*

Honorable Ralph B. Guy, Jr., Senior United States Circuit

Judge for the Sixth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-4067.

BECHTEL CONSTRUCTION COMPANY, Petitioner,

v.

SECRETARY OF LABOR, Respondent.

April 20, 1995.

Petition for Review of a Final Decision and Order of the Secretary

of Labor. (No. 87-ERA-0044).

Before CARNES, Circuit Judge, DYER and GUY*

, Senior Circuit Judges.

RALPH B. GUY, Jr., Senior Circuit Judge:

This is an appeal from the Secretary of Labor's determination

that petitioner violated the employee protection provisions of the

Energy Reorganization Act, commonly referred to as whistleblower

provisions. The provisions prohibit an employer from discharging

or otherwise discriminating against any employee who has engaged in

protected activities. On appeal, petitioner Bechtel Construction

Company (Bechtel) claims that the Secretary of Labor's finding that

Bechtel discharged one of its employees for engaging in

whistleblower activities is not supported by substantial evidence.

Petitioner further claims that the employee's conduct was not

protected activity as a matter of law.

Our review of the record convinces us that the Secretary

should be affirmed.

I.

Bechtel is a contractor at the Turkey Point Nuclear Power
Facility at Florida City, Florida. Turkey Point is owned and

operated by the Florida Power and Light Company (FPL), which is

licensed to operate the facility by the Nuclear Regulatory

Commission (NRC). Bechtel built the plant for FPL and continues to

maintain it. The facility is divided into two areas, the radiation

control area and the non-radiation area.

Approximately every 18 months the nuclear units at Turkey

Point are shut down for refueling, maintenance and general repairs.

These periods are called refueling outages, and may last from

several weeks to several months depending upon the work required.

During these periods of increased maintenance work, Bechtel hires

additional workers. In the spring of 1987, during one of these

periods, Bechtel needed an additional carpenter crew for work

inside the radiation control area (RCA), a large area which

includes containment units, buildings, facilities, and grounds.

All persons who work in the RCA must attend and pass a three-day

course known as Red Badge School, which takes place at the facility

and instructs the workers on RCA procedures, including health

physics requirements and handling of radiation-contaminated

objects.

The RCA is supervised and controlled pursuant to NRC

guidelines and regulations. All contemplated work and activity in

the RCA is pre-screened by the licensee, FPL, or its contractor,

Bechtel, to determine the amount of possible radiation exposure,

the necessary protective clothing and the equipment necessary for

such work assignments. Each work activity requires a radiation

work permit (RWP), which provides and identifies necessary
information.

During the spring 1987 outage Larry Williams, the carpenters'

general foreman, decided to form an additional carpenter crew,

elevating John Wright as crew foreman. Bechtel staffed the new

crew primarily by hiring new workers. Williams, however, wishing

to include an experienced, Red Badge-certified carpenter,

approached a non-RCA carpenter foreman, Greg Lilge, and asked that

Russ Smith, one of Lilge's crewmembers, be transferred to Wright's

crew.

Lilge offered Roy Nichols, instead. Except for an eight- to

ten-week layoff, Nichols had worked as a non-RCA carpenter for

Bechtel for 31 months. For the previous six months, however,

Nichols reflected what Lilge described as an attitude problem. A

few weeks earlier, Lilge had recommended to Williams that Nichols

be laid off in the next reduction in force at the end of the

outage. Nonetheless, Williams approached Nichols about this

proposed transfer. He told Nichols that Wright's crew needed some

experienced carpenters, and that it was "more than likely" that

Nichols would return to Lilge's crew when the outage was over. At

the hearing, however, Williams admitted that he did not tell

Nichols the whole truth, and that he actually believed that all of

Wright's crew, including Nichols, would be laid off at the end of

the outage. Nichols transferred to Wright's crew in early March

1987. During the first weeks of the outage, the temporary crew

worked in non-radioactive areas. Later, however, the crew was

assigned to work on a unit that required handling contaminated

tools.
When working in radioactive areas, the crew members would

change into special clothing at the beginning of their work shift.

They would then select tools they needed for the particular task.

