___________

No. 95-1729

 ___________

David Carroll, *

 *

Petitioner, *

 * 

 v. *

*

United States Department * Petition for Review of an

of Labor; * Order of the United States

 * Department of Labor

Respondent, *

 * 

Bechtel Power Corporation, *

 *

Intervenor. *

 __________________________

Submitted: November 15, 1995

 Filed: March 5, 1996

 __________________________

Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges. 

 __________________________ 

FLOYD R. GIBSON, Circuit Judge.

David Carroll petitions for review of the Secretary's final order

dismissing his complaint filed under the whistleblower provisions of the

Energy Reorganization Act, 42 U.S.C. § 5851 (1988) (ERA). We affirm.

I. BACKGROUND

David Carroll was hired by Bechtel Corporation in July of 1989 as a

mechanical engineer. Carroll worked on a variety of Bechtel projects

throughout the United States until July of 1990 when he was transferred to

Bechtel's Engineering Support Team (EST) in
 "Release" is a term of art at Bechtel. Individual 1

engineers are assigned to a regional home office for

administrative purposes. When an engineer is released from a

project, his home office is notified and the regional chief

engineer for that regional office is responsible for reassignment

of that engineer at other Bechtel worksites if such positions are

available and if that engineer meets the relevant job

qualifications. Carroll was assigned to the Houston, Texas

regional home office, and George Showers was the chief project

engineer for that office.

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Russelville, Arkansas. The EST had been established in 1987 to supply

Arkansas Power & Light Company (AP&L) and its agent, Entergy Operations,

Inc. (Entergy), with engineering support services for AP&L's nuclear power

plant, Arkansas Nuclear One (ANO). Hugh Nugent was the Bechtel EST Project

Engineer who supervised James Drasler, who in turn supervised Carroll and

the other engineers on the EST team.

In July of 1990, Bechtel contracted with Entergy to establish the

Backlog Elimination Project (BEP). The purpose of the BEP was to review

and respond to a backlog of outstanding engineering action requests (EARS)

and plant engineering action requests (PEARS). This backlog consisted of

over 2,000 internal engineering requests that had been previously screened

by ANO personnel and determined not to present safety concerns. Entergy's

BEP project manager then screened the backlog a second time and prioritized

those EARS and PEARS that presented potential safety issues before sending

the remainder to the BEP project. William Watson was the project manager

for all Bechtel work performed for ANO, and in charge of both the EST and

the BEP.

In late 1990, Entergy informed Bechtel that it would have to reduce

its EST staff. Consistent with Bechtel's policy of retaining its most

qualified engineers on ongoing projects, Bechtel "released" Carroll and Jon

Rourke as well as eleven other engineers from the EST in December of 1990.1

Because of attrition in the BEP, Carroll and Rourke were reassigned to that

unit in January of
3

1991. Dale Crow, the Bechtel BEP project engineer, supervised David

Christiansen, who in turn supervised Carroll on the BEP.

On April 5, 1991, Entergy ordered Watson to reduce the remaining EST

mechanical engineering staff from three to one. Pursuant to Watson's

directive "to look at all the people being released and retain those

individuals with the highest skill level within the department," Nugent

and Crow agreed to transfer mechanical engineers John Antle and Joel Guzman

from the EST to the BEP and release Carroll and Rourke. Carroll's regional

chief engineer, George Showers, notified him that he was being released

from the BEP on April 10. Efforts to reassign Carroll were unsuccessful,

and Showers told Carroll that he would be terminated effective May 10,

1991. 

On the day he was terminated, Carroll filed a complaint with the

Nuclear Regulatory Commission. Three days later, Carroll filed a complaint

with the United States Department of Labor claiming that he had been

released from the BEP and subsequently terminated in retaliation for

voicing safety-related complaints to his supervisors. A hearing was held

before an Administrative Law Judge (ALJ), who issued a decision on

September 21, 1992, recommending dismissal of Carroll's claim. On February

15, 1995, the Secretary issued a final order dismissing Carroll's

complaint. Although the Secretary's order disagreed with several aspects

of the ALJ's decision, it adopted the ALJ's ultimate conclusion: that

Carroll failed to prove by a preponderance of the evidence that he was

retaliated against by Bechtel for engaging in activity protected by the

ERA's whistleblower provision. Carroll now seeks review in this Court

pursuant to 42 U.S.C. § 5851(c).

