                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2002

Doyle v. Secretary Labor
Precedential or Non-Precedential:

Docket 00-1589




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PRECEDENTIAL

       Filed March 27, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-1589 and 00-2035

SHANNON T. DOYLE

       Petitioner in No. 00-1589

v.

U.S. SECRETARY OF LABOR and U.S. DEPARTMENT OF
LABOR ADMINISTRATIVE REVIEW BOARD

       Respondents in No. 00-1589

HYDRO NUCLEAR SERVICES, INC.

       Petitioner in No. 00-2035

v.

THE SECRETARY OF LABOR, ADMINISTRATIVE REVIEW
BOARD, and THE UNITED STATES DEPARTMENT
OF LABOR

       Respondents in No. 00-2035

On Petitions for Review of Final Decisions and Orders of
the Secretary of Labor and Administrative Review Board
Case No. 89-ERA-22 (ALJ), Nos. 99-041, 99-042,
00-012 (ARB)




Argued January 15, 2002

BEFORE: SCIRICA, GREENBERG, and BRIGHT,*
Circuit Judges

(Filed: March 27, 2002)

       Stephen M. Kohn (argued)
       Kohn, Kohn & Colapinto
       3233 P Street, N.W.
       Washington, D.C. 20007-2756

        Attorneys for Petitioner in
       No. 00-1589 and Intervenor in
       No. 00-2035

       Peter Buscemi (argued)
       Thomas A. Schmutz
       David R. Lipson
       Morgan, Lewis & Bockius
       1111 Pennsylvania Avenue, N.W.
       Washington, D.C. 20004

       Glen R. Stuart
       Morgan, Lewis & Bockius
       1701 Market Street
       Philadelphia, PA 19103

       Hope A. Comisky
       Michael H. Rosenthal
       Pepper Hamilton
       18th & Arch Streets
       3000 Two Logan Square
       Philadelphia, PA 19103

        Attorneys for Petitioner in
       No. 00-2035
_________________________________________________________________

* The Honorable Myron H. Bright, Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.

                                 2


       Howard M. Radzely
       Acting Solicitor of Labor
       Steven J. Mandel
       Associate Solicitor
       Paul L. Frieden
       Lois R. Zuckerman (argued)
       Office of the Solicitor
       United States Department of Labor
       200 Constitution Avenue, N.W.
       Suite N-2716
       Washington, D.C. 20210

        Attorneys for Respondents

OPINION OF THE COURT

GREENBERG, Circuit Judge.

These matters come on before this court on consolidated
petitions for review of a May 17, 2000 Final Decision and
Order issued by the Administrative Review Board ("ARB")
acting on behalf of the United States Secretary of Labor and
United States Department of Labor, and of a March 30,
1994 Final Decision and Order of the Secretary. The
Secretary’s decision and order determined that petitioner
Hydro Nuclear Services, Inc. ("Hydro") violated Section 210
of the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C.
S 5851, when it failed to hire petitioner-intervenor Shannon
T. Doyle because of his refusal to sign an authorization for
release of records including a release of liability provision.
The ARB’s decision and order granted Doyle remedies of
$218,378 in back pay, $154,695 in front pay, $45,000 in
lost benefits, $80,000 in compensatory damages,
$290,127.47 in attorney’s fees and costs, and prejudgment
and postjudgment interest on both the front and back pay.
In these proceedings Hydro contests the finding of
liability while Doyle contends that the ARB should have
awarded him a tax enhancement to compensate for the
burden of receiving a lump sum award of back pay. For the
reasons set forth below, we will grant Hydro’s petition, set
aside the Secretary’s finding of liability, and vacate all

                                3


awards of damages, remedies, fees and costs. Therefore, we
will dismiss Doyle’s petition as moot.

I. BACKGROUND

A. Factual History

The factual synopsis we detail below is not controverted.
Hydro,1 based in Moorestown, New Jersey, provided
temporary workers to assist in the decontamination and
maintenance of nuclear power plants. Hydro had a contract
with the D.C. Cook nuclear power plant in Bridgeman,
Michigan, to supply the plant with temporary and year-
round decontamination technicians.

In the fall of 1988, Hydro recruited Doyle to work as a
temporary senior decontamination technician during a
planned refueling outage at the plant. The pay rate for this
job was to be modest, $6.50 per hour with an enhancement
for overtime and a $48.00 per diem allowance. As part of
the routine screening process, Hydro required Doyle to take
a series of psychological and drug tests and to complete a
routine employment application that included Hydro’s
standard "Authorization for Release of Information and
Records." In this regard, Hydro treated Doyle the same as
all other job applicants, and Doyle does not claim
otherwise. The authorization stated as follows:

       AUTHORIZATION FOR RELEASE OF INFORMATION
       AND RECORDS

       In accordance with the Privacy Act (5U.S.C. 552a), I,
       the undersigned expressly authorize any person,
       association, firm, company, criminal justice agency,
       Credit Extending Organizations, Schools, Doctors, or
       Hospitals, Department or agency of a City, County, or
       State Government, or of the Federal Government to
       release and furnish to Hydro Nuclear Services and its
       authorized representatives _______ any and all
_________________________________________________________________

1. In 1989, Hydro combined with two other subsidiaries of Westinghouse
Electric Corporation under the name Westinghouse Radiological Services.
Nevertheless, though technically Hydro no longer exists as a separate
entity, we employ the name "Hydro" for the sake of simplicity.