These previously contaminated tools were stored in a "hot tool box"

located in a storage building for radioactive materials. Upon

obtaining the tools, a crew member would have the health physics

(HP) staff person on duty measure the amount of contamination and

write the rate of contamination on a tag attached to the bag

containing the tools. The procedure was known as "taking a dose

rate and tagging" the tools. The HP technician also would brief

the employees on the highly contaminated areas and required safety

precautions. He would then give the employee an RWP, listing the

equipment and radiological conditions under which the employee

would be working. The employee was required to sign the RWP, which

indicated agreement to abide by the permit's regulations.

When Wright's crew began working inside the RCA, Nichols and

Wright disagreed over the proper procedure for surveying and

tagging contaminated tools. Nichols had not previously worked in

the RCA, but he had taken five Red Badge courses. Based on his

training, Nichols understood that contaminated tools were to be put

in two double polyurethane bags and carried to the "frisking

station" where the HP technician on duty could take a dose rate and

tag them. Wright told Nichols that the tools could be placed in a

single bag, and if the HP technician was not at the frisking

station, the tools could be taken to the HP technician in the dry

storage warehouse for dosing and tagging. Nichols disagreed and

stated that he believed safety procedures required that the tools
be surveyed at the tool box.

In general, workers within the RCA differed in opinion as to

which procedure was correct. Wright's approach was consistent with

the way another crew operated and with the view of some HP staff

members. Nichols and some other crew members, however, thought the

procedure violated safety requirements. Another crew member on

Nichols' crew testified at the administrative hearing regarding

Nichols' whistleblower claim that he had made an anonymous

complaint to the senior HP supervisor about the practice. Even HP

technicians had given conflicting instructions.

Nichols insisted on waiting at the tool box for an HP worker

to survey the tools before reporting to the work site, contrary to

Wright's instruction. Nichols told his foreman's supervisor,

Williams, that he disagreed with the way Wright said to handle the

tools. Williams told Nichols he would investigate. Nichols also

approached a couple of the HP technicians and the HP supervisor

assigned permanently to Turkey Point to discuss this issue.

Ultimately the HP shift supervisor, Donald Hicks, resolved the

issue of where to survey and tag tools. The HP supervisor told

Wright that Nichols was correct about where the tools had to be

surveyed. Wright indicated that he believed that surveying the

tools at the tool box caused too much delay. Nevertheless, Wright

acceded and told his crew to have their tools surveyed and tagged

at the tool box. Hicks also mentioned to Williams and Wright that

he had received a complaint about the tool handling situation, but

refused to identify the complainant. Wright, however, learned from

other crew members that Nichols had complained to Williams about
how the tools were being handled. Wright confronted Nichols, and

advised Nichols to come to him first with any such problems.

Nichols reminded Wright that he had already come to him about the

issue.

As the outage came to an end in April of 1987, Williams

approached Wright and told him that, as part of the reductions in

force which had begun earlier that month, Wright should pick one of

his carpenters to be laid off. Wright initially selected a crew

member who was absent from work that day. The next day, however,

he told Williams to lay off Nichols. Williams asked Wright if he

was sure. Wright indicated that he was, and Nichols was laid off.

Within 30 days, Wright's entire crew was laid off. Wright

returned to his carpenter position. Bechtel did recall some of the

temporary employees for additional work; it never recalled Nichols

however. Nichols became ineligible for rehire sometime in 1988 or

1989 because Bechtel hires its carpenters through the union, and

Nichols had stopped paying his union dues.

After he had been laid off, Nichols asked Williams why he had

been let go. Williams indicated that Nichols had always been a

good worker, and was laid off at Wright's discretion because Wright

believed he could work better with the other carpenters on the

crew.

In May 1987, Nichols filed an administrative complaint with

the United States Department of Labor (DOL) alleging that Bechtel

unlawfully discriminated against him. He claimed that Bechtel laid

him off because he insisted on following safety procedures.

Following an investigation, DOL's Wage and Hour Division of the
Employment Standards Administration issued a letter concluding that

Bechtel had discriminated against Nichols by terminating his

employment at Turkey Point for activities protected by the Energy

Reorganization Act of 1974, as amended (the Act or ERA), in

violation of 42 U.S.C. § 5851 and implementing regulations

thereunder. Bechtel requested a hearing before an administrative

law judge (ALJ).

