Lockert v. U.S. Dept. of Labor, 87-7550

• Decision Date: 30 January 1989
• Docket Number: No. 87-7550,87-7550
• Citation: 867 F.2d 513
• Parties: Steven LOCKERT, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Ann McLaughlin, Secretary of Labor, Respondent, and Pullman Power Products Corporation, Respondent-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 513

867 F.2d 513

Steven LOCKERT, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Ann McLaughlin, Secretary of Labor, Respondent and Pullman Power Products Corporation, Respondent-Intervenor.

No. 87-7550.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 16, 1988.

Decided Jan. 30, 1989.

Thomas Devine, Washington, D.C., for petitioner.

Ford N. Newman, Dept. of Labor, Washington, D.C., for respondent.

Richard R. Boisseau, Atlanta, Ga., for respondent-intervenor.

Petition for Review of a Final Determination of the Secretary of Labor.

Before FLETCHER and BEEZER, Circuit Judges, and KING, ^* District Judge.

FLETCHER, Circuit Judge:

This case involves the discharge of Steven Lockert, a Quality Control Inspector at a nuclear power plant operated by Pullman Power Products Corp. Lockert claims that he was terminated in violation of the Energy Reorganization Act of 1974, which protects employees who assist or participate in actions to carry out the purposes of the federal statutes regulating the nuclear energy industry. The ALJ and the Secretary of Labor concluded that Lockert was not terminated because of his safety-related activities and that the Act's "whistleblower" protection does not apply. We affirm.

I

Lockert was a Quality Control Inspector (QCI) at the Diablo Canyon Nuclear Power Plant in California between July 25, 1983 and December 15, 1983. In essence, Lockert argues that he was a diligent quality control inspector who was fired for doing his job too conscientiously. The Secretary and Pullman argue that Lockert was terminated because he twice left his assigned work area without permission in violation of Pullman's rules for employees.

The "chain of command" at Diablo Canyon apparently was as follows. Jim Cunningham, a QCI leadman, was Lockert's immediate supervisor. Jeff Charbaneau and Russel Nolle were both QCI supervisors, although Nolle apparently had greater authority. Nolle reported to Harold Karner, the Field Quality Control Manager. Karner testified that he alone had the authority to approve a termination.

During his employment at Diablo Canyon, Lockert reported to Pullman a large number of "discrepancies" between the applicable safety standards and actual conditions. However, Karner testified that the number and seriousness of Lockert's reports were not unusual, and that they did not result in any unusual expenses for Pullman. Pullman also offered an Exhibit showing that 18 QCIs submitted more deficiency condition notices (DCNs) than Lockert during his term of employment. There is no evidence in the record contradicting Karner's statement. ¹

Much of the evidence in the record concerns the events of October 17, 1983 and December 14, 1983. On October 17, 1983, Lockert had an argument with Nolle. Lockert explained that prior to October 17 he discovered that Pullman's field manual did not contain any criteria for rejecting defective bolts. According to Lockert, Lockert went to the QC office in order to research the industry codes for rejection criteria. At the QC office, Nolle told Lockert that he should no longer consult industry codes. Lockert responded that this limitation was unacceptable, since the field manual did not cover the situation at hand. At that point, Nolle became "visibly agitated," pointed to his neck, and said that he and Karner had "had it up to here" and "that you have just one foot out the door, Mr. Lockert, one more wrong move and you are gone."

Nolle's account of the October 17th incident is substantially different. Karner testified that he ran into Nolle that day, asked why Lockert was in the QC office, and reminded Nolle about the calls they had received about the lack of QCI coverage. Nolle testified that, at the QC office, he asked Lockert what he was doing there. Nolle claimed that Lockert admitted that he had already rejected the bolts and that he did not have permission to be away from his work area.

Nolle testified that he then forbade Lockert from copying the industry codes, but that he never told Lockert that he was not to consult them. He also admitted to warning Lockert that he had one foot out the door, but claimed that this outburst was directed at Lockert's absence from his work area without permission, and not his researching of the codes per se.

On cross-examination, Lockert apparently contradicted his earlier testimony by answering "yes" to the question, "at the time Mr. Nolle spoke to you, had you already rejected the bolts?"