II. DISCUSSION

The Energy Reorganization Act of 1974 protects "whistleblowers"

employed in the nuclear power industry by
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providing that "[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." 42 U.S.C. § 5851(a)(1). Carroll attacks the

Secretary's final order on two fronts: first, he argues that the Secretary

failed to apply the proper legal standards to his complaint; second, he

argues that the Secretary's conclusion that he failed to prove retaliatory

discharge is unsupported by substantial evidence. Under the Administrative

Procedure Act, we will set aside the Secretary's order only if it is

unsupported by substantial evidence or is arbitrary and capricious, an

abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. §

706 (1994). 

A. ERRORS OF LAW

Carroll first argues that the Secretary's order dismissing his

complaint is arbitrary and capricious because it failed to apply the rules

of law articulated in Couty v. Dole, 886 F.2d 147 (8th Cir. 1989), or Mt.

Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), to his

complaint. Carroll argues that he would have prevailed had the Secretary

properly applied this authority. We believe that Carroll misapprehends the

applicable legal framework underlying the Secretary's order. 

1. Couty v. Dole:

Couty v. Dole sets forth a burden-shifting framework similar to that

adopted in the Title VII context in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-03 (1973). Under Couty, a complainant in a whistleblower

case may satisfy his initial burden of establishing a prima facie case of

retaliatory discharge by proving: (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
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followed the protected activity so closely in time as to justify an

inference of retaliatory motive. Id. at 148. The burden of production

then shifts to the employer to "articulate[] a legitimate,

nondiscriminatory reason for discharging [the complainant]." Id.

But once the employer meets this burden of production, "the

presumption raised by the prima facie case is rebutted, and the factual

inquiry proceeds to a new level of specificity." Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 255 (1981) (applying McDonnell Douglas

test) (footnote omitted); see also St. Mary's Honor Center v. Hicks, 113

S. Ct. 2742, 2747 (1993) (applying McDonnell Douglas test). The

Couty/McDonnell Douglas framework and its attendant burdens and

presumptions cease to be relevant at that point, Hicks, 113 S. Ct. at 2749,

and the onus is once again on the complainant to prove that the proffered

legitimate reason is a mere pretext rather than the true reason for the

challenged employment action. Burdine, 450 U.S. at 256. While Couty

allows the complainant to shift the burden of production to the employer

by establishing a prima facie case, the ultimate burden of persuasion

remains with the complainant at all times. Hicks, 113 S. Ct. at 2747;

Burdine, 450 U.S. at 253.

Assuming Carroll established a prima facie case under Couty, Bechtel

met its burden of production by articulating a legitimate nondiscriminatory

reason for releasing and subsequently terminating Carroll: a general

decline in available work for which Carroll was qualified coupled with a

policy of retaining more highly-qualified engineers. At that point, the

issue of whether or not Carroll had previously established a prima facie

case under Couty became irrelevant. "The presumption [of retaliatory

discharge created under the Couty factors], having fulfilled its role of

forcing the defendant to come forward with some response, simply drops out

of the picture." Hicks, 113 S. Ct. at 2749. Once the employer has met its

burden of production, "the trier of fact proceeds to decide
 In a related argument, Carroll asserts that he has so 2

thoroughly discredited Bechtel's proffered nondiscriminatory

reason for releasing and subsequently terminating him that the

record can support nothing but a decision in his favor. This

argument has nothing to do with whether he has established a

prima facie case under Couty, but raises the question of whether

the Secretary's conclusion that Carroll failed to carry his

ultimate burden of persuasion is supported by substantial

evidence on the record as a whole. We address this issue in the

next section.

