*3 OPINION THE OF COURT A. Factual History GREENBERG, Circuit Judge. The synopsis factual we detail below is These matters come on before this controverted. Hydro,1 in based court on petitions consolidated for review Moorestown, Jersey, provided New tempo- a May 2000 Final Decision and Or- rary workers to assist in the decontamina- der issued the Administrative Review tion and maintenance of power nuclear (“ARB”) Board acting on behalf of the plants. Hydro had a contract with the of Labor and D.C. power Cook nuclear plant in Bridge- States United Department and man, Michigan, to supply plant with of a March 1994 Final Decision and temporary year-round and decontamina- of the Secretary. Order Secretary’s The tion technicians.
decision and order determined that peti- Hydro tioner Services, Nuclear Inc. In the fall of Hydro recruited (“Hydro”) violated Section 210 of the En- Doyle to work as a temporary senior de- ergy Reorganization Act 1974 contamination technician a during planned (“ERA”), § 42 U.S.C. when it failed refueling outage at plant. pay The hire petitioner-intervenor Shannon T. job modest, rate for this was to be $6.50 Doyle because of his refusal per hour with an enhancement for over- authorization for release of in- records time and per a diem $48.00 allowance. As cluding a release of liability provision. part of the routine screening process, Hy- The ARB’s granted decision and order required Doyle dro to take a series of $218,378 remedies of in pаy, back psychological drug and tests and to com- $154,695 $45,000 pay, front plete lost ben- a routine employment application efits, $80,000 in compensatory damages, Hydro’s included standard “Authori- * Myron Bright, The Honorable Judge H. Westinghouse ration under name Radio- United Appeals Eighth Court for the Nevertheless, logical though Services. tech- Circuit, sitting by designation. nically Hydro longer no separate as a exists 1989, Hydro In entity, employ combined "Hydro” with two other the name for the Westinghouse subsidiaries of Corpo- Electric simplicity. sake of Relations, Manager Employee Hydro’s Rec- of Information Release
zation for waived paragraph quoted treated the second regard, this In ords.” ERA. job applicants, under the chargе all other to file same Doyle the otherwise. not claim Doyle does attributable largely Doyle’s concern as follows: stated Ala- employer, his former his belief RELEASE FOR AUTHORIZATION whom Company, Power bama RECORDS AND INFORMATION claim, OF implicit- “whistleblowing” had filed Privacy Act accordance In ad- the release. included in ly was ex- 552a), I, undersigned (5U.S.C. claim, giving thus Booker of vised any person, associa- authorize pressly Doyle opted it.of its first notice justice criminal firm, tion, company, in question paragraph out the cross *4 Organizations, Extending agency, Credit the authoriza- version of redacted sign the Doctors, Depart- Schools, Hospitals, or tion. County, or City, of a agency ment or however, Doyle that Booker, informed Government, or of the Federal State of the original version signed to and furnish he to unless release Government autho- to authorization, and its unable would be Hydro Nuclear Services Hydro and all Not- representatives_any employment. rized him an offer tender to pertaining and records caveat, information to Doyle refused withstanding to, origi- limited including, but not turn, me Hydro, the full authorization. sign documents, rec- any copies nals or it did Doyle, though chose not to hire abstracts, mil- ords, transcripts, reports, and expenses travel him for compensate records, any records, or criminal itary agreed. diem rates per as other information. discharge Further, hereby and I release History B. Procedural Services, represen- their Hydro Nuclear tativеs, for and their clients whom pro filed a Doyle On December any performed and being investigation and Hour Wage complaint se or furnishing listed above organization Department of the Division United pertaining receiving any information Hydro violated alleging as liability or claim any and all me from ERA provisions protection employee receiving or furnishing [sic] results signed him refusing to hire unless by this autho- pursuant to such information response on filed a Hydro the release. rization. 26,1989. January is authorized Nuclear Services Hydro at- conciliation an it obtains for After unsuccessful utilize the information evaluation, Wage my eligibility investigation, purpose tempt access to clearance, allowing claim, unescorted conсlud- rejected the Division Hour Stations, by required Power Nuclear ERA not violate did regulations. Government em- Doyle potential ceasing to consider shall authorization copy of this photo A the full sign once he refused ployment ac- be original and shall be deemed indi- evidence “[a]ll because organi- or by any person as such cepted Services, Inc. Nuclear cates zation. solely [Doyle’s] terminated firm’s sign at 181. refusal to JA of [his] because Act waiver form Privacy standard the authorization refused whistle- admitted Booker, prior of [his] because Robert asserting to presented, engagement blower activities” or in other In reaching his result the Secretary in- “protected activity under the Energy Re- dicatеd that lawyers “[e]ven can disagree organization Act.” JA 186. over the scope and effect of the language question.” indicated, however, He that:
Notified of his to appeal and obtain merits, hearing on formally Giving the authorization form its most requested review an administrative law narrow reading, it would [Hy- release judge. Hydro and-Doyle submitted stip- and any dro] other from whom ulated record of fact and motions [Hydro] for sum- obtained information about mary decision pursuant to 29 [Doyle] C.F.R. claim that the informa- §§ 18.40 and 18.41. tion had provided been or deny used to [Doyle] employment protect- because of July On law administrative ed activities under the ERA. In other judge issued his Recommended Decision words, by form, signing the [Doyle] and Order Granting Respondent’s Motion would have waived his right to file a for Summary Judgment indicating as fol- complaint illegal blacklisting under lows: the ERA. [Hydro] had a right require pro- all *5 (footnote omitted). JA at 16-17 spective employees sign such a re- lease in order to obtain all necessary The Secretary subsequently stated: pertaining information to an individual’s that, There can be little doubt if [Doyle] post [sic] record. Since [Doyle] refused had signed form, the authorization but to accept requirement I find that [Hydro] refused to hire him based on [Hydro] legal had a to refuse to information from a previous employer employ [Doyle]. Employers hire who [Doyle’s] about protected activities, and workers for power plants nuclear must [Doyle] comрlaint filed a under the ERA ensure the health safety and of pub- the of discriminatory hire, refusal to waiver lic carefully screening all prospective rights of under the ERA could not be employees. [Hydro] in requiring all em- by [Hydro] raised as a defense. Other- ployees [Doyle] including sign its re- wise, any covered nullify could lease was exercising an essential step the Act and Congressional pro- intent to performing duty its responsible of inves- public tect health safety by and prohibit- tigation and screening of employees. retaliation who report those at JA 10-11. potential safety hazards in the construc- The Secretary de novo re- a conducted operation and of power nuclear view of the recommendation of the admin- plants. judge. istrative Finally, 80, law on March JA at 19. 1994, the Secretary issued a letter Final Order,
Decision and rejecting analysis Hydro petitioned this court for review of of administrative judge law con- and the Secretary’s decision order May and on cluding that Hydro 26, “violated the ERA Thereafter, 24, 1994, 1994. August on it when refused [Doyle] to hire granted joint because a motion Secretary of the refused to form un- Hydro and to remand the matter for fur- less the release of paragraph was ther proceedings administrative to deter- deleted.” JA at 22. The Secretary or- remedy. 7, mine Doyle’s September On Hydro dered Doyle 1994, reinstate turn, with back Secretary, remanded the pay, including interest. case to an administrative judge. law 2000, 17, the ARB Mаy 114-29. On JA discovery on additional
After permitting in this and Order Final Decision its issued the administrative damages, the issue at 130-56. Decem- JA hearing on matter. See judge conducted law Recom- judge issued 14, The ber 2000, for 18, petitioned May On Damages on and Order Decision mended and Orders Final Decision of the review Doyle 1995, awarding 7, on November 2000, to the May and March dam- compensatory pay, front pay, back for Appeals Court costs, fees, interest, attorney’s ages, day, following Circuit. Sixth relief, corrections including equitable other the Fi- review of for this court petitioned at 44. JASee records. personnel 17, 2000 May and Order nal Decision ARB, acting on changes, limited With On damages.3 provided it insofar as Secretary pursuant behalf Multi- on 5, 2000, Panel thе Judicial June those recommen- adopted Fed.Reg. petitions ordered Litigation district JA 1996. See September dations on The Court in this court. consolidated Subsequently, 55-65.2 trans- then Circuit for the Sixth Appeals for review petitions filed respectively court to this Hydro petition ferred the United and with this court pro- consolidated and we July Circuit, the Sixth Appeals Court July 2000.4 ceedings on consolidated were which thereafter at 708- JASee premature. dismissed II. JURISDICTION re- ARB On November a final to review jurisdiction We have law an administrative case to manded the pursuant Labor order *6 to resolve further proceedings for
judge
5851(c).5
Secretary of
§
The
42
to U.S.C.
