___________ 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 orde r 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 Car roll was hired by Bechtel Corporation in July of 1989 as a mechani cal engineer. Carroll worked on a variety of Bechtel project s 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.
2 Russe lville, Arkansas. The EST had been established in 1987 to suppl y Arkansas Power & Light Company (AP&L) and its agent, Entergy Operations, Inc. (Entergy), with engineering support service s for AP&L's nuclear power plant, Arkansas Nuclear One (ANO). Hugh Nugent was the Bechtel EST Projec t Engineer who supervis ed James Drasler, who in turn supervised Carroll and the other engineers on the EST team.

In Ju ly of 1990, Bechtel contracted with Entergy to establish th e Backlog Elimination Project (BEP). The purpose of the BEP was to review and respond to a backlog of outstanding engineer ing action requests (EARS) and plant engineering action requests (PEARS). This backlog consisted of over 2,000 internal engineering requests that ha d been previously screened by ANO personnel and determined not to present s afety concerns. Entergy's BEP project manager then screened the backlog a second time and prioritize d those EARS and PEARS that presented potential sa fety 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 1 990, Entergy informed Bechtel that it would have to reduce its E ST staff. Consistent with Bechtel's policy of retaining its mos t qualified engineers on ongoing projects, Bechtel "released" Carroll and Jo n Rourke as well as eleven other engineers from the EST in Decembe r of 1990. 1 Because of attrition in the BEP, Carroll and Rourke were reassigned to tha t unit in January of

### 3

1991

. Dale Crow, the Bechtel BEP project engineer, supervised Davi d Christiansen, who in turn supervised Carroll on the BEP.
On April 5, 1991, Entergy ordered Wa tson to reduce the remaining EST mechani cal engineering staff from three to one. Pursuant to Watson' s dire ctive "to look at all the people being released and retain thos e individuals with the highest skill level within the department," Nugent and Crow agreed to transfer mechanical engineers John Antle and Joel Guzma n from the EST to the BEP and release Carroll and Rourke. Carroll's regiona l chi ef engineer, George Showers, notified him that he was being release d from the BEP on April 10. Efforts to reassign Carroll were unsuccessful, and S howers told Carroll that he would be terminated effective May 10 , 1991.

On the day he was terminated, Carroll filed a complaint with th e Nuclear Regulatory Commission. Three days later, Carroll filed a complain t with the United States Department of Labor claiming that he had bee n releas ed from the BEP and subsequently terminated in retaliation fo r voicing safety-relate d complaints to his supervisors. A hearing was held before a n Administrative Law Judge (ALJ), who issued a decision o n September 21, 1992, recommending dismissal of Carroll's claim. On Februar y 15, 19 95, 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: tha t Carroll failed to prove by a preponderance of the evidence that he wa s ret aliated against by Bechtel for engaging in activity protected by th e ERA's whistleblower provision. Carroll now seeks review in this Cour t 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 th e Atomic E nergy Act." 42 U.S.C. § 5851(a)(1). Carroll attacks th e Secretary's final order on two fronts: first, he argues that the Secretary failed to apply the proper legal standards to his complaint; second, h e argues that the Secretary's conclusion that he f ailed to prove retaliatory discharge is unsupported by substantial evidence. Under the Administrativ e Proced ure Act, we will set aside the Secretary's order only if it i s unsupp orted by substantial evidence or is arbitrary and capricious, a n abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706 (1994).

A. ERRORS OF LAW

Carrol l first argues that the Secretary's order dismissing hi s 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 a rgues that he would have prevailed had the Secretary properly applied this authority. We believe that Carroll misapprehends th e applicable legal framework underlying the Secretary's order.

1. Couty v. Dole :

Couty v. Dole sets forth a burden-sh ifting 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 whistleblowe r 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 a n inference of retaliatory motive. Id. at 148. The burden of productio n 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, "th e presumption raised by the prima facie case is rebutted, and the factua l 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). Th e Cout y / McDonnell Douglas framework and its attendant burdens an d 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 legitimat e reason is a mere pretext rather than the true reason for th e challenged employment action. Burdine , 450 U.S. at 256. While Cout y allows the complainant to shift the burden of production to the employer by esta blishing a prima facie case, the ultimate burden of persuasio n 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 nondiscriminator y
re ason for releasing and subsequently terminating Carroll: a genera l 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 u nder Coutybecame irrelevant. "The presumption [of retaliator y 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 it s 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.
6 the ultim ate question." Id. As such, we conclude that the Secretary' s order properly focused on whether Carroll provedby 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 cas e under Cout y . Lockert v. U.S. Dept. of Labor , 867 F.2d 513, 519 n.2 (9th 2 Cir. 1989).

2. Mt. Healthy :

We are s imilarly unable to fault the Secretary's order for failing to rely on the Supreme Court's decision in Mt. H ealthy . Whereas Couty and McDonnell Douglas provide the legal framework in pretext cases, Mt. Healthy and Price Waterhouse v. Hopkins , 490 U.S. 228 (1 989), channel the scope of
our inquiry in mixed motive cases. Mt. Healthy and Price Waterhous e provide that where the employee has shown that the challenged employment action was motivated at least in part by an impermissible criterion, the bur den then shifts to the employer to prove by a preponderance of th e evidence that it woul d have reached the same decision even in the absence of the illegitimate factor. Mt. Healthy , 429 U.S. at 287 (allege d dis charge for exercise of free speech in violation of First Amendment) ; Price Wa terhouse , 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 produc es "evidence that directly reflects the use of an illegitimate criterion inthe 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 eviden ce means evidence showing a specific link between an improper motive and the challenged employment de cision. Parton v. GTE N., Inc. , 971 F.2d 150, 153 (8th Cir. 1992). Here t he record is bereft of any

suc h direct evidence linking Carroll's release and termination t o retaliation for his alleged engagement in protected activity.

