UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHERMAN L. KING,

Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND

No. 96-2628

DRY DOCK COMPANY; DIRECTOR,

OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(94-295)

Submitted: June 17, 1997

Decided: August 6, 1997

Before WILKINS and HAMILTON, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Robert E. Walsh, Matthew H. Kraft, RUTTER & MONTAGNA,

L.L.P., Norfolk, Virginia, for Petitioner. Benjamin M. Mason,

MASON & MASON, P.C., Newport News, Virginia, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Sherman L. King appeals the Benefits Review Board's

("BRB") summary affirmance of the Administrative Law Judge's

("ALJ") denial of his claim for disability benefits under the Longshore and Harbor Workers' Compensation Act (the"Act"), 33

U.S.C.A. §§ 901-950 (West 1986 & Supp. 1997).* Finding that the

ALJ's decision was supported by substantial evidence, we affirm.

I.

On August 8, 1990, while an employee of Newport News Shipbuilding and Dry Dock Company ("Newport News"), King injured his

hand when he attempted to pull on a heavy piece of steel. From

August 8, 1990, until August 7, 1991, King alternated between working at Newport News in a limited capacity in accordance with his surgeon's restrictions and being out on temporary total disability due to

his various hand and wrist surgeries. During this time, King continued

to work a second job at Sanitez, a janitorial company. The computation of King's average weekly wage for disability compensation purposes was based solely on his earnings from Newport News, and it

is undisputed that Newport News was aware of King's employment

with Sanitez.

_________________________________________________________________

*The BRB never addressed the merits of the appeal. On September 12,

1996, the BRB sent the parties a notice stating that pursuant to the provisions of Public Law Number 104-134, enacted on April 26, 1996, all

appeals to the BRB relating to claims under the Act were deemed to have

been affirmed if the case had been pending before the BRB for one year

by September 12, 1996. Because King's appeal met these criteria, the

BRB informed the parties that the ALJ's decision had been effectively

affirmed by the BRB on September 12, 1996, for purposes of their rights

to obtain review in this court.

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King's disability checks included the following statement above

the signature line:

FOR COMPENSATION RECIPIENTS OF TEMPORARY

TOTAL OR PERMANENT TOTAL DISABILITY BENEFITS

ONLY: "I CERTIFY, AS ATTESTED BY MY SIGNATURE, THAT I HAVE NOT WORKED IN ANY GAINFUL EMPLOYMENT DURING THE PERIOD OF

DISABILITY COVERED BY THIS CHECK."

King signed these checks for a combined total of approximately nine

months, notwithstanding the fact that he was working for Sanitez at

the time he endorsed the checks. King testified that he attempted to

read the statement above the signature line but did not understand it.

Newport News terminated King on August 11 for violation of Yard

Rule Number 10, "Falsification of Company Records."

Arguing that Newport News discriminated against him in terminating his employment, King filed this claim, alleging a violation of Section 49 of the Act. 33 U.S.C.A. § 948a. In addition, King sought

temporary total disability benefits for the period subsequent to his discharge. The ALJ denied King's claim, and the BRB summarily

affirmed.

II.

Section 49 of the Act provides that "[i]t shall be unlawful for any

employer . . . to discharge or in any other manner discriminate against

an employee as to his employment because such employee has

claimed or attempted to claim compensation . . . under this chapter."

To be successful, a section 49 claim must have two elements. "First,

an employer must commit a discriminatory act . . .`the essence of

[which] lies in the different treatment of like groups or individuals.'"

Holliman v. Newport News Shipbuilding, 852 F.2d 759, 761 (4th Cir.

1988) (quoting Dickens v. Tidewater Stevedoring Corp., 656 F.2d 74,

76 (4th Cir. 1981)). Second, the discriminatory act must be motivated,

at least in part, by animus against the employee because of the

employee's pursuit of his rights under the Act. See Holliman, 852

F.2d at 761; see also Geddes v. Benefits Review Bd., 735 F.2d 1412,

1415 (D.C. Cir. 1984).

