Shirani v. United States Department of Labor ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 8, 2006
Decided June 28, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-4455
OSCAR B. SHIRANI, Petition for Review of an
Petitioner, Order of the Department
v. of Labor
UNITED STATES DEPARTMENT OF No. 03-ARB-100
LABOR,
Respondent,
and
EXELON CORPORATION,
Intervening Respondent.
ORDER
Oscar Shirani began his career as an engineer with Commonwealth Edison,
an Illinois electric utility, in 1990. In 1994, he moved into ComEd’s quality
assurance department, where his job involved performing audits on companies that
supplied equipment or services for ComEd’s nuclear power plants. By all accounts,
Shirani received good assignments and favorable performance evaluations. But two
incidents led to friction with his superiors.
In 1997, Shirani led an audit of a General Electric Nuclear Energy (GENE)
facility in San Jose, California. His team identified a number of safety problems,
No. 05-4455 2
and Shirani recommended that ComEd issue a stop-work order against GENE,
which ComEd did. In an unfortunate twist of fate for Shirani, a GENE manager
with whom he had tangled during the audit, David Helwig, became, a year later, a
ComEd vice-president. Shirani came to believe that Helwig was blocking his career
at ComEd in retaliation for Shirani’s work on the GENE audit and an argument the
two of them had had during the site visit.
In 2000, Shirani conducted an audit involving “dry casks” (which are used to
store spent nuclear fuel) supplied by Holtec International/U.S. Tool & Die Co. At a
meeting later that year sponsored by Holtec, Shirani piped up from the audience
and asked company officials about their compliance with the report his team had
issued. A federal Nuclear Regulatory Commission official was in the audience and
asked Shirani to send him a copy of the audit report. At least one of Shirani’s
superiors indicated annoyance that the NRC had learned of the Holtec audit. The
NRC official later asked Shirani why he had not issued a stop-work order against
Holtec, and Shirani responded that he had been afraid of losing his job.
Also in 2000, ComEd’s parent Unicom merged with PECO Energy Corp. to
become Exelon Corp. Consequently, ComEd employees had to reapply for their jobs.
Shirani was re-selected for the job he occupied as a principal auditor but was turned
down for several management positions. Discouraged by his inability to advance in
ComEd’s nuclear section, Shirani sought a different audit position in Exelon’s
business services area. The new job raised his salary from $86,887 to $94,000. He
accepted it with the understanding that the job was an opportunity to learn to be a
nonsupervisory auditor and that the internal audit area would be undergoing
organizational changes as the dust settled from the ComEd-PECO merger.
Eventually, the internal audit employees had to reapply for their jobs as well.
Rather than reapply for the staff auditor job he was in, which was due to be bumped
down to a lower salary grade as part of the new organizational plan, Shirani applied
for a management position for which he was previously warned he might not be
qualified. He understood he could not remain in his staff auditor job if he did not
reapply for it. Shirani didn’t get the promotion, and since he had not reapplied for
his old job, he was automatically terminated.
Shirani then filed a complaint with the U.S. Department of Labor’s
Occupational Safety and Health Administration alleging violations of the
whistleblower protection provision of the Energy Reorganization Act (ERA), 42
U.S.C. § 5851. He alleged that Exelon fired him in retaliation for his participation
in protected activity--namely, the 1997 GENE audit and the 2000 Holtec audit
which he discussed with the NRC official. OSHA investigated Shirani’s complaint
and concluded there was no connection between the protected activity and his
No. 05-4455 3
termination. An administrative law judge, after a 3-day hearing, also recommended
that Shirani’s complaint be dismissed. The Administrative Review Board (ARB) of
the United States Department of Labor concurred with the ALJ’s recommendation
and dismissed the complaint. This appeal followed.
We review cases arising under the ERA according to standards provided by
the Administrative Procedure Act. 42 U.S.C. § 5851(c)(1); Kahn v. U.S. Sec’y of
Labor,
64 F.3d 271, 276 (7th Cir. 1995). Given Congress’s recognition of an agency’s
special competence to handle such matters, a court’s review must be deferential.
