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8/9/2019 DAVID L. LEWIS v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR
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No. 08-12114-HH _______________________________
IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT
_______________________________
DAVID L. LEWIS,
Petitioner,
v.
ADMINISTRATIVE REVIEW BOARD,UNITED STATES DEPARTMENT OF LABOR,
Respondent. _______________________________
On Petition for Review From a Final Decision and Orderof the United States Department of Labor
_______________________________
BRIEF FOR THE SECRETARY OF LABOR
CAROL DE DEODeputy Solicitor for
National Operations
STEVEN J. MANDELAssociate Solicitor
ELLEN R. EDMONDCounsel for Whistleblower
Programs
JENNIFER R. MARIONAttorney
U.S. Department of LaborOffice of the SolicitorFair Labor Standards DivisionSuite N-2716200 Constitution Ave., N.W.Washington, D.C. 20210(202) 693-5555
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David L. Lewis v. Admin. Rev. Bd., No. 08-12114-HH
CERTIFICATE OF INTERESTED PERSONS ANDCORPORATE DISCLOSURE STATEMENT
Counsel for Respondent Department of Labor certifies that thefollowing people and entities have or may have an interest inthe outcome of this case:
1. David L. Lewis (Petitioner)2. Kohn, Kohn, and Colapinto, LLP(Counsel for Petitioner)3. Stephen M. Kohn (Counsel for Petitioner)4. Richard Renner (Counsel for Petitioner)5. Jennifer Wolfson (Counsel for Petitioner)6. National Whistleblower Legal Defense and Education Fund
(Counsel for Petitioner at ALJ proceedings)7. Sara Michaelchuck (Counsel for Petitioner at ALJ
proceedings)8. Administrative Review Board, U.S. Department of Labor
(Respondent)9. Jennifer R. Marion (Counsel for Respondent)10. Ellen R. Edmond (Counsel for Respondent)11. Steven J. Mandel (Associate Solicitor, Fair Labor Standards
Division, U.S. Department of Labor)12. Carol De Deo (Deputy Solicitor for National Operations,
U.S. Department of Labor)13. Office of the Solicitor, U.S. Department of Labor14. Directorate of Enforcement Programs, U.S. Department of
Labor15. U.S. Environmental Protection Agency (Respondent below)16. David P. Guerrero (Counsel for Respondent below)17. Office of General Counsel, U.S. Environmental Protection
Agency18. M. Cynthia Douglas (Chief Administrative Appeals Judge,
Administrative Review Board, U.S. Department of Labor)19. Oliver M. Transue (Administrative Appeals Judge,
Administrative Review Board, U.S. Department of Labor)20. Hon. John M. Vittone (Chief Administrative Law Judge, U.S.
Department of Labor)
21. Hon. Jeffrey Tureck (Administrative Law Judge, U.S.Department of Labor22. Southern Waste Services, Inc.23. Synagro Technologies, Inc.24. Water Environment Foundation
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STATEMENT REGARDING ORAL ARGUMENT
The Secretary does not believe that oral argument is necessary
because the question whether the Administrative Review Board
correctly dismissed Lewis's complaint may be resolved on the
basis of the briefs filed with this Court.
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TABLE OF CONTENTSPage
CERTIFICATE OF INTERSTED PARTIES............................... i
STATEMENT REGARDING ORAL ARGUMENT............................. ii
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION......... 1
STATEMENT OF THE ISSUE......................................... 3
STATEMENT OF THE CASE.......................................... 3
A. Nature of the Case and the Course
of Proceedings....................................... 3
B. Statement of Facts................................... 5
C. Decisions of the ALJ and the ARB.................... 16
SUMMARY OF THE ARGUMENT....................................... 23
ARGUMENT...................................................... 24
SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD'S DECISION
TO DISMISS LEWIS'S HOSTILE WORK ENVIRONMENT CLAIM
BECAUSE THE EPA TOOK PROMPT REMEDIAL ACTION WHEN IT
BECAME AWARE OF THE ALLEGEDLY HARASSING ACTIONS OF
LEWIS'S CO-WORKER........................................ 24
A. Standard of Review.................................. 24
B. Applicable Burdens of Proof......................... 25
C. There Is No Basis For Holding The EPA Liable
for Walker's Activities............................. 27
CONCLUSION ................................................... 34
CERTIFICATE OF COMPLIANCE..................................... 35
iii
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TABLE OF CONTENTS - continuedPage
CERTIFICATE OF SERVICE........................................ 36
iv
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TABLE OF AUTHORITIESPage
Cases
*Breda v. Wolf Camera & Video,
222 F.3d 886 (11th Cir. 2000)...................... 23,28,33
Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998)................................ 27,28,31
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006)....................................... 21
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984)...................................... 24
Coates v. Sundor Brands, Inc.,
164 F.3d 1361 (11th Cir. 1999)........................... 31
Cornelius v. Sullivan,
936 F.2d 1143 (11th Cir. 1991)........................... 25
Crawford v. Metropolitan Gov't of Nashville
and Davidson Co., Tennessee,
--- S.Ct. ---, 2009 WL 160424 (U.S. 2009)................ 27
EEOC v. Joe's Stone Crabs, Inc.,
296 F.3d 1265 (11th Cir. 2002)........................... 26
Erickson v. United States Envtl. Prot. Agency,
ARB Case Nos. 03-002 - 004, 03-064,
2006 WL 1516646 (Admn. Review Bd. 2006).................. 20
v
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Cases - continuedPage
Faragher v. City of Boca Raton,
524 U.S. 775 (1998)................................ 27,28,31
Farley v. American Cast Iron Pipe Co.,
115 F.3d 1548 (11th Cir. 1997)........................... 30
Fields v. United States Dep't of Labor,
173 F.3d 811 (11th Cir. 1999)......................... 24,25
Fluor Daniel v. Occupational Safety & Health Review Comm'n,
295 F.3d 1232 (11th Cir. 2002)........................... 25
Gregory v. Georgia Dep't of Human Res.,
355 F.3d 1277 (11th Cir. 2004)........................... 25
J.A.M. Builders, Inc. v. Herman
233 F.3d 1350 (11th Cir. 2000)........................... 25
Lewis v. Callahan,
125 F.3d 1436 (11th Cir. 1997)........................... 25
Marshall et al. v. Synagro-WWT.Inc. et al.,
No.99-C-45 (Rockingham Co., N.H. Super. Ct).......... Passim
Mendoza v. Borden, Inc.,
195 F.3d 1238 (11th Cir. 1999), cert. denied,
529 U.S. 1068 (2000) ..................................... 26
*Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269 (11th Cir. 2002)....................... Passim
Natl R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002)........................................ 20,21
vi
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Cases - continuedPage
Pennsylvia State Police v. Suders,
542 U.S. 129 (2004) ......................................28
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000)...................................... 26
Sass v. United States Dep't of Labor,
409 F.3d 773 (6th Cir. 2005)............................. 25
St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502 (1993)...................................... 26
United States v. Mead Corp.,
533 U.S. 218 (2001)...................................... 24
Waltman v. International Paper Co.,
875 F.2d 468 (5th Cir. 1989)............................. 16
Williams v. Mason & Hanger Corp.,
ARB No. 98-030, 2002 WL 31662916
(Admin. Review Bd. 2002)................................. 28
Statutes
Administrative Procedure Act,
5 U.S.C. 701-706......................................... 24
5 U.S.C. 706(2)(A)....................................... 24
5 U.S.C. 706(2)(E)....................................... 24
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Statutes - continued
PageClean Air Act,
42 U.S.C. 7622.......................................... 1,2
42 U.S.C. 7622(c)...................................... 2,24
Comprehensive Environmental Response,
Compensation and Liability Act,
42 U.S.C. 9610............................................ 1
42 U.S.C. 9610(a)........................................ 21
Federal Water Pollution Control Act,
33 U.S.C. 1367............................................ 1
33 U.S.C. 1367(a)........................................ 21
Intergovernmental Personnel Act,
5 U.S.C. 3372............................................. 5
Safe Drinking Water Act,
42 U.S.C. 300j-9(i)....................................... 1
42 U.S.C. 300j-9(i)(1)(A)................................ 21
Solid Waste Disposal Act,
42 U.S.C. 6971............................................ 1
Toxic Substances Control Act,
15 U.S.C. 2622............................................ 1
15 U.S.C. 2622(a)........................................ 21
Code of Federal Regulations
29 C.F.R. 18.54(c)............................................ 22
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Code of Federal Regulations continuedPage
29 C.F.R. Part 24.............................................. 2
Section 24.1.............................................. 3
Section 24.4(d)........................................... 3
Section 24.8.............................................. 2
40 C.F.R. Part 503........................................ Passim
Miscellaneous
67 Fed. Reg. 64,272 (Oct. 17, 2002)............................ 2
72 Fed. Reg. 31,160 (June 5, 2007)............................. 3
72 Fed. Reg. 44,956 (Aug. 10, 2007)............................ 2
ix
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No. 08-12114-HH _______________________________
IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT
_______________________________
DAVID L. LEWIS,
Petitioner,
v.
