
USCA1 Opinion

	




          November 6, 1995      [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1487                                   ROBERT DELANEY,                                     Petitioner,                                          v.                          UNITED STATES DEPARTMENT OF LABOR,                                     Respondent.                                 ____________________                 ON PETITION FOR REVIEW OF A FINAL DECISION AND ORDER                       OF THE UNITED STATES SECRETARY OF LABOR                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Cyr, and Lynch, Circuit Judges.                                           ______________                                 ____________________               Randall  E. Nash,  with whom  Matthew E.  Dwyer and  Dwyer &               ________________              _________________      _______          Jenkins were on brief, for petitioner.          _______               Mary  J. Rieser,  Attorney, U.S.  Dept. of Labor,  with whom               _______________          Thomas S. Williamson,  Jr., Solicitor of Labor,  Gail V. Coleman,          __________________________                       _______________          Deputy Associate Solicitor, U.S.  Dept. of Labor, and  William J.                                                                 __________          Stone,  Counsel for  Appellate Litigation,  U.S. Dept.  of Labor,          _____          were on brief, for respondent.                                 ____________________                                 ____________________                      Per  Curiam.    Robert  Delaney,   an  employee  of                      Per  Curiam.                      ___________            Massachusetts    Correctional    Industries   ("MCI"),    was            transferred  from his  position at  the Walpole  state prison            after complaining  about being exposed to  toxic chemicals on            the  job.   He  now appeals  from  the Secretary  of  Labor's            dismissal of his complaint under the whistleblower protection            provisions of  the Toxic Substances Control  Act ("TSCA"), 15            U.S.C.     2622 et seq.  (1988).1  We  affirm the Secretary's                            __ ____            determination  that  it   was  not  Delaney's  whistleblowing            activity  that  resulted  in  his transfer,  but  rather  the            perceived  security  problem he  posed  for  the prison  (his            employer's client) by the  manner in which he chose  to voice            his concerns.  In so doing, we reject Delaney's attack on the            Secretary's finding as not  supported by substantial evidence            and his attempt to recharacterize this case as  one requiring            a "mixed motive" analysis.                          The Department of Labor's Findings                          __________________________________                      Robert Delaney works  for MCI,  which contracts  to            provide services  for the Massachusetts state  prisons.  From            1987  to 1990, Delaney worked as an instructor in the license            plate  shop  of  the  maximum  security  prison  in  Walpole,            Massachusetts.    He  complained repeatedly  to  his employer            (MCI, not the prison)  from 1988 to 1990 about  being exposed                                            ____________________            1.  We have jurisdiction under 15 U.S.C.   2622(c)(1).                                         -2-                                          2            to toxic  chemicals in the  shop, and did so  first orally to            his supervisor and then  by formal grievance.  He  also filed            complaints  with the  United States  Environmental Protection            Agency,   the   Massachusetts  Department   of  Environmental            Protection,  and the Walpole Board of Health in the spring of            1990.2                      On August 14,  1990, MCI involuntarily  transferred            Delaney to a position  at Norfolk Industries, a manufacturing            operation at an adjacent prison in Norfolk.  Although Delaney            retained the  same job title  and pay he  had enjoyed at  the            Walpole shop, he considered  the transfer to be adverse:   he            believed that  the new  job carried responsibilities  that he            would  not be  able  to  fulfill and  so  felt that  his  job            security was threatened.                      The  issue  is  whether  the  transfer  constituted            retaliation  by  MCI   (Delaney's  employer)  for   Delaney's            chemical exposure grievances.  Delaney was transferred  after            Robert  Duval,  the  acting  superintendent  of  the  Walpole            prison, sent a  letter to the  MCI Director, Hutch  Aghjayan,            following up on earlier conversations.  Duval's letter stated            he had  obtained information  that inmates  were increasingly            showing   concern  and   becoming  anxious   about  hazardous                                            ____________________            2.  Those agencies  then investigated the shop conditions and            ordered remedial measures to be  taken by MCI.  As a  result,            several changes  were made in ventilation  and procedures for            disposing of toxic  chemicals.   There has been  no claim  of            ongoing toxic exposure hazards in the MCI shop.                                         -3-                                          3            materials  in  the license  plate shop.    