                                ___________

                                No. 95-1729
                               ___________


David Carroll,                         *
                                  *
     Petitioner,                   *
                                  *
           v.                              *
                                           *
United States Department          *            Petition for Review of an
of Labor;                         *            Order of the United States
                                  *            Department of Labor
     Respondent,                   *
                                  *
Bechtel Power Corporation,        *
                                  *
     Intervenor.                   *

                    __________________________

                        Submitted:     November 15, 1995

                            Filed: March 5, 1996
                       __________________________


Before McMILLIAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

                         __________________________


FLOYD R. GIBSON, Circuit Judge.

     David Carroll petitions for review of the Secretary's final order
dismissing his complaint filed under the whistleblower provisions of the
Energy Reorganization Act, 42 U.S.C. § 5851 (1988) (ERA).          We affirm.


I. BACKGROUND


     David Carroll was hired by Bechtel Corporation in July of 1989 as a
mechanical engineer.     Carroll worked on a variety of Bechtel projects
throughout the United States until July of 1990 when he was transferred to
Bechtel's Engineering Support Team (EST) in
Russelville, Arkansas.   The EST had been established in 1987 to supply
Arkansas Power & Light Company (AP&L) and its agent, Entergy Operations,
Inc. (Entergy), with engineering support services for AP&L's nuclear power
plant, Arkansas Nuclear One (ANO).   Hugh Nugent was the Bechtel EST Project
Engineer who supervised James Drasler, who in turn supervised Carroll and
the other engineers on the EST team.


     In July of 1990, Bechtel contracted with Entergy to establish the
Backlog Elimination Project (BEP).     The purpose of the BEP was to review
and respond to a backlog of outstanding engineering action requests (EARS)
and plant engineering action requests (PEARS).    This backlog consisted of
over 2,000 internal engineering requests that had been previously screened
by ANO personnel and determined not to present safety concerns.   Entergy's
BEP project manager then screened the backlog a second time and prioritized
those EARS and PEARS that presented potential safety issues before sending
the remainder to the BEP project.    William Watson was the project manager
for all Bechtel work performed for ANO, and in charge of both the EST and
the BEP.


     In late 1990, Entergy informed Bechtel that it would have to reduce
its EST staff.   Consistent with Bechtel's policy of retaining its most
qualified engineers on ongoing projects, Bechtel "released" Carroll and Jon
Rourke as well as eleven other engineers from the EST in December of 1990.1
Because of attrition in the BEP, Carroll and Rourke were reassigned to that
unit in January of




     1
      "Release" is a term of art at Bechtel. Individual
engineers are assigned to a regional home office for
administrative purposes. When an engineer is released from a
project, his home office is notified and the regional chief
engineer for that regional office is responsible for reassignment
of that engineer at other Bechtel worksites if such positions are
available and if that engineer meets the relevant job
qualifications. Carroll was assigned to the Houston, Texas
regional home office, and George Showers was the chief project
engineer for that office.

                                      2
1991.     Dale Crow, the Bechtel BEP project engineer, supervised David
Christiansen, who in turn supervised Carroll on the BEP.


        On April 5, 1991, Entergy ordered Watson to reduce the remaining EST
mechanical engineering staff from three to one.               Pursuant to Watson's
directive "to look at all the people being released and retain those
individuals with the highest skill level within the department,"               Nugent
and Crow agreed to transfer mechanical engineers John Antle and Joel Guzman
from the EST to the BEP and release Carroll and Rourke.          Carroll's regional
chief engineer, George Showers, notified him that he was being released
from the BEP on April 10.       Efforts to reassign Carroll were unsuccessful,
and Showers told Carroll that he would be terminated effective May 10,
1991.


        On the day he was terminated, Carroll filed a complaint with the
Nuclear Regulatory Commission.      Three days later, Carroll filed a complaint
with the United States Department of Labor claiming that he had been
released from the BEP and subsequently terminated in retaliation for
voicing safety-related complaints to his supervisors.           A hearing was held
before    an Administrative Law Judge (ALJ), who issued a decision on
September 21, 1992, recommending dismissal of Carroll's claim.             On February
15,   1995,   the   Secretary    issued   a   final   order   dismissing    Carroll's
complaint.    Although the Secretary's order disagreed with several aspects
of the ALJ's decision, it adopted the ALJ's ultimate conclusion: that
Carroll failed to prove by a preponderance of the evidence that he was
retaliated against by Bechtel for engaging in activity protected by the
ERA's whistleblower provision.        Carroll now seeks review in this Court
pursuant to 42 U.S.C. § 5851(c).


