               Case: 14-15435        Date Filed: 02/08/2016      Page: 1 of 14


                                                                                  [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-15435
                               ________________________

                                    Agency No. 12-064



DEKALB COUNTY,

                                                          Petitioner,

versus

U.S. DEPARTMENT OF LABOR,
RYAN PETTY,
DAISY ABDUR-RAHMAN,

                                                          Respondents.

                               ________________________

                             Petition for Review of a Decision
                                of the Department of Labor
                              ________________________

                                     (February 8, 2016)

Before TJOFLAT and MARTIN, Circuit Judges, and ROSENTHAL,∗ District
Judge.
         ∗
         Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
               Case: 14-15435         Date Filed: 02/08/2016   Page: 2 of 14




ROSENTHAL, District Judge:

       This petition for review asks us to clarify the standard the Department of

Labor’s Administrative Review Board applies to an appeal from an Administrative

Law Judge’s findings and conclusions in a proceeding under the Federal Water

Pollution Control Act, 33 U.S.C. § 1367. The petitioner asks us to vacate the

Board’s ruling reversing the ALJ because the Board applied de novo rather than

substantial-evidence scrutiny to the ALJ’s factual findings. The parties agree that

the Board applied the incorrect standard. We conclude, however, that reviewing

for substantial evidence would not have changed the result because the Board

reversed the ALJ on matters of law, not fact. We therefore deny the petition for

review. 1

                                 I.      BACKGROUND

       Daisy Abdur-Rahman and Ryan Petty filed complaints after they were

terminated from their jobs with the DeKalb County, Georgia Department of Public

Works. The ALJ held a 13-day hearing on their claims that they were fired in

retaliation for whistleblower activity protected under the Federal Water Pollution

Control Act (“FWPCA”).


       1
         The parties have petitioned and cross-petitioned for review of related orders on
attorney’s fees and costs. See No. 15-12407; No. 15-15376. Those petitions were consolidated
and have been stayed pending resolution of this case.

                                               2
              Case: 14-15435    Date Filed: 02/08/2016    Page: 3 of 14


      Abdur-Rahman and Petty worked as compliance inspectors on a program to

reduce sewer overflows caused by restaurants improperly disposing of fats, oils,

and grease. The County requires restaurants—there are around 5,000 in the

County—to have grease traps to collect this type of solid waste. If the traps are

missing or fail, fats, oils, and grease accumulate in sewer lines and can cause the

lines to burst or overflow, releasing raw, untreated sewage that can seep into

surrounding waters. The County’s compliance inspectors monitor the traps,

process and respond to complaints, and investigate discharges. The Department

also assigned Abdur-Rahman and Petty to a committee updating the County’s

ordinances and procedures regulating this type of solid-waste disposal.

      For the first six months after the County hired them in mid-2004, Abdur-

Rahman and Petty were probationary employees who could be fired at will. Their

immediate supervisor was Chester Gudewicz, the County’s Compliance Section

Supervisor. Gudewicz, in turn, reported to John Walker.

      The probationary period was marked by conflict between Gudewicz and

Abdur-Rahman and Petty. All three, and Walker, testified about the conflicts

before the ALJ. Problems began when Abdur-Rahman and Petty asked Gudewicz

for historical records of sewer spills in the County. They wanted the records for

their committee and compliance work so they could identify “hot spots” where

sewers had frequently overflowed and use that information to facilitate future


                                          3
              Case: 14-15435     Date Filed: 02/08/2016   Page: 4 of 14


enforcement. When Gudewicz failed to produce the records, Abdur-Rahman and

Petty persisted, asking for them on a weekly basis. By late 2004, Gudewicz was

actively discouraging the search, telling Abdur-Rahman and Petty that they were

“ruffling too many feathers” and “rocking the boat.” Gudewicz became

increasingly frustrated and impatient with their questions, and with them. He

viewed their questions as “insubordination” and would walk away to avoid them.

Walker also resisted the efforts to find the records, telling Abdur-Rahman and

Petty that they did not need the data and were being “too thorough or scientific.”

       This opposition led Abdur-Rahman and Petty to suspect that the County had

something to hide. They told coworkers and supervisors that “the County could

get in trouble” with the State for failing to properly document and report spills.

They also came to believe that Gudewicz was unqualified for his position and

concerned with preserving the status quo and his job, rather than the program.

They raised their concerns about the County’s lack of compliance and enforcement

with increasing frequency. Tensions spiked in January 2005, when, according to

Gudewicz’s testimony, he overheard Abdur-Rahman call him “incompetent” and

“a liar.”

