The opinion
Revised April 16, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 98-60123
___________________________
JOSEPH J. MACKTAL, JR.,
Petitioner,
VERSUS
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
___________________________________________________
Petition for Review of an Order of the
United States Department of Labor
___________________________________________________
April 13, 1999
Before GARWOOD, DAVIS, and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Petitioner Joseph J. Macktal requests review of a final order
of the Secretary of Labor, pursuant to Section 210(c)(1) of the
Energy Reorganization Act ("ERA"). 42 U.S.C. § 5851(c)(1) (1978).
More particularly, he seeks reversal of a Final Decision and Order
of the Administrative Review Board ("ARB"), dismissing his claim
against Intervenor-Respondent Brown & Root, Inc. ("Brown & Root")
under the whistle blower protection provision of the ERA. ERA §
210(a), codified at 42 U.S.C. § 5851(a) (1978) ("Section 210"). For
reasons that follow, we deny Macktal’s petition for review and
affirm the ARB’s Final Decision and Order.
I.
Brown & Root was the general contractor in the construction of
the Comanche Peak Steam Electric Station ("CPSES"), a nuclear power
plant assembled during the 1980s near Fort Worth, Texas. Brown &
Root hired Macktal in January 1985 as a journeyman electrician at
CPSES. He was promoted to electrical foreman in May 1985.
As foreman, Macktal supervised a crew of employees inspecting
electrical conduits to ensure that they had been properly
installed. In this role, he developed a number of safety concerns,
which he reported to his immediate supervisor. He was subsequently
given a counseling report and demoted to journeyman electrician in
September 1985. He was reassigned to the night shift, where he was
issued a safety violation for failing to wear proper eye protection
when operating a band saw. A few days later, he was reassigned once
more to the day shift. Macktal testified that he was subsequently
asked to perform various activities in violation of safety
procedures. He made safety-related complaints to his supervisor,
the general foreman, and SAFETEAM, an independent safety group
established by and operated under the direction of the CPSES "site
owner," Texas Utilities Electric Co. He alleges that he was then
subjected to numerous forms of harassment, including citation for
an unwarranted safety violation, loss of his tools, a delayed
paycheck, failure to receive a personal phone call, and refusal of
management to grant a request for leave without pay. Macktal
reported this alleged harassment to SAFETEAM.
On January 2, 1986, Macktal was given a counseling report for
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excessive absenteeism. He responded the next day with a handwritten
memorandum in which he objected to the counseling report and stated
that his "plan of action" was to file a noncompliance complaint
with the Nuclear Regulatory Commission ("NRC") concerning the safe
operation of CPSES. He also stated in the memorandum: "In a[n]
effort to preserve my health and avoid any further harassment, I
wish to be relieved of my duties until the TEC, NLRB, NRC can
resolve these matters." A few hours after Macktal submitted this
memorandum, his employment with Brown & Root was terminated.
Macktal did not object to this action, and testified that he
understood he was being terminated. At the time of his termination,
Macktal had not yet contacted any government agency concerning any
safety violations, and did not do so until several months later.
In February 1986, Macktal filed a claim against Brown & Root
with the Secretary of Labor under Section 210, alleging that he had
been constructively discharged. The Wage and Hour Division of the
Department of Labor notified Macktal in March 1986 that his claim
lacked merit. Macktal requested a hearing before an administrative
law judge ("ALJ"). The ALJ encouraged the parties to settle, and
the parties signed a settlement agreement in January 1987. Macktal
later sought to have the settlement set aside. In November 1989,
the Secretary issued an order rejecting one paragraph of the
settlement as contrary to public policy, but otherwise approving
the settlement. This court reversed the Secretary’s order in
Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991),
holding that the Secretary was required to accept or to reject the
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settlement in its entirety. On remand, the Secretary issued a new
order in October 1993 disapproving the settlement and remanding the
case to the ALJ for a hearing on the merits.