proper
regarding
open issues
over
jurisdiction
subject matter
Labor had
Doyle was
which
damages to
of
amount
42 U.S.C.
pursuant
this
action
parties
66-71.
See JA at
entitled.
5851(b).
§
follow-
stipulations,
of
a series
entered into
judge is-
law
an administrative
which
ing
III. DISCUSSION
Decision
Final Recommended
sued his
February
Damages on
Order on
Standard,
A.
Review
100-11,
Recom-
and his Final
JAsee
may overturn a
reviewing court
A
At-
Awarding
and Order
Decision
mended
it
“arbi-
Secretary only if
is
15,
decision
1999. See
torney Fees
November
monetary
Pennsylvania
enforce the
rejected the recommendations
2. The Board
court
has
encouraged
par-
ARB
district
award of the
but
concerning
pay
front
average
disposition of
pending
on the
stayed
case
agreement
an
ties to reach
decontamination
hourly
rate
non-local
this court.
petitions before
during the
industry
in the nuclear
workеrs
JA at 62.
period. See
relevant
states,
5851(c)
part,
pertinent
in
5.Section
ag-
adversely
or
"[a]ny person
affected
Appeals for
Court of
Hydro petitioned the
3.
Secretary
[by
by
issued
grieved
an order
events at issue
Circuit because
the Sixth
of the order
may
review
...
Labor]
obtain
place
that circuit.
within
here took
appeals for the
court
States
in the United
Hydro’s
office
petitioned this court
violation,
respect to
with
which the
circuit in
within this circuit.
issued, allegedly oc-
order was
which the
the United
action
Doyle has filed an
in
curred.”
District
for the Western
Court
District
trary, capricious,
discretion,
an abuse of
or
B. Hydro’s Liability
the ERA
Under
otherwise not in
with
accordance
the law.”
Section 210
prohibits
the ERA
an
706(2)(A);6
§
5 U.S.C.
seе Southwestern
from discharging or otherwise
Browner,
Pa. Growth Alliance v.
121 F.3d
“diseriminat[ing]
any employee
(3d Cir.1997).
106,
However,
to his
respect
compensation,
terms,
while
conditions, or privileges of employment be-
pay deference to the
in
Secretary
constru-
cause the employee”
