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Case No. 08-12114-HH _______________
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DAVID L. LEWIS,
Petitioner,
v.
U.S. DEPARTMENT OF LABOR,
Respondent.
_______________
On Petition for Review from the U.S. Department of Labor Administrative Review Board, Case No. 04-117
_______________
REPLY BRIEF OF PETITIONER DAVID L. LEWIS
_______________
Stephen M. Kohn, sk@kkc.com Richard R. Renner, rr@kkc.com Attorneys for Petitioner Kohn, Kohn, & Colapinto, LLP. 3233 P St. NW Washington D.C. 20007 (202) 342-6980 (202) 342-6984 fax
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TABLE OF CONTENTS
TABLE OF CITATIONS............................................................................ iii
JURISDICTIONAL STATEMENT ........................................................... 1
STATEMENT OF THE ISSUES ................................................................ 1
STATEMENT OF THE CASE ................................................................... 3
I. The Course of the Proceedings and Dispositions in the Agency Below ……………………………………………………………………..3
II. Statement of the Facts................................................................... 4 A. Background to the Petitioner David Lewis ..................................... 4 B. Dr. Lewis Engaged in Protected Activity ....................................... 4 C. EPA Policy: Promote the Use of Sewage Sludge as a Fertilizer..... 5 D. Dr. Walker’s Job at EPA was to Implement the EPA Policy of
Promoting the Use of Sewage Sludge as a Fertilizer ...................... 6 E. Dr. Walker’s Actions Against Dr. Lewis were Consistent with
EPA Policy and Walker’s Job Duties.............................................. 6 F. The Department of Labor Concluded that there was a “Strong
Inference” that Dr. Walker Retaliated Against Dr. Lewis ............ 12 H. The Department of Labor Concluded that EPA Was not Liable for
Dr. Walker’s Conduct ................................................................... 14
III. STANDARD OF REVIEW FOR EACH CONTENTION ...... 15
ARGUMENT AND CITATIONS TO AUTHORITY............................. 17
THE ARB COMMITTED ERROR IN FAILING TO HOLD EPA LIABLE FOR THE ACTIONS OF DR. WALKER
I. THE ARB ERRED IN FAILING TO FIND EPA LIABLE FOR JOHN WALKER’S ACTIONS WHICH WERE PERFORMED IN FURTHANCE OF HIS JOB DUTIES AND EPA POLICY .......... 17
II. THE ARB ERRED IN CONCLUDING THAT EPA WAS NOT LIABLE FOR WALKER’S HARASSMENT BASED ON ITS CLAIM OF CORRECTIVE ACTION. ................................................. 27
A. First Element, First Part: Reasonable Care to Prevent ................. 29 B. First Element, Second Part: Reasonable Care to Correct............. 30
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C. Second Element: Employee Unreasonably Failed to Take Advantage of Any Preventative or Corrective Opportunities ....... 30
CONCLUSION ........................................................................................... 30
CERTIFICATE OF COMPLIANCE ....................................................... 32
CERTIFICATE OF SERVICE ................................................................. 33
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TABLE OF CITATIONS
Regulation 40 C.F.R. Part 503 ............................................................................................ 5 Cases Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (6th Cir. 1972).......................................................................................................... 22 Bouton v. BMW of North Am., Inc., 29 F.3d 103, 107 (3rd Cir. 1994)............. 20 Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000).............. 18-19 Burlington Industries v. Ellerth, 524 U.S. 742, 756, 757, 765, 118 S.Ct. 2257, 2266 (1998)............................................................................................. 14, 17-18 27-29 Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct. 2405, 2414 (2006)............................................................................ 11-12, 26 Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir.1999) ....................... 19 Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 ...................... 24, 30 Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th Cir. 1997) ....................... 20 Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (1968)................... 24 Jansen v. Packaging Corp. of America, 123 F.3d 490 (7th Cir. 1997) (en banc) aff’d as Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998)................................................................................................................ 20 Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1453 (11th Cir. 1989) ......................... 16 Majors v. Asea Brown Boveri, Inc., 1996-ERA-33, at 1, fn 1 (ARB Aug. 1, 1997)................................................................................................................. 4 Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351-52 (4th Cir. 1995) ........ 20-21 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986) ... 22 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) .... 25 Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972 (2003)................................................................................................................ 13 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998 (1998)......................................................................................................... 27n
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Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992)....................................... 16 S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990), amended, 924 F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62 (1991)................................................................................................................ 16 Other Authorities Lindemann & P. Grossman, Employment Discrimination Law 812 (3d ed.1996) ............................................................................................................ 20 Restatement (Second) of Agency §219(2)(d) (1957) ....................................... 25 Restatement (Second) of Agency §247, Illustration 1 (1957) .......................... 25
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JURISDICTIONAL STATEMENT
The parties agree that this Court has appellate jurisdiction.
