747 F.2d 1029 (5th Cir. 1984), 83-4486, Brown & Root, Inc. v. Donovan

Docket Nº:83-4486.
Citation:747 F.2d 1029
Party Name:1 Indiv.Empl.Rts.Cas. 413 BROWN & ROOT, INC., Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent.
Case Date:December 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1029

747 F.2d 1029 (5th Cir. 1984)

1 Indiv.Empl.Rts.Cas. 413

BROWN & ROOT, INC., Petitioner,


Raymond J. DONOVAN, Secretary of Labor, Respondent.

No. 83-4486.

United States Court of Appeals, Fifth Circuit

December 10, 1984

        Bishop, Liberman, Cook, Purcell & Reynolds, Richard K. Walker, Frederick J. Killion, Washington, D.C., for petitioner.

        John Clewett, Washington, D.C., for amicus curiae, Gov. Accountability Project of the Institute for Policy Studies.

        T. Timothy Ryan, Jr., Sol. of Labor, Francis X. Lilly, Donald S. Shire, Janet R. Dunlop, U.S. Dept. of Labor, J. Michael O'Neill, Office of the Solicitor, U.S. Dept. of Labor, Washington, D.C., for respondent.

        Kenneth J. Mighell, R. Brent Cooper, Dallas, Tex., for amicus curiae Charles A. Atchison.

        Petition for Review of an Order of the United States Department of Labor.

        Before GARZA, JOLLY and DAVIS, Circuit Judges.

        E. GRADY JOLLY, Circuit Judge:

        The petitioner, Brown & Root, Inc., appeals the order of the Secretary of Labor (Secretary) affirming an administrative law judge's finding that it discriminated against an employee by discharging him for engaging in conduct protected by section 210(a) of the Energy Reorganization Act (ERA), 42 U.S.C. Sec. 5851(a). Because we find the filing of such a report is not protected by the statute, the Secretary's order is vacated and the case is remanded for further consideration not inconsistent with our holding here.


        Brown & Root was the prime contractor at the Comanche Peak Steam Electric Power

Page 1030

Station, a nuclear generating facility near Glen Rose, Texas. In December 1981, Charles Atchison became a field quality control inspector for Brown & Root at the Comanche Peak site. It was the duty of a quality control inspector to issue a nonconformance report (NCR) whenever he detected a condition which he considered did not meet contract specifications. 1 Atchison was specifically responsible for inspecting pipe-whip-restraint-installation welds. The controversy in this case centers on three NCRs issued by Atchison. The first, "the 822 level incident," concerned defects noticed in March of 1982 by Atchison in welds which were not his specific responsibility but which were located near those he was inspecting. After this incident, Atchison's immediate superior informed him that Brandt, the ultimate superior, thought Atchison was inspecting beyond the scope of his job. The area was later reinspected and the existence of some of the defects that Atchison had reported was confirmed.

        The second incident, "NCR No. 296," also occurred in March 1982, after a craft supervisor asked Atchison to inspect some welds on uninstalled pipe-whip restraints that the craft supervisor believed to be defective. Four men were assigned to map the defects in the pipe-whip restraints. Brandt was not satisfied with the team's first report, feeling that it showed an impossible number of defects. Atchison was removed from the team and the defects were remapped, but Brandt still considered the number of defects excessive. It was later discovered that Brandt had ordered the wrong standard used in the inspection.

        The third NCR, No. 361, drafted by Atchison in April 1982, contended that certain inspection tests conducted by inspectors employed by Texas Utility Generating Company, the owner of the Comanche Peak installation, were invalid because the inspectors were not properly qualified. A draft of this NCR was left on a superior's desk with a note that the NCR had not yet been issued and that Atchison was agreeable to discussing it. Several days later the superior told Atchison that he intended recommending the voiding of NCR No. 361, and Atchison voiced no objection. The NCR, with Atchison's note attached, was given to Brandt along with other papers, including the superior's promotion recommendation for Atchison. Brandt and Purdy, another superior, testified that they interpreted the note on the NCR as an attempt to gain leverage or negotiate with regard to the recommended promotion. On April 12, 1982, Brandt sent Purdy a memorandum stating that Atchison's services were no longer required because "he refuses to limit his scope of responsibility." Purdy testified that because he was unable to place Atchison in another job, he fired him.

        Atchison made a timely complaint that he was discharged for activity protected under section 5851(a). 2 The Department of Labor

Page 1031

investigated and agreed. 3 The administrative law judge found that Atchison had lied on his job application, falsified documents, was a totally unreliable witness and that nothing he said could be believed without independent corroboration. She held with Atchison, however, that filing an NCR was a protected activity, that Atchison was fired for filing the NCRs in "good faith," and that the reasons given by Brown & Root for the discharge were pretexts. 4 The administrative law judge recommended reinstatement, back pay, and attorney's fees. The Secretary of Labor affirmed the administrative law judge's decision with the exception of the reinstatement which was denied because Atchison had falsified his educational qualifications for this critical job on several occasions.


        The dispute in this case concerns whether under 42 U.S.C. Sec. 5851(a)(3) an employer is barred from discriminating against any employee for the filing of an intracorporate quality control report. We hold that the filing of such a report is not protected by the statute. This decision is predicated on three considerations: first, the statutory language cannot be stretched to encompass such a filing. Second, the legislative history of the Energy Reorganization Act (ERA) does not support such an extension of the meaning of section 5851. Third, the structure of the ERA indicates that section 5851(a) is designed solely to protect from retaliation corporate "whistle blowers" who inform responsible officials of corporate failings.



        The language of section 5851 cannot be construed to protect the filing of purely internal quality control reports. The relevant language prohibits employer discrimination against an employee who has:

(1) commenced ... a proceeding under this chapter or the Atomic Energy Act of 1954 [together referred to below as "The Acts"] ... or ... for the administration or enforcement of the requirements of ... [the Acts].

(2) testified ... in any such proceeding

(3) assisted or participated ... in any manner in such a proceeding or in any other action to carry out the purposes of ... [the Acts].

        42 U.S.C. Sec. 5851(a).

        The Secretary does not contend that the filing of an internal quality report could be either a "proceeding under" the Acts or a "proceeding for the administration or enforcement of" the Acts; "proceeding" concededly refers to a formal legal or administrative proceeding as the term is used in section 5851. Thus, the act of filing must be participation "in any other action to carry out the purposes of" the Acts if it is protected conduct. Putting aside for the moment the broader questions of purposes and policies behind section 5851, we first examine what meaning an ordinary reader would give to the language of section 5851. "[I]t should be generally assumed that Congress expresses its purposes through the ordinary meaning of the words it uses...." Escondido Mutual Water v. La Jolla, --- U.S. ----, 104 S.Ct. 2105, 2110, 80 L.Ed.2d 753 (1984). Absent a clearly expressed legislative intention to the contrary,

Page 1032

statutory language must ordinarily be regarded as controlling. Id.

        Because the general term "in any other action" follows a reference to specific types...

To continue reading