Belt v. Dept of Labor , 163 F. App'x 382 ( 2006 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 06a0070n.06
    Filed: January 25, 2006
    Case Nos. 04-3487, 04-3926
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    VERNON R. BELT,                                         )
    Petitioner-Appellant,                               )
    )
    v.                                                      )
    )   PETITION FOR REVIEW OF ORDER
    UNITED STATES DEPARTMENT OF LABOR.,                     )   OF THE UNITED STATES
    et al.                                                  )   DEPARTMENT OF LABOR,
    Respondent-Appellee.                             )   ADMINISTRATIVE REVIEW
    )   BOARD
    Before: KEITH and BATCHELDER, CIRCUIT JUDGES; OBERDORFER1, District Judge.
    PER CURIAM. Complainant-Appellant Vernon R. Belt (“Belt”) appeals the order of the
    Administrative Review Board for the United States Department of Labor dismissing his complaint.
    Belt’s complaint alleged that his employer, Respondent-Appellee United States Enrichment
    Corporation (“USEC”), retaliated against him for engaging in protected activity in violation of the
    whistle-blower provision of the Energy Reorganization Act (“ERA”), 
    42 U.S.C. § 5851
    , and its
    implementing regulations at 
    29 C.F.R. § 24
    . Belt’s original complaint was untimely, and thus, we
    AFFIRM the ARB’s order dismissing Belt’s complaint.
    I. BACKGROUND
    A.     Factual Background
    In March 1976, USEC’s predecessor hired Belt as a janitor for the Paducah Gaseous Diffusion
    Plant (“Paducah”) in Paducah, Kentucky. In 1989, after several promotions and upon his receipt of
    1
    The Honorable Louis F. Oberdorfer, United States District Judge for the District of
    Columbia, sitting by designation.
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    a bachelor’s degree, Belt was promoted to Fire Engineering Assistant (Senior), where he worked with
    all of the fire equipment, including the sprinkler systems. In this position, Belt oversaw the field
    operations. Belt ordered all fire equipment and assumed the Fire Alarm Systems Manager’s duties,
    including the annual inspection and follow-up on the 400,000 sprinkler heads located throughout the
    various buildings at Paducah. His duties included examining all four quadrants of the plant annually,
    inspecting the sprinkler systems to ensure they were clear and undamaged, and making note of any
    deficiencies. Specifically, Belt was responsible for filing assessment and tracking reports (“ATR”)
    with USEC regarding any deficiencies he found in the system.
    In 1997, the Nuclear Regulatory Commission’s (“NRC”) rules and regulations were made
    applicable to USEC. As a licensee of the NRC, USEC is required to maintain certain environmental
    standards for license certification. USEC’s production process is governed by numerous health and
    safety regulations including those of both the NRC and the Occupational Safety and Health
    Administration. Therefore, USEC, as an employer, is subject to the ERA, 
    42 U.S.C. § 5851
    .          nO
    May 5, 2000, USEC announced a reorganization plan that included a Voluntary Reduction-in Force
    (“VRIF”) Program with enhanced benefits that had an open application period until May 24, 2000
    for all full-time salaried employees at Paducah. (J.A. at 587.) At that time, Belt was approximately
    18 months shy of his full retirement date, and thus, he decided not to apply for the VRIF because “it
    really wasn’t to my benefit” and “[i]t wouldn’t have been to my advantage.” (J.A. at 1177, 1253.)
    Soon after the VRIF open application period closed, Belt learned from USEC manager, Pat Jenny
    (“Jenny”), that pursuant to the company’s reorganization plan his position, fire protection engineer,
    was being eliminated. Belt testified that Jenny informed him that she did not know of another
    position in the plant that he could fill and recommended that he discuss his options with human
    Page 2 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    resources. (J.A. at 1178-79.) After speaking with human resources and benefits personnel, Belt
    concluded that he would not have a job with USEC anymore. Belt decided that his only option was
    to volunteer for the Involuntary Reduction-in-Force (“IRIF”) Program, which USEC announced after
    the VRIF period closed, in order to receive reduced retirement or severance pay.
    On June 22, 2000, Belt signed a USEC memorandum acknowledging his request to be
    selected for the impending IRIF in exchange for severance pay eligibility and other benefits. The
    memorandum read as follows:
    [b]y signing this memo, you confirm that you have requested to be selected for RIF
    and that you have made this decision voluntarily and without coercion of any kind.