ADMINISTRATIVE REVIEW BOARD,UNITED STATES DEPARTMENT OF LABOR,
Respondent. _______________________________
On Petition for Review From a Final Decision and Orderof the United States Department of Labor
_______________________________
BRIEF FOR THE SECRETARY OF LABOR _______________________________
STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION
This case arose under the employee protection provisions of
the Toxic Substances Control Act ("TSCA"), 15 U.S.C. 2622; the
Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. 1367;
the Safe Drinking Water Act ("SDWA"), 42 U.S.C. 300j-9(i); the
Solid Waste Disposal Act ("SWDA"), 42 U.S.C. 6971; the Clean Air
Act ("CAA"), 42 U.S.C. 7622; and the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
9610 (collectively, the "environmental whistleblower protection
statutes"), which are administered and enforced by the Secretary
of Labor ("Secretary"). The Department of Labor's
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Administrative Review Board ("ARB" or "Board") assumed
jurisdiction under one of these statutes, the CAA. See 42
U.S.C. 7622. 1 On June 30, 2008, the Board issued an Order
Granting Reconsideration that upheld its May 30, 2007, Final
Decision and Order dismissing David L. Lewis's complaints
against his employer, the United States Environmental Protection
Agency ("EPA") (R.E. 5 p. 8). 2 Lewis timely filed an amended
petition for review with this Court on July 14, 2008. This
Court has jurisdiction to review the Board's final decision in
this case under 42 U.S.C. 7622(c). 3
1 The Secretary has delegated the authority to issue final agencydecisions in cases arising under the environmental whistleblowerprotection statutes to the Board. See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); see also 29 C.F.R.24.8. The regulations implementing the environmental
whistleblower protection statutes are found at 29 C.F.R. Part24. While these regulations were recently amended, see 72 Fed.Reg. 44,956 (Aug. 10, 2007), the regulatory citations in thisbrief refer to the regulations in effect when this case waslitigated before the Department of Labor.
2 Citations to documents contained in the Record Excerpts filedby Lewis in this case will be to the tab number followed by theoriginal pagination of the document ("R.E. at p."); "Tr."references are to the transcript of the administrative hearingheld between March 4-7 and April 8-11, 2003; "R." references areto the documents listed in the Board's certified list of therecord, which was filed with this Court on September 25, 2008.References to exhibits filed below will be "JX" (joint exhibit),"CX" (complainant Lewis's exhibit)", or "RX" (respondent EPA'sexhibit).
3 On June 9 and June 24, 2008, this Court issued letters to theparties requesting briefing on preliminary jurisdictionalquestions. The Secretary filed responses to those questions on
2
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STATEMENT OF THE ISSUE
Whether substantial evidence supports the Board's
conclusion that the EPA was not liable for the allegedly
harassing actions of a non-supervisory co-worker against Lewis
because it took prompt remedial action when it became aware of
the harassment.
STATEMENT OF THE CASE
A. Nature of the Case and the Course of Proceedings
David L. Lewis filed complaints on October 15, 2001, and
September 23, 2002, with the Occupational Safety and Health
Administration ("OSHA") alleging retaliation by his employer,
the EPA, under the environmental whistleblower protection
statutes. 4 After an investigation, OSHA dismissed both
complaints as lacking merit (R.E. 2 p. 2).
Lewis timely requested a hearing pursuant to 29 C.F.R.
24.4(d), and the complaints were consolidated. After a formal
hearing, the Administrative Law Judge ("ALJ") issued a
Recommended Decision and Order on June 9, 2004, in which he
concluded that Lewis had not proven that the EPA retaliated
against him for engaging in protected activity (R.E. 2 p. 66).
June 23 and July 7, 2008. On September 10, 2008, this Courtordered the jurisdictional issues to be carried with the case.4 The Secretary has delegated her authority to administer thesestatutes to the Assistant Secretary for Occupational Safety andHealth. See Secretary's Order No. 5-2007, 72 Fed. Reg. 31,160(June 5, 2007); see also 29 C.F.R. 24.1.
3
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Lewis appealed to the ARB, which issued its Final Decision and
Order denying his complaint on March 30, 2007. The Board
concluded that, although Lewis engaged in protected activity,
his various claims failed because, depending on the claim, they
were untimely, or he did not prove that he was subject to
adverse action or that the EPA took the actions because of his
protected activity (R.E. 3 pp. 23-24). On April 25, 2007, Lewis
filed a motion for reconsideration with the Board; he also
filed, on May 2, 2007, a motion to reopen the record. On
February 29, 2008, the Board issued an order denying Lewis's
motion to reopen the record, finding that the proffered evidence
was neither new nor material (R.E. 4 p. 4).
Lewis filed a petition for review with this Court on April
25, 2008, after which it was determined that his motion for
reconsideration was still pending before the Board. This Court
thus placed the petition for review in abeyance on July 1, 2008,
pending the Board's action on reconsideration. The Board issued
an Order Granting Reconsideration on June 30, 2008, on the
ground that it had overlooked Lewis's hostile work environment
claim (R.E. 5 p. 2). On the merits, however, the Board
concluded, after assuming without deciding that the alleged
actions constituted harassment and that the claims were
actionable, that Lewis did not prove that the EPA harassed him
because of his protected activity (R.E. 5 p. 8).