Even if Mt. Healthy were applicable to the facts before us, thi s case has move d well past the issue of the adequacy of a party's prima faci e showing under the Mt. Healthy / Price Waterhouse or the Couty / McDonnel l Douglas analyses. As previously observed in our discussion of th e Cou ty / McDonnell Douglas framework, the Secretary's analysis, with th e hindsight benefit of a full hearing before the ALJ, properly focused on th e ultimate issue: whether, based on the record as a whole, Carroll proved by
a preponderance of the evidence that Bechtel had retaliated against him fo r engaging in protected conduct. See Finley v. Empiregas, Inc. , 975 F.2 d 467, 473 (8th Cir. 1992); Kientzy v. McDonnell Douglas Corp. , 990 F.2 d 1051, 1060 (8th Cir. 1993).

B. SUBSTANTIAL EVIDENCE

The Secretary's final order concluded that Carroll had failed t o prove that Bechtel retaliated against him for engaging in protecte d activity

. Carroll contends that the factual findings underlying th e

3 Secreta ry's conclusion are unsupported by substantial evidence on th e record as a whole. In considering this issue, we consider the whole recor d bef ore us, "including the ALJ's recommendation and any evidence that i s 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 thi s case is

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in agreement with and based in part on the ALJ's credibilit y determinations, it is entitled to "great deferen ce" 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 accep t
as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389 , 401 (1971) (quotation omitted).

The Secr etary found that Bechtel released Carroll from the BEP fo r
a com bination of valid business reasons. This finding is supported b y substantial evidence. It is uncontroverted that Entergy dictated Bechtel' s staff levels for Entergy projects. It is also u ncontroverted that Entergy ordered B echtel to cut the number of engineers employed on the EST fro m three to one. It is further uncontroverted that , consonant with Bechtel's
es tablished policy of retaining its most highly-skilled engineers o n ongoing projects, Car roll's superiors agreed to transfer Antle and Guzman fromEST to the BEP to replace Carroll and Rourke. There is als o 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 deg ree in nuclear engineering and had worked in the nuclear field since 1969. James Drasler, Antle and Carro ll's former EST supervisor, testified that Antle's qualifications , experience, and evalu ations 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 r eductions, 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, couple d with Bechtel's policy of retaini ng its most highly-qualified engineers on ongoing projects, i s compelling evidence that Bechtel did indeed cons ider Antle and Guzman more highly-qualified than Carroll or Rourke.

### 9 Th e Secretary also found that Carroll's subsequent termination wa s due to a lack of alternative job options despite Bechtel's substantia l efforts to relocate him. This finding is likewise supported by substantia l evidence. George Showers, Carroll's regional chief project engineer, Jame s Drasle r, Carroll's former EST supervisor, and Dale Crow, Carroll's BE P supervisor, all testified that they had made con siderable efforts to match Carroll wi th an available position for which he was qualified. Thes e effort s were confirmed by testimony from Bechtel employees from othe r regional offices. Showers, Drasler, and Crow al l testified that they were

un able to find a position for which Carroll was qualified due t o overstaffing and a decline in the amount of cont racts. 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 retaliat e against Carroll by terminating him instead of offering him the option of going on "holding" st atus. This finding is also supported by substantial eviden ce. Although Bechtel's written policy gives a chief regiona l engineer the option of placing a released employee on non-paid or "holding " status fo r up to three months, both Drasler and Robert Hobbs, a Bechte l
se nior designer, testified that this policy is purely discretionary

. Shower s offered uncontroverted testimony that he had never placed a n employee on holding s tatus, 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 ho lding status to engineers, such as Carroll, ranked in the lower third of their grade.

Carroll argues that the Secretary's order is not supported b y substantial evidence on the record as a whole, citing Universal Camer a 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 wa s in fact retaliated against for voicing nuclear safety concerns. Onc e again, Carroll misunderstands the nature and scope of our review

. Universal Camera mere ly 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 "betwee n two fairly conflicting views, even though the co urt would justifiably have made a different choice had the matter been before it de novo ." Id.

As such, the issue here is whether s ubstantial evidence supports the Secretary's conclusion, not whether substantial evidence exists to support Carroll's alternative view. Arkansas v. Oklahom a , 503 U.S. 91, 113 (1992) ("The court should not supplant the agency's findings merely by identifyin g alternative findings that could be supported by substantial evidence."). As long as an agency has correctly applied the law and its factua l det erminations 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 ha d the matter been before us de novo ." Wilson Trophy Co. , 989 F.2d at 1507. It is clear from the Secretary's order that th e Secretary painstakingly evaluated the whole of the substantial record in this case. The mere fact that the Secretary elected to disbelieve whateve r evidence there may have been supporting Carroll's position does not mean that he was unaware o f 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.

### 11 A true copy.

Attest:

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