            was mere pretext for retaliation.5  



                      Delaney's objection  that the decision was based on



            hearsay  is  insufficient.   Not  only  were the  proceedings



            before the Department  of Labor not governed  by formal rules



            of evidence, 29 C.F.R.   24.5(e)(1), but Delaney did not even



            make a hearsay objection before the ALJ.  The argument proves



            too much  in any event.   In everyday life people  can and do



            make decisions based on what they learn from others.  The law



            does not prohibit that.  The  TSCA prohibits only retaliation



            against   whistleblowing  activities.     Here,   the  record


____________________



            5.  And  even if there  were some  such evidence,  that alone
                                         ____

            would  not justify refusing to defer to the Secretary on this

            point.    "[T]he  possibility  of  drawing  two  inconsistent

            conclusions   from   the   evidence  does   not   prevent  an

            administrative  agency's  finding  from  being  supported  by

            substantial  evidence."    Boston  Shipping  Ass'n,  Inc.  v.
                                       ______________________________

            Federal  Maritime Comm'n, 706 F.2d 1231, 1236 (1st Cir. 1983)
            ________________________

            (quoting Consolo, 383 U.S. at 620). 
                     _______



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establishes that  Delaney's employer acted at  the request of



            prison officials  concerning  a matter  of  prison  security.



            That the prison officials'  security concerns might, in turn,



            have  been based  on  hearsay is  immaterial.   There  is  no



            evidence of pretext.  Thus,  the Secretary correctly found in



            favor of MCI.



                      Finally, we note that  the Secretary found that MCI



            did  not  act  under   a  dual  motive.    This   finding  is
                 ___



            unassailable.   On  the record  before us  there has  been no



            showing of "mixed motive" and thus no foundation for applying



            a  "mixed motive" analysis.  Cf. McKennon v. Nashville Banner
                                         ___ ________    ________________



            Publ.  Co., 115 S. Ct. 879,  885 (1995) (stating that the Mt.
            __________                                                ___



            Healthy mixed  motive analysis is inapposite  where there has
            _______



            been  shown to  be only  a single  motive for  the challenged



            employment decision).  There is, as the Secretary recognized,



            a  difference   between  what   Mr.  Delaney  said   and  the



            circumstances in which he said  it.  The Secretary's  finding



            that Delaney's transfer  was motivated only  by consideration



            of the latter is amply supported by the record.



                      At  bottom,  Delaney  had  to  prove  that  he  was



            transferred to Norfolk because  of his complaints about being



            exposed to toxic substances.  See Kahn v. Secretary of Labor,
                                          ___ ____    __________________



            64  F.3d 271,  278  (7th Cir.  1995)  (analyzing claim  under



            identical    whistleblower    provision    of   the    Energy



            Reorganization Act).   The ALJ and  the Secretary here  found


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that  Delaney failed to make the requisite proof.  Because we



            do not review  the question  de novo, and  because there  was
                                         __ ____



            substantial   evidence   to   support   that   administrative



            conclusion, the Secretary's determination is affirmed.
                                                         _________


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