4
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After the Board issued its decision on reconsideration,
Lewis timely filed an amended petition for review to include the
Board's reconsideration decision and moved this Court to remove
the case from abeyance. This Court granted the motion on July
15, 2008, and a briefing schedule was issued.
B. Statement of Facts 5
1. Background
Prior to 1998, Lewis had been a microbiologist at the EPA's
Office of Research and Development ("ORD") in its Athens,
Georgia laboratory for 15 out of 17 years (R.E. 3 p. 2; R.E. 2
p. 3; RX 1; CX 61 p. 1-4). Beginning in 1998, pursuant to the
Intergovernmental Personnel Act ("IPA"), see generally 5 U.S.C.
3372, Lewis was assigned to work in the marine sciences
department at the University of Georgia ("UGA") to research and
carry out experiments on dental device contaminants that "pose a
risk of infection from human pathogens, and the relationship of
this work to environmental issues of concern to the EPA" (R.E. 3
p. 2; R.E. 2 p. 3; CX 8 at 6). In addition to his work on
dental device contaminants, Lewis engaged in research involving
5 Lewis alleged before the ALJ and the Board that the EPA hadtaken several adverse actions against him based on variousprotected activities. The ALJ's decision contains a completeand lengthy recitation of the facts underlying these claims.This brief, however, limits its discussion of the facts relevantto the one issue on which Lewis rests his appeal, i.e., whetherin considering his hostile work environment claim, the Boardcorrectly concluded that the EPA was not liable for the actionsof a co-worker of Lewis.
5
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human exposure to pathogens contained in water and soil dust due
to sewage sludge used to fertilize farmland (R.E. 3 p. 2; R.E. 2
p. 4; CX 61 p. 1; Tr. 41, 122-23).
Since 1996, Lewis had been voicing concerns in written
articles, speaking engagements, and congressional testimony
about the EPA rule ("Rule 503") that provides guidance to states
and industries on how to disinfect sludge (otherwise known as
"biosolids") and apply it safely to land (R.E. 3 pp. 2-3; R.E. 2
p. 7; CX 49, pp. 67-8; CX 59-60, 120-21). See also 40 C.F.R.
Part 503. After it was implemented, various industries and
government entities filed legal challenges to Rule 503, but the
EPA's policy was to "encourage the beneficial use of biosolids"
and "to prevent restrictive local ordinances and bans on land
application" (R.E. 2 pp. 8-9; CX 49 pp. 18-23; CX 52 p. 120-21,
124, 147; Tr. 818, 1212). Lewis criticized Rule 503 because, in
his view, it was implemented without adequate research into the
harmful effects of pathogens released during sludge
fertilization (R.E. 3 p. 3; CX 59-60, 120-21).
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2. Lewis's sludge-related outside activities 6
In 1998, Lewis received permission from his supervisors at
EPA to participate as an expert witness in a wrongful death
toxic tort case brought by the Marshall family against Synagro,
a national sludge fertilization company, provided he made it
clear that the views he expressed were his personal ones and
that he was not representing the EPA (R.E. 2 p. 10; RX 144). 7
See Marshall et al. v. Synagro-WWT.Inc. et al., No.99-C-45
(Rockingham Co., New Hampshire Super. Ct). Lewis prepared two
reports as an expert witness on behalf of the Marshalls; one
found that dust and gaseous emissions from sludge-fertilized
land likely caused the death of the young man involved in the
case, and the other criticized the flaws in Rule 503's
implementation (R.E. 3 p. 3; CX 82; RX 145; Tr. 132-35).
6 The EPA has specific ethical guidelines for employees whoengage in "outside activities," i.e., activities that are notcarried out as part of the employee's official duties but are"along the lines" of their scientific work. These guidelinesrequire certain disclaimers that generally include a statementto the effect that the employee is acting as a private citizen,not as an EPA employee (R.E. 3 p. 3; R.E. 2 p. 7; JX 1 p. 60-64;RX 132 p. 12-15).
7 Lewis's immediate supervisor was the Chief of the EcosystemsAssessment Branch ("EAB"), Frank Stancil. His second linesupervisor was the Director of the Ecosystems Research Division("ERD"), Rosemarie Russo; his third line supervisor was theDirector of the National Exposure Research Laboratory ("NERL"),Gary Foley (R.E. 2, p. 4, App. B). The EAB is a division withinthe ERD, which is a division within the NERL, which is adivision within the ORD, which is an EPA program office (id.).
7
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At approximately the same time Lewis was participating in
the Marshall case, he also was preparing a research article,
Adverse Interactions of Irritant Chemicals and Pathogens with
Land Applied Sewage Sludge ("Adverse Interactions"), which
presented similar criticisms of Rule 503 and conclusions about
sludge fertilization's risk to public health (R.E. 3 p. 4; R.E.
2 p. 17; RX 43). 8 In May 2001, in accordance with EPA
procedures, Lewis submitted the article to his immediate
supervisor, Frank Stancil, and requested an expedited clearance
review for release for publication, which he received on May 11,
2001 (R.E. 3 p. 4; R.E. 2 p. 17-18). 9 Lewis also sent the
8 The EPA has specific procedures governing the publications byits scientists (R.E. 3, p. 4; RX 132). Generally, an articlemay undergo formal peer review by the publication to which it issubmitted, an internal formal peer review, or an internal
informal review (R.E. 3 p. 4). If the scientist is a part ofERD, however, like Lewis, the article must be reviewedinternally before going to the publication for review (R.E. 2,p. 6). The EPA has strict guidelines for its internal formalpeer reviews, including that the peer reviewer should have atechnical competence in at least one of the article's subjects;should not have a vested financial interest in the article orother conflicts of interest; should not be someone aggressivelycritical of the author; should maintain a formal record of allmaterials or other input considered by the reviewer; should notgive an article he is reviewing to an outside source; and shouldnot seek help with a review from a third party without firstconsulting the author if seeking help would reveal the paper'ssubstance or authorship (R.E. 3 p. 5; R.E. 2 p. 6; CX 145 pp.55-59, 67-68; Tr. 1241-42).
9 After Lewis's article was initially cleared for publication(R.E. 2 p. 38), he sent it to Lancet. Lewis wanted Lancet, aprestigious medical journal, to publish the article (R.E. 3 p.4; R.E. 2 p. 23). Lancet rejected Adverse Interactions after
8
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article to other EPA employees for review, including Harvey
Holm, an ORD research director; Holm suggested that Lewis send
the article to James Smith, an environmental engineer with ORD
in Cincinnati who was also Chairman of the EPA's Pathogens
Equivalency Committee (R.E. 3 p. 4; R.E. 2 p. 18; CX 84, Tr.
167-67, 621-22, 630-31). Smith informed his immediate
supervisor of Lewis's request for a review, and the supervisor
ordered a formal peer review (R.E. 3 p. 4; R.E. 2 p. 19).