Duval said  he had            ordered  interviews with  staff  and had  learned that  while            Delaney had  not been seen  talking directly to  any inmates,            Delaney had been seen  discussing the chemical exposure issue            openly  with other staff and on the phone even though inmates            were  clearly present  to  overhear those  discussions.   The            letter concluded:                      At  this  juncture,  this controversy  is                      affecting   the   overall   climate   and                      security   of    this   Institution   and                      immediate steps must be taken  to prevent                      further escalation.   If we  fail to take                      immediate  action the  possibility exists                      that we could face a reaction on the part                      of   inmates  that  may  include  a  work                      stoppage or  other forms  of protest.   I                      therefore   recommend   that  until   the                      controversy is  settled as to the  use of                      the chemicals and the safety of their use                      is confirmed, strong consideration should                      be  given  to  the  reassignment  of  Mr.                      Delaney to another facility.            On the same day he received this letter from Duval, Aghjayan,            in turn, sent a letter to Delaney,  notifying him that he was            to be  transferred "in the interest  of institution security"            based  on reports  that he  was "a  source of  information to            inmates through indiscretion in [his] conversation with staff            and while on the telephone."3                                             ____________________            3.  Delaney did  not report  for work  at  his new  position.            Instead,  he  filed  an industrial  accident  claim asserting            disability based  on exposure  to toxic substances  and filed            the complaint  with the Department  of Labor from  which this            appeal  arises,  alleging  whistleblower  discrimination  and            seeking reinstatement and damages.                                         -4-                                          4                      Following hearing and  a Recommended Decision  from            an  Administrative  Law  Judge,  the  Secretary   found  that            Delaney's  transfer   had  indeed  been   adverse,  but   not            retaliatory.  He concluded that MCI was "motivated by concern            for  'the overall climate and security' of the prison when it            transferred  Mr. Delaney,  not by  his protected  activities.            . . .  Even  though  the  substance of  Mr.  Delaney's  . . .            [chemical exposure] complaints was protected  under TSCA, the            indiscreet   manner  in  which   [he]  openly  discussed  the            situation within earshot of prisoners was not protected."                                 Delaney's Challenge                                 ___________________                      The  Secretary's decision  must be  affirmed unless            Delaney  meets his burden of showing that the decision is not            supported by substantial  evidence, is arbitrary,  capricious            or  otherwise  not  in accordance  with  law.    15 U.S.C.               2622(c)(1)  (setting standard  of  review by  reference to  5            U.S.C.    706); Boston Edison v. FERC, 885 F.2d 962, 964 (1st                            _____________    ____            Cir. 1989).                      Delaney assigns  an error of  fact and an  error of            law.  He  asserts that there  is no factual  support for  the            Secretary's  determination  as to  his  employer's motive  in            transferring him.  Further,  he says, the Secretary erred  in            not analyzing his claim under the "mixed-motive" analysis set            forth in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,                     __________________________________________    _____                                         -5-                                          5            429 U.S.  274 (1977), and thus  applied inappropriate burdens            of proof and production.4                      The first claim fails and the second falls with it.            The  Secretary's  factual finding  was  adequately supported.            "Substantial  evidence"  is  "such  relevant  evidence  as  a            reasonable  mind  might  accept  as  adequate  to  support  a            conclusion."  Richardson v. Perales, 402 U.S. 389, 401 (1971)                          __________    _______            (internal  quotation  omitted).    Substantial   evidence  is            something more  than a scintilla, but something less than the            weight  of the evidence.   See Gouveia v.  INS, 980 F.2d 814,                                       ___ _______     ___            818 (1st  Cir. 1992);  see also Consolo  v. Federal  Maritime                                   ________ _______     _________________            Comm'n, 383 U.S. 607, 619-20 (1966).            ______                      The  letter  expressing  concerns  about  Delaney's            indiscretions with prison inmates was sent to Aghjayan not by            another employee  of MCI (Delaney's employer),  but by Ronald            Duval,  the acting  superintendent of  the prison.   Aghjayan                                                       ______            testified at the hearing before the ALJ  that he had to defer            to prison officials on matters of security.  Thus, because he            saw Duval's letter as an urgent matter of prison security, he                                            ____________________            4.  