in
engaged
any of the
ing the statutes he
charged
with admin-
protected
Act,
activities
under the
includ-
U.S.A.,
istering, Chevron
Inc. v. Natural
reporting
alleged nuclear
safety
Council, Inc.,
Resources
467 U.S.
Defense
violation or refusing to
engage
any prac-
(1984),
personnel However, decision.9 these 5851(c)(1) § 6. 42 incorporates U.S.C. by ref- engage any practice fused to made unlaw erence section 706 Pro- Administrative chapter ful Energy or the Atomic Act Act. cedure employee if the identified has alleged illegality employer," to the 42 U.S.C. Doyle brought complaint, When 5851(a)(1)(B). § protections whistleblower at issue were in- cluded in section 210 of the ERA. In amendment, 9.The aptly titled "Avoidance of Congress redesignated the relevant section as Complaints,” Frivolous adopted also a host of Servs., Mattingly 211. See Timmons v. Testing (for gatekeeping additional functions exam- 95-ERA-40, No. DOL Ad. 21, Rev. Bd. LEX- ple, cannot even initiate an in- *7 30, (June 1996). IS at *1 n. 2 vestigation complainant until the a establishes 1992, Congress 8. In protection ERA extended case). prima 102-486, See facie Pub.L. 106 employees lodging to complaints. internal 2776, 3123(d). 5851(b)(3) Stat. § 42 U.S.C. Previously, a of number courts had distin provides: now guished provide between whistleblowers who (A) Secretary The shall complaint dismiss a government information to entities from those (1), paragraph filed under and shall not cоmplain who to merely employer. the Com investigation conduct the required under Root, Donovan, pare Brown & v. Inc. 747 F.2d (2), paragraph complainant unless the has 1029, (5th Cir.1984) (absence 1034 express of prima showing made a facie be- language covering employees filing internal (A) havior subparagraphs described in complaints suggests Congress intended (F) (a)(1) through of subsection of this sec- deny protection), with Kansas Gas & Elec. Co. Brock, contributing a 1505, factor in the unfa- (10th v. 780 F.2d 1512-13 Cir. personnel 1985) "narrow, alleged vorable (rejecting action in the hyper-technical a complaint. reading §of 5851 ... to effect the statute's (B) Notwithstanding protection” finding by of a extending aim the Secre- coverage to tary involving filing complainаnt cases has made internal com plaints). showing (A), required by Act protects subparagraph as amended now no employee investigation (2) employer required who paragraph "notified his of an under alleged chapter violation of this or the shall employer Atomic be conducted if the demon- 1954,” Energy strates, Act evidence, 42 U.S.C. convincing clear and 5851(a)(1)(A), § employee and an who "re that it would have taken same unfavora- 250 61, Donovan, F.2d York, 673 Inc. v. New because apply here do not
amendments (2d Cir.1982); Valley Sew Passaic October 62 well before his claim filed cf. Dep’t 102-486, States v. United erage 106 Comm’rs No. 24, Pub.L. Cir.1993) (3d 474, Labor, 480-81 F.2d 2776, 992 Stat. facie Douglas prima McDonnell (adapting governing in the guidance no findWe un discharge сlaim retaliatory standard in before ERA force provisions Act, U.S.C. 33 the Clean Water der procedur allocating 1992 amendments Drivers, 1367(a)); Transport v. Moon § 210 in a section whistleblower al burdens Cir.1987) (6th 226, Inc., 229 F.2d 836 However, prior claim. discrimination Transportation (same, the Surface under consistently utilized 1992, 2305(a)). § Act, 49 U.S.C. Assistance taxonomy for ERA shifting the burden McDonnell set forth in actions retaliation to deviate reason We find no Green, 93 411 v. U.S. Corp. Douglas Secre by the procedure followed from the (1973). See, L.Ed.2d 668 S.Ct. appeals courts of and the other tary Corp., Elec. Westinghouse Dysert v. e.g., actions distinguish ERA we will not thus 86-ERA-39, S. Labor 1991 DOL No. anti- analogous arising claims under 1991); (Oct. 30, Riden *4-5 72 at LEXIS Accordingly, statutes. retaliation Auth., 89-ERA- No. Valley v. Tennessee * Douglas burden adopt the McDonnell at 10- LEXIS 80 S. Labor DOL analysis of our shifting Ex in (Feb. 1990); Roadway guidelines Long v. shifting regime 88-STA-31, this burden Inc., DOL S. case.10 Under No. press, 1989). instance must in the first employee *10 (Sept. 53 at LEXIS Labor If he does case. prima facie establish Moreover, Supreme though the even to the the burden shifts then a number point, never ruled Court non-retaliatory rea legitimate articulate course appeals followed courts of of other employ If the for the adverse action. son proof pro the burdens by applying employee required does so er ac to address created originally duction reason employer’s proffered prove that Act Rights the Civil arising under tions unlawful pretext is a for its action mere § et to whistle- seq., 2000e 42 U.S.C. Kаhn, F.3d at retaliatory conduct. See brought under claims