3. John Walker's involvement
Per his supervisor's instructions, Smith coordinated the
peer review of Adverse Interactions with Harvey Holm. The two
agreed to ask two members of the Pathogen Equivalency Committee,
Robert Brobst (the Biosolids Coordinator for EPA in Denver) and
Robert Bastain (an EPA employee responsible for looking at land
treatment of waste waters and sludge), to participate in the
review (R.E. 2 p. 19; Tr. 1223-24, 1231-32). John Walker, a GS-
14 physical scientist who works for the EPA's Office of Water
Waste Management ("OWWM") and who had been a spokesman for Rule
503's implementation, was present when Smith asked Brobst and
its own peer review and suggested re-submitting the article to amore specialized journal; one of the reviewers appeared to favorpublication, while one was very negative about the article andanother felt it needed an epidemiological study and a controlgroup (R.E. 2 p. 23; RX 56; Tr. 352, 358, 543). After theLancet rejection, Lewis revised the article and, after againreceiving EPA clearance, submitted it to the online journalEnvironmental Health (R.E. 3 p. 5; RX 83-84; Tr. 890-92).
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Bastain to participate in the peer review (R.E. 3 p. 3; R.E. 2
p. 19, 29; Tr. 758-59, 796-806, 1234). 10 Bastain suggested that
Walker, whose duties included being the quality assurance and
control manager for OWWM, in which capacity he evaluated EPA
documents for suitability prior to public dissemination, be a
part of the peer review of Adverse Interactions (R.E. 2 p. 5,
19, 29; CX 151, Tr. 802-03). Smith testified that because
Walker was present, he felt obligated to ask him to participate;
Smith stated that he did not think it would be a problem given
Walker's technical qualifications and given that he, Holm, and
Lewis wanted to have EPA employees reviewing the article (R.E. 2
p. 19; Tr. 1234-35). After Brobst, Bastain, and Walker agreed
to participate in the review, Smith provided them with copies of
the article -- which was marked "confidential" -- and
accompanying data on a computer disk (R.E. 3 p. 5; R.E. 2 p. 19;
Tr. 761, 1235, 1275; RX 45). Lewis requested confidentiality
during the review at least in part because he wanted to prevent
the article from being widely disseminated, which could affect
10 Walker's immediate supervisor was the Chief of the MunicipalTechnology Branch ("MTB"), Charles Gross; his second linesupervisor was the Director of the Municipal Support Division("MSD"), and his third-line supervisor was the Director of theOffice of Waste Water Management ("OWWM"), Michael Cook. TheMTB is a division within the MSD; the MSD is within the OWWM,and the OWWM is within the EPA's Office of Water. The Office ofWater is a separate program office from the ORD, the programoffice under which Lewis worked (R.E. 2 p. 5, App. B). All ofEPA's program offices report to the EPA Administrator (id.).
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its chances of publication (R.E. 2 p. 18, 25). Lewis also
submitted copies of Adverse Interactions without confidentiality
requests to several other people both inside and outside the EPA
(R.E. 2. p. 17).
After receiving his copy of Adverse Interactions, Walker
skimmed the article and, unbeknownst to his supervisors, passed
it on to a microbiologist at the United States Department of
Agriculture ("USDA") for review (R.E. 2 p. 22; RX 52; Tr. 759-
60, 809). The USDA microbiologist's review stated that the
article had "several fundamental and serious flaws" and that
"the evidence and analysis do not support the conclusions (R.E.
2 p. 38; RX 53 p. 1, 3). Walker used the microbiologist's
comments, without attribution, as the bulk of his peer review
(R.E. 2 p. 22; RX 53, 55; Tr. 762-64, 771, 1142, 1145-47, 1155).
Prior to submitting his review of Lewis's article, Walker
also asked Robert O'Dette, Synagro's Executive Vice President of
Government Relations, Compliance and Technical Services, for
information to help with his peer review (R.E. 2 p. 24; Tr. 769-
70). 11 In addition, on July 10, 2001, Walker met with Michael
Cook (his third-line supervisor), O'Dette, and a counsel for
11 Walker and O'Dette had been business friends for over 20years; they both served on National Biosolids Partnershipcommittees and met whenever both were in the Washington, D.C.area to discuss issues of interest to the Partnership (R.E. 2 p.24).
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Synagro to discuss Synagro's desire to have an EPA expert
testify on its behalf in the Marshall case (R.E. 2 p. 64; Tr.
1164-66). Synagro already had been provided with a copy of
Adverse Interactions under protective order during the Marshall
trial because of Lewis's role as an expert witness (R.E. 2 p.
18). Walker testified that the subject of Lewis's article and
Walker's role as a reviewer were briefly discussed at his
meeting with Cook and O'Dette; O'Dette asked how the peer review
process worked and whether a paper written at EPA could get out
without being reviewed (Tr. 1165).
Following these meetings, O'Dette sent Walker a partial
copy of the transcript from the Marshall case, upon which Walker
informed him that he would not be using Synagro's input in his
peer review draft (R.E. 2 p. 25; CX 106; Tr. 1168, 1175-76).
Nevertheless, Walker again met with O'Dette soon after and,
without informing his supervisors, discussed Lewis's article and
the peer review. Walker informed O'Dette that his review and
two others were critical of the article (R.E. 2 p. 25; CX 107;
Tr. 771-73, 1171-72). Based on these conversations with Walker,
O'Dette drafted two affidavits to use against Lewis in the
Marshall case (R.E. 2 p. 25; CX 106, 107).
After receiving copies of O'Dette's affidavits as part of
the Marshall case in late July 2001, Lewis contacted Judy
Vanderhoef, a Project Manager in EPA's Office of Inspector
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General ("OIG"), to request an investigation of Walker's
participation in and behavior during the peer review of Adverse
Interactions (R.E. 2 p. 25; CX 96; Tr. 228-29, 248). 12 Lewis
also forwarded a memorandum to his second-line supervisor,
Rosemarie Russo, and to ORD research director Harvey Holm that
discussed Walker's interactions with Synagro during the peer
review; in addition, his attorney contacted the EPA's Office of
General Counsel ("OGC") to request that it prevent Walker from
further such interactions (R.E. 2 p. 26; RX 5 p. 3; RX 60 p. 2;
RX 197 p. 5; Tr. 196-97, 664). The OGC responded on August 9,
2001, stating that the peer review participants, including
Walker, had been reminded of Lewis's confidentiality request and
that no further action would be taken until the OIG completed
its investigation (R.E. 2 p. 27; RX 5 p. 2; RX 62).
Meanwhile, Lewis's participation as an expert witness in
the Marshall case continued. On September 21, 2001, O'Dette e-
mailed a "White Paper" criticizing Lewis to numerous people in
the biosolid sludge industry and to some EPA employees (R.E. 3
p. 3; R.E. 2 p. 29; RX 67, 68; Tr. 419-20). Walker, one of the
12 Lewis also complained that Walker provided the WaterEnvironmental Federation ("WEF") with a copy of his peer reviewbased on language the WEF used in a letter questioning whetherthe EPA had approved a fact sheet Lewis disseminated about hisarticle (R.E. 2 p. 38; Tr. 470-71). Lewis alleged that this wasevidence of collaboration between the EPA and the WEF (R.E. 2 p.64). The OIG, however, found no evidence to support Lewis'sclaim that the EPA had collaborated with the WEF (R.E. 2 p. 64).