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the ultimate question." Id. As such, we conclude that the Secretary's

order properly focused on whether Carroll proved by a preponderance of the

evidence that Bechtel had retaliated against him for engaging in protected

conduct rather than whether Carroll had articulated a prima facie case

under Couty. Lockert v. U.S. Dept. of Labor, 867 F.2d 513, 519 n.2 (9th 2

Cir. 1989).

2. Mt. Healthy:

 We are similarly unable to fault the Secretary's order for failing

to rely on the Supreme Court's decision in Mt. Healthy. Whereas Couty and

McDonnell Douglas provide the legal framework in pretext cases, Mt. Healthy

and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), channel the scope of

our inquiry in mixed motive cases. Mt. Healthy and Price Waterhouse

provide that where the employee has shown that the challenged employment

action was motivated at least in part by an impermissible criterion, the

burden then shifts to the employer to prove by a preponderance of the

evidence that it would have reached the same decision even in the absence

of the illegitimate factor. Mt. Healthy, 429 U.S. at 287 (alleged

discharge for exercise of free speech in violation of First Amendment);

Price Waterhouse, 490 U.S. at 258 (Title VII claim). This type of Mt.

Healthy/Price Waterhouse mixed motive analysis, however, applies only in

"dual motive" cases where the complainant produces "evidence that directly

reflects the use of an illegitimate criterion in the challenged decision."

Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 202 (8th Cir.
 The Secretary's final order did not determine whether 3

Carroll had in fact proved that he had engaged in any protected

activity. As such, we express no opinion on this issue.

7

1993). Direct evidence means evidence showing a specific link between an

improper motive and the challenged employment decision. Parton v. GTE N.,

Inc., 971 F.2d 150, 153 (8th Cir. 1992). Here the record is bereft of any

such direct evidence linking Carroll's release and termination to

retaliation for his alleged engagement in protected activity. 

Even if Mt. Healthy were applicable to the facts before us, this case

has moved well past the issue of the adequacy of a party's prima facie

showing under the Mt. Healthy/Price Waterhouse or the Couty/McDonnell

Douglas analyses. As previously observed in our discussion of the

Couty/McDonnell Douglas framework, the Secretary's analysis, with the

hindsight benefit of a full hearing before the ALJ, properly focused on the

ultimate issue: whether, based on the record as a whole, Carroll proved by

a preponderance of the evidence that Bechtel had retaliated against him for

engaging in protected conduct. See Finley v. Empiregas, Inc., 975 F.2d

467, 473 (8th Cir. 1992); Kientzy v. McDonnell Douglas Corp., 990 F.2d

1051, 1060 (8th Cir. 1993). 

B. SUBSTANTIAL EVIDENCE

The Secretary's final order concluded that Carroll had failed to

prove that Bechtel retaliated against him for engaging in protected

activity. Carroll contends that the factual findings underlying the

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Secretary's conclusion are unsupported by substantial evidence on the

record as a whole. In considering this issue, we consider the whole record

before us, "including the ALJ's recommendation and any evidence that is

contrary to the agency's determination." Simon v. Simmons Foods, Inc., 49

F.3d 386, 389 (8th Cir. 1995). Because the Secretary's opinion in this

case is
8

in agreement with and based in part on the ALJ's credibility

determinations, it is entitled to "great deference" by this Court. Wilson

Trophy Co. v. NLRB, 989 F.2d 1502, 1507 (8th Cir. 1993). By substantial

evidence, we mean "such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,

401 (1971) (quotation omitted). 