The ALJ finally held a hearing on the merits in February 1996,
more than a decade after the original claim was filed. Prior to the
hearing, Brown & Root twice moved for summary judgment. At the
hearing, the ALJ ruled that internal whistle blowing was not
protected under Section 210 and the prior rulings of this court,
and that the ALJ therefore would not consider Macktal’s internal
complaints as support for his claim. In November 1996, the ALJ
issued a Recommended Decision and Order granting Brown & Root’s
motion for summary judgment. Macktal filed exceptions to the ALJ’s
Recommended Decision and Order. In January 1998, after further
briefing, the ARB issued a Final Decision and Order dismissing
Macktal’s complaint, finding that Macktal had not engaged in any
protected activity under the ERA. This timely petition followed.
II.
Review of the ARB’s Final Decision and Order is governed by
the standard of review set forth in the Administrative Procedure
Act, 5 U.S.C. § 706(2). This court must affirm the Secretary’s
decision unless it is arbitrary, capricious, an abuse of
discretion, or otherwise contrary to law, or unless the decision is
not supported by substantial evidence. 5 U.S.C. § 706(2)(A). Agency
interpretations of circuit law, however, are reviewed de novo. See
Harris v. Railroad Retirement Board, 3 F.3d 131, 133 (5th Cir.
1993).
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III.
Macktal argues that the ARB erred in finding that he had not
engaged in any protected activity under Section 210 prior to his
termination by Brown & Root. He contends that the ARB
misinterpreted circuit precedent to foreclose recovery. We
disagree. Though our reasoning differs somewhat from that of the
ARB, we nonetheless conclude that the ARB acted correctly in
dismissing Macktal’s complaint.
Prior to the 1992 Amendments to the ERA, Section 210 provided
as follows:
No employer . . . may discharge any employee or otherwise
discriminate against any employee with respect to his
compensation, terms, conditions, or privileges of employment
because the employee (or any person acting pursuant to a
request of the employee)--
(1) 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 of 1954, as amended, or
a proceeding for the administration or enforcement of any
requirement imposed under this chapter or the Atomic
Energy Act of 1954, as amended;
42 U.S.C. § 5851(a) (1978) (emphasis added).1
The complainant has the initial burden of establishing a prima
facie case of discrimination under this provision. To meet this
1
In 1992, Congress amended the ERA to include explicit
protection for internal complaints. The act as amended 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. §
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. § 5851(a)(1)(B). These amendments do not apply
here, because the present claim was filed well before the October
24, 1992 date of enactment.
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burden, the complainant must show: (1) that he engaged in protected
activity; (2) that the employer was aware of the protected
activity; (3) that the employer took some adverse action against
him; and (4) that the evidence is sufficient to permit an inference
that the protected activity was the likely reason for the adverse
action. See County v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).
The principal question before us is whether the ARB erred in
determining that Macktal failed to show that he was engaged in
protected activity at the time of the alleged adverse actions.2 The
ARB’s determination that Macktal was not engaged in protected
activity under Section 210 is based on this court’s opinion in
Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The
similarities between Brown & Root and the present case are
substantial. The complainant in Brown & Root, Charles Atchison, was
a field quality control inspector for Brown & Root at CPSES. In the
course of his duties, Atchison filed several nonconformance reports
alleging that certain work at CPSES did not conform to construction
specifications. He was later discharged and filed a complaint under
Section 210. On review from a final order of the Secretary of Labor
finding that Brown & Root’s actions had violated Section 210, this
court held that Atchison’s internal quality control reports did not
2
Brown & Root argues that, irrespective of the merits,
Macktal’s claim has been extinguished by his refusal to return
settlement funds he received from Brown & Root. That issue was
addressed in an earlier order by the Secretary of Labor, dated July
11, 1995, which Brown & Root did not appeal. Regardless, it was not
raised in the Final Decision and Order at issue here, and therefore
falls outside of this court’s jurisdiction under 42 U.S.C. §
5851(c)(1).