STATEMENT OF THE ISSUES
The Department’s Brief, p. 3, misstates the issues. First, this case
does not address whether Dr. Walker’s actions constitute an actionable
hostile work environment. The ARB’s Order Granting Reconsideration,
R.E. 5, p. 5, recognized that Dr. Lewis’ hostile work environment claim
consisted of EPA’s actions when it:
condoned a negative peer review of one of his critical articles, disseminated a report that attacked his theories, impugned his international scientific reputation, prevented his future employment with the University of Georgia (UGA), failed to fund his research or credit his work, and collaborated with industry and EPA proponents of sewage sludge to avoid further investigation.
The ARB stated that it would “assume, without finding, that all of these
complained of actions and conditions constitute harassment.” Id. at 6. It
continued to, “find that Lewis’ hostile work environment claim is actionable
. . ..” Id. Whether the “allegedly harassing actions” are or are not
actionable, therefore, is not an issue in this review. They are actionable for
our purposes here.
Second, the Statement of the Issue in the Department’s Brief omits the
issue of EPA’s direct liability for the actions its chief spokesperson on
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sludge issues, Dr. John Walker, took in furtherance of his assigned duties.
This issue of employer liability is reviewed de novo. See Petitioner’s Brief,
pp. 28-29, and cases cited therein. The Department’s Brief, p. 14, focuses
on whether Dr. Walker informed his superiors about his actions against Dr.
Lewis. However, the Department’s Brief never addresses whether the EPA
authorized Dr. Walker to speak on its behalf about sludge issues, without
specific authorization for each statement he made. Dr. Walker’s position
description, CX 150, and the testimony of Dr. Ellen Harrison (R. 36, CX
140, T. 15) make clear that Dr. Walker did have authority to speak for the
Agency. Thus, the issue here becomes an issue of law. Is the employer
liable for what Dr. Walker said in pursuing his official job duties? See also,
R.E. 2, p. 8.
Third, the Department’s Brief states, but does not support, its claim
that Dr. Walker was a “non-supervisory co-worker.” Dr. Lewis contests this
claim with record evidence that Dr. Walker was a management level
spokesperson for the agency, with the authorization needed to inflict the
damage at issue. That is the status of a supervisor.
Finally, the parties contest whether EPA took reasonable action to
prevent unlawful retaliatory harassment after the bipartisan Congressional
hearings identified the problem, specifically arising from the Agency’s
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activities in promoting sludge. Those hearings elicited a promise from the
Agency that they would adopt a policy against whistleblower harassment,
and then the Agency decided to renege on that promise.
There is no dispute on the following ARB findings:
• That Lewis engaged in protected activity;1
• That the EPA knew of this protected activity;2
• That the record supports a “strong inference that Walker was
retaliating against Lewis due to Lewis’ position on sludge
fertilization [i.e. his protected activities] . . ..”3
STATEMENT OF THE CASE
I. The Course of the Proceedings and Dispositions in the Agency Below
The Department’s brief mentions the contents of the OSHA
determination. Respondent’s Brief, 3. Dr. Lewis urges this Court to omit
reference to the contents of the OSHA determination as they are not
germane to this appeal, and they have no weight once the case reaches the
adjudicatory offices of the Department. The parties agree that subsequent
consideration of Dr. Lewis’ case is de novo. See Petitioner’s Brief, pp. 1, 5;
Respondent’s Brief, 19. The OSHA determination is made on an 1 R.E. Tab 3, Final D&O of ARB, pp. 7-8. 2 R.E. Tab 3, Final D&O of ARB, p. 8. 3 R.E. Tab 5, ARB Order Granting Reconsideration, p. 7.
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investigation without any due process rights. The Department’s precedent
calls for according the OSHA determination “no weight.” Majors v. Asea
Brown Boveri, Inc., 1996-ERA-33, at 1, fn 1 (ARB Aug. 1, 1997).4
Referencing the contents of the OSHA determination could be misconstrued
as giving that determination weight.
II. Statement of the Facts
A. Background to the Petitioner David Lewis
Respondent’s Brief does not contest that Dr. Lewis is a top level
scientist, with a remarkable record of achievement, whose job requirements
and career development require that he maintain his stellar international
reputation.