II. DISCUSSION


        The Energy Reorganization Act of 1974 protects "whistleblowers"
employed in the nuclear power industry by




                                          3
providing that "[n]o employer . . . may discharge any employee         . . .
because the employee . . . 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."     42 U.S.C. § 5851(a)(1).     Carroll attacks the
Secretary's final order on two fronts: first, he argues that the Secretary
failed to apply the proper legal standards to his complaint; second, he
argues that the Secretary's conclusion that he failed to prove retaliatory
discharge is unsupported by substantial evidence.   Under the Administrative
Procedure Act, we will set aside the Secretary's order only if it is
unsupported by substantial evidence or is arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law.     5 U.S.C. §
706 (1994).


     A. ERRORS OF LAW


     Carroll first argues that the Secretary's order dismissing his
complaint is arbitrary and capricious because it failed to apply the rules
of law articulated in Couty v. Dole, 886 F.2d 147 (8th Cir. 1989), or Mt.
Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), to his
complaint.    Carroll argues that he would have prevailed had the Secretary
properly applied this authority.   We believe that Carroll misapprehends the
applicable legal framework underlying the Secretary's order.


     1. Couty v. Dole:


     Couty v. Dole sets forth a burden-shifting framework similar to that
adopted in the Title VII context in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973).     Under Couty, a complainant in a whistleblower
case may satisfy his initial burden of establishing a prima facie case of
retaliatory discharge by proving: (1) engagement in protected activity; (2)
defendant's awareness of plaintiff's engagement in protected activity; (3)
plaintiff's subsequent discharge; and (4)    that the discharge




                                      4
followed the protected activity so closely in time as to justify an
inference of retaliatory motive.             Id. at 148.       The burden of production
then    shifts       to     the   employer       to     "articulate[]      a    legitimate,
nondiscriminatory reason for discharging [the complainant]."                     Id.


       But    once   the    employer    meets    this     burden   of    production,     "the
presumption raised by the prima facie case is rebutted, and the factual
inquiry proceeds to a new level of specificity."               Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 255 (1981) (applying McDonnell Douglas
test) (footnote omitted); see also St. Mary's Honor Center v. Hicks, 113
S.   Ct.     2742,   2747   (1993)     (applying      McDonnell    Douglas     test).    The
Couty/McDonnell       Douglas     framework       and    its   attendant       burdens    and
presumptions cease to be relevant at that point, Hicks, 113 S. Ct. at 2749,
and the onus is once again on the complainant to prove that the proffered
legitimate reason is a mere pretext rather than the true reason for the
challenged employment action.             Burdine, 450 U.S. at 256.             While Couty
allows the complainant to shift the burden of production to the employer
by establishing a prima facie case, the ultimate burden of persuasion
remains with the complainant at all times.                  Hicks, 113 S. Ct. at 2747;
Burdine, 450 U.S. at 253.


       Assuming Carroll established a prima facie case under Couty, Bechtel
met its burden of production by articulating a legitimate nondiscriminatory
reason for releasing and subsequently terminating Carroll: a general
decline in available work for which Carroll was qualified coupled with a
policy of retaining more highly-qualified engineers.                    At that point, the
issue of whether or not Carroll had previously established a prima facie
case under Couty became irrelevant.                   "The presumption [of retaliatory
discharge created under the Couty factors], having fulfilled its role of
forcing the defendant to come forward with some response, simply drops out
of the picture."      Hicks, 113 S. Ct. at 2749.          Once the employer has met its
burden of production, "the trier of fact proceeds to decide




                                             5
the ultimate question."     Id.   As such, we conclude that the Secretary's
order properly focused on whether Carroll proved by a preponderance of the
evidence that Bechtel had retaliated against him for engaging in protected
conduct rather than whether Carroll had articulated a prima facie case
under Couty.2   Lockert v. U.S. Dept. of Labor, 867 F.2d 513, 519 n.2 (9th
Cir. 1989).