    You also confirm that you understand that your request will result in termination of
    your USEC employment on a RIF date to be determined by the company. Your
    request is not revocable after you sign this memo[.]
    (J.A. at 625.) The final paragraph of the document reiterated, in bold print, that Belt acknowledged
    that he had “voluntarily requested to be selected for RIF” and that he understood his employment
    with USEC would be “terminated as a result.” 
    Id.
     The memorandum was unequivocal and
    irrevocable in its notice to Belt that his USEC employment was terminated. Belt also testified that
    June 22, 2000, was his last day at work, (J.A. at 1236-37), and while he was “coming back the 14th
    [of July] for a checkout . . . I was basically unemployed. I had no job.” (J.A. at 1475-76.) On June
    29, 2000, Belt received a USEC memorandum outlining the terms of his IRIF and stating that his
    employment with USEC would terminate on July 14, 2000. ( J.A. at 626.) On July 14, 2000, Belt
    returned to Paducah for a final check out.
    B.     Procedural Background
    On December 29, 2000, Belt filed a complaint with the Occupational Safety and Health
    Administration (“OSHA”) of the United States Department of Labor. Belt filed his complaint under
    Page 3 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    § 211(b) of the ERA, 
    42 U.S.C. § 5851
    , the federal whistle-blower statute. Under the ERA, covered
    employees are protected from retaliation with regard to the terms and conditions of their employment
    for reporting environmental violations of the statute. Belt alleged that his employer, USEC, retaliated
    against him in violation of the statute because he reported USEC’s violations of the ERA. He
    claimed he was harassed and discriminated against for engaging in protected activity. Belt argued
    that the retaliation included his termination from USEC employment through the IRIF. OSHA
    investigated Belt’s complaint and, on April 18, 2001, concluded the complaint lacked merit.
    On April 30, 2001, Belt appealed OSHA’s decision and requested a hearing before an
    Administrative Law Judge. The hearing was held on November 14-15, 2001, before Administrative
    Law Judge Thomas F. Phalen, Jr. (“ALJ Phalen”). ALJ Phalen concluded that Belt’s complaint was
    timely filed, but that his employment was not terminated as a result of his protected activity.
    Belt and USEC appealed ALJ Phalen’s recommended decision to the United States
    Department of Labor’s Administrative Review Board (“ARB”). The ARB rejected ALJ Phalen’s
    determination that Belt’s complaint was timely filed. The ARB concluded that Belt’s December 29,
    2000 complaint was filed more than 180 days after Belt received the June 22, 2000 notice of
    termination from USEC. Therefore, Belt’s complaint was deemed untimely. The ARB also rejected
    all of Belt’s proffered grounds for tolling the 180-day statutory filing period to consider Belt’s
    complaint timely. Specifically, the ARB rejected Belt’s argument that he was subjected to a hostile
    work environment at USEC. The ARB also concluded, in the alternative, that even if Belt had been
    subjected to hostile work environment, none of the acts offered by Belt as evidence of a hostile work
    environment occurred within 180 days of the filing of his complaint, and thus, his complaint would
    still be untimely. Finally, the ARB rejected Belt’s argument that his claim was timely under a
    Page 4 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    “continuing violation” theory. Therefore, on February 26, 2004, the ARB dismissed Belt’s complaint
    as untimely.
    On June 25, 2004, the ARB denied Belt’s motion for relief from the ARB’s original decision
    to dismiss his complaint. Thereafter, Belt motioned the ARB to vacate its February 26, 2004 decision
    pursuant to Federal Rule of Civil Procedure 60(b), on the grounds of: (1) misrepresentation by USEC,
    (2) newly discovered evidence, and (3) other reasons justifying relief. The ARB concluded all of
    these grounds lacked merit and adhered to its February 26, 2004 decision. Belt timely filed his
    petition for review with this Court.2
    II.ANALYSIS
    A.     Standard of Review
    The whistle-blower provision of the ERA instructs this Court to review the ARB’s final
    decision in accordance with the Administrative Procedure Act (“APA”), 
    5 U.S.C. § 706
    . See 
    42 U.S.C. § 5851
    (c). Pursuant to the APA, this Court may reverse an agency’s findings and conclusions
    only if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not accordance
    with the law” or “in excess of statutory jurisdiction” or “unsupported by substantial evidence.” 
    5 U.S.C. § 706
    . This is a “highly deferential standard of review,” and this Court “defer[s] to the
    inferences that the Secretary derives from the evidence, not to those of the ALJ[.]” Varnadore v.