B. Dr. Lewis Engaged in Protected Activity
Respondent’s Brief does not contest that Dr. Lewis engaged in
protected activity. At the top of page 11 (with a similar argument on p. 17 in
reference to RD&O), the Department states, “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).” The Department suggests
that Dr. Lewis had no care about confidentiality. The ARB’s Final Decision,
4 Available at: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/ERA/97_017.ERAP.PDF
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R.E. 3, p. 9, found that Dr. Lewis noted that his submission to Dr. Smith was
confidential.5 Dr. Smith brought in Dr. Walker. Id. at 10. Dr. Lewis chose
to whom he would give his article. Dr. Walker did not receive the article
from Dr. Lewis, and the only breach of confidentiality was made by Dr.
Walker.
C. EPA Policy: Promote the Use of Sewage Sludge as a
Fertilizer
At p. 6, the Department’s brief suggests in the following description
that following Rule 503 means that the sludge application is safe:
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.
The whole point of Dr. Lewis’ research and scholarly article was that this
claim is not founded on good science, and current research points to serious
public health dangers from land application of biosolids. R.E. 3, p. 8. It is
not clear if Respondent’s Brief intends to say that land application pursuant
to the rule is safe. If so, then the government’s thinking goes a long distance
5 As the Agency decided to conduct the formal peer review only after Dr. Lewis submitted the article to Dr. Smith, there was no way Dr. Lewis could have known at the time that there would be an EPA peer review. See R.E. 3, D&O of ARB, p. 9.
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toward explaining its continuing motive for wanting to suppress Dr. Lewis’
research and discredit his reputation.
D. Dr. Walker’s Job at EPA was to Implement the EPA Policy of
Promoting the Use of Sewage Sludge as a Fertilizer
Respondent’s Brief does not contest this point. It does not even
mention Dr. Walker’s position description, CX 150.
E. Dr. Walker’s Actions Against Dr. Lewis were Consistent with
EPA Policy and Walker’s Job Duties
On page 13, fn 12, the Department’s brief states, “The OIG, however,
found no evidence to support Lewis’s claim that the EPA had collaborated
with the WEF (R.E. 2 p. 64).” This report does not address Dr. Walker’s
leak of the Synagro White Paper or the other components of the hostile work
environment found by the ARB at R.E.5, p. 5.
On page 14, the Department’s Brief states, “Walker did not let his
supervisory chain know that he was forwarding Synagro’s White Paper or
sending the letter . . ..” Dr. Walker was still acting within the scope of his
employment. The Department’s Brief does not cite any record evidence that
EPA required Dr. Walker to inform his superiors about what he would say.
His official job description, CX 150, p. 4, ¶ 6, permitted him to decide for
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himself what to say, and then to say it without further disclosure to or
authorization from his superiors as follows:
provide[] interpretations of regulations, guidelines and other documents prepared and published by the Branch to other . . . non-EPA agencies, organizations, and individuals interested in municipal waste water treatment facilities. Reviews and comments on work of other EPA organizational elements and non-EPA agencies, organizations and individuals which are related to assigned program area. Works in an advisory, consulting, and coordinating capacity to other EPA organizational elements and non-EPA agencies, organizations and individuals. Works with the Office of Research and Development to develop and implement research and development programs which will satisfy identified needs. . . . Prepares responses to correspondence for Congress and the general public relating to program activities.
This description directly authorizes Dr. Walker to speak on behalf of EPA in
matters related to land application of sludge. It directs him to coordinate
with non-EPA organizations. Dr. Walker was carrying forward his
assignment of promoting land application of sewage sludge and coordinating
with outside organizations to advance the Agency’s objectives. The EPA
knew that Dr. Walker was using his own judgment on how to promote land
application, and squash those who question its safety. Dr. Walker’s biosolid
advocacy was his main job duty. His actions against Dr. Lewis were not part
of any private hobby. The Agency knew that it had given Dr. Walker a blank
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check to say what he wanted within the scope of promoting land application
of sludge. He was the Agency’s lead spokesperson in this arena. R.E. 2, p.
8; R. 36, CX 140, Tr. 15 (testimony of Ellen Harrison). It is appropriate to
hold the employer liable for the actions of the employee undertaking within
the scope of employment. See Petitioner’s Brief, pp. 38-39, 46-47.
If the Department prevails in this argument, then the EPA could
authorize a spokesperson to speak on its behalf, and then disclaim liability
for what was said merely because EPA did not require any pre-approval of
the contents of what that person says. EPA could speak without anyone
being liable for what was said.
On page 18, the Department’s Brief states, “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 . .
..” The purpose of the meeting is not what determines EPA’s liability. Hiring
Dr. Walker and assigning him the task of speaking and coordinating
advocacy on behalf of the Agency is sufficient for that purpose. What
actually happened at the meeting, however, can still be helpful to determine
EPA’s liability. As confessed by the Department, the participants did
discuss Dr. Lewis’ article. That shows knowledge and participation. EPA
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knew Dr. Walker, knew he had Dr. Lewis’ article, and knew that his job
duties included speaking on behalf of the Agency on these subjects.