                                4
       information and records pertaining to me including,
       but not limited to, originals or copies of any
       documents, records, reports, transcripts, abstracts,
       military records, criminal records, or any other
       information.

       Further, I hereby release and discharge Hydro Nuclear
       Services, their representatives, and their clients for
       whom the investigation is being performed and any
       organization listed above furnishing or receiving any
       information pertaining to me from any and all liability
       or claim as results [sic] of furnishing or receiving such
       information pursuant to this authorization.

       Hydro Nuclear Services is authorized to utilize the
       information it obtains for the purpose of evaluation, my
       eligibility for clearance, allowing unescorted access to
       Nuclear Power Stations, as required by Government
       regulations.

       A photo copy of this authorization shall be deemed an
       original and shall be accepted as such by any person
       or organization.

JA at 181.

Doyle refused to sign the authorization presented,
asserting to Robert Booker, Hydro’s Manager of Employee
Relations, that the second quoted paragraph waived his
right to file a charge under the ERA. Doyle’s concern largely
was attributable to his belief that his former employer,
Alabama Power Company, against whom he had filed a
"whistleblowing" claim, implicitly was included in the
release. Doyle advised Booker of this claim, thus giving
Hydro its first notice of it. Doyle opted to cross out the
paragraph in question and sign the redacted version of the
authorization.

Booker, however, informed Doyle that unless he signed
the original version of the authorization, Hydro would be
unable to tender him an offer of employment.
Notwithstanding the caveat, Doyle refused to sign the full
authorization. Hydro, in turn, chose not to hire Doyle,
though it did compensate him for travel expenses and per
diem rates as agreed.

                                5


B. Procedural History

On December 9, 1988, Doyle filed a pro se complaint with
the Wage and Hour Division of the United States
Department of Labor, alleging that Hydro violated the
employee protection provisions of the ERA by refusing to
hire him unless he signed the release. Hydro filed a
response on January 26, 1989.

After an unsuccessful conciliation attempt and
investigation, the Wage and Hour Division rejected the
claim, concluding that Hydro did not violate the ERA by
ceasing to consider Doyle for potential employment once he
refused to sign the full authorization because "[a]ll evidence
indicates that Hydro Nuclear Services, Inc. terminated
[Doyle’s] employment solely because of [his] refusal to sign
the firm’s standard Privacy Act waiver form and not
because of [his] prior admitted whistleblower activities" or
engagement in other "protected activity under the Energy
Reorganization Act." JA at 186.

Notified of his right to appeal and obtain a hearing on the
merits, Doyle formally requested review by an
administrative law judge. Hydro and Doyle submitted a
stipulated record of fact and motions for summary decision
pursuant to 29 C.F.R. SS 18.40 and 18.41.

On July 11, 1989, the administrative law judge issued
his Recommended Decision and Order Granting
Respondent’s Motion for Summary Judgment indicating as
follows:

       [Hydro] had a right to require all prospective employees
       to sign such a release in order to obtain all necessary
       information pertaining to an individual’s post [sic]
       record. Since [Doyle] refused to accept this requirement
       I find that [Hydro] had a legal right to refuse to employ
       [Doyle]. Employers who hire workers for nuclear power
       plants must ensure the health and safety of the public
       by carefully screening all prospective employees.
       [Hydro] in requiring all employees including[Doyle] to
       sign its release was exercising an essential step in
       performing its duty of responsible investigation and
       screening of employees.

                                6


JA at 10-11.

The Secretary conducted a de novo review of the
recommendation of the administrative law judge. Finally, on
March 30, 1994, the Secretary issued a letter Final
Decision and Order, rejecting the analysis of the
administrative law judge and concluding that Hydro
"violated the ERA when it refused to hire [Doyle] because he
refused to sign the authorization form unless the release of
liability paragraph was deleted." JA at 22. The Secretary
ordered Hydro to reinstate Doyle with back pay, including
interest.

In reaching his result the Secretary indicated that"[e]ven
lawyers can disagree over the scope and effect of the
language in question." He indicated, however, that:

       Giving the authorization form its most narrow reading,
       it would release [Hydro] and any other employer from
       whom [Hydro] obtained information about [Doyle] from
       any claim that the information had been provided or
       used to deny [Doyle] employment because of protected
       activities under the ERA. In other words, by signing the
       form, [Doyle] would have waived his right to file a
       complaint of illegal blacklisting under the ERA.

