Couty v. Dole, 88-2233

• Decision Date: 14 September 1989
• Docket Number: No. 88-2233,88-2233
• Citation: 886 F.2d 147
• Parties: Richard COUTY, Petitioner, v. Elizabeth DOLE, Secretary, United States Department of Labor, * Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 147

886 F.2d 147

Richard COUTY, Petitioner, v. Elizabeth DOLE, Secretary, United States Department of Labor, ^* Respondent.

No. 88-2233.

United States Court of Appeals Eighth Circuit.

Submitted March 17, 1989.

Decided Sept. 14, 1989.

Thad M. Guyer, Medford, Or., for petitioner.

Barbara Racine, Washington, D.C., for respondent.

Before BOWMAN, Circuit Judge, and FLOYD R. GIBSON and HEANEY, Senior Circuit Judges.

BOWMAN, Circuit Judge.

Federal law seeks to protect from retaliatory discharge employees in the nuclear power industry who act as "whistle-blowers." Under 42 U.S.C. Sec. 5851(a)(1) (1982), "[n]o employer ... may discharge any employee ... because the employee ... commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954."

In 1986 petitioner Richard Couty was employed within the meaning of section 5851 by Arkansas Power and Light Company (AP & L) as a quality control inspector at a steam-electric nuclear generating facility known as Arkansas Nuclear One located in Russellville, Arkansas. Petitioner had a number of run-ins with co-workers at the plant during the fall of that year and was discharged by AP & L, ostensibly on the ground of unprofessional behavior. Petitioner, however, believed that he had been discharged because he had engaged in activity protected by section 5851. Specifically, the record shows that petitioner had threatened to bring various safety and quality-control complaints to the attention of the Nuclear Regulatory Commission, and had raised these kinds of concerns with his supervisors. After he was discharged , petitioner filed a complaint with respondent Secretary of Labor as provided for in section 5851(b). The case was tried before an administrative law judge (ALJ), who issued a recommended decision and order adverse to petitioner on the merits of his claim. The Secretary, acting upon the ALJ's recommendation, issued an order dismissing the complaint, and petitioner sought review in this Court pursuant to section 5851(c). For the reasons expressed below, we vacate the Secretary's order and remand the matter to her for further consideration.

In his recommended decision and order, the ALJ determined that petitioner failed to establish a prima facie case of retaliatory discharge under section 5851(a). In addition, the ALJ determined that even if it could be found that petitioner had established a prima facie case of retaliatory discharge, AP & L nevertheless should prevail because petitioner would have been discharged regardless of his having engaged in protected activity. In her final decision and order the Secretary adopted the ALJ's determination that petitioner failed to establish a prima facie case of retaliatory discharge, and rested her disposition of petitioner's claim on that ground; the Secretary did not adopt the ALJ's just-mentioned alternative finding. We disagree with the Secretary's determination that petitioner did not establish a prima facie case of retaliatory discharge.

A prima facie case of retaliatory discharge is established when the plaintiff shows: (1) engagement in protected activity; (2) defendant's awareness of plaintiff's engagement in protected activity; (3) plaintiff's subsequent discharge; and (4) that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive. See Keys v. Lutheran Family and Children's Services of Missouri, 668 F.2d 356, 358 (8th Cir.1981) (retaliatory discharge claim involving section 704(a) of Title VII, 42 U.S.C. Sec. 2000e-3(a)); Womack v. Munson, 619 F.2d 1292, 1296 & n. 6 (8th Cir.1980) (same), cert. denied, 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981). Accord Davis v. State University of New York, 802 F.2d 638, 642 (2d Cir.1986); Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985). In the case at bar, the ALJ found that petitioner had engaged in activity protected by section 5851(a), that AP & L was aware of this activity, and that petitioner was discharged. The ALJ determined, however, that the evidence did not support an inference of retaliatory motivation on AP & L's part, and therefore concluded that petitioner had not established a prima facie case. In our opinion, this conclusion was error since petitioner was discharged roughly thirty days after he engaged in protected activity. Our cases hold that this temporal proximity is sufficient as a...