On page 19, the Department’s Brief states,
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).
As Dr. Walker was acting in furtherance of his job duties, and not for any
personal purpose exceeding the scope of his employment, EPA’s subsequent
discipline does not relieve it of liability. Distribution of the Synagro White
Paper was no “frolic and detour” for which employers have no vicarious
liability. In the context of scientific research and publication, the analysis of
adverse actions must be adjusted from that of a typical workplace.6
Similarly, the EPA is a large and complex organization where actors in
different offices can impact each other’s work and careers irrespective of the
traditional chains of command and supervision. Thus, Dr. Walker could
have authority to speak on behalf of the Agency with respect to Dr. Lewis’
6 The ALJ’s RD&O, R.E. 2, did not address Dr. Lewis’ hostile work environment claim, but addressed the adverse actions separately. The ARB corrected this legal error in its reconsideration decision, R.E. 5. The ARB reviewed the hostile actions as a whole, and then assumed, without finding, that they constitute harassment. The ARB went on to find that this harassment was actionable. R.E. 5, p. 6.
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article and research even from the distance of his Washington office. All
EPA offices work under its Administrator, and they are expected to
coordinate on science that affects another office. R.E. 2, p. 5. Dr. Walker’s
statements about whether Dr. Lewis’ article passed peer review had more
impact due to Dr. Walker’s position as a spokesperson on behalf of the
Agency in this subject matter area. As Dr. Walker was acting within the
scope of his duties and authority, the Agency is liable for his actions
irrespective of any subsequent discipline.
On page 20, the Department’s Brief states:
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 [citation and footnote omitted].
Here the Department’s Brief diverges from the issue on review here. The
analysis of whether an individual action is materially adverse does not apply
to the determination of whether the employer is liable for a hostile work
environment. While Dr. Lewis did provide evidence that the dissemination
damaged his reputation, and that reputation is the name of the game for
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career advancement in the upper levels of science, 7 for purposes of this
appeal, Dr. Lewis is accepting the ARB’s assumption that Dr. Lewis
established a hostile working environment made up of actions that do not
constitute discrete adverse employment actions. The Department cannot
argue this case both ways. The ARB listed the litany of adverse actions that
make up Dr. Lewis’ claim of harassment. R.E. 5, p. 5; see p. 1 above. The
ARB held this was actionable. It is inappropriate for the Department to now
disaggregate these items and argue that one of them is not materially adverse
as a discrete adverse employment action, after the ARB determined that the
harassment as a whole was actionable as a hostile work environment.
In footnote18, the Department’s Brief states, “Indeed, as the Board
noted, the dissemination of the White Paper did not prevent Lewis from
continuing to present his views about sludge fertilization in research articles
and public hearings . . ..” In the determination of what constitutes a discrete
adverse employment action, the effect on the plaintiff is immaterial. The
issue for adverse employment actions, according to the Burlington decision,
is whether it would dissuade others from protected activity. Burlington 7 See Petitioner’s Brief, p. 6 at fn 7; Tr. 40 (Lewis); R. 34, CX 1, Tr. 8-12 (Russo). A scientist’s reputation is a “critical factor” for job advancement at the EPA and for obtaining post-EPA employment. This fact was acknowledged by all of the relevant witnesses, including the former Assistant Administrator for the Office of Research and Development. R. 36, CX 43, Tr. 182-83 (Noonan), Tr. 107, Tr. 161 (Lewis); R. 34. CX 24.
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Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct.
2405, 2414 (2006). One could be concerned that top scientists would see
another’s name and reputation smeared, and then choose to investigate the
common cold instead of sewage sludge. The issue here, as framed by the
ARB’s reconsideration decision, is whether EPA is liable for Dr. Walker’s
harassment of Dr. Lewis.
F. The Department of Labor Concluded that there was a “Strong
Inference” that Dr. Walker Retaliated Against Dr. Lewis
At page 22, the Department’s Brief tacitly concedes that the ARB
found a “strong inference that Walker was retaliating against Lewis due to
Lewis’ position on sludge fertilization.” R.E. Tab 5, ARB Order Granting
reconsideration, 7. The Department’s Brief reiterates the ARB’s legal
conclusion that EPA is not liable for Dr. Walker’s actions.