retaliation blower a prima to establish For 277-78. the 1992 prior to amendments. the ERA (1) his he must facie case demonstrate: Sec’y See, e.g., Kahn (2) Hy activity; engagement (7th Cir.1995); Labor, 277-78 pro engagement of his dro’s awareness Sec’y Co. v. United Constr. Bechtel (3) (11th activity; an adverse tected Cir. 933-34 F.3d (4) *8 action; a sufficient inference 147, Dole, 1995); F.2d v. Couty Macktal United retaliatory motive. See v. (8th Cir.1989); Co. Edison Consolidated para- (D) may be ordered under not Relief the of such personnel in absence action ble (2) by graph if the demonstrates behavior. (C) may that Secretary it would convincing determine evidence that clear and (a) section of this personnel of subsection violation unfavorable the same have taken complainant only has if the occurred has in the absence of such behavior. action described behavior demonstrated (F) (A)through subsec- subparagraphs parties do not in We further that note (a)(1) contributing awas of this section applicability of the standard. dispute the personnel action factor in unfavorable alleged complaint. in Dep’t 327 nishing or receiving such information pur- Cir.1999).11 (5th suant to this authorization.” This limited purpose was consistent with the authoriza- Thus, in spite of its considerable proce- provision tion’s waiving rights privacy in turns,12 dural twists and we are satisfied its first paragraph. Furthermore, quite this case boils down simply third paragraph of the authorization con- following Dоyle, Did in issue: the first firms the purpose limited the release instance, make prima out a facie case of authorizing Hydro to use the information unlawful part retaliation on the Hydro? (“evaluation” for the enumerated purposes We answer in question the negative.13 “eligibility clearance”) for without sug- First, we Doyle conclude that did gesting that an employment applicant re- not in engage protected activity when he Hydro leased from liability under the ERA refused employment application if it made an unlawful employment deter- with the Secretary, release. The disagree mination. The release did not simply pur- Wage with the and Hour Division of port to liability waive Hydro’s for employ- Department of Labor and the adminis ment decisions or other claims trative law judge, determined that by sign might make under the after ERA ing the release “would have received information pursuant waived to the au- to file a complaint illegal thorization. It merely black potential released listing under the ERA.” claims for Consequently, privacy infringement. concluded that the waiver—as so con Moreover, release, even if the strued —violated ERA because it creat the Secretary thought, could be construed ed employees for an impermissible Hob- to include a Doyle’s waiver of right to file a son’s Choice between and the complaint illegal blacklisting, the Sec
reporting of safety such, hazards. As retary not should have so in construed it Doyle’s refusal to sign constituted protect light of a well-recognized principle of law activity ed as the release could not used be requiring ambiguous documents lawfully to right. waive his should be illegal deemed where capa
Yet the release
nothing
said
about waiv- ble of constructions that will
them.
validate
ing liability
illegal
It
blacklisting.
Sehlecht,
Walsh
407-
U.S.
merely
released the
organiza-
enumerated
made the to evidence Thus, Secretary offered substantial the not he has be unenforceable. prof authoriza Hydro’s the that not have construed a conclusion should support release. illegal refusing an to to include tion reasons legitimate fered the authoriza signing him without his hire went sum, Secretary In the namely, to ensure the with tion release — а He took process. following the through with compliance and integrity plant power ambiguous as regarded that he release framework15 governing regulatory the that to situations apply it to construed temporary carefully screened only hiring then held He not include. it did its terms required as pretextual, employees found unlawful and the release was —were critical point This impose liability. in to Hydro’s action by reason v. Sand Reeves Supreme would the Court Doyle because he hire to refusing Inc., Products, 530 U.S. the release. Plumbing authorization sign the erson not the re similarly construe 147 L.Ed.2d we will not But effect the Sec expansive (2000), employ have the the lease that once indicated and, we accordingly, to it retаry attributes non-discriminato legitimate, a er provides engaging not simply was hold that decision, the personnel ry for the reason when he refused activity in protected a to show complainant to the shifts burden with the release.14 the the evidence preponderance aby pro in these Thus, must prevail was explanation benign employer’s ceedings. genuine to obscure