United States Court of Appeals,
Eleventh Circuit.
No. 95-3298.
Terry DYSERT, Petitioner,
v.
UNITED STATES SECRETARY OF LABOR, Florida Power Corporation,
Respondents.
Feb. 11, 1997.
Petition for Review of an Order of the United States Department of
Labor.
Before ANDERSON and CARNES, Circuit Judges, and STROM*, Senior
District Judge.
STROM, Senior District Judge:
This appeal centers on the proper application of the statutory
burdens of proof set forth in the whistleblower protection
provisions of the Energy Reorganization Act (ERA), 42 U.S.C. §
5851(b)(3). For the reasons set forth in this opinion, the court
affirms the Secretary of Labor's decision to dismiss the
plaintiff's complaint.
FACTS
In January of 1992, Terry Dysert began working at Florida
Power Corporation (FPC) as a one-year contract engineer. In July,
only six months later, FPC terminated him. Dysert filed a
complaint with the Wage and Hour Division of the Department of
Labor claiming that he was fired in retaliation for raising safety
and quality concerns about electrical relays to be used by FPC in
its Crystal River Unit 3 nuclear power plant.
*
Honorable Lyle E. Strom, Senior U.S. District Judge for the
District of Nebraska, sitting by designation.
Dysert alleged in his complaint a violation of the
whistleblower protection provisions of Section 211 of the Energy
Reorganization Act, 42 U.S.C. § 5851. Under that statute, the
Secretary of Labor may find that the employer unlawfully
discriminated only if the complainant has demonstrated that his
protected activity was a contributing factor in the unfavorable
personnel action alleged in the complaint. 42 U.S.C. §
5851(b)(3)(C).
After a two-day hearing, the administrative law judge (ALJ)
concluded that Dysert had failed to meet his burden of proving a
violation, in other words, he had failed to demonstrate that his
protected activity was a contributing factor in FPC's decision to
terminate him.
The Secretary determined that the ALJ correctly applied the
applicable burdens of proof, and further found that the record
supported the ALJ's finding that Dysert's protected activity was
not a contributing factor in FPC's decision to terminate him.1 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
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.
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
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
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
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).
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.
