*

Honorable Lyle E. Strom, Senior U.S. District Judge for the

District of Nebraska, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-3298.

Terry DYSERT, Petitioner,

v.

UNITED STATES SECRETARY OF LABOR, Florida Power Corporation,

Respondents.

Feb. 11, 1997.

Petition for Review of an Order of the United States Department of

Labor.

Before ANDERSON and CARNES, Circuit Judges, and STROM*

, Senior

District Judge.

STROM, Senior District Judge:

This appeal centers on the proper application of the statutory

burdens of proof set forth in the whistleblower protection

provisions of the Energy Reorganization Act (ERA), 42 U.S.C. §

5851(b)(3). For the reasons set forth in this opinion, the court

affirms the Secretary of Labor's decision to dismiss the

plaintiff's complaint.

FACTS

In January of 1992, Terry Dysert began working at Florida

Power Corporation (FPC) as a one-year contract engineer. In July,

only six months later, FPC terminated him. Dysert filed a

complaint with the Wage and Hour Division of the Department of

Labor claiming that he was fired in retaliation for raising safety

and quality concerns about electrical relays to be used by FPC in

its Crystal River Unit 3 nuclear power plant.
 1

Although the Secretary mistakenly used the phrase

"motivating factor" in the last paragraph of his decision, the

body of the opinion demonstrates that the Secretary properly

employed the new "contributing factor" test to reach his

conclusion. 

Dysert alleged in his complaint a violation of the

whistleblower protection provisions of Section 211 of the Energy

Reorganization Act, 42 U.S.C. § 5851. Under that statute, the

Secretary of Labor may find that the employer unlawfully

discriminated only if the complainant has demonstrated that his

protected activity was a contributing factor in the unfavorable

personnel action alleged in the complaint. 42 U.S.C. §

5851(b)(3)(C).

After a two-day hearing, the administrative law judge (ALJ)

concluded that Dysert had failed to meet his burden of proving a

violation, in other words, he had failed to demonstrate that his

protected activity was a contributing factor in FPC's decision to

terminate him.

The Secretary determined that the ALJ correctly applied the

applicable burdens of proof, and further found that the record

supported the ALJ's finding that Dysert's protected activity was

not a contributing factor in FPC's decision to terminate him.1

 The

Secretary of Labor adopted the ALJ's recommendation and dismissed

the suit. Dysert appealed.

Dysert claims that the ALJ and the Secretary are misapplying

the burdens set forth in § 5851(b)(3) as amended in 1992. He

argues that after the amendments, Dysert was only required to make

a prima facie showing of discrimination before the burden of

persuasion shifted to FPC to prove by clear and convincing evidence
that it would have terminated him in the absence of his protected

activity. Dysert relies on the statement of Rep. Ford that "[o]nce

the complainant makes a prima facie showing that protected activity

contributed to the unfavorable personnel action ... a violation is

established unless the employer establishes by clear and convincing

evidence that it would have taken the same unfavorable personnel

action in the absence of such behavior." 138 Cong.Rec. H 11444

(Oct. 5, 1992). See also 138 Cong.Rec. H. 11409 (Oct. 5, 1992)

(statement of Rep. Miller). Thus, the court must determine what

burden § 5851(b)(3)(C) places on plaintiffs before the Secretary

may find a violation.

DISCUSSION

 The proper interpretation of a statute is a question of law

that the court will review de novo on appeal. Bechtel Constr. Co.

v. Secretary of Labor, 50 F.3d 926, 931 (11th Cir.1995); Marano v.

Department of Justice, 2 F.3d 1137, 1141 (Fed.Cir.1993).

Section 211 of the Energy Reorganization Act (formerly Section

210) was amended in 1992 to add an entirely new paragraph governing

burdens of proof. That paragraph provides in part:

(C) The Secretary may determine that a violation of subsection

(a) of this section has occurred only if the complainant has

demonstrated that any behavior described in subparagraphs (A)

through (F) of subsection (a)(1) of this section was a

contributing factor in the unfavorable personnel action

alleged in the complaint.

(D) Relief may not be ordered under paragraph (2) if the

employer demonstrates by clear and convincing evidence that it

would have taken the same unfavorable personnel action in the

absence of such behavior.

42 U.S.C. § 5851(b)(3)(C) and (D). The statute does not define

"demonstrated" as it appears in subparagraph C.
 2

The Supreme Court has recognized that "prima facie case"

may be used to describe the plaintiff's burden of producing

enough evidence to permit the trier of fact to infer that fact at

 Both the ALJ and the Secretary interpreted "demonstrated" to

mean proved by a preponderance of the evidence. As this court

recently recognized:

[the court] 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."

Bechtel, 50 F.3d at 932 citing Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984).

 The court must first determine whether the term

"demonstrated" is ambiguous leaving room for administrative

interpretation. The term is not defined in the statute and may be

subject to more than one interpretation. Thus, the court concludes

that "demonstrated" as it appears in the statute is ambiguous. As

a result, the court must determine whether the Secretary's

construction of the statute is reasonable. The court concludes

that it is.

 The Secretary first considered the language of the statute

and noted that the ordinary meaning of the word "demonstrate" is to

prove or make evident by reasoning or adducing evidence. Based on

this meaning, the Secretary believed that something more than a

prima facie showing was required.2 The Secretary emphasized that
issue. Texas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 254 n. 7, 101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207 (1981). 

However, in the Title VII context, that term means the

establishment of a legally mandatory, rebuttable presumption by

proving all of the elements of the prima facie case by a

preponderance of the evidence. Burdine, 450 U.S. at 252-53 and

254 n. 7, 101 S.Ct. at 1093-94 and 1094 n. 7. 

 3For example, the statute provides in part:

(A) The Secretary shall dismiss a complaint filed under

paragraph (1), and shall not conduct the investigation

required under paragraph (2), unless the complainant

has made a prima facie showing that any behavior

described in subparagraphs (A) through (F) of

subsection (a)(1) of this section was a contributing

factor in the unfavorable personnel action alleged in

the complaint.

(B) Notwithstanding a finding by the Secretary that the

complainant has made the showing required by

subparagraph (A), no investigation required under

paragraph (2) shall be conducted if the employer

demonstrates, by clear and convincing evidence, that it

would have taken the same unfavorable personnel action

in the absence of such behavior.

42 U.S.C. § 5851(b)(3)(A) and (B) (emphasis added). 

Congress had demonstrated in other subparagraphs of the statute

that it knows how to require either a prima facie showing or proof

by clear and convincing evidence.3

 The Secretary noted that it is

an accepted rule of evidence that the party with the burden of

persuasion must establish the elements of its case by a

preponderance of the evidence.

Having engaged in a careful analysis, the Secretary concluded

that the term "demonstrate" means to prove by a preponderance of

the evidence. This is a reasonable interpretation of the statute

and is entitled to deference by this court.

Because the Secretary concluded that Dysert had failed to

prove by a preponderance of the evidence that his protected
activity was a contributing factor in FPC's decision to terminate

him, the Secretary properly dismissed the complaint. For these

reasons, the decision of the Secretary is AFFIRMED.