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King essentially makes two arguments in support of his claim that

the ALJ erred in its rejection of his discrimination claim. First, he

contends that the circumstances surrounding his termination were

suspicious. Newport News indisputably knew that King was working

a second job. He was never told either that he could not cash his disability checks or that he needed to complete additional paperwork. In

addition, the investigation was initiated by the Newport News' workers' compensation department. Further, King points out that his reading skills are limited and that he did not have the requisite intent to

defraud.

Second, King contends that he was treated differently from an

employee who was permitted to repay his benefits and keep his job.

King asserts that this employee was treated favorably, because the

"falsification" was discovered after the employee's disability was

resolved and Newport News was, therefore, no longer obligated to

pay compensation. Because King was not given the same opportunity

to repay his benefits, he asserts that his discharge was discriminatory.

In addressing this issue, the ALJ found that there was no evidence

that Newport News' discharge of King was a discriminatory act. In

support of this finding, the ALJ noted that Yard Rule 10 does not

require any specific intent. Falsification of records is "expressly prohibited" and "will subject the offending employee to discharge or

other discipline." We do not pass judgment on the wisdom of a rule

established by competing parties in a marketplace. See Holliman, 852

F.2d at 762.

In addition, Newport News submitted evidence of thirty employees

who had been terminated for violation of Yard Rule 10. One, like

King, was terminated after falsely signing compensation checks for an

extended period of time. In rebuttal, King points to one employee

who was not terminated. However, that employee signed only three

checks. King's situation is much more easily compared to the

employee who falsely signed checks for an extended period of time,

and thus, substantial evidence supports the conclusion that King was

treated like other similarly-situated employees.

Finally, the ALJ was able to evaluate the credibility of Carson

Boone, the Supervisor of Personnel for Newport News, when he testi-

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fied and was cross-examined as to the circumstances surrounding

King's termination. This credibility determination is not subject to

review. See Grizzle v. Pickands Mather, 994 F.2d 1093, 1096 (4th

Cir. 1993). Because the evidence fails to reflect that King was treated

differently from any other employee who falsely endorsed disability

checks for an extended period of time, we reject King's argument and

affirm the ALJ's finding that Newport News' dismissal of King was

not discriminatory. See See v. Washington Met. Area Transit Auth.,

36 F.3d 375, 380 (4th Cir. 1994) (appellate court must defer to the

ALJ's credibility determinations and inferences from the evidence,

despite other, more reasonable conclusions).

III.

King also asserts that his disability claim should have been considered separately from his Article 49 claim. King contends that the ALJ

erred in finding that King was not entitled to temporary total disability benefits because Newport News failed to establish the availability

of suitable alternate employment which King was capable of performing within his medical restrictions. See Newport News Shipbuilding v.

Tann, 841 F.2d 540, 542 (4th Cir. 1988). Newport News maintains

that King performed post-injury, light-duty work at its facility and

would still be so employed had he not been discharged for breaching

company rules. Newport News asserts that this evidence satisfied its

burden of proof under Tann.

We agree with Newport News that substantial evidence supported

the ALJ's determination that the evidence revealed the availability of

suitable, alternate employment. For a year after his injury, King

returned to work at Newport News within his restrictions whenever

he was able. During that time, it is undisputed that Newport News

found suitable employment for King. It is further undisputed that

King's restrictions have not changed and that King's prior position is

still available. When a claimant is discharged for reasons unrelated to

his disability, an employer does not have a continuing responsibility

to identify new suitable alternate employment, as an employer is not

a long-term guarantor of employment. See Brooks v. Newport News

Shipbuilding, 26 B.R.B.S. 1 (1992), aff'd sub nom., Brooks v. Director, OWCP, 2 F.3d 64, 65-66 (4th Cir. 1993).

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Accordingly, we affirm the BRB's denial of King's claim. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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