During that hearing, Nichols testified on his own behalf and

called three former co-workers. Deposition testimony of the health

physics supervisor also was admitted. Bechtel called five of its

supervisors, including Wright and Lilge, and four carpenter crew

members.

At the hearing, Wright testified that Nichols was slow in

getting dressed in the required protective gear and prolonged work

by working slowly on some assignments. He further testified that

he believed that he could get more work out of the other crew

members. Wright did not tell Nichols that his work was too slow,

nor did he report his performance to Wright's superiors, except for

once mentioning to Williams that Nichols was slow in getting

dressed and ready for work in the morning.

Nichols testified that the only time he ever intentionally

stretched out a job was when his foreman directed him to do so.

Fellow crew members attested to Nichols having performed his work

according to procedures and testified that he did not stretch out

jobs or fail to get along with his foreman.

One crew member who had worked for Bechtel as a temporary

worker during five outages testified that based on his experience
the temporary and less experienced workers were usually laid off

ahead of more senior experienced workers. Nichols, however, was

the first laid off from Wright's crew, ahead of other less

experienced crew members.

Two of Nichols' fellow crew members testified that Wright had

directed them to violate established safety procedures.

The ALJ recommended against relief for Nichols. He concluded

that Nichols had not engaged in protected activities but, rather,

had merely questioned a supervisor about the correct method of

handling tools. According to the ALJ, Nichols was "unfamiliar with

the procedures" and "wondered" about the proper way to handle the

contaminated tools. The ALJ determined that even if Nichols had

engaged in protected activity Bechtel's termination of Nichols was

not discriminatory, as Nichols was unable to show that protected

conduct was a motivating factor in the employer's decision.

Bechtel laid off Nichols "in a bona fide force reduction," noting

that "Wright's reason for dismissing Nichols did not concern his

skills, but his attitude."

On appeal, in 1992, the Secretary of Labor (Secretary) issued

a final decision and order concluding that the ALJ's decision was

not supported by the evidence. The Secretary found that Nichols

had met his prima facie burden for showing that Bechtel had

discriminated against him. The Secretary concluded that Nichols'

questioning of the tool handling procedures was "tantamount to a

complaint that correct safety procedures were not being observed."

In referring to the record, the Secretary noted the dispute between

Nichols and Wright over proper procedures and Nichols' going to
Wright's supervisor, Williams, about his concerns that the correct

procedure was not being followed. The Secretary also found that

Bechtel's reasons for Nichols' layoff "were not believable" and

that Nichols "sustained the burden of persuasion that the real

reason for his selection [to be laid off] was his protected

activity." The Secretary ordered that Nichols be reinstated and

remanded the case to the ALJ for determination of back pay.

On remand, the ALJ determined that Nichols was not entitled to

reinstatement and was due back wages for one month. In reaching

this decision, the ALJ reasoned that the entire crew had been laid

off within 30 days of Nichols' termination. Although Bechtel might

have later recalled Nichols, the ALJ declined to award back pay for

such wages because the amount could not be determined with

reasonable certainty.

On appeal of the relief determination, the Secretary issued

his final decision and order. He accepted the ALJ's recommendation

regarding back pay and concluded that Nichols was not entitled to

reinstatement. Bechtel appeals.

II.

A. Protected Activity

 We review questions of law on a de novo basis. See Cornelius

v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991). Bechtel claims

that general inquiries regarding safety do not constitute protected

activity. We agree. Our inquiry does not end there, however, as

we agree with the Secretary that the record clearly supports that

Nichols did not merely make general inquiries regarding safety but,

rather, he raised particular, repeated concerns about safety
procedures for handling contaminated tools. Specifically, Nichols

questioned his foreman, Wright, about the correct safety procedure

for tool handling. He also raised the issue with Wright's

supervisor. The Secretary correctly characterizes questioning

one's supervisor's instructions on safety procedures as "tantamount

to a complaint."

At the time Nichols filed his complaint in 1987, § 210(a) of

the ERA prohibited nuclear industry employers from discharging or

otherwise discriminating against their employees because the

employee:

(1) 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, as amended [42

U.S.C.A. § 2011 et seq.], or a proceeding for the

administration or enforcement of any requirement imposed under

this chapter or the Atomic Energy Act of 1954, as amended;

(2) testified or is about to testify in any such

proceeding or;

(3) assisted or participated or is about to assist or

participate in any manner in such a proceeding or in any other

manner in such a proceeding or in any other action to carry

out the purposes of this chapter or the Atomic Energy Act of

1954, as amended.