in order contrived beneath. percolating discriminatory motive second, independent There is a grant are constrained why we reason meet Here, Doyle simply did aside decision petition and set Hydro’s Indeed, makes the record that burden.16 Accepting arguendo the ARB. and order (The See, Fed.Reg. Nuclear e.g., Secretary defer to no reason to 14.We see 15. proposing back- Regulatory Commission involving the construction of law on this issue evalua- investigation, psychological ground rather than construc- proposed of a contract tion, of individu- Metzler, observation and behavioral a See Williams tion of statute. vital require unescorted access als who we are reaching our result In F.3d facilities); see also 10 C.F.R. nuclear areas involving contractual treating this case as (unescorted (1991) authoriza- § access 73.56 interpretation as the rather than construction background investi- ... [a] "must include tion stipulation facts did not address parties' identify past which designed actions gation parties did not meaning the release аnd future relia- of an individual's indicative are meaning with other evidence. its address a or area of bility vital within Thus, Secretary in which is not a case minimum, the power As a reactor. hearing nuclear plenary after a conclusion reached verify indi- investigation must an background addressing parties’ intent when develop Moreover, identity, and informa- true we vidual’s do the authorization. tendered concerning individual’s an ambiguous. to be the release not find history, history, Prods., history, credit education F.2d Reliance Steel Beck v. service, verify military history, Cir.1988). criminal (3d We also note that reputation.”). individual’s character con- thought that he was Secretary have must it as he made clear struing the release fact, never "scope Re- addressed dealing and effect.” In with its issue of and Order the the case involv- Final Decision as gardless, even if treated ex discriminatory instead intent and Hydro’s than interpretation rather ing contractual inquiry to a deter simply pressly limited the be the same our would result construction in which evidence, i.e., the activities of whether largely mination the authorization Doyle was participated and for which itself, Secretary’s support the result. could not *10 Hydro clear that furnished the authoriza- persuaded because the document is facially applicants tion to all for posi- temporary neutral, singling out neither the ERA and significantly, tions. More does record any rights protected thereunder, nor not that Hydro previously illustrate made Doyle individually. Likewise, the authori- exceptions hiring in its practices appli- zation not does between differentiate em- cants, if any, similarly there were situated ployers in high-risk industries like nuclear to Doyle who insisted on signing a modi- power trigger that greatest our concerns fied version of authorization or on not about blacklisting and employers in other- signing the authorization at all.17 innocuous, wise generic industries from Co., EEOC v. Metal Sen. 892 F.2d whom information also be sought could (3d Cir.1990) (a disparate treatment the application process. Moreover, as we is only violation made when out an individ- discussed, previously have the terms of the ual is shown to singled have been out and the release only served favorably treated less than others similarly to facilitate' —without incurring liability— situated on the impermissible basis of an Hydro’s assimilation of necessary and criterion). Without circumstantial evi- highly sensitive employee background in- suggest dence to Hydro that treated him formation and favorably less not to Hydro because of his insulate exercise of from rights purportedly protected potential under ERA claims or to chill manque ERA, Doyle’s inventive characterization nuclear whistleblowers. See DiBiase v. parties’ stipulation of facts standing SmithKline Beecham Corp., 48 F.3d unavailing.18 alone is (3d Cir.1995) (“The touchstone of ex- plicit
Doyle suggests
facial
Hydro’s
discrimination
that
discrimina-
is
the dis-
tory intent
may
apparent
nevertheless
crimination is
be inferred
from the terms of
from the
itself’).19
authorization itself. We are not
policy
activities,
not hired were
statutorily.
blowing
See JA
but
because
refused to
("The
here, however,
at 21 n. 5
issue
is not
the authorization as written. See JA at
whether use of
pretext
form was a
(advancing,
179-80
complaint
his initial
discrimination or some
impermissible
other
Department
arguments
concern-
Respondent’s
reason.
hiring
reason for not
ing only
waiver);
legitimacy
of the
see
Complainant
only
clear.
issue is
(same,
also JA at 202-204
Prehearing
in his
whether that
is itself a
reason
violation of the
Position);
(same,
Statement
JA 206-07
ERA.”)
added). However,
(emphasis
retalia
Decision).