JA at 16-17 (footnote omitted).

The Secretary subsequently stated:

       There can be little doubt that, if [Doyle] had signed the
       authorization form, but [Hydro] refused to hire him
       based on information from a previous employer about
       [Doyle’s] protected activities, and [Doyle] filed a
       complaint under the ERA of discriminatory refusal to
       hire, waiver of rights under the ERA could not be
       raised by [Hydro] as a defense. Otherwise, any covered
       employer could nullify the Act and Congressional intent
       to protect public health and safety by prohibiting
       retaliation against those who report potential safety
       hazards in the construction and operation of nuclear
       power plants.

JA at 19.

Hydro petitioned this court for review of the Secretary’s
decision and order on May 26, 1994. Thereafter, on August

                                  7


24, 1994, we granted a joint motion of the Secretary and
Hydro to remand the matter for further administrative
proceedings to determine Doyle’s remedy. On September 7,
1994, the Secretary, in turn, remanded the case to an
administrative law judge.

After permitting additional discovery on the issue of
damages, the administrative law judge conducted a hearing
on December 14, 1994. The judge issued a Recommended
Decision and Order on Damages on November 7, 1995,
awarding Doyle back pay, front pay, compensatory
damages, interest, attorney’s fees, costs, and other
equitable relief, including corrections to his personnel
records. See JA at 44. With limited changes, the ARB,
acting on behalf of the Secretary pursuant to 61 Fed. Reg.
19978, adopted those recommendations on September 6,
1996. See JA at 55-65.2 Subsequently, Doyle and Hydro
respectively filed petitions for review with this court and
with the United States Court of Appeals for the Sixth
Circuit, which thereafter were consolidated and dismissed
as premature. See JA at 708-713.

On November 26, 1997, the ARB remanded the case to
an administrative law judge for further proceedings to
resolve the open issues regarding the proper amount of
damages to which Doyle was entitled. See JA at 66-71. The
parties entered into a series of stipulations, following which
an administrative law judge issued his Final Recommended
Decision and Order on Damages on February 12, 1999, see
JA at 100-11, and his Final Recommended Decision and
Order Awarding Attorney Fees on November 15, 1999. See
JA 114-29. On May 17, 2000, the ARB issued its Final
Decision and Order in this matter. See JA at 130-56.

On May 18, 2000, Hydro petitioned for review of the Final
Decision and Orders of March 30, 1994, and May 17, 2000,
to the United States Court of Appeals for the Sixth Circuit.
The following day, Doyle petitioned this court for review of
the Final Decision and Order of May 17, 2000 insofar as it
_________________________________________________________________

2. The Board rejected the recommendations concerning front pay and
encouraged the parties to reach an agreement on the average hourly rate
for non-local decontamination workers in the nuclear industry during
the relevant period. See JA at 62.

                                  8


provided for damages.3 On June 5, 2000, the Judicial Panel
on Multidistrict Litigation ordered the petitions consolidated
in this court. The Court of Appeals for the Sixth Circuit
then transferred the Hydro petition to this court on July 6,
2000, and we consolidated the proceedings on July 14, 2000.4

II. JURISDICTION

We have jurisdiction to review   a final order of the
Secretary of Labor pursuant to   42 U.S.C. S 5851(c).5 The
Secretary of Labor had subject   matter jurisdiction over this
action pursuant to 42 U.S.C. S   5851(b).

III. DISCUSSION

A. Standard of Review

A reviewing court may overturn a decision of the
Secretary only if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law." 5
U.S.C. S 706(2)(A);6 see Southwestern Pa. Growth Alliance v.
Browner, 121 F.3d 106, 111 (3d Cir. 1997). However, while
we pay deference to the Secretary in construing the
statutes he is charged with administering, Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 104 S.Ct. 2778 (1984), and will set aside the
Secretary’s factual determinations only if they are
unsupported by substantial evidence, 5 U.S.C. S 706(2)(E),
_________________________________________________________________

3. Hydro petitioned the Court of Appeals for the Sixth Circuit because
the events at issue here took place within that circuit. Doyle petitioned
this court as Hydro’s office was within this circuit.

4. Doyle has filed an action in the United States District Court for the
Western District of Pennsylvania to enforce the monetary award of the
ARB but the district court has stayed that case pending disposition of
the petitions before this court.

5. Section 5851(c) states, in pertinent part, that "[a]ny person adversely
affected or aggrieved by an order issued [by the Secretary of Labor] . . .
may obtain review of the order in the United States court of appeals for
the circuit in which the violation, with respect to which the order was
issued, allegedly occurred."

6. 42 U.S.C. S 5851(c)(1) incorporates by reference section 706 of the
Administrative Procedure Act.

                                9


we exercise plenary review in deciding questions of law. See
Dill v. INS, 773 F.2d 25, 28 (3d Cir. 1985); see also Williams
v. Metzler, 132 F.3d 937, 946 (3d Cir. 1997) ("we owe no
deference to an erroneous conclusion of law").