    Secretary of Labor, 
    141 F.3d 625
    , 630 (6th Cir. 1998) (internal quotation marks and citation omitted).
    2
    We note that 
    42 U.S.C. § 5851
    (c)(1) grants this Court jurisdiction to directly review the
    ARB’s decision in this case: “[a]ny person adversely affected or aggrieved by an order issued
    under subsection (b) of this section 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.” Belt’s complaint arose in Kentucky, a state under the jurisdiction of this
    Circuit.
    Page 5 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    “The ARB acts for the Secretary, and is responsible for issuing final agency decisions.” 
    Id.
     (internal
    quotation marks and citation omitted). “Under this standard, the court must consider whether there
    has been a clear error in judgment.” R.P. Carbone Constr. Co. v. Occupational Safety & Health Rev.
    Comm’n, 
    166 F.3d 815
    , 818 (6th Cir. 1998) (citation omitted).
    The agency’s factual determinations “must be affirmed if they are supported by substantial
    evidence[,]” which is “more than a scintilla, but less than a preponderance, of the evidence.” 
    Id.
    (citation omitted). “It is such relevant evidence as a reasonable mind might accept as adequate to
    support the conclusion reached.” 
    Id.
     (citation omitted). Moreover, this Court “will not normally
    disturb the credibility assessments” of an administrative law judge “who has observed the demeanor
    of the witnesses.” Litton Microwave Cooking Prods. Div., Litton Sys., Inc. v. Nat’l Labor Relations
    Bd., 
    868 F.2d 854
    , 857 (6th Cir. 1989) (internal quotation marks and citations omitted).
    Although we review the purely legal conclusions reached by an agency de novo, we “defer
    somewhat to the agency because it is charged with administering the statute.” Am. Nuclear Res., Inc.
    v. United States Dep’t of Labor, 
    134 F.3d 1292
    , 1294 (6th Cir. 1998). Therefore, this Court “will
    uphold an interpretation if based on a permissible construction of the statute.” 
    Id.
     (internal quotation
    marks and citation omitted). This Court reviews the agency’s application of law to fact under the
    same deferential standard as it reviews the agency’s findings of fact. See 
    id.
     If there is substantial
    evidence on the record, as a whole, to support the ARB’s decision, then this court may not reverse,
    “even if [the court] could justifiably have made a different choice judging the matter de novo.”
    Tennessee Valley Auth. v. United States Secretary of Labor, 
    59 Fed. Appx. 732
    , 736 (6th Cir. March
    6, 2003) (unpublished opinion) (citation omitted).
    B.     Discussion
    Page 6 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    Pursuant to § 5851(b)(1) of the ERA, any employee who believes he has been discharged or
    otherwise discriminated against by any person in violation of the ERA may, “within 180 days after
    such violation occurs file (or have any person file on his behalf) a complaint with the Secretary of
    Labor . . . alleging such discharge or discrimination.” 42 U.S.C. 5851(b)(1) (emphasis added). The
    statute’s implementing regulations also specify, “[u]nder the Energy Reorganization Act of 1974, any
    complaint shall be filed within 180 days after the occurrence of the alleged violation.” 
    29 C.F.R. § 24.3
    (b)(2). We review for substantial evidence the ARB’s conclusion that a claim was untimely.
    Sasse v. United States Dept. of Labor, 
    409 F.3d 773
    , 782 (6th Cir. 2005) (citation omitted).
    1.      Belt’s December 29, 2000 complaint was untimely.
    Substantial evidence in the record supports the ARB’s decision to dismiss Belt’s complaint
    as untimely.3 The ARB correctly observed that Belt’s cause of action against USEC accrued on the
    date he was notified that USEC was terminating him, which was June 22, 2000. On June 22, 2000,
    Belt signed the irrevocable memorandum acknowledging his decision to be selected for the IRIF.
    The memorandum explicitly stated Belt’s employment with USEC would be terminated as a result
    of his decision to volunteer for the IRIF Program. See Delaware State College v. Ricks, 
    449 U.S. 250
    , 258 (1980) (holding that a plaintiff’s cause of action accrues when he receives notice of
    3
    Preliminarily, we reject Belt’s claim that USEC waived the statute of limitations
    defense. Contrary to Belt’s assertion that USEC did not raise the statute of limitations issue
    when framing the issues to be presented to ALJ Phalen at the hearing, the record demonstrates
    that USEC raised the issue as its first point in their opening statement, “the United States
    Enrichment Corporation, through its witnesses, will basically be focusing on three issues. First,
    whether Mr. Belt timely filed his complaint with the Department of Labor.” (J.A. at 1112-13.)