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rise to the level of protected activity under Section 210. Id. at
1031. The court reasoned that Section 210 was "designed to protect
’whistle blowers’ who provide information to government entities,
not to the employer corporation." Id. at 1034. The court further
stated that "employee conduct which does not involve the employee’s
contact or involvement with a competent organ of government is not
protected under section 5851." Id. at 1036.
Macktal seeks to distinguish his case from Brown & Root on two
grounds. First, he notes that Atchison’s nonconformance reports
were all routine internal reports filed pursuant to Atchison’s job-
related responsibilities, whereas Macktal "went beyond his chain-
of-command and contacted SAFETEAM, a semi-independent and NRC-
endorsed program specifically designed to review whistleblower
allegations." Macktal points out that SAFETEAM’s own internal
operating procedures both mandated that SAFETEAM report certain
violations on its own to the NRC and recognized that contacts with
SAFETEAM were a "forewarning of a later allegation to the NRC or
another regulatory body." Second, Macktal notes that Atchison never
gave any indication that he was about to contact the NRC or any
other official government agency, whereas Macktal delivered a
handwritten memorandum to his superiors at Brown & Root just hours
before his termination advising management that he was going to
contact the NRC. Macktal argues that these extra actions on his
part, absent in Brown & Root, bring his conduct within the sphere
of protected activity under the "about to" language of Section 210.
He notes that the Brown & Root panel expressly omitted the phrase
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"about to" when it quoted the "relevant language" of Section 210.
See id. at 1031. Thus, he argues, the panel’s reasoning does not
extend to that portion of the statute. We find these distinctions
unavailing.
A.
With respect to Macktal’s complaints to SAFETEAM, we are
governed by this court’s opinion in Ebasco Constructors, Inc. v.
Martin, No. 92-4576 (5th Cir. Feb. 19, 1993).3 The complainant in
Ebasco, Ronald J. Goldstein, was employed by Ebasco Constructors,
Inc. as a craft supervisor in the construction of a nuclear power
plant for Houston Lighting and Power Company. In 1985, Goldstein
registered several safety and quality concerns with his supervisor,
with Ebasco’s quality assurance group, and with the SAFETEAM
program at his plant. He subsequently received several low
performance reviews, was reassigned several times to increasingly
clerical jobs, and was ultimately laid off. Goldstein filed a claim
with the Department of Labor alleging a violation of Section 210.
On petition for review from a final order of the Secretary finding
that Ebasco had violated Section 210, this court vacated, holding
that Goldstein’s claim was "clearly controlled" by Brown & Root.
Id., slip op. at 3. The court found that "[t]he complaints filed by
Goldstein were purely internal." Id., slip op. at 4. More
importantly, the court expressly determined that Goldstein’s
complaints to SAFETEAM "did not constitute either a complaint to an
3
Unpublished opinions issued before January 1, 1996 are
binding precedent in this circuit. See 5TH CIRCUIT RULE 47.5.3.
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agency or commencement of a proceeding under § 5851." Id. Thus, the
court concluded, none of Goldstein’s complaints were protected
under Section 210. Id.
Ebasco is clearly controlling in the present case. This court
adheres strictly to the maxim that one panel of the court cannot
overturn another, even if it disagrees with the prior panel’s
holding. See Texas Refrigerator Supply v. FDIC, 953 F.2d 975, 983
(5th Cir. 1992). A "purpose of institutional orderliness" is served
by "our insistence that, in the absence of intervening Supreme
Court precedent, one panel cannot overturn another panel,
regardless of how wrong the earlier panel decision may seem to be."
Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 (5th
Cir. 1987). Nothing in the record or in the briefs distinguishes
Macktal’s complaints to SAFETEAM here from Goldstein’s complaints
to SAFETEAM in Ebasco, nor does Macktal suggest that any
intervening Supreme Court precedent exists to justify overturning
Brown & Root or Ebasco. We therefore find that Macktal’s complaints
to SAFETEAM are not protected activity under Section 210.4
B.