     2. Mt. Healthy:


         We are similarly unable to fault the Secretary's order for failing
to rely on the Supreme Court's decision in Mt. Healthy.   Whereas Couty and
McDonnell Douglas provide the legal framework in pretext cases, Mt. Healthy
and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), channel the scope of
our inquiry in mixed motive cases.        Mt. Healthy and Price Waterhouse
provide that where the employee has shown that the challenged employment
action was motivated at least in part by an impermissible criterion, the
burden then shifts to the employer to prove by a preponderance of the
evidence that it would have reached the same decision even in the absence
of the illegitimate factor.        Mt. Healthy, 429 U.S. at 287 (alleged
discharge for exercise of free speech in violation of First Amendment);
Price Waterhouse, 490 U.S. at 258 (Title VII claim).      This type of Mt.
Healthy/Price Waterhouse mixed motive analysis, however, applies only in
"dual motive" cases where the complainant produces "evidence that directly
reflects the use of an illegitimate criterion in the challenged decision."
Stacks v. Southwestern Bell Yellow Pages, Inc., 996 F.2d 200, 202 (8th Cir.




     2
      In a related argument, Carroll asserts that he has so
thoroughly discredited Bechtel's proffered nondiscriminatory
reason for releasing and subsequently terminating him that the
record can support nothing but a decision in his favor. This
argument has nothing to do with whether he has established a
prima facie case under Couty, but raises the question of whether
the Secretary's conclusion that Carroll failed to carry his
ultimate burden of persuasion is supported by substantial
evidence on the record as a whole. We address this issue in the
next section.

                                      6
1993).     Direct evidence means evidence showing a specific link between an
improper motive and the challenged employment decision.         Parton v. GTE N.,
Inc., 971 F.2d 150, 153 (8th Cir. 1992).       Here the record is bereft of any
such     direct    evidence   linking   Carroll's   release   and   termination   to
retaliation for his alleged engagement in protected activity.


       Even if Mt. Healthy were applicable to the facts before us, this case
has moved well past the issue of the adequacy of a party's prima facie
showing under the Mt. Healthy/Price Waterhouse or the Couty/McDonnell
Douglas     analyses.     As previously observed in our discussion of the
Couty/McDonnell Douglas framework, the Secretary's analysis, with the
hindsight benefit of a full hearing before the ALJ, properly focused on the
ultimate issue: whether, based on the record as a whole, Carroll proved by
a preponderance of the evidence that Bechtel had retaliated against him for
engaging in protected conduct.          See Finley v. Empiregas, Inc., 975 F.2d
467, 473 (8th Cir. 1992); Kientzy v. McDonnell Douglas Corp., 990 F.2d
1051, 1060 (8th Cir. 1993).


       B. SUBSTANTIAL EVIDENCE


       The Secretary's final order concluded that Carroll had failed to
prove that Bechtel retaliated against him for engaging in protected
activity.3        Carroll contends that the factual findings underlying the
Secretary's conclusion are unsupported by substantial evidence on the
record as a whole.      In considering this issue, we consider the whole record
before us, "including the ALJ's recommendation and any evidence that is
contrary to the agency's determination."       Simon v. Simmons Foods, Inc., 49
F.3d 386, 389 (8th Cir. 1995).          Because the Secretary's opinion in this
case is




       3
      The Secretary's final order did not determine whether
Carroll had in fact proved that he had engaged in any protected
activity. As such, we express no opinion on this issue.

                                          7
in   agreement    with    and   based   in   part    on   the   ALJ's   credibility
determinations, it is entitled to "great deference" by this Court.          Wilson
Trophy Co. v. NLRB, 989 F.2d 1502, 1507 (8th Cir. 1993).            By substantial
evidence, we mean "such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion."        Richardson v. Perales, 402 U.S. 389,
401 (1971) (quotation omitted).


