November 6, 1995 [NOT FOR PUBLICATION]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).
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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.
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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.
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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, __________________________________________ _____
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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.
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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). _______
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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
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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. _________
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