    In light of the fact that the issue was raised by USEC at the commencement of the evidentiary
    hearing and fully briefed before both the ALJ and the ARB, we conclude that USEC sufficiently
    preserved the issue of whether Belt’s complaint was timely for our review.
    Page 7 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    termination, not when his employment actually ceases, “the only alleged discrimination occurred –
    and the filing limitations period therefore commenced – at the time the tenure decision was made and
    communicated to Ricks. That is so even though one of the effects of the denial of tenure – the
    eventual loss of a teaching position – did not occur until later.”); see also Janikowski v. Bendix Co.,
    
    823 F.2d 945
    , 947-48 (6th Cir. 1987) (applying Ricks to an ADEA case and rejecting Plaintiff’s claim
    that the alleged act of discrimination occurred the day he was actually discharged, November 30,
    1981. Instead, this Circuit affirmed the district court’s finding that Plaintiff’s complaint was untimely
    because the alleged unlawful practice occurred on September 4, 1980, the day Plaintiff received
    notification of his eventual termination.). In addition, the fact that the effective date of Belt’s
    termination was not until July 14, 2000 is irrelevant. See Ricks, 
    449 U.S. at 257
     (“Mere continuity
    of employment, without more, is insufficient to prolong the life of a cause of action for employment
    discrimination.”).
    Belt argues that the June 22, 2000 notice of termination was not definite and final because he
    could have been recalled to return to work – as was one of his similarly situated colleagues – at any
    time prior to July 14, 2000. Given the unequivocal language in the June 22, 2000 memorandum
    notifying Belt of his irrevocable termination from USEC, which Belt signed, we must reject this
    argument. Furthermore, even if we were to agree with Belt that the notice of termination was
    indefinite, our conclusion would remain unchanged. In Kessler v. Bd of Regents, this Circuit stated,
    “even if the Board had specifically stated in its June 30 letter that its decision was not final, it would
    have been sufficient to commence the running of the limitations period.” 
    738 F.2d 751
    , 755-56 (6th
    Cir. 1984).
    2.      Neither Belt’s hostile work environment claim nor his continuing violation
    Page 8 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    theory tolls the 180-day statutory filing period for his complaint.
    Belt attempts to overcome the fact that his complaint is untimely by offering various grounds
    for tolling the 180-day statutory filing period. He argues he was subjected to a hostile work
    environment, that the continuing violation theory applies, and that he was the victim of constructive
    discharge. Substantial evidence on the record supports the ARB’s conclusion that Belt’s reliance on
    a hostile work environment claim and a continuing violation theory to make his claim timely fails.
    Even if we assume, without deciding, that Belt had been subjected to a hostile work environment
    while employed at USEC, the conduct that he alleges contributed to the hostile work environment
    occurred more than 180 days before he filed his December 29, 2000 complaint, and thus, that conduct
    cannot save Belt’s untimely complaint. See Nat’l R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
    ,
    105 (2002) (“We also hold that consideration of the entire scope of a hostile work environment claim,
    including behavior alleged outside the statutory time period, is permissible for the purpose of
    assessing liability, so long as an act contributing to that hostile work environment takes place within
    the statutory time period.”) (emphasis added). Belt’s reliance on conduct that occurred in 1997 and
    1999 to establish a hostile work environment is clearly impermissible because that conduct falls
    outside of the 180-day statutory filing period. The same rationale applies to Belt’s continuing
    violation theory, and thus, it fails, as well.
    Finally, given our conclusion that Belt’s claim accrued on June 22, 2000, when he received
    unequivocal notice of his termination, we also reject Belt’s argument that the effective date of his
    termination, July 14, 2000, was a component of his discharge and therefore formed part of the alleged
    hostile work environment or that it provides the basis for a continuing violation theory.
    3.      Belt was not the victim of a constructive discharge by USEC.
    Page 9 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    Belt’s argument that he was the victim of a constructive discharge fails. In his brief, Belt
    relies upon the case, Logan v. Denny’s, Inc., 
    259 F.3d 558
     (6th Cir. 2001) to articulate the standard
    for proving a constructive discharge claim. Specifically, Belt states that an employer is guilty of
    making a constructive discharge when “[the employer] intended to cause [the employee] to resign
    or that [his] resignation was a reasonably foreseeable consequence of [the employer’s] actions.”