B. Hydro’s Liability Under the ERA

Section 2107 of the ERA prohibits an employer from
discharging or otherwise "discriminat[ing] against any
employee with respect to his compensation, terms,
conditions, or privileges of employment because the
employee" engaged in any of the activities protected under
the Act, including reporting an alleged nuclear safety
violation or refusing to engage in any practice made
unlawful by the ERA. 42 U.S.C. S 5851(a). 8

The Energy Policy Act of 1992, Pub.L. No. 102-486, 106
Stat. 2776, effective October 24, 1992, amended section
210 to incorporate a burden-shifting paradigm whereby the
burden of persuasion falls first upon the complainant to
demonstrate that retaliation for his protected activity was a
"contributing factor" in the unfavorable personnel decision.9
_________________________________________________________________

7. When Doyle brought his complaint, the whistleblower protections at
issue were included in section 210 of the ERA. In 1992, Congress
redesignated the relevant section as 211. See Timmons v. Mattingly
Testing Servs., No. 95-ERA-40, 1996 DOL Ad. Rev. Bd. LEXIS 30, at *1
n.2 (June 21, 1996).

8. In 1992, Congress extended ERA protection to employees lodging
internal complaints. Previously, a number of courts had distinguished
between whistleblowers who provide information to government entities
from those who complain merely to the employer. Compare Brown &
Root, Inc. v. Donovan, 747 F.2d 1029, 1034 (5th Cir. 1984) (absence of
express language covering employees filing internal complaints suggests
that Congress intended to deny protection), with Kansas Gas & Elec. Co.
v. Brock, 780 F.2d 1505, 1512-13 (10th Cir. 1985) (rejecting a "narrow,
hyper-technical reading of S 5851 . . . to effect the statute’s aim of
protection" by extending coverage to cases involving the filing of internal
complaints). The Act as amended now protects an employee who
"notified his employer of an alleged violation of this chapter or the
Atomic Energy Act of 1954," 42 U.S.C. S 5851(a)(1)(A), and an employee
who "refused to engage in any practice made unlawful by this chapter or
the Atomic Energy Act of 1954, if the employee has identified the alleged
illegality to the employer," 42 U.S.C. S 5851(a)(1)(B).

9. The amendment, aptly titled "Avoidance of Frivolous Complaints," also
adopted a host of additional gatekeeping functions (for example, the

                                10
However, these amendments do not apply here because
Doyle filed his claim well before October 24, 1992. See
Pub.L. No. 102-486, 106 Stat. 2776, 3125.

We find no guidance in the governing provisions of the
ERA in force before the 1992 amendments allocating the
procedural burdens in a section 210 whistleblower
discrimination claim. However, prior to 1992, the Secretary
consistently utilized the burden shifting taxonomy for ERA
retaliation actions set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See, e.g., Dysert
v. Westinghouse Elec. Corp., No. 86-ERA-39, 1991 DOL S.
Labor LEXIS 72 at *4-5 (Oct. 30, 1991); Riden v. Tennessee
Valley Auth., No. 89-ERA-49, 1990 DOL S. Labor LEXIS 80
at * 10-12 (Feb. 9, 1990); Long v. Roadway Express, Inc.,
No. 88-STA-31, 1989 DOL S. Labor LEXIS 53 at *10 (Sept.
15, 1989).
_________________________________________________________________

Secretary cannot even initiate an investigation until the complainant
establishes a prima facie case). See Pub.L. 102-486, 106 Stat. 2776,
3123(d). 42 U.S.C. S 5851(b)(3) now provides:

       (A) The Secretary shall dismiss a complaint filed under paragraph
       (1), and shall not conduct the investigation required under
       paragraph (2), unless the complainant has made a prima facie
       showing that any behavior described in subparagraphs (A) through
       (F) of subsection (a)(1) of this section was a contributing factor in
       the unfavorable personnel action alleged in the complaint.

       (B) Notwithstanding a finding by the Secretary that the
       complainant has made the showing required by subparagraph (A),
       no investigation required under paragraph (2) shall be conducted if
       the employer demonstrates, by clear and convincing evidence, that
       it would have taken the same unfavorable personnel action in the
       absence of such behavior.

       (C) The Secretary may determine that a violation of subsection (a)
       of this section has occurred only if the complainant has
       demonstrated that any behavior described in subparagraphs (A)
       through (F) of subsection (a)(1) of this section was a contributing
       factor in the unfavorable personnel action alleged in the complaint.

       (D) Relief may not be ordered under paragraph (2) if the employer
       demonstrates by clear and convincing evidence that it would have
       taken the same unfavorable personnel action in the absence of such
       behavior.

