Adams v. Dole

Citation927 F.2d 771
Decision Date11 March 1991
Docket NumberNo. 90-1747,90-1747
Parties118 Lab.Cas. P 10,670, 6 Indiv.Empl.Rts.Cas. 384 Joy P. ADAMS; Roger D. Wensil, Petitioners, v. Elizabeth H. DOLE, Secretary of Labor, Respondent, United States Department of Energy, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Stephen Martin Kohn, argued (Michael D. Kohn, Kohn, Kohn & Colapinto, P.C., on brief), Washington, D.C., for petitioners.

William James Stone, argued, Counsel for Appellate Litigation (Robert P. Davis, Sol., Monica Gallagher, Associate Sol., Anne Payne Fugett, U.S. Dept. of Labor, Washington, D.C.; Stuart M. Gerson, Asst. Atty. Gen., Robert E. Kopp, Director, Appellate Staff, Robert S. Greenspan, John P. Schnitker, Civil Div., U.S. Dept. of Justice, Washington, D.C., on brief), for respondent.

Before RUSSELL and NIEMEYER, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

NIEMEYER, Circuit Judge:

Roger D. Wensil and Joy P. Adams, who claim to have been discharged from their employment at the Savannah River Plant, an atomic energy facility in Barnwell, South Carolina, because of "whistle-blowing," filed complaints with the Department of Labor for retaliatory discharge under Sec. 210 (the whistle-blower provision) of the Energy Reorganization Act (ERA), 42 U.S.C. Sec. 5851 (1982). Because the plant is owned by the Department of Energy, the Department of Labor determined that Sec. 210 does not apply to Wensil and Adams and dismissed the complaints for lack of jurisdiction. On petition for review of the final determination of the Secretary of Labor, we affirm.

I

Wensil worked as a pipefitter at the Savannah River Plant from February 1984 until he was dismissed on October 25, 1985. He was employed by B.F. Shaw Company, which was under contract to operate the Department of Energy-owned plant. The plant produces plutonium for the United States nuclear weapons program.

In April 1985 Wensil complained to B.F. Shaw management and to representatives of the Department of Energy that illegal drugs were being used in the area of the plant where he worked. A month later Wensil was transferred to another area of the plant, and five months later he was dismissed by B.F. Shaw as part of a reduction in force. After his dismissal, Wensil filed a complaint with the Department of Energy, contending that he had been discharged because he had reported illegal drug usage. He also filed a complaint with the Department of Labor on the same grounds. Two parallel investigations thus ensued.

In the Department of Energy an investigation was conducted by a three-member committee formed pursuant to Department of Energy Order 5483.1A, which prohibits discrimination against contract employees who complain of health and safety hazards at Department of Energy facilities. The committee found Wensil's complaints about drug usage valid but failed to find any discriminatory conduct in his discharge by B.F. Shaw. It found that Wensil was properly discharged as part of a reduction in force brought about by a decline in work and a shortage of material.

The investigation by the Department of Labor, conducted pursuant to Sec. 210 of the ERA, led to a report of factual findings by the compliance officer that supported Wensil's contention that he was terminated because of his complaints about drug abuse at the Savannah River Plant. Before any further action was taken, however, the area director for the Wage and Hour Division of the Department of Labor, who is charged with the responsibility of receiving and investigating complaints, advised Wensil that the National Office of the Department of Labor concluded that "after much consideration, the determination was made that Section 210 does not apply to employees of contractors at Dept. of Energy facilities." J.A. 31. Wensil appealed to the Administrative Law Judge who affirmed dismissal of the complaint on July 8, 1986.

Joy P. Adams, also an employee at the Savannah River Plant, likewise filed a complaint with the Wage and Hour Division of the Department of Labor, pursuant to Sec. 210 of the ERA, contending that she was "illegally laid off, threatened, harassed, intimidated, terminated and otherwise discriminated against" by B.F. Shaw. J.A. 36. She contended that she was discharged by B.F. Shaw on December 31, 1986, in retaliation for her support and testimony given on behalf of Wensil. During the course of the investigations of Wensil by both the Department of Energy and the Department of Labor, she gave testimony that corroborated the claims made by Wensil. The Wage and Hour Division of the Department of Labor again refused to take jurisdiction on the ground that Sec. 210 did not apply to Department of Energy facilities, and on appeal, the Administrative Law Judge affirmed on March 19, 1987.