      The Secretary found that Bechtel released Carroll from the BEP for
a combination of valid business reasons.            This finding is supported by
substantial evidence.     It is uncontroverted that Entergy dictated Bechtel's
staff levels for Entergy projects.      It is also uncontroverted that Entergy
ordered Bechtel to cut the number of engineers employed on the EST from
three to one.    It is further uncontroverted that, consonant with Bechtel's
established policy of retaining its most highly-skilled engineers on
ongoing projects, Carroll's superiors agreed to transfer Antle and Guzman
from EST to the BEP to replace Carroll and Rourke.                  There is also
substantial evidence that Carroll's replacement, Antle, was a more highly-
qualified engineer.      Unlike Carroll, Antle was a licensed nuclear reactor
operator who possessed a bachelor of science degree in nuclear engineering
and had worked in the nuclear field since 1969.           James Drasler, Antle and
Carroll's former EST supervisor, testified that Antle's qualifications,
experience, and evaluations were deemed superior to those of Carroll, who
was rated in the lowest quarter of all grade 25 engineers.                Drasler's
testimony is buttressed by the undisputed fact that in the face of prior
mandatory personnel reductions, Carroll and Rourke were released from the
EST and transferred to the BEP prior to Antle or Guzman, who were the last
EST engineers to be released.     This fact, coupled with Bechtel's policy of
retaining its most highly-qualified engineers on ongoing projects, is
compelling evidence that Bechtel did indeed consider Antle and Guzman more
highly-qualified than Carroll or Rourke.




                                         8
     The Secretary also found that Carroll's subsequent termination was
due to a lack of alternative job options despite Bechtel's substantial
efforts to relocate him.        This finding is likewise supported by substantial
evidence.     George Showers, Carroll's regional chief project engineer, James
Drasler, Carroll's former EST supervisor, and Dale Crow, Carroll's BEP
supervisor, all testified that they had made considerable efforts to match
Carroll with an available position for which he was qualified.                   These
efforts were confirmed by testimony from Bechtel employees from other
regional offices.         Showers, Drasler, and Crow all testified that they were
unable   to    find   a    position   for   which   Carroll   was   qualified   due   to
overstaffing and a decline in the amount of contracts.              This testimony was
similarly confirmed by testimony from other Bechtel employees from other
regional offices and various Bechtel jobsites around the United States.


     The Secretary additionally found that Bechtel did not retaliate
against Carroll by terminating him instead of offering him the option of
going on "holding" status.         This finding is also supported by substantial
evidence.      Although Bechtel's written policy gives a chief regional
engineer the option of placing a released employee on non-paid or "holding"
status for up to three months, both Drasler and Robert Hobbs, a Bechtel
senior designer, testified that this policy is purely discretionary.
Showers offered uncontroverted testimony that he had never placed an
employee on holding status, that he did not offer holding status to three
other mechanical engineers terminated around the same time as Carroll, and
that as a matter of policy he would not offer holding status to engineers,
such as Carroll, ranked in the lower third of their grade.


     Carroll argues that the Secretary's order is not supported by
substantial evidence on the record as a whole, citing Universal Camera
Corp. v. NLRB, 340 U.S. 474, 487-88 (1951).           In support of this assertion,
Carroll's brief bombards us with numerous excerpts




                                             9
from the record which he claims constitute substantial evidence that he was
in fact retaliated against for voicing nuclear safety concerns.                     Once
again,   Carroll   misunderstands   the    nature   and   scope   of    our   review.
Universal Camera merely stands for the well-accepted proposition that the
reviewing court is required to take the whole of the record into account
in determining the substantiality of the evidence.          Id. at 488.       It does
not require the reviewing court to displace the Secretary's choice "between
two fairly conflicting views, even though the court would justifiably have
made a different choice had the matter been before it de novo."               Id.


     As such, the issue here is whether substantial evidence supports the
Secretary's conclusion, not whether substantial evidence exists to support
Carroll's alternative view.   Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992)
("The court should not supplant the agency's findings merely by identifying
alternative findings that could be supported by substantial evidence.").
As long as an agency has correctly applied the law and its factual
determinations are supported by substantial evidence on the record as a
whole, we will affirm its decision "even though we might have reached a
different decision had the matter been before us de novo."             Wilson Trophy
Co., 989 F.2d at 1507.    It is clear from the Secretary's order that the
Secretary painstakingly evaluated the whole of the substantial record in
this case.   The mere fact that the Secretary elected to disbelieve whatever
evidence there may have been supporting Carroll's position does not mean
that he was unaware of it.    Accordingly, we conclude that the Secretary's
decision was supported by substantial evidence on the record as a whole.


III. CONCLUSION


     For the aforementioned reasons, we affirm the Secretary's final order
dismissing Carroll's case.




                                      10
A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                             11