       Abdur-Rahman’s and Petty’s suspicions turned out to be unfounded. The

records they sought were available in a nearby office, and the County was

investigated by Georgia’s Environmental Protection Division, which concluded


                                          4
              Case: 14-15435    Date Filed: 02/08/2016   Page: 5 of 14


that the County had reported spills as required by state law. In the meantime,

however, Gudewicz concluded that Abdur-Rahman’s and Petty’s behavior was

disruptive and harmful to workplace morale. In January 2005, Gudewicz sent

Walker two memoranda, one recommending firing Petty, and the other reporting

Abdur-Rahman for “argumentative” behavior. The County fired both in early

March 2005.

      One month later, Abdur-Rahman and Petty each filed a complaint with the

Occupational Safety and Health Administration (“OSHA”), asserting that the

County had fired them in retaliation for voicing their concerns and complaints.

OSHA found no violation of the FWPCA’s antiretaliation provision. A number of

witnesses testified at the evidentiary hearing held before the ALJ between

September 2006 and March 2007. The testimony frequently conflicted. The ALJ

had to, and did, make credibility judgments in resolving the factual inconsistencies.

      The ALJ found and concluded that Abdur-Rahman and Petty had engaged in

activity that the FWPCA protects, but that this activity was not the motivating

factor behind the decision to terminate their employment. The ALJ found and

concluded that the County showed that it would have terminated Abdur-Rahman

and Petty “even had they not engaged in protected activity because managing them

was above their supervisor’s [Gudewicz’s] means and they did not fit the peculiar




                                          5
               Case: 14-15435       Date Filed: 02/08/2016       Page: 6 of 14


culture [of their workplace].” The ALJ dismissed Abdur-Rahman’s and Petty’s

complaints.

       On appeal, the Administrative Review Board reviewed the ALJ’s findings

and conclusions de novo and reversed. The Board agreed with the ALJ’s finding

that Abdur-Rahman and Petty had engaged in protected activity by pressing for the

records and by voicing concerns about the County’s regulatory compliance and

enforcement when they met resistance. But the Board found that this activity was

a motivating factor—not the motivating factor, as the ALJ had incorrectly stated—

in the County’s decision to fire them. The Board also agreed with the ALJ’s

factual findings that the County had both legitimate and retaliatory reasons for its

termination decision and that the reasons arose from the same protected activity.

The Board rejected the ALJ’s legal analysis, however, “arriv[ing] at [the] different

legal conclusion” that the County’s legal and illegal motives could not be separated

and the County had not shown that it would have fired Abdur-Rahman and Petty

absent their protected activity. The Board remanded to the ALJ to decide the

remedy for the retaliatory terminations. 2 The Board affirmed the ALJ’s post-

       2
         On remand, the ALJ asked the parties whether it needed to reopen the record to decide
the remedies issue. In a June 2011 letter to the ALJ, the County asked the ALJ not to reopen the
record. The County argues in this appeal that although on remand it had urged the ALJ to keep
the record closed, the ALJ’s limited reopening of the record denied the County an opportunity to
present evidence showing a failure to mitigate damages. The County did not raise this lost-
opportunity issue until its June 2012 appeal to the Board, not to the ALJ. The County cannot
complain on appeal about an alleged error it invited. Yellow Pages Photos, Inc. v. Ziplocal, LP,
795 F.3d 1255, 1283 (11th Cir. 2015).

                                               6
              Case: 14-15435    Date Filed: 02/08/2016   Page: 7 of 14


remand decisions, including the reinstatement and back-pay awards, and the

County petitioned this court for review. We have jurisdiction under 33 U.S.C. §

1367(b) and 33 U.S.C. § 1369, and we deny the petition.

                     II.    THE STANDARD OF REVIEW

      An appellate court “must review the [Administrative Review Board’s]

decision pursuant to the standard of review outlined in the Administrative

Procedure Act.” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor (“Stone &

Webster II”), 684 F.3d 1127, 1132 (11th Cir. 2012). Legal conclusions are

reviewed de novo, keeping in mind that agencies often receive deference in

construing the statutes they administer. Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 104 S. Ct. 2778 (1984). The Board’s factual findings are

reversed only if “unsupported by substantial evidence” on the record as a whole. 5

U.S.C. § 706(2)(E) (APA standard for formal adjudications); Stone & Webster II,

684 F.3d at 1132.

      “The substantial evidence standard limits the reviewing court from deciding

the facts anew, making credibility determinations, or re-weighing the evidence.”

Stone & Webster II, 684 F.3d at 1133 (quotation marks omitted). When “we

review administrative findings of fact under the substantial-evidence test, [we] will

reverse such findings only when the record compels a reversal; the mere fact that

the record may support a contrary conclusion is not enough . . . .” Indrawati v.