42 U.S.C. § 5851(a). The Act did not define the term "proceeding"

or the phrase "any other action to carry out the purposes of this

chapter."

Although this circuit has not addressed the scope of protected

activity under § 5851(a), numerous other circuits have. Every

circuit, except for the Fifth Circuit, has agreed with the

Secretary's interpretation that under circumstances such as these,

when an employee makes informal complaints, such acts constitute

protected activity. See, e.g., Jones v. Tennessee Valley Auth.,
948 F.2d 258, 264 (6th Cir.1991); Couty v. Dole, 886 F.2d 147, 148

(8th Cir.1989); Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505,

1510 (10th Cir.1985), cert. denied, 478 U.S. 1011, 106 S.Ct. 3311,

92 L.Ed.2d 724 (1986); Mackowiak v. University Nuclear Sys., Inc.,

735 F.2d 1159, 1163 (9th Cir.1984); Consolidated Edison Co. v.

Donovan, 673 F.2d 61 (2d Cir.1982); but see Brown & Root, Inc. v.

Donovan, 747 F.2d 1029 (5th Cir.1984) (filing of internal safety

reports is not protected activity under ERA). Consistent with the

majority of circuits that have decided this issue, the Third

Circuit held that a similar whistleblower provision of the Clean

Water Act (33 U.S.C. § 1251 et seq.) covered internal complaints.

Passaic Valley Sewerage Comm'rs v. DOL, 992 F.2d 474, 478 (3d

Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 439, 126 L.Ed.2d 373

(1993).

The Secretary has interpreted the phrase "any other action"

under § 5851(a)(3) to extend beyond mere participation in a

"proceeding" to include internal complaints made to supervisors and

others. See, e.g., Kansas Gas, 780 F.2d at 1510; Mackowiak, 735

F.2d at 1162. Otherwise, the phrase would be mere surplusage,

adding nothing to the protection already granted to participation

in "proceedings."

 Under Chevron v. Natural Resources Defense Council, Inc., 467

U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we must defer to

an agency's interpretation of a statute committed to it for

administration if, absent a clear and unambiguous indication of

congressional intent, the agency has construed the statute

reasonably. If "Congress has not directly addressed the precise
question at issue, the court does not simply impose its own

construction on the statute, as would be necessary in the absence

of an administrative interpretation. Rather, if the statute is

silent or ambiguous with respect to the specific issue, the

question for the court is whether the agency's answer is based on

a permissible construction of the statute." Id. at 843, 104 S.Ct.

at 2782 (footnote omitted).

We agree that the statute does not directly address whether

internal complaints are protected activity, and therefore we

consider whether the Secretary's construction is permissible. The

Secretary bases his construction in part on legislative history.

For example, the legislative history suggests that Congress was

aware at the time the provision was enacted that analogous statutes

had been interpreted to include internal complaints. The Senate

Report accompanying the bill states that this section is

"substantially identical" to provisions in the Clean Air Act and

the Federal Water Pollution Control Act, and that these acts were

themselves "patterned after the National Labor [Relations] Act and

a similar provision in Public Law 91-173 [the Federal Coal Mine

Health and Safety Act of 1969]." S.Rep. No. 848, 95th Cong., 2d

Sess. 29 (1978), reprinted in 1978 U.S.C.C.A.N. 7303. The "similar

provision" referred to in the Coal Act had previously been

construed to cover a miner's presentation of safety complaints to

his employer. E.g., Phillips v. Interior Bd. of Mine Operations

Appeals, 500 F.2d 772 (D.C.Cir.1974), cert. denied sub nom.,

Kentucky Carbon Corp. v. Interior Bd. of Mine Operations Appeals,

420 U.S. 938, 95 S.Ct. 1149, 43 L.Ed.2d 415 (1975). Moreover, the
 1

In 1992, Congress amended the ERA's whistleblower

provisions to provide explicitly that an employer may not

discriminate against employees for making internal complaints

about safety procedures. 42 U.S.C. § 5851(a)(1)(A) and (B). The

amendment applies to all complaints filed after the effective

date of the statute, October 24, 1992. 