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EPA employees to whom O'Dette sent the paper, forwarded it to
Carol Geiger, an attorney who was representing another sludge
fertilization company in a public hearing before the Board of
Commissioners for Dawson County, Georgia on banning biosolid
sludge fertilization; Lewis was testifying at the hearing in a
private capacity (R.E. 3 p. 3; R.E. 2 p. 30; CX 94). Along with
the paper, Walker also wrote a letter to Geiger on EPA
letterhead stating that the EPA had no evidence that land
application of sludge fertilizer in accordance with Rule 503 was
unsafe (R.E. 3 p. 3; R.E. 2 p. 30; CX 94). Walker did not let
his supervisory chain know that he was forwarding Synagro's
White Paper or sending the letter; he also did not provide this
information to Lewis even though he knew Lewis would be at the
hearing (R.E. 2 p. 30; Tr. 782, 806). At the public hearing,
Geiger presented the Board of Commissioners with copies of the
White Paper and the letter Walker sent her, read them aloud, and
stated that the EPA had provided them to her (R.E. 3 p. 3; R.E.
2 p. 31; Tr. 213-15). 13 Geiger again used the White Paper and
the letter at a similar hearing in Franklin County, Georgia in
October 2001.
13 Those present at the hearing included UGA faculty, staff fromSenator Zell Miller's office, State of Georgia representatives,and the general public (R.E. 2 p. 31). Lewis testified thatthese groups took Geiger's presentation of the White Paper andletter seriously, and that her representation led him to believethat the EPA endorsed Synagro's position (Tr. 208).
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On September 25, 2001, Lewis informed the OIG about
Walker's distribution of the White Paper (R.E. 2 p. 32; CX 96;
Tr. 218-19, 245-46). On October 12, 2001, Judy Vanderhoef
provided the information that the OIG had gathered during its
investigation to Alfred Lindsey, the Deputy Director of OWWM,
and left it to his discretion to determine whether disciplinary
action was appropriate (R.E. 2 p. 32; RX 172-73). On December
11, 2001, Lindsey concluded that disciplinary action was
appropriate because of Walker's "poor judgment" when he involved
O'Dette and the USDA microbiologist in the peer review of
Lewis's article and when he forwarded Synagro's White Paper to
outside parties (R.E. 2 p. 34; RX 174). The disciplinary
action, which took into account Walker's acknowledgment of his
poor judgment and his willingness to mitigate his actions,
included: counseling from Lindsey about his actions; requiring
Walker to receive supervisory-level clearance prior to any
future discussions about and references to Lewis; and requiring
that Walker contact Geiger and her co-counsel and clarify any
misunderstanding about EPA's position on the White Paper (R.E. 2
p. 34; RX 174-75; Tr. 784-86, 1201). 14 Lewis did not believe
14 Walker wrote to Geiger on December 11, 2001, asking her totake steps to clarify that the EPA did not approve of or endorsethe White Paper, and to explain this point to those individualsthat her firm had told otherwise (R.E. 2 p. 34). Geigerinformed Walker that the firm had not represented that the EPA
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these actions were sufficient, believing that he should have had
input into the discipline and remedial efforts (R.E. 2 p. 58-
59).
C. Decisions of the ALJ and the ARB
1. After thoroughly examining the facts of the case, the
ALJ assumed without deciding that Lewis engaged in protected
activities of which the EPA was aware (R. 2 p. 54). The ALJ
applied the "continuing violations doctrine" to Lewis's
complaints, see, e.g., Waltman v. Intern. Paper Co., 875 F.2d
468, 474 (5th Cir. 1989), and concluded that they were timely
(R. 2 p. 52-53). The ALJ then analyzed each of Lewis's claims
to determine whether they involved adverse employment actions
and, if so, whether they were taken in retaliation for his
protected activity. 15
provided them with the White Paper and would thus not take thesecond requested action (id. at p. 35).
15 Lewis alleged 11 adverse actions taken by the EPA: (1)requiring certain disclaimers or biographical information onjournal articles, an abstract, a fact sheet, and at oralpresentations; (2) requiring coordination with a program officeregarding a journal article that was adverse to policiesemanating from that program office; (3) undertaking a flawedpeer review process; (4) distributing to his critics a criticalnon-EPA paper and an internal peer review; (5) failing torespond, or inappropriately responding, to inquiries regardingLewis and the scope of his employment at the EPA and thedistribution of a fact sheet; (6) failing to allow him to workon homeland security issues; (7) failing to credit his Rule 503research; (8) failing to respond to allegations made in theWhite Paper; (9) collaborating with his critics to publiclycriticize him; (10) failing to provide him further funding for
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The ALJ determined that the EPA actions of which Lewis
complained were either not adverse or not actionable. With
respect to the peer review, the ALJ concluded that, although the
peer review process was flawed because of Walker's inclusion and
behavior, it did not result in any consequence to Lewis and
therefore did not constitute adverse action (R.E. 2 p. 57). The
ALJ found that Lancet's rejection had nothing to do with the EPA
peer review, and that Lewis eventually published his article in
a more specialized journal, just as Lancet suggested (id.).
Although Lewis alleged that the flawed peer review process and
resulting potential for the widespread dissemination of his
article led him to seek quick publication in a less prestigious
online journal, the ALJ found that the facts did not support
this claim: Lewis's fear that his article would be widely
disseminated was present prior to the peer review and he
voluntarily submitted the article to a number of other people
without requesting confidentiality (id.). Moreover, the ALJ
noted that a flawed peer review process did not necessarily mean
that the actual reviews were flawed (id.). Although the USDA
microbiologist's review should not have been included in the
peer review, there was no evidence that she had been prejudiced
his research in Egypt; and (11) flagging his work products (R. 2p. 55). Because Lewis's current appeal only involves Walker'srole, this brief will limit its discussion of the ALJ's decisionto numbers 3, 4, and 9.
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against Lewis, and she came to a similar conclusion regarding
the weaknesses of the article as did the other reviewers (id.;
RX 50, 51, 53, 54).
With respect to Lewis's argument that he suffered adverse
action from Walker's dissemination of the peer review and the
White Paper, the ALJ held that Lewis presented no evidence that
relevant people at the EPA knew of or should have known of
Walker's intent to disseminate either the peer review or the
paper (R.E. 2 p. 58-59). Once informed of Walker's actions, the
OIG promptly investigated and, in response to its findings,
Walker's supervisor took disciplinary and remedial action (id.).
Although Lewis argued that he should have had input into the
disciplinary and remedial actions, the ALJ found that Lewis
offered no evidence that the EPA's policy required, or should
have required, such consultation (id.).