                                11


Moreover, even though the Supreme Court never ruled on
the point, a number of other courts of appeals followed
course by applying the burdens of proof and production
originally created to address actions arising under the Civil
Rights Act of 1964, 42 U.S.C. S 2000e et seq., to
whistleblower retaliation claims brought under the ERA
prior to the 1992 amendments. See, e.g. , Kahn v. United
States Sec’y of Labor, 64 F.3d 271, 277-78 (7th Cir. 1995);
Bechtel Constr. Co. v. United States Sec’y of Labor , 50 F.3d
926, 933-34 (11th Cir. 1995); Couty v. Dole, 886 F.2d 147,
148 (8th Cir. 1989); Consolidated Edison Co. of New York,
Inc. v. Donovan, 673 F.2d 61, 62 (2d Cir. 1982); cf. Passaic
Valley Sewerage Comm’rs v. United States Dep’t of Labor,
992 F.2d 474, 480-81 (3d Cir. 1993) (adapting McDonnell
Douglas prima facie standard to retaliatory discharge claim
under the Clean Water Act, 33 U.S.C. S 1367(a)); Moon v.
Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987)
(same, under the Surface Transportation Assistance Act, 49
U.S.C. S 2305(a)).

We find no reason to deviate from the procedure followed
by the Secretary and the other courts of appeals and thus
we will not distinguish ERA actions from claims arising
under analogous anti-retaliation statutes. Accordingly, we
adopt the McDonnell Douglas burden shifting guidelines in
our analysis of this case.10 Under this burden shifting
regime the employee in the first instance must establish a
prima facie case. If he does then the burden shifts to the
employer to articulate a legitimate non-retaliatory reason
for the adverse action. If the employer does so the employee
is required to prove that the employer’s proffered reason for
its action is a mere pretext for unlawful retaliatory conduct.
See Kahn, 64 F.3d at 277-78. For Doyle to establish a
prima facie case he must demonstrate: (1) his engagement
in protected activity; (2) Hydro’s awareness of his
engagement in protected activity; (3) an adverse
employment action; and (4) a sufficient inference of
_________________________________________________________________

10. We note further that the parties do not dispute the applicability of
the standard.

                                12


retaliatory motive. See Macktal v. United States Dep’t of
Labor, 171 F.3d 323, 327 (5th Cir. 1999).11

Thus, in spite of its considerable procedural twists and
turns,12 we are satisfied that this case boils down quite
simply to the following issue: Did Doyle, in the first
instance, make out a prima facie case of unlawful
retaliation on the part of Hydro? We answer this question
in the negative.13

First, we conclude that Doyle did not engage in protected
activity when he refused to sign the employment
application with the release. The Secretary, disagreeing with
the Wage and Hour Division of the Department of Labor
and the administrative law judge, determined that by
signing the release Doyle "would have waived his right to
file a complaint of illegal blacklisting under the ERA."
Consequently, he concluded that the waiver -- as so
construed -- violated the ERA because it created for
employees an impermissible Hobson’s Choice between
employment and the reporting of safety hazards. As such,
Doyle’s refusal to sign constituted protected activity as the
release could not be used lawfully to waive his right.
_________________________________________________________________

11. Regardless, even were we to reject the applicability of McDonnell
Douglas to an action for retaliation under the ERA, the statute compels
that we reach the pivotal issue of whether Hydro discriminated against
Doyle because he availed himself of ERA-protected rights. See Blum v.
Witco Chem. Corp., 829 F.2d 367, 372 n.2 (3d Cir. 1987) ("Once a case
has been fully litigated, however, it is unnecessary for the appellate court
to decide whether a prima facie case had, in fact, been established.")
(internal punctuation omitted).

12. While we understand that the scope of any litigation may far exceed
its reasonably contemplated time and costs, it is simply inexplicable that
this fairly straightforward case has toiled in the federal administrative
and judicial dockets for more than 13 years. Even taking into account
the changes in governmental administration, we especially are
confounded by the fact that the record reflects no activity in the case
from July 11, 1989, until March 30, 1994, when the Secretary made his
initial Final Decision and Order. In this regard we point out that this
decision and order consisted of a nine-page double spaced letter of no
great complexity.

13. Hydro does not contend that the Secretary erred in regarding Doyle
as covered by section 210 even though he was merely an applicant for
employment.

                                13


Yet the release said nothing about waiving liability for
illegal blacklisting. It merely released the enumerated
organizations from liability as a "result[ ] of furnishing or
receiving such information pursuant to this authorization."
This limited purpose was consistent with the
authorization’s provision waiving rights to privacy in its
first paragraph. Furthermore, the third paragraph of the
authorization confirms the limited purpose of the release by
authorizing Hydro to use the information for the
enumerated purposes ("evaluation" and "eligibility for
clearance") without suggesting that an employment
applicant released Hydro from liability under the ERA if it
made an unlawful employment determination. The release
simply did not purport to waive liability for Hydro’s
employment decisions or other claims Doyle might make
under the ERA after Hydro received information pursuant
to the authorization. It merely released potential claims for
privacy infringement.