The Secretary found that Bechtel released Carroll from the BEP for

a combination of valid business reasons. This finding is supported by

substantial evidence. It is uncontroverted that Entergy dictated Bechtel's

staff levels for Entergy projects. It is also uncontroverted that Entergy

ordered Bechtel to cut the number of engineers employed on the EST from

three to one. It is further uncontroverted that, consonant with Bechtel's

established policy of retaining its most highly-skilled engineers on

ongoing projects, Carroll's superiors agreed to transfer Antle and Guzman

from EST to the BEP to replace Carroll and Rourke. There is also

substantial evidence that Carroll's replacement, Antle, was a more highlyqualified engineer. Unlike Carroll, Antle was a licensed nuclear reactor

operator who possessed a bachelor of science degree in nuclear engineering

and had worked in the nuclear field since 1969. James Drasler, Antle and

Carroll's former EST supervisor, testified that Antle's qualifications,

experience, and evaluations were deemed superior to those of Carroll, who

was rated in the lowest quarter of all grade 25 engineers. Drasler's

testimony is buttressed by the undisputed fact that in the face of prior

mandatory personnel reductions, Carroll and Rourke were released from the

EST and transferred to the BEP prior to Antle or Guzman, who were the last

EST engineers to be released. This fact, coupled with Bechtel's policy of

retaining its most highly-qualified engineers on ongoing projects, is

compelling evidence that Bechtel did indeed consider Antle and Guzman more

highly-qualified than Carroll or Rourke. 
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The Secretary also found that Carroll's subsequent termination was

due to a lack of alternative job options despite Bechtel's substantial

efforts to relocate him. This finding is likewise supported by substantial

evidence. George Showers, Carroll's regional chief project engineer, James

Drasler, Carroll's former EST supervisor, and Dale Crow, Carroll's BEP

supervisor, all testified that they had made considerable efforts to match

Carroll with an available position for which he was qualified. These

efforts were confirmed by testimony from Bechtel employees from other

regional offices. Showers, Drasler, and Crow all testified that they were

unable to find a position for which Carroll was qualified due to

overstaffing and a decline in the amount of contracts. This testimony was

similarly confirmed by testimony from other Bechtel employees from other

regional offices and various Bechtel jobsites around the United States.

The Secretary additionally found that Bechtel did not retaliate

against Carroll by terminating him instead of offering him the option of

going on "holding" status. This finding is also supported by substantial

evidence. Although Bechtel's written policy gives a chief regional

engineer the option of placing a released employee on non-paid or "holding"

status for up to three months, both Drasler and Robert Hobbs, a Bechtel

senior designer, testified that this policy is purely discretionary.

Showers offered uncontroverted testimony that he had never placed an

employee on holding status, that he did not offer holding status to three

other mechanical engineers terminated around the same time as Carroll, and

that as a matter of policy he would not offer holding status to engineers,

such as Carroll, ranked in the lower third of their grade.

Carroll argues that the Secretary's order is not supported by

substantial evidence on the record as a whole, citing Universal Camera

Corp. v. NLRB, 340 U.S. 474, 487-88 (1951). In support of this assertion,

Carroll's brief bombards us with numerous excerpts
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from the record which he claims constitute substantial evidence that he was

in fact retaliated against for voicing nuclear safety concerns. Once

again, Carroll misunderstands the nature and scope of our review.

Universal Camera merely stands for the well-accepted proposition that the

reviewing court is required to take the whole of the record into account

in determining the substantiality of the evidence. Id. at 488. It does

not require the reviewing court to displace the Secretary's choice "between

two fairly conflicting views, even though the court would justifiably have

made a different choice had the matter been before it de novo." Id. 

As such, the issue here is whether substantial evidence supports the

Secretary's conclusion, not whether substantial evidence exists to support

Carroll's alternative view. Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992)

("The court should not supplant the agency's findings merely by identifying

alternative findings that could be supported by substantial evidence.").

As long as an agency has correctly applied the law and its factual

determinations are supported by substantial evidence on the record as a

whole, we will affirm its decision "even though we might have reached a

different decision had the matter been before us de novo." Wilson Trophy

Co., 989 F.2d at 1507. It is clear from the Secretary's order that the

Secretary painstakingly evaluated the whole of the substantial record in

this case. The mere fact that the Secretary elected to disbelieve whatever

evidence there may have been supporting Carroll's position does not mean

that he was unaware of it. Accordingly, we conclude that the Secretary's

decision was supported by substantial evidence on the record as a whole.

 

III. CONCLUSION

For the aforementioned reasons, we affirm the Secretary's final order

dismissing Carroll's case.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.