Finally, the ALJ concluded that the evidence did not
support Lewis's allegation that the EPA collaborated with
outside entities to harm his reputation (R.E. 2 p. 63-64). With
respect to Synagro, the evidence demonstrated that the purpose
of the meeting between Walker, O'Dette, and Michael Cook
(Walker's supervisor) was to discuss the EPA's refusal to
provide Synagro with an expert witness in the Marshall case; it
was not to discuss Lewis's activities or his article (R.E. 2 p.
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64; Tr. 1164). 16 Furthermore, the ALJ found that there was no
evidence that, even if Walker had shared his peer review with
the WEF, it constituted collaboration between the EPA and the
WEF (R.E. 2 p. 64).
In sum, the ALJ concluded that although Walker "clearly
overstepped his bounds in matters affecting [Lewis]," he had no
authority over Lewis, his activities could not be imputed to the
EPA, and the EPA took prompt disciplinary action against Walker
(R.E. 2 p 66). Because the ALJ concluded that Lewis failed to
prove that the EPA retaliated against him due to activity
protected under the environmental whistleblower statutes, he
recommended that Lewis's complaints be dismissed (R.E. 2 p. 66).
2. After de novo review, the Board agreed with the ALJ's
recommendation and dismissed Lewis's complaint (R.E. 3 p. 7,
24). 17 The Board did not follow the ALJ's application of the
"continuing violations doctrine," however, ruling that the
doctrine had been rejected by the Supreme Court in Nat'l R.R.
16 The ALJ rejected Lewis's allegation that Walker provided hispeer review to Synagro to help the company overturn theprotective order placed on the article in the Marshall case(R.E. 2 p. 63; Tr. 185, 187-89). Although the ALJ indicatedthat he did not understand Lewis's argument on this issue, heconcluded that, even if Walker had collaborated with Synagro inthis regard, there was no evidence that the collaborationresulted in any adverse action (R.E. 2 p. 64).
17 Unlike the ALJ, which assumed that Lewis engaged in protectedactivity, the Board specifically concluded that Lewis had doneso and that the EPA knew about the activities (R.E. 3 p. 8).
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Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (" discrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges"); see
also Erickson v. U.S. Envtl. Prot. Agency, ARB Case Nos. 03-002
- 004, 03-064, 2006 WL 1516646, at *11 (DOL Adm.Rev.Bd.)
(applying Morgan to the environmental whistleblower statutes).
Therefore, because Lewis filed his October 2001 complaint more
than 30-days after he knew of Walker's participation in the peer
review of Adverse Interactions, the Board determined that his
claims related to the peer review were time-barred (R.E. 3 p.
11).
With respect to Walker's dissemination of the White Paper,
the Board concluded that, even if it were to assume Walker had
some supervisory authority over Lewis and the EPA had not acted
promptly to remedy the situation, the dissemination did not
constitute adverse action (R.E. 3 p. 13). In this regard, Lewis
provided no evidence that Walker's dissemination of the White
Paper adversely effected the terms, conditions, or privileges of
his EPA employment, and the Board concluded that it would not
have dissuaded a "reasonable worker" from engaging in protected
activity (id.). 18 The Board also characterized Lewis's complaint
18 Indeed, as the Board noted, the dissemination of the WhitePaper did not prevent Lewis from continuing to present his viewsabout sludge fertilization in research articles and publichearings (R.E. 3 p. 13).
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about the dissemination of the White Paper as a "blacklisting"
claim, but found that Lewis presented no evidence that Walker or
any EPA manager disseminated damaging information that prevented
him from finding employment (id. at 14).
3. On June 30, 2008, the Board granted Lewis's motion for
reconsideration on the question whether EPA had subjected Lewis
to a retaliatory hostile work environment (R.E. 5 p. 5). 19 The
Board assumed without deciding that the EPA actions of which
Lewis complained constituted harassment, and ruled that they
were actionable because at least one of the actions occurred
within the CAA's 30-day filing period (R.E. 5 p. 6). The Board
19 Lewis's other grounds for requesting reconsideration were theBoard (1) erred in deciding that sovereign immunity barredLewis's claims under the SDWA, 42 U.S.C. 300j-9(i)(1)(A), the
CERCLA, 42 U.S.C. 9610(a), the TSCA, 15 U.S.C. 2622(a), and theFWPPCA, 33 U.S.C. 1367(a); (2) misapplied the Supreme Court'sholdings in Morgan, 536 U.S. 101, and Burlington Northern &Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); and (3) ignoredits own precedent when considering his blacklisting claim (R.E.5 p. 2). The Board denied reconsideration as to thesearguments, ruling that they did not meet any provisions of itsfour-part reconsideration test:
(1) material differences in fact or law from thatpresented to [the Board] of which [he] could not haveknown through reasonable diligence; (2) new materialfacts that occurred after the [Board's] decision; (3)a change in law after the [Board's] decision; and (4)failure to consider material facts presented to the[Board] before its decision.
R.E. 5 p. 3. Lewis does not appeal the Board's decision to denyreconsideration on these grounds.
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concluded, however, that Lewis's hostile work environment claim
failed because he did not prove that any of the harassing
actions that he alleged, such as Walker's inclusion in the peer
review, were taken because of his protected acts (id.). 20 The
Board also found unavailing the specific links Lewis tried to
draw between his protected activity and the alleged harassment
(R.E. 5 p. 7). The Board agreed with the ALJ that there was no
evidence that Walker and the EPA collaborated to disseminate the
negative White Paper (id. p. 7). Furthermore, the Board
concluded that, even though there was a "strong inference" that
Walker's motives were retaliatory, the EPA was not liable for
his actions because he was not a supervisor and the EPA took
prompt disciplinary action when it learned of them (id.). 21
20 Because it was speculative and referred to only one incident,the Board found unpersuasive Lewis's argument that testimonyfrom Rosemarie Russo, his second-line supervisor, about asituation where Lewis had been advised that he should include adisclaimer on abstracts he presented at meetings andconferences, demonstrated that EPA's actions were done inretaliation for his protected activities (R.E. 5 p. 7). Russotestified that she "doubted" other EPA scientists were requiredto provide the same disclaimers (id.).
21 Prior to issuing its decision on reconsideration, the Boardissued a decision denying Lewis's motion to reopen the recordbefore it (R.E. 4 p. 2). Lewis sought to introduce evidencethat EPA managers and Walker influenced UGA officials to denyhim employment at UGA (id.). The Board rejected this evidenceon the grounds that it was neither new nor material, see 29C.F.R. 18.54(c). Lewis does not challenge this decision in hisbrief.
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SUMMARY OF THE ARGUMENT
To establish a hostile work environment claim based on
retaliation, an employee must show, inter alia, that his
employer was responsible for the hostile environment. See Breda
v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000).
When the alleged harasser is a co-worker, as opposed to a
supervisor, this burden of proof requires that the employee
demonstrate that his employer knew or should have known of the
harassment and, once it had either actual or constructive
notice, failed to take prompt remedial action. Id. Using this
standard, the Board correctly concluded that Lewis failed to
prove that the EPA was liable for the actions of his co-worker,
Walker.