G. The EPA Failed to Implement the Recommendations of the
EPA Inspector General that a Policy be Published and Managers obtain
Training in the Environmental Whistleblower Laws
The Department’s Brief addresses the OIG recommendation and the
Congressional hearings on pages 31-32. “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
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an internal and congressional concern.” The OIG finding in 1999, and the
bipartisan Congressional hearings in 2000, show that the EPA was on notice
that its sludge program was causing harassment of whistleblowers. The OIG
reported that the Agency had decided to issue a written policy and conduct
training against this harassment. CX 60, p. 95-96. At the first Congressional
hearing, the EPA’s Assistant Administrator confirmed the Agency’s plans to
issue such a policy. CX 59, p. 249. This was a plea for action, in the most
public of fora. At the second hearing, EPA’s representative announced that
the Agency decided not to proceed with these plans. CX 60, pp. 88, 90.
Indeed, Dr. Walker testified that he received no such training. Tr. 1112.
In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 123
S.Ct. 1972 (2003), the Supreme Court considered the effect of an employer’s
failure to establish effective policies. The Court was considering whether
the FMLA was passed based upon a record of discrimination against women
by the states. Justice Rehnquist took the opportunity to remark on the
manner in which such discrimination can fester. For instance, he observed
that when “the authority to grant leave and to arrange the length of that leave
rests with individual supervisors,” it leaves “employees open to
discretionary and possibly unequal treatment.” Id. at 732, quoting H.R. Rep.
No. 103-8, pt. 2, pp. 10-11 (1993). He also noted that “a lack of uniform . . .
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policies in the work place has created an environment where [sex]
discrimination is rampant.” Id, quoting testimony of Peggy Montes in 1987
Senate Labor Hearing, pt. 2, at 170.
The Supreme Court made clear that the policy driving its
determination of employer liability is “designed to encourage the creation of
antiharassment policies . . ..” Burlington Industries v. Ellerth, 524 U.S. 742,
763, 118 S.Ct. 2257, 2270 (1998). The EPA was on notice of its need for
such a policy by both its own OIG report, and the bipartisan Congressional
hearing. EPA, as an institution, gave Dr. Walker the authority to speak on
sludge matters. After initially agreeing to issue a policy to address it, EPA
chose to do nothing. Had EPA taken timely responsible action in response
to this bipartisan inquiry and implemented checks and balances on Dr.
Walker’s actions, it could well have prevented the damage to Dr. Lewis’
career and reputation. Dr. Walker’s position description remained
unchanged. Agency employees received no direction from the Agency about
limits on harassing whistleblowers. Dr. Walker received no training, and no
limitation on his public statements. EPA could have put the reins on Dr.
Walker at any time; it had notice of the call for action, and the action to take.
This case is well within those in which the Ellerth decision calls for
employer liability.
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H. The Department of Labor Concluded that EPA Was not Liable
for Dr. Walker’s Conduct
The Department’s Brief, p. 14, hones this issue to one of whether Dr.
Walker had any duty to inform his superiors of the statements he planned to
make, and the actions he planned to commit, before he said and did them.
It’s brief offers no citation to any such obligation. Dr. Walker’s written job
description contains no such requirement. To the contrary, it shows that he
had authority to speak for the Agency. Ms. Harrison’s testimony confirmed
that he used such authority in the field to become the Agency’s lead
spokesperson on sludge issues.
III. STANDARD OF REVIEW FOR EACH CONTENTION
On page 25, the Department’s Brief states:
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.
The standard of review for factual findings does not matter when the
material facts are not in dispute. There is no dispute that EPA gave Dr.
Walker official discipline, such as it was. The issue here is whether EPA’s
actions of giving Dr. Walker the mission of promoting land application,
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commenting on the work of other Agency staff, and coordinating with
outside organizations, make it liable for what Walker does with that mission.
That is an issue of law for which de novo review is the standard.
In this circuit, issues concerning the scope of employment are decided
de novo by this Court. Determination of whether an employee’s actions are
within the scope of employment involves a question of law as well as fact.
S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990),
amended, 924 F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62
(1991) (a case the Department’s brief does not address). This Court will
review de novo a determination regarding the scope of employment. Nadler
v. Mann, 951 F.2d 301, 305 (11th Cir. 1992), citing Int’l Ins. Co. v. Johns,
874 F.2d 1447, 1453 (11th Cir. 1989) (other cases the Department’s Brief
omitted).