Macktal’s memorandum expressing his intention to file a
complaint with the NRC presents a more difficult issue. As Macktal
observes, the Brown & Root court did not consider the "about to"
4
Macktal urges us in the alternative to take this matter en
banc on the court’s own motion and to overrule Brown & Root. We
decline to do so. Macktal may, of course, file a formal suggestion
for rehearing en banc at the appropriate time. See FED. R. APP. P.
35.
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provision of Section 210, because that provision was irrelevant
under the facts of Brown & Root. Contrary to the ARB’s findings,
this strongly suggests that the issue of whether Macktal’s
memorandum was protected activity under Section 210 is not directly
governed by Brown & Root or Ebasco. The Secretary notes that this
very same argument was unsuccessfully argued before this court in
Ebasco, and that although the court did not specifically address
the argument, it nonetheless concluded that Brown & Root was
controlling. A prior panel’s silence on a particular issue,
however, is not binding on this panel. It therefore falls to us to
determine whether a written expression of intent to file a
complaint with the NRC constitutes protected activity under Section
210. We conclude that it does.
We need go no further than the plain language of Section 210
to conclude that a written expression of intent to file a complaint
with the NRC is protected activity under the ERA. Section 210
protects from retaliatory action any employee who "commenced,"
"caused to be commenced," or "is about to commence or cause to be
commenced" a proceeding under the ERA or the Atomic Energy Act. 42
U.S.C. § 5851(a)(1) (1978). When the Brown & Root panel concluded
that "employee conduct which does not involve the employee’s
contact or involvement with a competent organ of government is not
protected" under Section 210, 747 F.2d at 1036, it was plainly
referring only to the "commenced" and "caused to be commenced"
provisions. Were we to hold that present contact or involvement
with a competent organ of government is a requirement of the "about
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to commence" provision as well, there would be nothing to
distinguish that provision from the other two; it would become a
nullity. If the "about to commence" provision is to have any
distinct meaning at all, it must encompass some employee actions
prior to actual contact with a competent organ of government. A
written expression of intent to file a complaint with the NRC falls
squarely within that sphere of action. We therefore conclude that
Macktal’s memorandum expressing his intention to file a complaint
with the NRC was protected activity under the "about to" provision
of Section 210.
As noted above, however, evidence that the complainant engaged
in protected activity is only the first of four prima facie
requirements under Section 210. Macktal must also show that the
evidence is sufficient to permit an inference that the protected
activity was the likely reason for the adverse action. It is at
this point that his claim collapses. In addition to expressing his
intention to file a complaint with the NRC, Macktal also stated in
his memorandum: "In a[n] effort to preserve my health and avoid any
further harassment, I wish to be relieved of my duties until the
TEC, NLRB, NRC can resolve these matters." The ARB observed that
"[i]t would have required considerable mental gymnastics on the
part of Brown & Root managers to recognize that, when Macktal said
he wanted to be relieved of his duties, he really meant he wanted
to be reassigned to work that did not require him to violate NRC
procedures." Macktal v. Brown & Root, Inc., 86-ERA-23, slip op. at
5 (Sec’y Dec. Jan. 6, 1998). Thus, the ARB concluded, "[w]e agree
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with the ALJ that a reasonable person could only interpret
Macktal’s request as a resignation and could not be held
responsible for failure to intuit what Macktal now claims was on
his mind." Id., slip op. at 5-6. The ARB’s conclusion is clearly
supported by substantial evidence, and we do not find it to be
arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law. Thus, the Final Decision and Order of the ARB must
be affirmed.
IV.
For the foregoing reasons, Macktal’s petition for review is
DENIED and the Final Decision and Order of the ARB is AFFIRMED.5
5
Brown & Root argues that it is entitled to an award of
sanctions under 28 U.S.C. §§ 1912 and 1927 and FED. R. APP. P. 38.
We do not find that Macktal’s appeal was frivolous or meritless.
Therefore, Brown & Root’s request for sanctions is denied.
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