Trimmer v. U.S. Dept. of Labor

• Decision Date: 06 April 1999
• Docket Number: No. 97-9544,97-9544
• Citation: 174 F.3d 1098
• Parties: 134 Ed. Law Rep. 783, 14 IER Cases 1750, 1999 CJ C.A.R. 3183 Lenard E. TRIMMER, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, University of California, Intervenor.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1098

174 F.3d 1098

134 Ed. Law Rep. 783, 14 IER Cases 1750,

1999 CJ C.A.R. 3183

Lenard E. TRIMMER, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent University of California, Intervenor.

No. 97-9544.

United States Court of Appeals Tenth Circuit.

April 6, 1999.

Stephen M. Kohn, of Kohn, Kohn and Colapinto, P.C., Washington, D.C., for Petitioner, Lenard E. Trimmer.

Lois R. Zuckerman, Attorney, U.S. Department of Labor, Washington, D.C., (Marvin Krislov, Deputy Solicitor for National Operations, Steven J. Mandel, Associate Solicitor, and Paul L. Frieden, Assistant Counsel for Appellate Litigation, U.S. Department of Labor, Washington, D.C. with her on the brief) for Respondent, U.S. Department of Labor.

Daniel H. Friedman, of Simons, Cuddy & Friedman, LLP, Santa Fe, New Mexico (Tanya M. Trujillo, of Simons, Cuddy & Friedman, LLP, with him on the briefs) for Intervenor, University of California.

Before ANDERSON, HENRY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Lenard E. Trimmer brought an administrative action under 42 U.S.C. § 5851, the whistleblower provision of the Energy Reorganization Act, against his employer, the Los Alamos National Laboratory (the "Lab"), which is owned by the Department of Energy but run by the University of California. Trimmer claimed that the Lab wrongfully delayed an alternate employment-placement process because he had engaged in statutorily protected activity. The Administrative Review Board ("ARB") of the Department of Labor ¹ dismissed his complaint. Trimmer appeals on the premise that the Lab's delay in notifying him of his right to engage in an alternate-placement process constituted an adverse employment action. This court has jurisdiction pursuant to 42 U.S.C. § 5851(c) and concludes that the ARB correctly decided that the delay did not constitute an adverse action. Accordingly, we AFFIRM the decision of the Secretary.

I. Background

Prior to filing his complaint in 1993, Trimmer had worked at the Lab for almost thirty years. In 1987 he injured his back in a work-related accident. He subsequently worked intermittently and received workers' compensation during six months of rehabilitation. In the summer of 1988 a doctor determined that Trimmer was fit for light-duty work. In December 1988 Trimmer participated in the Lab's "alternate placement" program, a process for finding injured employees new positions suitable to their new physical limitations and work restrictions. ² Although at the time alternate placement was successful in only about ten percent of the cases, Trimmer quickly obtained new employment in a different division.

In 1989 and 1990, Trimmer engaged in whistleblowing activity, which included notifying his supervisors of various safety concerns and contacting a congressional subcommittee, an investigative team, the Inspector General of the Department of Energy, and members of the news media to express his safety concerns.

In the fall of 1990 Trimmer filed a grievance against the Lab based upon his failure to obtain a promotion. Soon thereafter his supervisors requested that he stop discussing his grievance with his co-workers because they felt the discussions were disruptive. This request upset Trimmer and he left work. He did not return to work and instead exhausted his remaining sick leave and vacation, eventually going on leave without pay. In early 1991 the Lab notified Trimmer that he was eligible for alternate placement. He responded that he was interested in engaging in another alternate-placement process. Because the Lab concluded he was not able to perform the functions of his previous position, Trimmer and the Lab's Medical Director met during February and March 1991. The two, working together, defined new work restrictions that would allow Trimmer to work regularly without harming his health.

In spring of 1991 the Lab commenced a second alternate-placement search for Trimmer. After a division-wide placement search proved unsuccessful, the search coordinator began a Lab-wide search. This search was temporarily aborted at Trimmer's request because he had applied for early retirement and had begun to receive disability benefits. The placement coordinator nevertheless continued to refer suitable job openings to him. Trimmer was granted disability benefits in August 1991, equivalent to two-thirds of his Lab salary.