                                          7
               Case: 14-15435    Date Filed: 02/08/2016   Page: 8 of 14


U.S. Att’y Gen., 779 F.3d 1284, 1304 (11th Cir. 2015) (quotation marks omitted).

Substantial evidence is “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971) (quotation

marks omitted).

       Since 2007, these same standards have applied to the Board’s review of the

ALJ’s findings and conclusions in an FWPCA claim. “[I]n 2007, the Secretary of

Labor revised the [Board’s] standard of review of an ALJ’s factual findings . . .

from de novo review to substantial evidence review.” Stone & Webster, 684 F.3d

at 1132; see also 29 C.F.R. § 24.110(b) (“The [Board] will review the factual

findings of the ALJ under the substantial evidence standard.”). The parties agree

that the Board incorrectly reviewed the ALJ’s factual findings de novo. The issue

is the effect of that error.

                                III.   DISCUSSION

       The elements of an FWPCA retaliation claim are that (1) the employee

engaged in protected activity, (2) the employee suffered an adverse action, and (3)

the protected activity was a motivating factor in the adverse action. Kaufman v.

Perez, 745 F.3d 521, 527 (D.C. Cir. 2014). The parties agree that Abdur-Rahman

and Petty suffered an adverse action. The County challenges the Board’s




                                          8
              Case: 14-15435      Date Filed: 02/08/2016    Page: 9 of 14


determinations that they engaged in activity the FWPCA protects and that their

protected activity was a motivating factor in the decision to fire them.

A.    Protected Activity

      The FWPCA makes it unlawful to “fire, or in any other way discriminate

against . . . any employee . . . by reason of the fact that such employee . . . has

filed, instituted, or caused to be filed or instituted any proceeding under this

chapter . . . .” 33 U.S.C. § 1367(a). The Secretary has interpreted “proceeding” to

shield from retaliation employees who make “informal” or “internal” complaints to

supervisors and coworkers, even if those complaints ultimately lack merit. Stone

& Webster Eng’g Corp. v. Herman (“Stone & Webster I”), 115 F.3d 1568, 1575

(11th Cir. 1997), superseded in part by regulation on other grounds, 29 C.F.R. §

24.110(b); Bechtel Constr. Co. v. Sec’y of Labor, 50 F.3d 926, 931–33 (11th Cir.

1995). The County does not challenge the Secretary’s interpretation.

      Substantial evidence in the record shows that, as the ALJ found and the

Board agreed, Abdur-Rahman and Petty engaged in protected activity. They

repeatedly sought the County’s historical records of sewer spills, believing that the

records would be helpful to the County’s enforcement and compliance work. The

requests were rebuffed, and they were discouraged from pursuing the records. The

ALJ found, and the Board affirmed, that Abdur-Rahman and Petty “came to

suspect the County might be hiding the information.” They told coworkers and


                                           9
              Case: 14-15435    Date Filed: 02/08/2016    Page: 10 of 14


supervisors that “the County could get in trouble” with the State as a result, and

Abdur-Rahman confronted Gudewicz about why hot spots continued to exist.

Although the suspicions turned out to be unfounded, the record shows a good-faith

basis for voicing them. The FWPCA protects activity undertaken with a

reasonable, good-faith basis, even if it is incorrect. Stone & Webster I, 115 F.3d at

1575; Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Labor, 992 F.2d 474,

478–79 (3d Cir. 1993). The record shows ample support for the ALJ’s and the

Board’s finding and conclusion that Abdur-Rahman and Petty engaged in protected

activity. 3

B.     Motivating Factor

       The Secretary interprets the FWPCA to incorporate the burden-shifting

framework used in mixed-motive employment-discrimination cases. See 76 Fed.

Reg. 2808-01, 2811 (Jan. 18, 2011) (citing Price Waterhouse v. Hopkins, 490 U.S.

228, 109 S. Ct. 1775 (1989); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 97 S. Ct. 568 (1977)). The employee has the burden to show “by a

preponderance of the evidence that the protected activity caused or was a

motivating factor in the adverse action alleged in the complaint.” 29 C.F.R. §

24.109(b)(2). A motivating factor is “a substantial factor.” Mt. Healthy, 429 U.S.


       3
         We need not—and do not—address whether Abdur-Rahman and Petty also engaged in
protected activity at other times during their brief employment.

                                          10
             Case: 14-15435     Date Filed: 02/08/2016   Page: 11 of 14


at 287, 97 S. Ct. at 576. “In saying that [the protected activity] played a motivating

part in an employment decision, we mean that, if we asked the employer at the

moment of the decision what its reasons were and if we received a truthful

response, one of those reasons would be that the . . . employee [engaged in

protected activity].” Price Waterhouse, 490 U.S. at 250, 109 S. Ct. at 1790

(plurality opinion).