Moreover, even if the release, as the Secretary thought,
could be construed to include a waiver of Doyle’s right to
file a complaint for illegal blacklisting, the Secretary should
not have so construed it in light of a well-recognized
principle of law requiring that ambiguous documents
should not be deemed illegal where capable of
constructions that will validate them. See Walsh v.
Schlecht, 429 U.S. 401, 407-08, 97 S.Ct. 679, 685 (1977).
After all, the Secretary himself made the point that such a
waiver would be unenforceable. Thus, the Secretary should
not have construed the authorization to include an illegal
release.
In sum, the Secretary went through the following
process. He took a release that he regarded as ambiguous
and construed it to apply to situations that by its terms it
did not include. He then held that the release was unlawful
and found liability by reason of Hydro’s action in refusing
to hire Doyle because he would not sign the authorization
with the release. But we will not similarly construe the
release to have the expansive effect the Secretary attributes
to it and, accordingly, we hold that Doyle simply was not
engaging in a protected activity when he refused to sign the
authorization with the release.14 Thus, Hydro must prevail
in these proceedings.
_________________________________________________________________

14. We see no reason to defer to the Secretary on this issue of law
involving the construction of a proposed contract rather than

                                14


There is a second, independent reason why we are
constrained to grant Hydro’s petition and set aside the
decision and order of the ARB. Accepting arguendo that
Doyle established a prima facie case, he has not offered
substantial evidence to support a conclusion that Hydro’s
proffered legitimate reasons for refusing to hire him without
his signing the authorization with the release -- namely, to
ensure power plant integrity and compliance with the
governing regulatory framework15 by hiring only carefully
screened temporary employees -- were pretextual, as
required to impose liability. This point is critical for the
Supreme Court in Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106 (2000),
indicated that once the employer provides a legitimate, non-
discriminatory reason for the personnel decision, the
_________________________________________________________________

construction of a statute. See Williams v. Metzler, 132 F.3d at 946. In
reaching our result we are treating this case as involving contractual
construction rather than interpretation as the parties’ stipulation of facts
did not address the meaning of the release and the parties did not
address its meaning with other evidence. Thus, this is not a case in
which the Secretary reached a conclusion after a plenary hearing
addressing the parties’ intent when Hydro tendered the authorization.
Moreover, we do not find the release to be ambiguous. See Beck v.
Reliance Steel Prods., 860 F.3d 576, 581 (3d Cir. 1988). We also note
that the Secretary must have thought that he was construing the release
as he made it clear that he was dealing with its"scope and effect."
Regardless, even if we treated the case as involving contractual
interpretation rather than construction our result would be the same as
the evidence, i.e., largely the authorization itself, could not support the
Secretary’s result.

15. See, e.g., 53 Fed.Reg. 7534 (The Nuclear Regulatory Commission
proposing background investigation, psychological evaluation, and
behavioral observation of individuals who require unescorted access to
vital areas of nuclear facilities); see also 10 C.F.R. S 73.56 (1991)
(unescorted access authorization "must include . . . [a] background
investigation designed to identify past actions which are indicative of an
individual’s future reliability within a protected or vital area of a nuclear
power reactor. As a minimum, the background investigation must verify
an individual’s true identity, and develop information concerning an
individual’s employment history, education history, credit history,
criminal history, military service, and verify an individual’s character
and reputation.").

                                15


burden shifts to the complainant to show by a
preponderance of the evidence that the employer’s benign
explanation was contrived in order to obscure the genuine
discriminatory motive percolating beneath.

Here, Doyle simply did not meet that burden.16 Indeed,
the record makes clear that Hydro furnished the
authorization to all applicants for temporary positions.
More significantly, the record does not illustrate that Hydro
previously made exceptions in its hiring practices for
applicants, if there were any, similarly situated to Doyle
who insisted on signing a modified version of the
authorization or on not signing the authorization at all.17
See EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir.
1990) (a disparate treatment violation is made out only
when an individual is shown to have been singled out and
treated less favorably than others similarly situated on the
basis of an impermissible criterion). Without any
_________________________________________________________________

16. In fact, the Secretary never addressed in his Final Decision and
Order the issue of Hydro’s discriminatory intent and instead expressly
limited the inquiry simply to a determination of whether the activities in
which Doyle participated and for which Doyle was not hired were
protected statutorily. See JA at 21 n.5 ("The issue here, however, is not
whether use of the form was a pretext for discrimination or some other
impermissible reason. Respondent’s reason for not hiring Complainant is
clear. The only issue is whether that reason is itself a violation of the
ERA.") (emphasis added). However, retaliation as a matter of law (and
logic) does not occur unwittingly and, therefore, a finding of liability
requires "an inquiry into the defendant’s state of mind" to prove that "the
defendant subjectively intended to discriminate against the plaintiff " on
account of his engagement in a protected activity. EEOC v. Chicago
Miniature Lamp Works, 947 F.2d 292, 297 (7th Cir. 1991) (citing Intl.
Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15, 97 S.Ct.
1843, 1854 n.15 (1977)).