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ARGUMENT AND CITATIONS TO AUTHORITY THE ARB COMMITTED ERROR IN FAILING TO HOLD EPA LIABLE FOR THE ACTIONS OF DR. WALKER
I. THE ARB ERRED IN FAILING TO FIND EPA LIABLE
FOR JOHN WALKER’S ACTIONS WHICH WERE PERFORMED IN FURTHANCE OF HIS JOB DUTIES AND EPA POLICY
The core error of the Department’s Brief is that it ignores the
established law on an employer’s direct liability for the actions of its
employees, when those actions “however misguided” are performed “wholly
or in part to further the master’s business.” Burlington Industries v. Ellerth,
524 U.S. 742, 756, 118 S.Ct. 2257, 2266 (1998) (internal quotations
omitted). This citation to Ellerth is the first legal authority quoted in
Petitioner’s legal argument (at p. 38) and the Department’s Brief just ignores
it. The Defendant’s Brief is focused on the affirmative defense available for
indirect vicarious liability. It fails to appreciate how the legal analysis
changes when the acts of harassment are committed in furtherance of the
employer’s work assignments, as opposed to a “frolic and detour” away
from the employer’s business.
The Department’s Brief also ignores Petitioner’s second quote from
Ellerth, that an employee acts within the scope of his or her employment,
and an employer is liable for those actions, when the conduct is “actuated, at
18
least in part, by a purpose to serve the employer even if [the conduct] is
forbidden by the employer.” Id. (internal quotations omitted). If an
employer decides to punish and harass one of its employees for speaking
unpleasant truths, it matters not whether that employer chooses one of its
supervisors, or a non-supervisory employee, or even a stranger off the street.
It is liable for the actions taken within the scope of the assignments it gives
to anyone it hires. The victim of a mob hit cares not whether the trigger is
pulled by the mob boss or by a street thug. The mob boss is still liable for
actions taken pursuant to a kiss of death.
The Summary of Argument in the Department’s Brief makes its first
citation to Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.
2000). The Department cites this case for the proposition that, “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.” In Breda, this Court reversed a summary judgment for the
employer on a sexual harassment claim. The issue was whether Breda’s
complaints to a store manager established the company’s knowledge of the
harassment. This Court looked to the employer’s own policies to determine
whether the store manager had actual authority to receive sexual harassment
complaints. That policy stated, “Anyone who believes that he or she is being
19
subjected to harassment or who has witnessed such harassment must
immediately notify his or her manager. If the problem is not immediately
resolved, that associate should contact the Personnel Department.” As the
policy itself designated the manager as a person to receive such complaints,
this Court held that Breda’s complaint to that manager established employer
knowledge. That manager was acting within the scope of agency established
by the employer. The employer “itself answered the question of when it
would be deemed to have notice of the harassment sufficient to obligate it or
its agents to take prompt and appropriate remedial measures.” Coates v.
Sundor Brands, Inc., 164 F.3d 1361 (11th Cir.1999). As the employer gave
the manager actual authority to handle such complaints, the employer was
liable for what that manager did or did not do with such authority. The lower
court ruling to the contrary was an error of law. In Dr. Walker’s case, CX
150 answers the question about the scope of his authority. His actions
within that scope are actions of the employer, for which that employer is
liable.
The Breda case is distinguishable by this fact: her harasser was not
carrying out a company policy to promote employment of males. Walker
was carrying out an EPA policy to promote land application of sewage
sludge. This fact makes the typical analysis of employer liability for sexual
20
harassment immaterial as that analysis is based on circumstances in which
the harassment is inflicted outside the scope of employment duties. In most
sexual harassment cases, the courts of appeals have typically found, or
assumed, that the conduct falls outside the scope of employment. See, e.g.,
Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1444 (10th Cir. 1997) (sexual
harassment “‘simply is not within the job description of any supervisor or
any other worker in any reputable business’ ”); Bouton v. BMW of North
Am., Inc., 29 F.3d 103, 107 (3rd Cir. 1994) (sexual harassment is outside
scope of employment); see also Ellerth v. Burlington Industries, Inc.,
decided with Jansen v. Packaging Corp. of America, 123 F.3d 490, 561 (7th
Cir. 1997) (en banc) (Manion, J., concurring and dissenting) (supervisor’s
harassment would fall within scope of employment only in “the rare case
indeed”), aff’d as Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct.
2257 (1998); Lindemann & P. Grossman, Employment Discrimination Law
812 (3d ed.1996) (“Hostile environment sexual harassment normally does
not trigger respondeat superior liability because sexual harassment rarely, if
ever, is among the official duties of a supervisor”).
The case of Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351-52
(4th Cir. 1995), is exceptional and instructive. There, the court held the
employer vicariously liable in part based on finding that the supervisor’s
21
rape of employee was within the scope of employment. Although the rape
itself was ultra vires, the employer placed the victim in a position where she
was unaware of anyone else she could go to, the supervisor had the power to
terminate her employment, and he threatened to use that power to silence the
victim. Upon finding that the supervisor’s action was taken on work
premises, on the clock, and using the supervisory power granted by the
employer, the court determined that the supervisor was acting within the
scope of employment and the employer was, therefore, liable.