      “If the [employee] has demonstrated by a preponderance of the evidence that

the protected activity caused or was a motivating factor in the adverse action

alleged in the complaint,” the burden shifts to the employer. 29 C.F.R. §

24.109(b)(2). “[R]elief may not be ordered if the [employer] demonstrates by a

preponderance of the evidence that it would have taken the same adverse action in

the absence of the protected activity.” Id.; see also Mt. Healthy, 429 U.S. at 287,

97 S. Ct. at 576. The employer must “separate its legitimate rationale from its

prohibited rationale . . . [to] prove its decision would have been the same absent

[the employee’s protected activity].” Passaic, 992 F.2d at 482. “It is not enough

that the evidence prove[s] that the [employer] could have in retrospect made its

employment decision on legitimate grounds.” Id. “The risk that the illegal and

legal motives behind employee termination merge and become inseparable is

placed on the employer.” Id. (citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,




                                         11
               Case: 14-15435        Date Filed: 02/08/2016       Page: 12 of 14


103 S. Ct. 2469 (1983)).4 The County has not challenged the Secretary’s

interpretation.

       Applying this interpretation, the Board identified errors in the ALJ’s legal

analysis. The ALJ asked whether Abdur-Rahman and Petty had shown that their

protected activity was the motivating factor—rather than a motivating factor—in

the decision to fire them. The Board concluded that Abdur-Rahman and Petty had

shown that their protected activity met the proper causation test. Although the

Board described its review of the ALJ’s factual findings as de novo, substantial

evidence—evidence that the ALJ also relied on—supports this conclusion. The

Board correctly applied de novo review in rejecting the ALJ’s legal conclusion that

the record had to show that the protected activity was the motivating factor in the

County’s decision.

       The ALJ also erred in failing to put the burden on the County to show that it

would have made the same decision absent the protected activity. The Board

accepted the ALJ’s factual findings, including that Gudewicz’s poor management

       4
          This analysis differs from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817 (1973), and its progeny, under which the burden of persuasion “at all times” remains with
the employee, Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093
(1981). See generally Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 215–16 (3d Cir. 2000)
(Alito, J.) (“[T]he Price Waterhouse shift in the burden of persuasion does not apply to ‘pretext’
cases, in which plaintiffs prove intentional discrimination indirectly through the burden-shifting
paradigm set forth in McDonnell Douglas . . . .” (citing Price Waterhouse, 490 U.S. at 277–78,
109 S. Ct. at 1805 (O’Connor, J., concurring))); cf. Pulliam v. Tallapoosa Cty. Jail, 185 F.3d
1182, 1186–88 (11th Cir. 1999) (distinguishing a pretextual-discrimination claim from a mixed-
motive discrimination claim).

                                                12
             Case: 14-15435     Date Filed: 02/08/2016    Page: 13 of 14


and supervisory skills were a factor in his decision to recommend firing Abdur-

Rahman and Petty. These findings were supported by substantial record evidence.

The Board rejected the ALJ’s legal analysis because the County had not met its

burden to separate the retaliatory from the nonretaliatory motives for deciding to

fire the employees. The Board reversed the ALJ’s legal conclusion because, given

the intertwined nature of the legitimate and retaliatory reasons, the County had not

met its burden to show that it would have reached the same decision absent the

protected activity.

      The parties agree that the Board incorrectly reviewed the ALJ’s factual

findings de novo. Ordinarily, “a court of appeals should remand a case to an

agency for decision of a matter that statutes place primarily in agency hands.” INS

v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per curiam). In Stone &

Webster II, 684 F.3d at 1133, we remanded because the Board “acknowledged that

it was bound by the substantial evidence standard” but, in effect, reviewed the

ALJ’s factual findings de novo, “show[ing] little deference to the ALJ’s findings

with which it disagreed, and . . . disregard[ing] the ALJ’s conclusions supported by

substantial evidence in the record.” Here, in contrast to Stone & Webster II, “the

. . . issue is legal, not factual.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1330 (11th

Cir. 2007). Remand to the agency is unnecessary because “the agency would reach




                                          13
             Case: 14-15435    Date Filed: 02/08/2016   Page: 14 of 14


the same result upon a reconsideration cleansed of errors.” Lin v. U.S. Dep’t of

Justice, 453 F.3d 99, 107 (2d Cir. 2006).

      The Board properly reviewed the ALJ’s legal conclusions de novo and held

that the ALJ incorrectly applied the motivating-factor and the Mt. Healthy/Price

Waterhouse burden-shifting framework. The Board’s decision would have been

the same had it reviewed the ALJ’s factual findings for substantial evidence rather

than de novo. We therefore need not remand.

                              IV.   CONCLUSION

      We deny the County’s petition for review.

      PETITION DENIED.




                                         14