    (Appellant’s Br. at 35) (quoting Logan, 
    259 F.3d at 567
    ). Notably, Belt fails to acknowledge that he
    carries the burden of making this showing and he fails to provide the first part of the standard.
    Specifically, the Logan court stated,
    in order to show that she suffered a constructive discharge, Plaintiff had to come
    forward with evidence to demonstrate that the working conditions under which she
    labored were so difficult that a reasonable person standing in her shoes would have
    felt compelled to resign; and that Defendant intended to cause Plaintiff to resign or
    that her resignation was a reasonably foreseeable consequence of Defendant’s actions.
    Logan, 
    259 F.3d at 567
    .
    After reviewing the record, we conclude that Belt has not met this substantial burden. First,
    there is no evidence in the record that Belt’s working conditions were so unbearable that he felt
    compelled to resign for this reason. Second, the record does not support a finding that USEC
    intended to cause Belt to resign or that USEC encouraged him to do so. To the contrary, ALJ Phalen
    found Jenny’s testimony credible that although she told Belt his fire protection engineer title was
    being eliminated, she also told him that his work duties still had to be performed. In addition, Belt’s
    supervisor at the time, John Smith, also testified that he advised Belt against volunteering for the
    IRIF, “I told him . . . [it does not make sense] when he come in and told me that. I said, Vernon,
    you can’t do that. How do you volunteer for something that’s involuntary.” (J.A. at 1380.)
    Page 10 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    Therefore, the evidence in the record does not support Belt’s assertion that he was the victim of a
    constructive discharge, and thus, we reject this argument.
    4.      Belt’s Additional Arguments Lack Merit.
    First, Belt argues that the ARB applied the wrong legal standard in assessing the applicability
    of the hostile work environment exception to the running of the statute of limitations. It is true that
    at one point in its opinion the Board misstates, in a potentially material way, the applicable standard.
    Compare Morgan, 
    536 U.S. at 116
     (requiring a complainant to establish a workplace “permeated with
    discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
    conditions of the victim’s employment and create an abusive working environment”) (emphasis
    added) with ARB Op. at 8 (J.A. at 58) (“To prevail on a hostile work environment claim, the
    complainant must establish that the objectionable conduct was extremely serious or serious and
    pervasive.”) (emphasis added). In the next paragraph of its decision, however, the ARB corrects its
    misstatement by requiring only that Belt demonstrate that the alleged discrimination was “sufficiently
    severe or pervasive to alter the conditions of employment and create an abusive working
    environment.” 
    Id.
     (emphasis added). Our review of the balance of the ARB decision and the record
    in this case leaves this Court confident that the ARB decision did not depend on its initial, inaccurate
    statement of the applicable law.
    Second, Belt argues that the ARB erred in holding the hostile work environment exception
    inapplicable where the NRC substantiated a “chilled environment” for the reporting of safety
    violations at the facility at which he worked. Even if we assume, without deciding, that a chilled
    environment did in fact exist at USEC, we conclude that the existence of such a chilled environment
    Page 11 of 12
    Case Nos. 04-3487, 04-3926; Belt v. United States Enrichment Corp.
    is not, by itself, enough to establish that Belt was exposed to a hostile work environment.
    Third, Belt argues that the continuing violation theory tolled the statute of limitations because
    USEC’s violations of his rights continued until its February 2001 refusal to rehire him. We reject this
    argument because Belt has not established any violation of his rights between June 22, 2000 and
    December 19, 2000, the period of the running of the applicable statute of limitations.
    Finally, we also reject Belt’s argument that the ARB abused its discretion in refusing to
    reopen its final decision and order dismissing Belt’s complaint pursuant to Federal Rule of Civil
    Procedure 60(b)(2), (3), or (6). The record in this case does not support granting such a motion.
    Specifically, the“newly discovered evidence” offered by Belt – Jenny’s testimony given in a separate,
    unrelated case – does not contradict or undermine the testimony offered by Jenny in Belt’s case. In
    addition, the record does not support a finding of fraud, misrepresentation, or other misconduct by
    USEC. Therefore, given the substantial evidence on the record and finding no other reasons
    justifying relief from the operation of judgment, we conclude that the ARB did not abuse its
    discretion in refusing to reopen its final decision and order dismissing Belt’s complaint.
    III.CONCLUSION
    Having concluded that the decision of the ARB was supported by substantial evidence and
    for all of the foregoing reasons, we DENY the petition for review and AFFIRM the ARB’s order
    dismissing Belt’s complaint.
    Page 12 of 12