In this case, EPA certainly knew that it had given Walker the duty of
promoting land application of sewage sludge, speaking on behalf of the
Agency, and coordinating with outside organizations. Walker had official
authorization to say and do whatever he determined was best to promote the
sludge policy. That makes it liable for the actions Walker took in furtherance
of his official duties. In the instant case, there is no question that Walker’s
actions were taken to further the employer’s interest in promoting land
application of sewage sludge. The EPA is naturally liable for the actions
Walker took in furthering that interest -- regardless of what bounds or
discipline it imposes after the fact. The conflict between Walker’s
promotional duties and Lewis’ scientific integrity was inevitable. EPA
could not rationally expect to take a position of promoting the untested land
22
application of sewage sludge, and think that its hired promoter would not be
peeved by Lewis’ intellectual criticism of the policy’s bona fides. The two
trains were set on a collision course, EPA picked the engineer and gave him
no navigator, Congress sounded an alarm about the impending collision, the
OIG pointed to another available track, and EPA didn’t lift a finger until
after the crash. EPA does not escape liability by picking up some of the
pieces after the crash.
There is nothing remarkable in how claims against employers for
discriminatory employment actions with tangible results, like hiring, firing,
promotion, compensation, and work assignment, have resulted in employer
liability once the discrimination was shown. See Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, at 70-71 (noting that “courts have consistently held
employers liable for the discriminatory discharges of employees by
supervisory personnel, whether or not the employer knew, should have
known, or approved of the supervisor’s actions”); id., at 75 (Marshall, J.,
concurring in judgment) (“[W]hen a supervisor discriminatorily fires or
refuses to promote a black employee, that act is, without more, considered
the act of the employer”); see also Anderson v. Methodist Evangelical
Hospital, Inc., 464 F.2d 723, 725 (6th Cir. 1972) (imposing liability on
23
employer for racially motivated discharge by low-level supervisor, although
the “record clearly shows that [its] record in race relations…is exemplary”).
What makes the employer liable is that the employer placed the
discriminator in a position where the discriminatory act is within the
discriminator’s scope of duties. That is why employers are liable for
tangible actions of sexual harassment by supervisors and managers. The
EPA is liable for Walker’s actions because his actions were within the scope
of his job assignment of promoting land application of sewage sludge. The
issue here does not come up in sexual or racial harassment cases because we
no longer have employers who assign a job duty of promoting employment
by males or whites. EPA, however, did have an employee charged with
promoting land application, and it is liable for the actions of that employee
that are within the scope of that assignment. Since Meritor, the Supreme
Court looked to traditional principles of agency to determine employer
liability for harassment when it is committed within the scope of
employment. It held that neither the existence of a company grievance
procedure nor the absence of actual notice of the harassment on the part of
upper management would be dispositive of such a claim; while either might
be relevant to the liability, neither would result automatically in employer
immunity.
24
In Faragher v. City of Boca Raton. 524 U.S. 775, 793 118 S.Ct. 2275,
the Supreme Court applied agency law as follows:
A “master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” Restatement §219(1). This doctrine has traditionally defined the “scope of employment” as including conduct “of the kind [a servant] is employed to perform,” occurring “substantially within the authorized time and space limits,” and “actuated, at least in part, by a purpose to serve the master,” but as excluding an intentional use of force “unexpectable by the master.” Id., §228(1).
The determination of liability turns not on the employer’s actual
knowledge of the tortuous conduct, but whether the conduct was reasonably
foreseeable. In Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167
(1968), for example, the Second Circuit charged the Government with
vicarious liability for the depredation of a drunken sailor returning to his
ship after a night’s carouse, who inexplicably opened valves that flooded a
drydock, damaging both the drydock and the ship. Judge Friendly
acknowledged that the sailor’s conduct was not remotely motivated by a
purpose to serve his employer, but relied on the “deeply rooted sentiment
that a business enterprise cannot justly disclaim responsibility for accidents
which may fairly be said to be characteristic of its activities,” and imposed
vicarious liability on the ground that the sailor’s conduct “was not so
25
‘unforeseeable’ as to make it unfair to charge the Government with
responsibility.” Id., at 171.
It was EPA management that placed Dr. Walker in an EPA office,
gave him EPA letterhead and title, and authorized him to speak on behalf of
the Agency in matters that promoted land application of sludge. Under
§219(2)(d) of the Restatement, Walker “was aided in accomplishing the tort
by the existence of the agency relation.” It was foreseeable that Dr. Walker
would use his position to attack Dr. Lewis and his article, and Dr. Walker’s
actions were consistent with his job description. See also Restatement §247,
Illustration 1 (noting a newspaper’s liability for a libelous editorial published
by an editor acting for his own purposes). Similarly, it was Dr. Walker’s
position at EPA that gave his attack against Dr. Lewis the weight that stung
against his reputation. “It is clearly chilling.” CX 140, Tr. 72 (Harrison).