same Congress that enacted the ERA's whistleblower provisions

amended the Coal Act to clarify expressly its approval of the

Phillips interpretation. S.Rep. No. 181, 95th Cong., 1st Sess. 36

(1977), reprinted in 1977 U.S.C.C.A.N. 3401, 3436.1

 Even without Chevron, it is appropriate to give a broad

construction to remedial statutes such as nondiscrimination

provisions in federal labor laws. See, e.g., Jones v. Metropolitan

Atlanta Rapid Transit Auth., 681 F.2d 1376, 1380 (11th Cir.1982),

cert. denied, 465 U.S. 1099, 104 S.Ct. 1591, 80 L.Ed.2d 123 (1984).

The Secretary's interpretation promotes the remedial purposes of

the statute and avoids the unwitting consequence of preemptive

retaliation, which would allow the whistleblowers to be fired or

otherwise discriminated against with impunity for internal

complaints before they have a chance to bring them before an

appropriate agency. See, e.g., Macktal v. Secretary of Labor, 923

F.2d 1150, 1152 (5th Cir.1991). This construction encourages

safety concerns to be raised and resolved promptly and at the

lowest possible level of bureaucracy, facilitating voluntary

compliance with the ERA and avoiding the unnecessary expense and

delay of formal investigations and litigation.

We are not convinced otherwise by the Brown & Root decision.

First, we note that the Fifth Circuit did not mention the Supreme

Court's then-recent decision in Chevron, relying instead on
 2

Even Bechtel seems to concede that informal complaints are

protected under the Act. It carefully limits its

characterization of Nichols' complaint as mere "general

questioning." We do not address whether mere general questions

regarding safety measures are protected activity under the Act. 

pre-Chevron principles according less weight to agency

interpretations. 747 F.2d at 1032-33. Second, the Fifth Circuit

accorded less weight to the Secretary's interpretation in part

because "the Secretary of Labor does not appear to have great

expertise in matters of nuclear safety." 747 F.2d at 1032. As the

Supreme Court has observed more recently, however, "while [ERA's

whistleblower provisions] obviously [bear] some relation to the

field of nuclear safety, [their] "paramount' purpose was the

protection of employees." English v. General Elec. Co., 496 U.S.

72, 83, 110 S.Ct. 2270, 2277, 110 L.Ed.2d 65 (1990). Indeed,

Congress entrusted the enforcement and administration of ERA's

whistleblower provisions "not to the NRC—the body primarily

responsible for nuclear safety regulation—but to the Department of

Labor." Id. at 83 n. 6, 110 S.Ct. at 2277 n. 6. Therefore the

Secretary's expertise in employee protection entitles his view to

deference. Moreover, the Brown & Root Court ignored relevant

legislative history indicating the statutory models upon which ERA

was based and instead compared the statute to the Federal Mine

Safety and Health Act, enacted in 1977, which expressly protected

internal complaints.2

B. Substantial Evidence

 Given that we find the Secretary correctly determined that

Nichols engaged in protected activity, we also must address whether

the Secretary properly found that Bechtel had discriminated against
 3

The length and complexity of the trial are relevant to the

issue of deference due an ALJ. Bechtel argues that the

Secretary's review of the evidence from a cold record cannot

compare with the ALJ who "was an impartial and experienced

examiner who lived with the case." Bechtel, who is urging that

this court reverse the Secretary's decision in favor of the ALJ's

recommendation, erroneously states that the ALJ conducted a

hearing "from October 15, 1987 through November 5, 1987." The

record reflects, however, that the hearing lasted for two days,

beginning on October 15, and continuing on November 5. 

him by firing him because of that activity. A Secretary's findings

of fact and credibility choices must be supported by substantial

evidence. NLRB v. Datapoint Corp., 642 F.2d 123, 126 (5th

Cir.1981). We find that there is substantial evidence to support

such a determination. Substantial evidence has been defined as "

"such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.' " Richardson v. Perales, 402

U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206,

216, 83 L.Ed. 126 (1938)); see also Northport Health Serv., Inc.

v. NLRB, 961 F.2d 1547, 1550 (11th Cir.1992). As in this case,

when there are disagreements between the Secretary and the ALJ

involving questions of fact and credibility, the court may examine

the evidence more critically in determining whether there is

substantial evidence to support the Secretary's decision. Syncro

Corp. v. NLRB, 597 F.2d 922, 924-25 (5th Cir.1979). Under that

standard, we are not required to choose between the ALJ's and

Secretary's determinations. Rather, we merely require that the

Secretary's choice in adopting two fairly conflicting views, "be

supported by articulate, cogent, and reliable analysis."