Kahn, 64 F.3d at 276. We may overturn the Review Board’s decision only if we find
it is “unsupported by substantial evidence” or if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (E);
Kahn, 64 F.3d at 276. Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Substantial evidence may be less than a preponderance of the
evidence, . . . and a reviewing body may not set aside an inference merely because it
finds the opposite conclusion more reasonable or because it questions the factual
basis.” Kahn, 64 F.3d at 276 (citations omitted).
Under procedures established for investigations under the ERA’s
whistleblower provisions, Shirani was required to establish that the officials who
decided not to hire him as a manager during the internal audit reselection process
knew of the protected activity in which he had engaged while he was in his nuclear
job, see 29 C.F.R. § 24.5(b)(2)(ii), and that the circumstances were sufficient to raise
an inference that the protected activity contributed to his termination, see 29 C.F.R.
§ 24.5(b)(2)(iv).
The Administrative Review Board found that the company official who
offered Shirani the internal audit job in 2000, Ruth Ann Gillis, knew that Shirani
had been unhappy on the nuclear side of ComEd’s operations but was unaware of
his clashes with superiors over the GENE and Holtec audits. Moreover, the ALJ
who heard Shirani’s case made a specific demeanor-based credibility finding about
Gillis’s testimony, finding her to be a “highly credible witness and her testimony
compelling.” The head of internal audit who did not select Shirani for the
management job for which he applied, Ellen Caya, also testified that she knew
nothing about Shirani’s previous problems and that no one ever suggested to her
that she should or should not select Shirani. Gillis’s and Caya’s testimony clearly
meets the statutory standard of substantial evidence needed to support the Board’s
decision that Shirani’s termination was not based on his protected activity.
No. 05-4455 4
Shirani argues that the Board’s decision was arbitrary and capricious
because it failed to credit evidence that others within ComEd/Exelon besides Caya
had retaliatory motives against him and that their motives somehow contributed to
the decision not to hire Shirani into a job for which he had previously been warned
he might not be qualified. But even if our review of the record left us persuaded
that the Board overlooked some evidence favorable to Shirani’s case, that would not
be enough to outweigh the substantial evidence on which the Board based its
decision. We are not free to set aside the Board’s factual conclusion simply because
we “find[] the opposite conclusion more reasonable or because [we] question[] the
factual basis.” Kahn, 64 F.3d at 276.
Finally, Shirani claims that the Board’s decision was arbitrary and capricious
because it ignored ComEd’s alleged refusal to grant his requests to return to the
nuclear section. Shirani says the company’s alleged refusal to allow him to return
to the nuclear section “was not one discrete act; it took place over a period of time,
in fact, on each day until he was given notice he was going to be let go.” Shirani
cites Place v. Abbott Labs., 215 F.3d 803, 808 (7th Cir. 2000), in support of his
theory that the company’s lack of interest in transferring him back to his old area
was a “continuing violation,” a situation “where the employer's discriminatory
conduct is so covert that its discriminatory character is not immediately apparent.”
Id.We cannot agree that Place supports Shirani’s theory of his case. In Place we
explained that “[t]he continuing violation scenario makes most sense in a sexual
harassment case, where the first offensive comment or inappropriate touch may not
alert the victim to the harassing quality of the conduct. A job transfer is quite
different. Like being fired, demoted, or not promoted, a job transfer is a single,
significant event, not a continuing act.” Id. (citation omitted). Shirani has not
pointed to anything in the record to indicate he ever actually applied and was
turned down for a job that would have transferred him back to the nuclear section.
Thus, even if we accept as true that he communicated to company officials his
desire to transfer and they chose to ignore him, such evidence would be too
amorphous for us to evaluate as concrete evidence of an act that discriminated
against him based on his status as a whistleblower.
For these reasons, Shirani’s petition for review is DENIED, and the ARB’s
order dismissing Shirani’s complaint is AFFIRMED.