Summary
in his Motion for
(and
logic)
as a matter
lawof
does
and, therefore,
unwittingly
occur
finding
purports
extrаpolate
from the
liability requires
inquiry
"an
into the defen
facts,
194-96,
stipulated
JA at
that Booker
prove
dant's state of mind” to
that "the defen
(and
extension,
Hydro)
have intended
must
subjectively
dant
intended to discriminate
to force
rights
to waive
him
under section
plaintiff”
on account of his en
210 as
a condition of
because
gagement
protected activity.
in a
EEOC v.
Booker refused to
though
alter the form even
Works,
Chicago
Lamp
Miniature
perfectly willing
permit
com-
(7th
1991) (citing
Cir.
Inti. Bhd.
Team
plete
previous employment
access to his
rec-
States,
sters v. United
431 U.S.
n.
However,
notes,
Hydro correctly
ords.
1854 n.
quired moot because claim in No. 00-1589 prior of his it aware was fore it finding in so of doing that the setting aside Power are Alabama applicants as other proceedings. the further him same treated without outright Furthermore, in of view this case employment. bring intended to is opinion This in and risks nature regulated highly the to a conclusion. hold industry we cannot power nuclear rea- legitimate have a not Hydro did
that dissenting. BRIGHT, Judge, Circuit sign the release. him to requiring son protestations majori- Indeed, Doyle’s from despite dissent respectfully I in signed he forms contrary, the other con- is not about case This ty’s opinion. applica- employment statutory interpre- connection It is law. about tract to the authoriza- comparable tion are Labor Secretary of and, as the tation appli- only an they concerned tion because goal protecting of Congress’ recognized, record, not criminal prior possible cant’s nuclear accident nation from our history. JA at full safety in the of promotion through the fail. Thus, case must 261, Doyle’s Quite simply, industry. power nuclear Community v. Dep’t See Texas Affairs of safety violations report workers who Burdine, 248, 253, 101 S.Ct. 450 U.S. retali- and not suffer be should (“The (1981) ultimate 207 L.Ed.2d 67 deeds. good their ation for that trier of fact persuading burden case, Secretary looked the instant In intentionally discriminated the defendant of the underlying purposes to the text at all times plaintiff remains against the the ERA provisions protection employee plaintiff.”). with the Shan- protect statute to and construed IV. CONCLUSION rights. Doyle’s ERA whistleblower non T. public interest compelling of the Because reasons, grant we will foregoing For open, of information keeping in channels by Hydro filed for review petition employees Secretary decided 00-2035, the March and set aside No. they what compelled must not be Sec- Order Decision and 1994 Final future past and a waiver of to be May believe liability and the Labor as to retary of employment. as a claims condition of the ERA and Order Final Decision 2000 Sec’y (1991) v. United Power Light & Co. L.Ed.2d 158 113 (2d Cir. 95-96 pregnant Dep’t or who are (policy "women bearing will not 1996) agreement children violat capable of (proposed who are settlement involving exposure or lead jobs explicit gag placed into be it contained because the ERA ed through the expose to lead them which could employee re having the provisions aimed bumping, or job bidding, transfer exercise rights); v. Board statutory linquish his EEOC discriminatory facially rights" promotion Univs., F.2d & State Colls. Governors of of 424, women with childbear it “excludes because 1992) (7th (holding a collec Cir. jobs so lead-exposed capacity the anti- bargaining violated agreement tive gen based a facial classification creates der”); Age Discrimina provision retaliation Water & Angeles Dep’t Power Los face, because, on its Employment Act Manhart, U.S. employee his con unambiguously an denied it (1978) requir (employer's policy L.Ed.2d grievance file an in-house tractual larger contri employees to make ing female age elected file discrimination once employees male pension fund bution than charge). face); discriminatory on its Connectiсut *12 face, Hydro’s itsOn can be read waiver of employee protection provisions to release former as employers well as would frustrate the intent of Congress. putative employers liability.1 from This is See Light Connecticut & Power Co. v. Doyle, lay person how Mr. a unrepresent- Labor, (2d 85 F.3d 