Northport, 961 F.2d at 1553-54.3
 To show discrimination, an employee must establish that (1)

the employer is governed by the Act; (2) the employee engaged in

protected activity as defined in the Act; and (3) as a result of

engaging in such activity, the employee's terms and conditions of

employment were adversely affected. 42 U.S.C. § 5851. The

Secretary addressed whether Nichols made out a prima facie case,

showing (1) the employer is covered by the act, (2) the employee

engaged in protected activity, (3) the employee suffered adverse

action, and (4) there is an inference of causation between the

protected activity and the adverse action. Proximity in time is

sufficient to raise an inference of causation. Couty, 886 F.2d at

148.

 Once an employee has made a prima facie showing, the burden

then shifts to the employer to produce evidence that its action was

motivated by a legitimate, non-discriminatory reason. Bechtel did

this when Wright suggested that Nichols was slow, and had an

attitude problem. The burden of production then shifts to the

employee to establish that the employer's proffered reason is

pretextual by establishing either that the unlawful reason, the

protected activity, more likely motivated Bechtel or that the

employer's proffered reason is not credible and that the employer

discriminated against him. Although the Secretary's decision was

issued before the Supreme Court's decision in St. Mary's Honor

Center v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407

(1993), the Secretary determined that Nichols had "sustained the

burden of persuasion that the real reason for his selection was his

protected activity."
We first address whether Nichols established a prima facie

case of discrimination. Bechtel concedes that it is an employer

covered under the Act and that Nichols suffered an adverse action

in being laid off. As discussed above, we conclude Nichols engaged

in protected activity. Since Nichols was terminated shortly after

he complained, an inference of causation was permissible.

We next address whether there was substantial evidence to

support the Secretary's determination that Nichols rebutted

Bechtel's explanation for his termination. Of the witnesses who

testified about Nichols' performance in March and April, only

Wright and foreman Trantham stated that Nichols was a slow worker

who exhibited a poor attitude.

Foreman Trantham, who was not Nichols' foreman, indicated that

he observed Nichols working slowly on one occasion. Although he

further testified that Nichols was slow to dress in protective

gear, he admitted that the dressing area was "tight" and often

contained about 50 carpenters at a time and the workers

occasionally had to wait for clothing in their size.

Wright's criticism of Nichols was either vague or

insignificant. For example, in explaining why he retracted one

crew member's name in favor of Nichols' when asked for a candidate

for a layoff he stated: "Nichols was slowing down the work....

The way he was doing it, it just didn't—I wasn't pleased." The

examples of problems with Nichols' job performance, all of which

supposedly related to his being slow, are not worthy of credit. In

one example, Wright testified that he told Nichols' partner that a

scaffold needed to be completed that day, but that the partner
later told Wright that Nichols said they should take the day to

tear the scaffold down. Wright further testified that on another

occasion it took Nichols eight hours to perform an assignment that

should have taken "half-a-day." Wright also mentioned having to

reassign an asbestos removal task because Nichols insisted on

wearing a respirator while performing the work. Regarding the

scaffolding incident, the record does not establish that Nichols

ever knew of the one-day deadline which he exceeded. The half-day

assignment was prolonged in part due to delay caused by waiting for

an available respirator to perform the task. Relative to the

reassignment, Wright did not explain what Nichols had done wrong.

If Nichols' concerns involved safety matters, the reassignment

would not weigh legitimately against him.

Wright did not discuss Nichols' slow work with him or with

Wright's superiors, except for once mentioning to Williams that

Nichols was slow to begin working in the morning. Delay by Nichols

in getting to the work site was at least in part attributable to

safety procedures, which required the surveying of tools, and at

times entailed waiting for an HP worker to come to the tool box.