Both Wensil and Adams appealed the decisions of the Administrative Law Judges to the Secretary of Labor.

After the Department of Energy dismissed Wensil's complaint, an article appeared about Wensil in the Washington Post entitled "Drug Whistle-Blower Fights to Regain Job," which prompted the Under Secretary of the Department of Energy to request that the Inspector General of the Department of Energy investigate the Department of Energy's actions taken with respect to the complaints of Wensil. In his report dated March 31, 1987, the Inspector General supported Wensil's claim of discrimination and concluded that he was not able to find evidence that B.F. Shaw dismissed Wensil from his job due to a decline in the workload, as concluded by the three-member committee. As a result of his findings, Wensil was reinstated in his job. For the same reasons, Adams was offered reinstatement, but she refused.

Wensil and Adams filed three more complaints with the Department of Labor pursuant to Sec. 210 of the ERA, arising out of subsequent events. They each filed a complaint charging that access to the Inspector General's report was denied them in retaliation for their actions. Wensil also filed a complaint that charged he was constructively discharged when he quit his employment with B.F. Shaw in September 1987. These three complaints were likewise dismissed by the Department of Labor for lack of jurisdiction.

The five complaints dismissed by administrative law judges because the Department of Labor did not have jurisdiction were consolidated for appeal before the Secretary of Labor. The Secretary issued a final decision and order dismissing all five complaints for "lack of jurisdiction." She stated that the employee protection provisions of Sec. 210 of the ERA apply only to employees of Nuclear Regulatory Commission licensees, licensee applicants, and their contractors, and that these provisions do not apply to employees of the Department of Energy contractors, who operate facilities owned by the Department of Energy. She noted that the Department of Energy has its own "whistle-blower procedures" which in fact provided reinstatement remedies to Wensil and Adams. This petition for review followed.

II

Wensil and Adams (petitioners) contend that they are entitled to proceed under Sec. 210 of the ERA, which is administered by the Department of Labor, because its scope reaches to protect not only employees of licensees of the Nuclear Regulatory Commission (NRC) but also employees of the contractors operating nuclear facilities owned by the Department of Energy (DOE). The Secretary of Labor and the DOE, which intervened in this case, contend that employees at DOE facilities may proceed only under DOE Order 5483.1A and that Sec. 210 applies only to employees of NRC licensees. Because Wensil and Adams were employees of a DOE contractor, their argument continues, the Secretary of Labor has no jurisdiction.

Petitioners would prefer to proceed under Sec. 210 because it arguably provides a "far more powerful anti-discrimination remedy" than the DOE Order. Brief of Petitioners at 7. The DOE procedure affords no hearing process or judicial review. They note, moreover, that the DOE procedures are administered by DOE employees, creating a potential conflict of interest. Section 210, on the other hand, provides a full hearing procedure with enforcement in the federal district courts, and it makes available compensatory and punitive damages, as well as attorney's fees.

In support of their argument that Sec. 210 of the ERA applies, petitioners rely on the plain meaning of the statute, its legislative history, and traditionally accepted rules of statutory construction. The Secretary of Labor and the DOE argue to the contrary that Sec. 210 of the ERA is ambiguous and that therefore the legislative history and other statutory rules of interpretation should be considered. They argue that a full analysis reveals that Sec. 210 was never intended to apply to employees at DOE facilities, but rather was limited to employees of licensees (and licensee-applicants) of the NRC. All parties concede that no court decision has addressed the issue.

As is appropriate in every case which turns on statutory construction, we begin with the language of the statute. United States v. Jackson, 759 F.2d 342, 344 (4th Cir.1985). "If the intent of Congress is clear, that is the end of the matter; for the court ... must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). If the statute is ambiguous, however, the question then becomes one of whether the interpretation by the agency charged with its administration is a permissible one. Id. at 843-44, 104 S.Ct. at 2781-82. The judiciary, in any event, is the final authority on issues of statutory construction and will reject administrative interpretations which are contrary to the clear congressional intent. Id. at 843, 104 S.Ct. at 2782. If the clear...

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