94 counsel, by ed read the during release his Cir.1996) (upholding Secretary’s broad in- pre-employment screening, and it likely is terpretation of the term “employee” to how a lay person same situation terminated). cover an employee recently would understand the release language.2 also See Bechtel Constr. Co. v. Secretary of legal insufficiency of the waiver is Labor, (11th Cir.1995) 50 F.3d immaterial because ordinary reader (“[I]t is appropriate give a broad con- not know that would the waiver could not struction to remedial statutes such as non- be used as a defense to a provisions discrimination in federal labor retaliation claim. laws.”); Brock, Kansas Gas & Elec. v.Co. reject
I just would this release as a (10th Cir.1985) (af- 780 F.2d Mr. Doyle’s violation of rights, ERA but as firming the Secretary’s interpreta- broad a violation of all employees’ rights. Any activity). one this signing release could be left with Additionally, Hydro’s refusal to alter the impression have waived they their upon release of Mr. learning Doyle’s con- bring a retaliation suit cerns supports the inference that or any past employer. This im Doyle’s used sign refusal as a conve- pression would chill employee’s inclina way nient hiring avoid an individual who report safety tion to proper issues to the is zealous about nuclear safety. regulatory authorities. Under this scenar Reeves v. Plumbing Prods., Sanderson io, Congress’ goal of making the nuclear Inc., U.S. industry safer protecting potential (2000) (“Proof L.Ed.2d 105 that the defen- fundamentally whistleblowers is under explanation dant’s unworthy is of credence mined. See Valley Passaic Sewerage v. is simply one form of circumstantial evi- Dept. dence that is probative of intentional dis- (3d Cir.1993) (“Such ‘whistle-blow crimination, may quite and it be persua- er’ provisions are promote intended to a sive.”). working environment in which employees are relatively free from the debilitating Finally, Hydro did not need the waiver threat reprisals publicly liability get the information it re- asserting company violations of statutes quired about Doyle. Mr. The screening ”). protecting the environment.... procedures of the American National Stan-
A dard on interpretation Security broad scope Nuclear Power Plants (ANSI) protection ERA comports with the indicate ERA’s that all the background purpose remedial and the legislative histo- information necessary to meet the ANSI ry indicating that a narrow interpretation standard can be through obtained a simple 1. The waiver of liability sweeping place. includes lawyers disagree Even can over the terms, “furnishing such receiving any or scope language and effect of ques- pertaining information to me surprising Complainant tion. It is not added). (emphasis all or claim ...” refused to easily which could form be interpreted rights as a of his waiver under quote Secretary’s I from the decision: the ERA. Complainant I note that layman is a who JA at 1.n. represented by was not counsel when the dispute over the authorization form took in the standard
release; nothing there requires screening requirements
or Secretary makes liability. The
waiver “Respondent has not point forcefully: why background any reason
offered conduct the screen- it needs to
information *13 cannot be standard under the ANSI which does not with a release
obtained liability.” JA at 21. a waiver
include Secretary’s decision.
I would sustain case, grave injus- done
In we have who was blacklist- Doyle, man
tice to Mr. for at- line of work his chosen
ed from rights under a
tempting preserve an em- upheld have statute.3
federal We un- employees its ability to make
ployer’s nuclear of their about the status
certain thereby have rights. We
whistleblower safety nuclear
dealt a blow the
industry. America,
UNITED STATES VEGA, Appellant. Ignacio
Carlos
No. 00-5191. Appeals, Court of
Third Circuit. 6, 2001.
Argued Feb. April
Filed Hy- $3000. about he earned a Despite diligently seeking employment out- which total deny Mr. only publication of its decision to industry, Doyle was dro’s Mr. side the nuclear power plant had a jobs Doyle access at a related nuclear obtain three non-nuclear able to emotional, devastating fi- psychological, 1988 and December 1994 between November family. (the impact Doyle and his damages) hearing nancial on Mr. date of the