In support of Nichols, three fellow crew members testified

that Nichols was diligent, did not work slowly, and did not

demonstrate attitude problems about his work or supervisors. The

Secretary found that their testimony undermined the ALJ's finding

that Nichols did not get along with carpenters in Wright's crew,

since three of the six other carpenters in the crew indicated that

they did get along with Nichols.

We also find substantial evidence to support the Secretary's
conclusion that the record contained unconvincing evidence of

Nichols' poor work attitude. In this case, the witnesses agreed

that Nichols got along with his superiors. Wright said that he had

no problems getting along with Nichols as a person. Foreman

Trantham said that the carpenters in Wright's crew "were good

friends to [Nichols]."

The pretextual nature of Bechtel's terminating Nichols is

further demonstrated by Bechtel's shifting explanations for its

actions. During the proceeding, the ALJ asked Bechtel whether

Nichols' job performance or medical condition of arthritis were

issues in the case. Bechtel indicated that they were not,

attributing his dismissal rather to his attitude, his "gung ho

nature."

Yet, on appeal, petitioner's argument is cast entirely as if

the layoff was due to poor job performance, exacerbated by Nichols'

arthritic condition. On appeal Bechtel argues that it laid off

Nichols before any other crew members because "his job performance

paled in comparison to the other crew members." Given that, on the

record, Bechtel has indicated that these issues were not factors in

Nichols' termination, we will not now consider them.

We next consider whether substantial evidence exists to

support the Secretary's conclusion that Nichols' actions regarding

safety procedures were the motivating factor in laying off Nichols.

The ALJ's characterization of the tool procedure dispute as "minor"

is undermined by the record which shows that Wright was preoccupied

with getting work started quickly at the expense of proper safety

procedures. The importance of this issue to Wright is corroborated
by the testimony of two of Nichols' fellow crew members who also

had difficulties with Wright over delays caused by adhering to

safety procedures. Wright himself admitted that he was "a little

upset" at Nichols' having raised the issue about tool safety

procedures with Wright's superior.

The Secretary, having considered the record, concluded that

Nichols satisfied the burden of persuasion in establishing that the

real reason for his being laid off was his having engaged in

protected activity. The Supreme Court held in St. Mary's that

rejection of defendant's proffered reason for taking an adverse

action does not compel judgment for the plaintiff, however, the

Court also stated:

The factfinder's disbelief of the reasons put forward by the

defendant (particularly if disbelief is accompanied by a

suspicion of mendacity) may, together with the elements of the

prima facie case, suffice to show intentional discrimination.

Thus, rejection of the defendant's proffered reasons, will

permit the trier of fact to infer the ultimate fact of

intentional discrimination, and the Court of Appeals was

correct when it noted that, upon such rejection, "[n]o

additional proof of discrimination is required...."

Id. at ----, 113 S.Ct. at 2749 (footnote omitted) (quoting Hicks v.

St. Mary's Honor Center, 970 F.2d 487, 493 (8th Cir.1992)).

Although St. Mary's had not been decided at the time the

Secretary rendered the decision on liability in this case, we find

nevertheless that the decision is consistent with the Supreme

Court's opinion. The Secretary specifically held that Nichols

"sustained the burden of persuasion that the real reason for his

selection was his protected activity," based on the record
 4

Bechtel argues that the Secretary's determination that the

remedy of reinstatement is not appropriate in this case as

somehow supporting its contention that the Secretary's liability

determination is in error. The determinations are not

inconsistent. The Secretary, determining relief, relied on

uncontroverted testimony by Nichols former foreman, Lilge, that

he thought Nichols for the past six months that he had worked for

him had an attitude problem and because of that he would not have

wanted Nichols back after his layoff from Wright's temporary

crew. The Secretary, in disposing of the liability issue, found

that Lilge's opinion of Nichols, however, had no relevance as to

why Wright, Nichols temporary foreman, chose to lay off Nichols. 

There is no suggestion on appeal that Lilge's opinion was a

factor in Wright's decision to lay off Nichols. Lilge's

uncontroverted testimony regarding his opinion of Nichols as a

worker therefore was rejected for purposes of liability but was

relied on as relevant testimony for the separate issue of relief. 

discussed above.4

AFFIRMED.