Because he did not find a job through the 1991 alternate-placement search and consequently had not worked for over a year, the Lab managers charged with monitoring Trimmer's employment status met on February 13, 1992, and scheduled a meeting for March 2, 1992, to review his status. In the meantime, on February 28, 1992, Trimmer was quoted in a Sante Fe newspaper article which was critical of the Lab's safety procedures. During the March 2, 1992, meeting, the Lab managers agreed that the Lab should send a letter to Trimmer to notify him that he would be discharged unless he actively pursued alternate placement. ³ The managers were concerned, however, that sending this letter so soon after the publication of the newspaper article could be viewed as retaliatory.

The Lab finally sent a letter to Trimmer on December 9, 1992, notifying him that his employment would be terminated on January 5, 1993, unless he expressed some interest in returning to work and participating in another alternate-placement process. [Hereinafter "discharge letter"]. Trimmer promptly notified the Lab that he wanted to return to work. The Lab's response specified four conditions Trimmer would have to meet in order to continue his employment with the Lab. One of these conditions was that he return to work at a temporary assignment, during which he would search for a permanent position. If at the end of 90 days Trimmer was unable to locate a suitable permanent position, his employment would be terminated. Trimmer did not comply with this condition because he assumed the disability benefits would not be reinstated for six to eight months if he were unable to find a new permanent position. The Lab acquiesced, allowing Trimmer to remain at home while an alternate-placement search was conducted. This acquiescence was unusual, if not unprecedented. This third and final alternate-placement process was unsuccessful and Trimmer was medically discharged on September 16, 1993.

II. Administrative Proceedings

The Energy Reorganization Act of 1974(ERA) prohibits any employer from discharging or otherwise discriminating against any employee "with respect to his compensation, terms, conditions, or privileges of employment" because the employee engaged in protected whistleblowing activity. 42 U.S.C. § 5851(a). In 1992 Congress amended § 5851 of the ERA to include a burden-shifting framework distinct from the Title VII employment-discrimination burden-shifting framework first established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). ⁴ See Energy Policy Act of 1992, Pub.L. No. 102-486, § 2902(d), 106 Stat. 2776, 3123-24 (amending 42 U.S.C. § 5851(b)). Although Congress desired to make it easier for whistleblowers to prevail in their discrimination suits, it was also concerned with stemming frivolous complaints. ⁵ Consequently, § 5851 contains a gatekeeping function, which provides that the Secretary cannot investigate a complaint unless the complainant has established a prima facie case that his protected behavior was a contributing factor in the unfavorable personnel action alleged in the complaint. See § 5851(b)(3)(A). Even if the employee has established a prima facie case, the Secretary cannot investigate the complaint if the employer can prove by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. See § 5851(b)(3)(B). Thus, only if the employee establishes a prima facie case and the employer fails to disprove the allegation of discrimination by clear and convincing evidence may the Secretary even investigate the complaint.

If, as here, the case proceeds to a hearing before the Secretary, the complainant must prove the same elements as in the prima facie case, but this time must prove by a preponderance of the evidence that he engaged in protected activity which was a contributing factor in an unfavorable personnel decision. See § 5851(b)(3)(C); see also Dysert v. Secretary of Labor, 105 F.3d 607, 609-10 (11th Cir.1997) (holding that Secretary's construction of § 5851(b)(3)(C), making complainant's burden preponderance of evidence, was reasonable). Only if the complainant meets his burden does the burden then shift to the employer to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. See § 5851(b)(3)(D).

The ARB noted the uncontested fact that Trimmer had engaged in protected activity by exposing health and safety issues regarding the Lab's storage and disposal of radioactive and toxic substances. ⁶ It also held, however, that the delay in sending the discharge letter did not constitute an unfavorable personnel action. Instead, the ARB stated that the delay worked to Trimmer's benefit because it extended his employment with the Lab and "widened the window during which he could have found alternate placement with [the Lab]."

In response to Trimmer's claim that the delay had cost him continued employment with the Lab, the ARB concluded that a comparison of Trimmer's employability in the spring of 1992 with his employability in the spring of 1993 would be too speculative to support his claim. Additionally, the ARB noted that, through a friend, Trimmer had actual knowledge of the positions open during the spring of 1992 but had declined to pursue them. Finally, even if Trimmer had proved the postponement prevented him from securing a job with the Lab, the ARB stated that "unless [Trimmer] could further demonstrate that respondent...