Lewis's claim of EPA liability fails to meet the applicable
standard. No evidence in the record supports a conclusion that
the EPA knew of Walker's misconduct before Lewis complained to
the OIG, when it took remedial action. Walker never told any of
his supervisors what he was doing and there is no evidence that
the EPA was aware that Walker would act inappropriately prior to
that time. Furthermore, once it knew of the misbehavior, the
EPA took prompt remedial action by disciplining Walker, which
included requiring him to take corrective action. That Lewis
may have desired that the EPA take a stronger disciplinary or
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corrective action is, absent evidence that the EPA was not
following policy, irrelevant to the question of liability.
ARGUMENT
SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD'S DECISION TODISMISS LEWIS'S HOSTILE WORK ENVIRONMENT CLAIM BECAUSETHE EPA TOOK PROMPT REMEDIAL ACTION WHEN IT BECAMEAWARE OF THE ALLEGEDLY HARASSING ACTIONS OF LEWIS'SCO-WORKER.
A. Standard of Review
This Court reviews ARB decisions under the environmental
whistleblower protection statutes in accordance with the
standard of review established by the Administrative Procedure
Act, 5 U.S.C. 701-706. See, e.g., 42 U.S.C. 7622(c). Under that
standard, this Court should affirm the ARB's decisions unless
they are "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law," 5 U.S.C. 706(2)(A), or
they are not "[]supported by substantial evidence," 5 U.S.C.
706(2)(E). See Fields v. United States Dept. of Labor, 173 F.3d
811, 813-14 (11th Cir. 1999). The court reviews the Board's
conclusions of law de novo, giving due deference to its
reasonable interpretation of the statute enforced by the agency.
See United States v. Mead Corp., 533 U.S. 218, 226-28 (2001);
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 834 (1984).
Under the deferential "substantial evidence" standard, the
reviewing court may not reweigh the evidence or substitute its
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judgment for that of the agency adjudicator. See Fields, 173
F.3d at 813-14 (citing Cornelius v. Sullivan, 936 F.2d 1143,
1145 (11th Cir. 1991)). "[S]ubstantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion." Fluor Daniel
v. Occupational Safety & Health Review Comm'n, 295 F.3d 1232,
1236 (11th Cir. 2002) (internal quotation marks omitted); see
also J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350, 1352 (11th
Cir. 2000); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997).
In the present case, the "substantial evidence" standard of
review applies to the question whether the Board correctly
concluded that the EPA is not liable for the harassing actions
of Lewis's co-worker because it took prompt disciplinary action
against the co-worker upon learning of the harassment.
B. Applicable Burdens of Proof
Generally, to prove retaliation under the environmental
whistleblower protection statutes, an employee must establish by
a preponderance of the evidence that he engaged in protected
activity, that he suffered an adverse action, and that there was
a causal connection between the protected activity and the
adverse action. See Sass v. U.S. Dept. of Labor, 409 F.3d 773,
779 (6th Cir. 2005) (under CAA, SWDA, and FWPCA); Gregory v. Ga.
Dept. of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (under
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Title VII). The employee bears the ultimate burden of proving
retaliation. See Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506-07 (1993); EEOC v. Joe's Stone Crabs, Inc., 296 F.3d
1265, 1272-73 (11th Cir. 2002).
To establish his retaliatory hostile work environment
claim, Lewis must prove that (1) he engaged in protected
activity; (2) he suffered intentional harassment causally
related to that activity; (3) the harassment was sufficiently
severe or pervasive so as to alter the conditions of employment
and create an abusive working environment; (4) the harassment
would have detrimentally affected a reasonable person and did
detrimentally affect him; and (5) the EPA was responsible for
the hostile environment under a theory of either direct or
vicarious liability. See Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1275 (11th Cir. 2002). As this Court has stated
with regard to the fifth element, which is at issue here, to
prove a hostile work environment claim, the employee "must show
. . . a basis for holding the employer liable." See Mendoza v.
Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.) (en banc), cert.
denied, 529 U.S. 1068 (2000).
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C. There Is No Basis For Holding The EPA Liable for Walker'sActivities
Lewis raises only one issue on appeal -- that the Board
erred in concluding that the EPA was not liable for Walker's
allegedly harassing actions. 22 Lewis's arguments in this regard
lack merit.
Lewis argues that the vicarious liability standard
established by the Supreme Court in Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca
Raton, 524 U.S. 775 (1998) should apply to this case (Pet. Br.
38, 46, 50). "Ellerth and Faragher hold '[a]n employer . . .
subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with
. . . authority over the employee." Crawford v. Metropolitan
Gov't of Nashville and Davidson Co., Tennessee, --- S.Ct. ---,
2009 WL 160424, at *5 (U.S. 2009) (citation omitted). In such a
situation where no tangible employment action occurred, an
affirmative defense is available. It "comprises two necessary
elements: (a) that the employer exercised reasonable care to
22 Lewis incorrectly states that the Board dismissed his hostilework environment claim on the "sole basis" of its ruling thatthe EPA is not liable for Walker's actions (Pet. Br. 30). Infact, the Board evaluated all of Lewis's allegations ofharassment and dismissed them on the basis that Lewis did notprovide any evidence that the alleged harassment was causallyrelated to his protected activity (R.E. 5 p. 7). In this brief,however, it suffices for us to rely on the ground that the EPAis not liable for Walker's allegedly retaliatory actions.
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prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided
by the employer or to avoid harm otherwise." Ellerth, 524 U.S.
at 765. The Supreme Court has declined to extend the
Faragher/Ellerth standard for liability to cases involving co-
worker harassment. See Penn. State Police v. Suders, 542 U.S.
129, 143 n.6 (2004) ("Ellerth and Faragher expressed no view on
the employer liability standard for co-worker harassment. Nor
do we.").
This Court has held that to prove that an employer is
liable for the harassing conduct of a co-worker, an employee
must show that the employer knew or should have known of the
conduct in question and failed to take remedial action. See
Miller, 277 F.3d at 1278 ("Where the perpetrator of the
harassment is merely a co-employee of the victim, the employer
will be held directly liable if it knew or should have known of
the harassing conduct but failed to take prompt remedial
action."). In other words, "a victim of coworker harassment
must show either actual knowledge on the part of the employer or
conduct sufficiently severe and pervasive as to constitute
constructive knowledge to the employer." Id.; see also Breda,
222 F.3d at 889; Williams v. Mason & Hanger Corp., ARB No. 98-
030, 2002 WL 31662916, at *43-44 (DOL Adm.Rev.Bd. Nov. 13, 2002)
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(applying "knew or should have known" standard to co-worker
harassment in whistleblower case arising under the Energy
Reorganization Act of 1974).
Because it is uncontroverted that Walker had no supervisory
authority over Lewis, the "knew or should have known" standard
applies. See Miller, 277 F.3d at 1278. Lewis, however,
presented no evidence that the EPA knew or should have known
about Walker's allegedly harassing actions prior to Lewis's
complaints to the OIG -- when it took remedial action (R.E. 2
pp. 25, 32). The ALJ found that uncontroverted testimony
established that Walker never informed his supervisors that he
was involving outside sources with the peer review of Lewis's
article or that he was disseminating Synagro's White Paper (R.E.
