UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES M. ROBINSON,
Petitioner,

v.

NEWPORT NEWS SHIPBUILDING AND
                                                                 No. 96-2603
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.
(BRB-94-3826)

Submitted: February 24, 1998

Decided: April 20, 1998

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Ralph Rabinowitz, RABINOWITZ, RAFAL, SWARTZ,
TALIAFERRO & GILBERT, P.C., Norfolk, Virginia, for Petitioner.
Benjamin M. Mason, MASON & MASON, P.C., Newport News, Vir-
ginia, for Respondents.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James M. Robinson petitions for review of a Benefits Review
Board (BRB) order denying workers' compensation benefits under
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.A.
§§ 901-950 (West 1986 & Supp. 1997) (LHWCA). The Administra-
tive Law Judge (ALJ) denied Robinson's request for temporary total
disability benefits from September 9, 1991, through February 15,
1992, and permanent partial disability benefits from February 16,
1992, and continuing based upon a loss of wage earning capacity. In
addition, Robinson also alleged that Newport News Shipbuilding
(NNS) violated section 49 of the LHWCA, for which the ALJ did not
grant relief. Robinson appealed to the BRB. Because Robinson's
appeal was pending before the BRB for more than one year, on Sep-
tember 12, 1996, the BRB affirmed the ALJ's decision denying Rob-
inson's disability claims. Robinson filed a timely petition for review.
On petition for review to this court, Robinson alleges that the ALJ's
decision was error because NNS did not prove that it provided appro-
priate alternative, continuous employment and his termination was
related to his compensation claim and violative of the LHWCA. Find-
ing no error, we affirm.

Robinson began working for NNS in 1987 as a welder. He contin-
ued to work for NNS until his discharge in September 1991, for viola-
tion of Yard Rule 22 regarding repeated absences and tardiness. On
June 15, 1990, Robinson hurt his lower back at NNS while picking
up a tool box. Robinson's personal physician, Dr. Hunter, diagnosed
Robinson's condition as a lumbosacral strain and Robinson returned
to his regular work without difficulty. Robinson again injured his
back at NNS on July 20, 1990, when he fell nine to twelve feet from
a ladder.

With NNS's authorization, Dr. Stiles examined Robinson and diag-
nosed him as having a bulging disc in his lower back and recom-

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mended that he not return to work immediately. After performance of
a lumbar myelogram and CT scan, Dr. Stiles determined that Robin-
son was not a surgical candidate and suggested that he be sent to a
work hardening program. In March and April 1991, Robinson partici-
pated in a work hardening program and the staff discharged him due
to his lack of progress. The staff at the program stated that Robinson
exaggerated his symptoms, would not attempt some activities and had
a decrease in performance from his level prior to admission. Robinson
explained that his decrease in performance was due to him becoming
more upset in dealing with his disability and that he could not become
accustomed to working with pain. The coordinator of the work hard-
ening program, John Meyer, opined that Robinson could not perform
all of his past duties as a welder and should be placed in a new job
or released for vocational rehabilitation. Meyer recommended physi-
cal restrictions for Robinson including no lifting or carrying over
thirty pounds or fifteen pounds on a repeated basis; no constant sit-
ting, standing or walking; limited bending, kneeling, squatting, climb-
ing, pushing, pulling, or twisting; and no working overhead or in tight
spaces.

Before returning to work, Robinson saw Dr. Allen who recom-
mended light duty, a lifting limitation of no more than forty pounds,
and the other restrictions recommended by Meyer. Dr. Allen noted
that he questioned Robinson's "underlying sincerity in his attempts to
improve." Dr. Hall also agreed with Dr. Allen's comments and
restrictions.

When Robinson returned to work, Calvin Langhorne supervised
him. At the ALJ hearing, Langhorne testified that Robinson's regular
job did not require him to lift more than his job restrictions. After
returning to work, Robinson complained that his work restrictions
were not strict enough and failed to follow those set out by the work
hardening program. Soon thereafter, Robinson saw Dr. Hall, who
gave him additional restrictions which included lifting no more than
thirty pounds, limited bending, stooping, and climbing, and no work-
ing in confined spaces.

After Robinson's restrictions changed, Langhorne made work
available to Robinson within what he considered to be Robinson's
restrictions. He assigned Robinson to welding with stick metal, a

                    3
position which did not require lifting more than thirty pounds. In
addition, Langhorne recommended to Robinson that because his tool
bag would be the heaviest item to lift, that he should remove any
unneeded items. Langhorne estimated that the tool bag would then
only weigh approximately five pounds, and at most it would weigh
fifteen pounds at the beginning of a work shift.

Robinson continued to complain that his back caused him pain and
that his job was not within his restrictions. He saw several doctors and
was advised to continue to work within the restrictions and that a
degree of discomfort should be expected and tolerated. Robinson
became increasingly dissatisfied with the diagnoses and treatment by
his doctors. He continued to complain that his job was causing him
back pain and his job was not within his work restrictions.

