Pogue v. U.S. Dept. of Labor, 90-70318
| Decision Date | 05 August 1991 |
| Docket Number | No. 90-70318,90-70318 |
| Citation | 940 F.2d 1287 |
| Parties | Barbara POGUE, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR; Lynn Martin, Secretary, * Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ann H. Lyons, Gorman & Waltner, Oakland, Cal., for petitioner.
Anne Payne Fugett, U.S. Dept. of Labor, Washington, D.C., for respondents.
Petition for Review of a Final Determination of the Secretary of Labor.
Before HUG, SCHROEDER and WIGGINS, Circuit Judges.
Barbara Pogue, a former civilian employee of the Department of the Navy, petitions for review of the Secretary of Labor's dismissal of her complaint and rejection of an Administrative Law Judge's ("ALJ") determination that the Navy had unlawfully retaliated against her for engaging in "whistleblowing" activity protected under four separate environmental statutes. 1 Concluding that the Secretary's decision to dismiss Pogue's complaint is not supported by substantial evidence, we reverse the Secretary's determination.
Pogue, a nuclear engineer, began working for the Navy as a civilian employee in 1980, and transferred to the Mare Island Naval Shipyard in 1982. In September 1986, Pogue began working at the shipyard's Occupational Safety and Health Office ("Code 106"), a hazardous waste oversight position charged with the responsibility for surveying and reporting on hazardous waste compliance.
Between September 14 and October 28, 1986, Pogue prepared seven internal reports identifying numerous instances of hazardous waste noncompliance at the shipyard. In mid-November 1986, Pogue sent a letter to the Shipyard Commander reporting the environmental violations she had uncovered, and expressing her belief that her immediate supervisor, Michael Noble, had thwarted her efforts of performing her assigned task of promptly and accurately reporting on hazardous waste noncompliance at the shipyard. On December 3, 1986, the Commander informed Noble of the letter and a series of angry confrontations between Noble and Pogue ensued. These confrontations were in turn followed by several formal and informal disciplinary actions taken against Pogue by the Navy and Noble, including a transfer, a suspension, an official reprimand, and a withholding of a pay increase.
On February 20, 1987, Pogue filed an administrative complaint against the Navy with the Department of Labor, alleging unlawful retaliation for her preparation of the hazardous waste reports, in violation of the whistleblower protection provisions of the federal environmental statutes. After an investigation, this complaint resulted in a determination that Pogue had in fact been discriminated against in violation of her whistleblower protection rights.
The Navy appealed this determination to an ALJ. After a two-week evidentiary hearing where Noble testified for five days, the ALJ issued a decision that also concluded that the Navy had unlawfully retaliated against Pogue for her hazardous waste reports. The ALJ recommended that the Navy be ordered to remove and destroy all documents related to disciplinary actions taken against Pogue, terminate any further adverse personnel actions, effectuate Pogue's salary increase, and ensure that Pogue's new position with the Navy be equivalent to her former position in Code 106. The ALJ further recommended denying Pogue's claim for compensatory On May 10, 1990, the Secretary entered a final decision and order rejecting the ALJ's recommended determination and dismissing Pogue's complaint. This appeal followed.
damages, and also that her attorney's fees request be reduced.
"The Secretary's decision is reviewed under the Administrative Procedure Act, 5 U.S.C. Sec. 706," and "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." Lockert v. United States Dept. of Labor, 867 F.2d 513, 516-17 (9th Cir.1989) () (citing Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir.1984)). In the labor context, this court has noted that an ALJ's "determinations of credibility based on demeanor are [not] conclusive on the [National Labor Relations] Board." Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1079 (9th Cir.1977). Likewise, in a review of a decision of the Merit Systems Protection Board, this court stated that Curran v. Dept. of Treasury, 714 F.2d 913, 915 (9th Cir.1983) (citations omitted).
When, as here, the findings of the ALJ differ from those of the final administrative decisionmaker, the following standards of review have been held to apply:
The fact that the findings of the ALJ differ from those of the full board does not alter the requirement that we affirm MSPB decisions if supported by substantial evidence. However, consideration of the ALJ's findings will require a more searching scrutiny of the record. Special deference is to be given the ALJ's credibility judgments. A finding of the full board that rests solely on testimony discredited by the ALJ is not supported by substantial evidence and cannot be sustained.
Id. (citations omitted). As stated in the labor context, " 'when the Board second-guesses the Examiner and gives credence to testimony which he has found--either expressly or by implication--to be inherently untrustworthy, the substantiality of that evidence is tenuous at best.' " Penasquitos Village, 565 F.2d at 1077 (quoting Ward v. NLRB, 462 F.2d 8, 12 (5th Cir.1972)). As the Supreme Court has explained, "[w]eight is given the [ALJ's] determinations of credibility for the obvious reason that he or she 'sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.' " Id. at 1078 (quoting NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962)). Thus, " 'the probative weight which may be properly given to testimony is severely reduced when an impartial experienced examiner who has observed the witnesses and lived with the case has drawn different conclusions.' " Id. at 1077 (quoting Amco Electric v. NLRB, 358 F.2d 370, 373 (9th Cir.1966)).
We believe these standards properly govern our review of the Department of Labor's adjudication of Pogue's whistleblower complaint under the federal environmental statutes and therefore apply them to this case.
Significantly, it is undisputed in this case that Pogue engaged in protected whistleblowing activities and that this was a motive for the disciplinary action. The Secretary defends her denial of relief, however, on the grounds that the Navy had independent legitimate reasons for taking disciplinary actions against Pogue that would have occurred in the absence of Pogue's whistleblowing activities. We therefore agree with the parties that the "dual motive" test set forth in Mt. Healthy City We are unpersuaded by the Secretary's conclusion that the Navy met its burden of proving that Pogue would have been subjected to the same disciplinary actions even if she had not engaged in the protected activity. There is no dispute that Pogue's employment history prior to her whistleblowing activity was comprised mostly of "satisfactory" performance reports with the one exception of a "marginal" rating on a critical factor. The Secretary also does not dispute that, while Pogue's employment history revealed certain problems with work performance and getting along with co-workers, Pogue had never received any formal disciplinary actions during her six-year employment with the Navy until after she engaged in whistleblowing activity.
School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) applies to this case, a test we previously have applied to a whistleblower case under the Energy Reorganization Act, 42 U.S.C. Sec. 5851. See Mackowiak, 735 F.2d at 1164. "Under Mt. Healthy,...To continue reading
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