It  appears that  the Secretary  has adopted,  in actions            brought  under the TSCA, the  burdens of proof and production            established by the Supreme Court in employment discrimination            actions, e.g. McDonnell Douglas Corp. v. Green,  411 U.S. 792                     ____ _______________________    _____            (1973).  See Simon v.  Simmons Foods, Inc., 49 F.3d  386, 388                     ___ _____     ___________________            (8th  Cir.   1995)  (applying  burden-shifting   analysis  to            retaliatory discharge claim under  TSCA).  The Secretary does            not  dispute  that  in  an  appropriate case  a  dual  motive            analysis  would  apply.   He  says this  is  not such  a case            because plaintiff  failed to establish  the factual predicate            for such analysis.                                         -6-                                          6            took it seriously.  Although Aghjayan  had discretion to make            hiring  and firing decisions at MCI, he testified that he did            not  feel free to disregard  Duval's letter: "[I]t  was not a            letter that I could ignore."                      Aghjayan's  testimony and the  Duval letter provide            substantial evidence to support  the Secretary's finding that            Aghjayan's  decision to  transfer  Delaney was  based on  his            receipt  of the  Duval letter  and the  concerns communicated            therein.  Delaney has offered no credible evidence to support            a conclusion  that this  articulated reason for  the transfer            was mere pretext for retaliation.5                        Delaney's objection  that the decision was based on            hearsay  is  insufficient.   Not  only  were the  proceedings            before the Department  of Labor not governed  by formal rules            of evidence, 29 C.F.R.   24.5(e)(1), but Delaney did not even            make a hearsay objection before the ALJ.  The argument proves            too much  in any event.   In everyday life people  can and do            make decisions based on what they learn from others.  The law            does not prohibit that.  The  TSCA prohibits only retaliation            against   whistleblowing  activities.     Here,   the  record                                            ____________________            5.  And  even if there  were some  such evidence,  that alone                                         ____            would  not justify refusing to defer to the Secretary on this            point.    "[T]he  possibility  of  drawing  two  inconsistent            conclusions   from   the   evidence  does   not   prevent  an            administrative  agency's  finding  from  being  supported  by            substantial  evidence."    Boston  Shipping  Ass'n,  Inc.  v.                                       ______________________________            Federal  Maritime Comm'n, 706 F.2d 1231, 1236 (1st Cir. 1983)            ________________________            (quoting Consolo, 383 U.S. at 620).                      _______                                         -7-                                          7            establishes that  Delaney's employer acted at  the request of            prison officials  concerning  a matter  of  prison  security.            That the prison officials'  security concerns might, in turn,            have  been based  on  hearsay is  immaterial.   There  is  no            evidence of pretext.  Thus,  the Secretary correctly found in            favor of MCI.                      Finally, we note that  the Secretary found that MCI            did  not  act  under   a  dual  motive.    This   finding  is                 ___            unassailable.   On  the record  before us  there has  been no            showing of "mixed motive" and thus no foundation for applying            a  "mixed motive" analysis.  Cf. McKennon v. Nashville Banner                                         ___ ________    ________________            Publ.  Co., 115 S. Ct. 879,  885 (1995) (stating that the Mt.            __________                                                ___            Healthy mixed  motive analysis is inapposite  where there has            _______            been  shown to  be only  a single  motive for  the challenged            employment decision).  There is, as the Secretary recognized,            a  difference   between  what   Mr.  Delaney  said   and  the            circumstances in which he said  it.  The Secretary's  finding            that Delaney's transfer  was motivated only  by consideration            of the latter is amply supported by the record.                      At  bottom,  Delaney  had  to  prove  that  he  was            transferred to Norfolk because  of his complaints about being            exposed to toxic substances.  See Kahn v. Secretary of Labor,                                          ___ ____    __________________            64  F.3d 271,  278  (7th Cir.  1995)  (analyzing claim  under            identical    whistleblower    provision    of   the    Energy            Reorganization Act).   The ALJ and  the Secretary here  found                                         -8-                                          8            that  Delaney failed to make the requisite proof.  Because we            do not review  the question  de novo, and  because there  was                                         __ ____            substantial   evidence   to   support   that   administrative            conclusion, the Secretary's determination is affirmed.                                                         _________                                         -9-                                          9