2 p. 22, 25, 30; CX 197; RX 52; Tr. 759-60, 771-73, 782, 806,
809, 1171-82). Other than one meeting where Michael Cook was
present, there is no evidence that any of Walker's supervisors
knew of Walker's contemporaneous dealings with O'Dette, and the
ALJ found it uncontroverted that the subject of that particular
meeting was the EPA's decision not to provide Synagro with an
expert witness for the Marshall case (R.E. 2 p. 64; Tr. 1164).
Therefore, there is no record evidence proving that the EPA had
actual knowledge of Walker's actions at that time.
The record also does not support a conclusion that the EPA
had constructive knowledge (i.e., it "should have known") of
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Walker's behavior prior to his complaints to the OIG.
Constructive knowledge exists "where the harassment was so
severe and pervasive that management should have known of it."
Miller, 277 F.3d at 1278. 23 Nothing in the record suggests that
Walker's actions, specifically, forwarding Lewis's article to
the USDA microbiologist, discussing his peer review with
O'Dette, and disseminating the White Paper, reached this
threshold. First, the actions took place over a short period --
from May 2001 to September 2001 (R.E. 3 p. 5; R.E. 2 p. 32).
Second, Lewis presents no evidence that anyone, let alone
someone with supervisory authority, had any idea of what Walker
was doing. The closest Lewis comes to providing evidence that a
supervisor may have had an idea of Walker's actions is the
meeting that was attended by Walker, his supervisor Michael
Cook, and O'Dette at which the topic of Lewis's article came up.
However, even if this meeting notified Cook that Walker was
discussing the peer review of Lewis's article with an outside
source, such notification would be insufficient to prove that
the EPA had constructive knowledge of Walker's allegedly hostile
23 The existence of a valid, effective, and well-disseminatedpolicy against retaliation precludes a finding of "constructiveknowledge." Farley v. American Cast Iron Pipe Co., 115 F.3d1548, 1553 (11th Cir. 1997). As there is no record evidencethat the EPA had such a policy when Walker served on the peerreview panel or disseminated the White Paper, the "pervasive"standard applies.
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actions. See Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1365
(11th Cir. 1999) (single incident where employee showed
supervisor a sexually suggestive note she received from a co-
worker not enough to inform supervisor of "the dimensions of the
problem or even that there was a problem that required his
attention" and, as such, did not constitute notice).
In arguing that the EPA should be liable for Walker's
actions, Lewis points to a 1999 OIG memorandum about the EPA's
agreement to issue guidance to staff on the environmental
whistleblower laws and congressional testimony from 2000 about
the EPA's treatment of whistleblowers as evidence that EPA
failed to take "reasonable care to prevent" retaliation (Pet.
Br. 51). "Reasonable care to prevent retaliation" is part of
the Faragher/Ellerth affirmative defense to employer liability
for a supervisor's harassment that, as discussed above, does not
apply in this co-worker harassment case. Assuming that Lewis
intends to argue that the EPA's attitude towards whistleblowing
as evidenced by the OIG memorandum and congressional testimony
put the agency on constructive notice that Lewis was being
subjected to harassment by Walker, this evidence does not
establish "constructive notice." At most, it shows that prior
to the congressional testimony, the EPA did not have a formal
anti-discrimination policy that included retaliation against
whistleblowers and that this was both an internal and
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congressional concern. It does not demonstrate, as Lewis
suggests, a culture of retaliation or tolerating retaliation
against those who engage in outside activities. In fact,
Lewis's own experience belies such a culture: as found by the
ALJ, "[t]he record is replete with evidence that EPA allowed
[Lewis] to participate in cases to which EPA was not a party as
an expert witness, to make oral presentations and to publish
scientific and technical papers, all without censorship despite
his blatant disagreement with EPA policy" (R.E. 2 p. 65).
Indeed, the OIG's immediate investigation into Lewis's complaint
and the resulting prompt disciplinary action taken by Walker's
supervisors contradict any suggestion that the EPA did not take
retaliation for whistleblowing seriously. 24
Finally, substantial evidence supports the Board's
conclusion that the EPA took prompt remedial action once it
learned of Walker's actions, which as the Board recognized, is
dispositive of the issue of employer liability. The standard
24 To the extent Lewis suggests that Walker's presence on thepeer review panel itself constitutes part of his hostile workenvironment claim against the EPA (Pet. Br. 40), the argument isunavailing. As implicitly found by the Board, Lewis presentedno evidence that Walker's presence on the peer review panel,albeit in violation of the EPA's peer review procedure rules(see n.8 , supra), was causally related to his protected activity(R.E. 5 p. 6-7). Rather, substantial evidence supports theALJ's finding that Smith, a non-supervisory employee, askedWalker to be on the peer review because he felt obligated to doso after Walker overheard another reviewer suggest that Smithask him (R.E. 2 p. 19; Tr. 1234-35).
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for an employer's liability for the actions of a co-worker
requires both actual or constructive knowledge and the
employer's failure to take prompt remedial action. See Breda,
222 F.3d at 889 (requiring that the employer have knowledge "and
failed to take remedial action"); see also Miller, 277 F.3d at
1278 ("[T]he employer will be held directly liable if it knew or
should have known of the harassing conduct but failed to take
prompt remedial action."). The OIG began to investigate Lewis's
complaints about Walker as soon as he reported them (R.E. 2 p.
25). Furthermore, the EPA promptly disciplined Walker because
of the investigation (id. at 58; R.E. 5 p. 7). Lewis is
essentially arguing not that the EPA failed to take remedial
action, but that it failed to take the remedial action that he
would have preferred. However, Lewis points to no law,
regulation, or internal policy that requires the EPA to obtain
his input into Walker's discipline or that mandates a certain
corrective action. Therefore, substantial evidence supports the
Board's conclusion that the EPA is not liable for Walker's
alleged harassment.
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CONCLUSION
For the foregoing reasons, the Secretary requests that this
Court affirm the Board's Order Granting Reconsideration and
denying Lewis's hostile work environment claim and dismissing
his whistleblower complaint.
Respectfully submitted,
CAROL DE DEODeputy Solicitor for
National Operations
STEVEN J. MANDELAssociate Solicitor
ELLEN R. EDMONDCounsel for Whistleblower
Programs
/s/ Jennifer R. Marion JENNIFER R. MARIONAttorneyU.S. Department of Labor
Office of the SolicitorFair Labor Standards DivisionSuite N-2716200 Constitution Ave., N.W.Washington, D.C. 20210(202) 693-5555
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CERTIFICATE OF COMPLIANCE
I certify that pursuant to Fed. R. App. P. 32(a)(7)(c), the
foregoing brief was prepared using monospaced typeface Courier
New 12-point font and contains 8,258 words.
Dated: 02/06/09 /s/ Jennifer R. MarionJennifer R. Marion
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CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of February 2009,
copies of the Secretary of Labor's Brief in this case were
served via first-class mail on:
Stephen M. KohnRichard R. RennerKohn, Kohn, & Colapinto, LLP3233 P St. NWWashington, D.C. 20007
/s/ Jennifer R. Marion Jennifer R. Marion