17. Likewise, the record does not explicate that Hydro accommodated
applicants comparable in all respects to Doyle save for previous
whistleblowing activity. Of course, the gravamen of Doyle’s complaint
was not that Hydro retaliated because he disclosed prior whistleblowing
activities, but because he refused to sign the authorization as written.
See JA at 179-80 (advancing, in his initial complaint to the Department
of Labor, arguments concerning only the legitimacy of the waiver); see
also JA at 202-204 (same, in his Prehearing Statement of Position); JA
at 206-07 (same, in his Motion for Summary Decision).

                                16
circumstantial evidence to suggest that Hydro treated him
less favorably because of his exercise of rights purportedly
protected under the ERA, Doyle’s inventive characterization
of the parties’ stipulation of facts standing alone is
unavailing.18

Doyle suggests that Hydro’s discriminatory intent
nevertheless may be inferred from the authorization itself.
We are not persuaded because the document is facially
neutral, singling out neither the ERA and any rights
protected thereunder, nor Doyle individually. Likewise, the
authorization does not differentiate between employers in
high-risk industries like nuclear power that trigger our
greatest concerns about blacklisting and employers in
otherwise innocuous, generic industries from whom
information also could be sought in the application process.
Moreover, as we previously have discussed, the terms of the
authorization with the release served only to facilitate --
without incurring liability -- Hydro’s assimilation of
necessary and highly sensitive employee background
information and not to insulate Hydro from potential ERA
claims or to chill manque nuclear whistleblowers. See
DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 727 (3d
Cir. 1995) ("The touchstone of explicit facial discrimination
is that the discrimination is apparent from the terms of the
policy itself ").19
_________________________________________________________________

18. Doyle purports to extrapolate from the stipulated facts, JA at 194-96,
that Booker (and by extension, Hydro) must have intended to force him
to waive his rights under section 210 as a condition of employment
because Booker refused to alter the form even though Doyle was
perfectly willing to permit complete access to his previous employment
records. However, as Hydro correctly notes, Doyle’s induction depends
on an assumption not borne out by the record that Booker understood
that the standard version of the form functioned to release Hydro from
future claims under the ERA.

19. Compare Int’l Union, UAW v. Johnson Controls, Inc., 499 U.S. 187,
192, 197, 111 S.Ct. 1196, 1200, 1202 (1991) (policy that "women who
are pregnant or who are capable of bearing children will not be placed
into jobs involving lead exposure or which could expose them to lead
through the exercise of job bidding, bumping, transfer or promotion
rights" was facially discriminatory because it"excludes women with
childbearing capacity from lead-exposed jobs and so creates a facial

                                17


It is undeniable that Hydro initially required Doyle to sign
the authorization before it was aware of his prior claim
against Alabama Power and that in doing so it treated him
the same as other applicants for employment. Furthermore,
in view of the highly regulated nature and risks in the
nuclear power industry we cannot hold that Hydro did not
have a legitimate reason for requiring him to sign the
release. Indeed, despite Doyle’s protestations to the
contrary, the other forms he signed in connection with the
employment application are not comparable to the
authorization because they concerned only an applicant’s
possible prior criminal record, not his full employment
history. See JA at 261, 269. Thus, Doyle’s case must fail.
See Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248, 253, 101 S.Ct. 1089, 1093 (1981) ("The ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at
all times with the plaintiff.").

IV. CONCLUSION

For the foregoing reasons, we will grant the petition for
review filed by Hydro in No. 00-2035, and set aside the
March 30, 1994 Final Decision and Order of the Secretary
of Labor as to liability and the May 17, 2000 Final Decision
and Order of the ARB as to damages and remedies. We will
dismiss the petition for review filed by Doyle in No. 00-1589
as moot because we are setting aside the finding of liability
_________________________________________________________________

classification based on gender"); Los Angeles Dep’t of Water & Power v.
Manhart, 435 U.S. 702, 98 S.Ct. 1370 (1978) (employer’s policy requiring
female employees to make larger contribution to pension fund than male
employees is discriminatory on its face); Connecticut Light & Power Co. v.
Sec’y of United States Dep’t of Labor, 85 F.3d 89, 95-96 (2d Cir. 1996)
(proposed settlement agreement violated the ERA because it contained
explicit gag provisions aimed at having the employee relinquish his
statutory rights); EEOC v. Board of Governors of State Colls. & Univs.,
957 F.2d 424, 431 (7th Cir. 1992) (holding that a collective bargaining
agreement violated the anti-retaliation provision of the Age
Discrimination in Employment Act because, on its face, it
unambiguously denied an employee his contractual right to file an in-
house grievance once he elected to file an age discrimination charge).

                                18


outright without further proceedings. This opinion is
intended to bring this case to a conclusion.