On December 14, 1983, Lockert left his work area for somewhere between two and three hours. Lockert testified that he received permission from Cunningham to "perform updates on the DCN, perform the STPR ["Steps to Prevent Recurrence"] training, reinspection and I believe I termed it, catch up on other work." Lockert claimed that Cunningham gave him no specific time limit. Cunningham admitted giving Lockert permission and setting no time limit, but claimed that Lockert told him he was planning only to work on two STPRs. Cunningham claimed that those tasks should have taken only half an hour. QCI Achtenberg testified that he heard Lockert ask Cunningham for permission to complete a DCN update and a STPR, tasks which (according to Achtenberg) would take at most 1 1/2 hours. Cunningham and QC leadman supervisor Joe Watson testified that Joe Watson called Cunningham several times that morning to complain about Lockert's absence from his assigned work area. Cunningham testified that he ran into Lockert at 7:45 that morning and told him to "wrap-up" the STPRs and return to his work area. Lockert denied that he ever saw Cunningham after he received permission to leave his work area.

On December 15, 1983, Lockert was discharged. It is unclear from the record who prepared the termination notice, but Karner claimed that he approved the termination based on Nolle's recommendation. Nolle (who was absent on the 14th) testified that he based his decision on reports from Joe Watson, Jeff Charbaneau, and Cunningham. The termination notice discusses only Lockert's absence from his work area on December 14. Nolle admitted that the termination was also a response to the fact that Lockert had violated the work area rule and received an explicit warning on October 17. Karner testified that, to his knowledge, no other QCI has ever been absent from his work area without permission for as many hours as Lockert. Nolle and Karner testified that the termination was not in retaliation for Lockert's safety-related activities and complaints.

Several of Lockert's witnesses reported that Pullman employees had made disparaging remarks about Lockert's safety-related activities and complaints. However, with the exception of Nolle, none of these employees were involved in the decision to discharge Lockert. QCI Achtenberg testified that he observed Nolle in October or November with a memo from Lockert and that Nolle then made the comment that Lockert is a "pain in the ass." However, Lockert never established the subject of that memo. Moreover, Nolle testified that he called all the QCIs a "pain in the ass," and Achtenberg confirmed that Nolle referred "to a lot of people" that way (including Achtenberg).

On January 9, 1984, Lockert filed a complaint with the Department of Labor. On October 5, 1984, the ALJ filed a recommended decision and order recommending that Lockert's complaint be dismissed with prejudice. In her first decision in this case, the Secretary found that the ALJ had wrongly based his decision on the premise that internal safety complaints are not protected activity and "apparently because of his narrow view of the scope of protected activities under the Act" had given perfunctory attention to Lockert's evidence. The Secretary accordingly remanded. On remand, the ALJ again concluded that Lockert's complaint should be dismissed with prejudice. In her second decision in this case, the Secretary adopted the ALJ's recommendation.

The ALJ's second decision recognized that there was "conflicting circumstantial evidence," but concluded that Nolle and Karner terminated Lockert for the sole reason given. The ALJ explained that Nolle and Karner were credible witnesses, and that a decision cannot be determined by the number of witnesses, "but on the quality and credibility of any one or a number of witnesses." The ALJ also pointed to the fact that Lockert was recommended for a merit pay increase in early December, 1983, as circumstantial evidence that his discharge was not due to any prior disagreements regarding Lockert's criticisms of safety conditions. The Secretary's second decision similarly recognized that there was some evidence of retaliatory motive, but concluded that there was sufficient evidence to rebut an inference of retaliatory motive.

We have jurisdiction pursuant to 42 U.S.C. Sec. 5851(b), which provides that any person adversely affected by an order of the Secretary may obtain review in the court of appeals for the circuit in which the violation of the Energy Reorganization Act allegedly occurred.

II

The Secretary's decision is reviewed under the Administrative Procedure Act, 5 U.S.C. Sec. 706. The Secretary's decision must therefore be set aside if it is unsupported by substantial evidence or if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir.1984) (setting forth standard of review for Sec. 5851 cases).

III

Lockert first argues that the ALJ's and Secretary's discussion of the evidence he presented is inadequate. In particular, Lockert relies on the "law of the case" doctrine to argue that the ALJ's second opinion must be rejected inasmuch as it failed to follow the remand instructions in the Secretary's first opinion.

The Administrative Procedure Act requires agency decisions to include "findings and conclusions, and the reasons or basis therefor, on all the...