Robinson began to miss work and testified that his absences were
due to back pain. Between April and September of 1991, Langhorne
warned Robinson that if he continued to miss work, his job would be
in jeopardy. Langhorne contacted NNS's Supervisor of Personnel,
Thomas Coleman, to report that Robinson continued to miss time
from work. Langhorne testified that aside from counseling Robinson
regarding his absences and eventually reporting him to Coleman, he
did not make any disciplinary action decisions. Of the recommenda-
tions he did make, Langhorne testified that none of them were based
upon the fact that Robinson was attempting to claim disability bene-
fits.

In June 1991, Robinson received a three-day suspension for exten-
sive absenteeism. This was followed by a five-day suspension for
extensive absenteeism in the month of June 1991. Between April 18
and June 25, 1991, Robinson missed twenty-four full days and four
partial days. In September 1991, Robinson was suspended pending
discharge. This suspension period was designed to allow NNS to
examine the employee's records and for the employee to present any
documentation to support his absences. Robinson did not produce any
documentation. NNS discharged Robinson on September 10, 1991,
for violating Yard Rule 22 regarding repeated absences and tardiness.
Coleman testified before the ALJ that he was aware of Robinson's
work-related injury and work restrictions, but that the injury played
no role in his decision to discharge Robinson.

                    4
This court's review of the Board's decisions under the LHWCA is
limited to a search for errors of law and deviations from the statutory
conclusiveness afforded to those factual findings by the ALJ that are
supported by substantial evidence. See 33 U.S.C. § 921(b)(3) (1994);
Newport News Shipbuilding & Dry Dock Co. v. Tann, 841 F.2d 540,
543 (4th Cir. 1988). Substantial evidence is described as "more than
a scintilla but less than a preponderance," and is "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Elliott v. Administrator, Animal & Plant Health Inspec-
tion Serv., 990 F.2d 140, 144 (4th Cir. 1993) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Further, this court
must defer to the ALJ's credibility determinations and inferences
from the evidence, despite the fact that more reasonable conclusions
might be drawn from the evidence. See Tann, 841 F.2d at 543; see
also Kellough v. Heckler, 785 F.2d 1147, 1150 n.3 (4th Cir. 1986)
(appellate deference accorded to ALJ's findings of fact).

To qualify for disability benefits under the LHWCA, Robinson
must establish his inability to return to his regular and usual employ-
ment. See Tann, 841 F.2d at 542. NNS does not dispute that Robinson
is unable to return to his pre-injury duties as a welder in the shipyard;
thus, Robinson meets his burden of showing disability. However,
NNS may rebut the presumption of disability by proving suitable
alternative employment is available upon a reasonably diligent search
by the claimant. Id. NNS satisfies this burden "[b]y proving that the
injured employee retains the capacity to earn wages in regular, contin-
uous employment." Lentz v. Cottman Co., 852 F.2d 129, 131 (4th Cir.
1988).

The record contains substantial evidence to show that work within
Robinson's restrictions was available in the welding department.
Langhorne, Robinson's supervisor, testified that the heaviest lifting
required was lifting a fifteen pound tool bag twice a day. Langhorne
also testified that he did not assign jobs to Robinson involving tight
spaces, climbing ladders, lifting more than thirty pounds, or more
than limited bending or stooping. The ALJ specifically found this tes-
timony to be credible. Considering the evidence in the record, we find
that NNS provided employment to Robinson within his restrictions.

Robinson also brought a retaliation claim under section 49 of the
LHWCA, alleging that he was discharged because he had filed a

                    5
claim for benefits under the LHWCA and not because of absenteeism.
Robinson argues that NNS intentionally caused him to be absent from
work by requiring him to perform "contraindicated work." Robinson
argues that the NNS clinic imposed restrictions that would pre-
determine his fate and would insure failure at his position and the nec-
essary absence from his position due to back pain.

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) (internal citation omitted) (quoting Dickens v. Tidewater Steve-
doring Corp., 656 F.2d 74, 76 (4th Cir. 1981)). Second, the discrimi-
natory 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). The issue is
whether NNS's actual motive was discriminatory. If Robinson was
discharged for a non-discriminatory reason, there is no violation of
section 49. See generally Williams v. Newport News Shipbuilding &
Dry Dock Co., 14 BRBS 300, 303 (1981).

Coleman's undisputed testimony was that between April 18, 1991,
and June 25, 1991, Robinson had twenty-four full days and four par-
tial days of unexcused absences. Between that time and Robinson's
discharge he missed an additional seven full days and two partial days
without excuse. Coleman further testified that NNS followed all five
steps of its five-step disciplinary procedure for addressing problems
with absenteeism. The ALJ noted that Robinson was disciplined three
times for problems related to his attendance prior to his injury.

Robinson contends that every absence since his July 20, 1990,
injury was medically related. However, Robinson failed to provide
the requisite medical documentation to prove this, as is required of all
employees. Further, Robinson did not provide any actual or circum-
stantial evidence to demonstrate that NNS's motive for the discharge

                    6
was discriminatory. We therefore find that Robinson did not prove
that a discriminatory act occurred.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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