                                19


BRIGHT, Circuit Judge, dissenting.

I respectfully dissent from the majority’s opinion. This
case is not about contract law. It is about statutory
interpretation and, as the Secretary of Labor recognized,
Congress’ goal of protecting our nation from a nuclear
accident through the promotion of safety in the nuclear
power industry. Quite simply, workers who report safety
violations should be protected and not suffer retaliation for
their good deeds.

In the instant case, the Secretary looked to the text and
underlying purposes of the employee protection provisions
of the ERA and construed the statute to protect Shannon T.
Doyle’s ERA whistleblower rights. Because of the compelling
public interest in keeping channels of information open, the
Secretary decided that employees must not be compelled to
sign what they believe to be a waiver of past and future
ERA claims as a condition of employment.

On its face, Hydro’s waiver can be read to release former
employers as well as putative employers from liability.1 This
is how Mr. Doyle, a lay person unrepresented by counsel,
read the release during his pre-employment screening, and
it is likely how a lay person in the same situation would
understand the release language.2 The legal insufficiency of
the waiver is immaterial because an ordinary reader would
not know that the waiver could not be used by the
employer as a defense to a retaliation claim.

I would reject this release not just as a violation of Mr.
Doyle’s ERA rights, but as a violation of all employees’
_________________________________________________________________

1. The waiver of liability includes sweeping terms, such as "furnishing or
receiving any information pertaining to me from any and all liability or
claim . . ." (emphasis added).

2. I quote from the Secretary’s decision:

       I note that Complainant is a layman who was not represented by
       counsel when the dispute over the authorization form took place.
       Even lawyers can disagree over the scope and effect of the language
       in question. It is not surprising that Complainant refused to sign a
       form which could easily be interpreted as a waiver of his rights
       under the ERA.

JA at 16, n.1.

                                20


rights. Anyone signing this release could be left with the
impression that they have waived their right to bring a
retaliation suit against Hydro or any past employer. This
impression would chill the employee’s inclination to report
safety issues to the proper regulatory authorities. Under
this scenario, Congress’ goal of making the nuclear
industry safer by protecting potential whistleblowers is
fundamentally undermined. See Passaic Valley Sewerage v.
United States Dept. of Labor, 992 F.2d 474, 478 (3d Cir.
1993) ("Such ‘whistle-blower’ provisions are intended to
promote a working environment in which employees are
relatively free from the debilitating threat of employment
reprisals for publicly asserting company violations of
statutes protecting the environment . . . .").

A broad interpretation of the scope of ERA protection
comports with the ERA’s remedial purpose and the
legislative history indicating that a narrow interpretation of
the employee protection provisions would frustrate the
intent of Congress. See Connecticut Light & Power Co. v.
Secretary of Labor, 85 F.3d 89, 94 (2d Cir. 1996) (upholding
Secretary’s broad interpretation of the term "employee" to
cover an employee recently terminated). See also Bechtel
Constr. Co. v. Secretary of Labor, 50 F.3d 926, 932 (11th
Cir. 1995) ("[I]t is appropriate to give a broad construction
to remedial statutes such as nondiscrimination provisions
in federal labor laws."); Kansas Gas & Elec. Co. v. Brock,
780 F.2d 1505, 1512 (10th Cir. 1985) (affirming the
Secretary’s broad interpretation of protected activity).

Additionally, Hydro’s refusal to alter the release upon
learning of Mr. Doyle’s concerns supports the inference that
Hydro used Doyle’s refusal to sign as a convenient way to
avoid hiring an individual who is zealous about nuclear
safety. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000) ("Proof that the defendant’s
explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.").

Finally, Hydro did not need the waiver of liability to get
the information it required about Mr. Doyle. The screening
procedures of the American National Standard on Security
for Nuclear Power Plants (ANSI) indicate that all the

                                21


background information necessary to meet the ANSI
standard can be obtained through a simple release; there is
nothing in the standard or screening requirements that
requires a waiver of liability. The Secretary makes this point
forcefully: "Respondent has not offered any reason why the
background information it needs to conduct the screening
under the ANSI standard cannot be obtained with a release
which does not include a waiver of liability." JA at 21.

I would sustain the Secretary’s decision. In this case, we
have done a grave injustice to Mr. Doyle, a man who was
blacklisted from his chosen line of work for attempting to
preserve his rights under a federal statute.3 We have upheld
an employer’s ability to make its employees uncertain about
the status of their nuclear whistleblower rights. We have
thereby dealt a blow to the safety of the nuclear industry.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

3. Despite diligently seeking employment outside the nuclear industry,
Mr. Doyle was only able to obtain three non-nuclear related jobs between
November 1988 and December 1994 (the date of the hearing on
damages) from which he earned a total of about $3000. Hydro’s
publication of its decision to deny Mr. Doyle access at a nuclear power
plant had a devastating psychological, emotional, and financial impact
on Mr. Doyle and his family.

                                22