Respondent’s reliance on Miller v. Kenworth of Dothan, Inc., 277
F.3d 1269, 1275 (11th Cir. 2002), is misplaced. This Court did not consider
vicarious liability in Miller’s case:
Since we conclude that Miller presented evidence sufficient to establish that Kenworth had constructive knowledge of coworker harassment, and that Kenworth failed to take remedial action, we need not consider whether Miller established a case of vicarious liability.
26
At pp. 27-33, the Department’s Brief is focused on theories based on indirect
liability for co-worker harassment. These theories do not apply when the
harassment is committed within the scope of the harasser’s job duties.
The Department’s Brief rests on its claim that Dr. Walker was not in
Dr. Lewis’ chain of command. As argued above, this fact is immaterial to
the determination of whether Dr. Walker acted within the scope of his
employment. Still, Dr. Lewis does not concede that Dr. Walker’s actions
should be evaluated under the traditional co-worker scheme. As quoted
above, EPA’s position description for Dr. Walker, CX 150, placed him in
the high levels of making and implementing the Agency’s policy relating to
biosolids. More than just a manager, he was a policy maker. His policy
making function specifically extended to the research activities of ORD –
Dr. Lewis’ branch. Scientists at ORD who are concerned about Agency
funding and direction of their work have just as much to worry about from
the likes of Dr. Walker as any woman factory worker would have to fear
from a harassing supervisor. Either one could jeopardize the future
economics of employment. More importantly in this context8 at the
8 “Context matters. ‘The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.’” Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2414 (2006),
27
pinnacles of science, Dr. Walker demonstrated his ability to use his position
within the Agency to sully the scientific reputation of a critic. That is the
power of a supervisor, and even of a manager, to inflict serious career
damage, and it is the power that the Ellerth decision treated as supervisory.
Ellerth, 524 U.S. at 760-61, 118 S.Ct. at 2268.
At pp. 29-31, the Department’s Brief claims that the facts do not show
the level of pervasive harassment that would constitute constructive
knowledge. It is not necessary to show constructive knowledge to establish
employer liability for actions taken within the scope of employment, or for
actions aided by the employment relationship. The EPA knew that it hired
Dr. Walker, gave him an office, letterhead, and a job description to speak as
he saw fit for the purpose of promoting land application of sludge. That is
sufficient employer knowledge to establish employer liability.
II. THE ARB ERRED IN CONCLUDING THAT EPA WAS NOT LIABLE FOR WALKER’S HARASSMENT BASED ON ITS CLAIM OF CORRECTIVE ACTION.
The Department’s brief argues for treating Dr. Walker as a coworker
without discussing how a court determines if an employee is subject to a
coworker analysis. In organizations as complex and interactive as the EPA,
such determinations could often be difficult. The facts of this case, however, quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998 (1998).
28
point to Dr. Walker’s definitive powers to speak with the official agency
imprimatur within the domain of land applied sludge. When it is the official
Agency word that counts as to whether Dr. Lewis’ article did or did not pass
peer review, then Dr. Walker was the one in charge on behalf of the Agency.
The coworker analysis is not the correct analysis in this context.
Even where the coworker analysis is properly applied, employers have
to do more than just slap wrists after the fact. In Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270 (1998), the Supreme
Court established the following rule for an employer’s affirmative defense to
harassment claims:
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to 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. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. [Emphasis added.]
29
The first element of the Ellerth affirmative defense has two parts. It requires
the employer to establish that it “exercised reasonable care to prevent,” and
secondly that it exercised reasonable care to “correct promptly” the
harassing behavior.
A. First Element, First Part: Reasonable Care to Prevent
The parties apparently agree that the ARB did not address the first
part required by the Supreme Court in Ellerth – that “the employer exercised
reasonable care to prevent.”
At pp. 31-32, respondent argues that EPA resistance to issuing a
policy against harassment of whistleblowers does not equal constructive
notice of any pervasive harassment. The congressional hearings certainly put
the EPA on notice that harassment of its whistleblowers was a serious
problem and one that it ought to address. Those hearings specifically
concerned the EPA’s policies with respect to sewage sludge. EPA’s reneging
on the promise to issue a policy against such harassment constitutes a top
level policy decision to discourage whistleblowing by leaving
whistleblowers at the mercy of all who might harass them. EPA’s claim that
no law required it to issue such a policy reflects a narrow view of the law
and a myopic view of its legal liability. The Department’s brief does not
30
point to any other preventative actions taken before Dr. Walker disseminated
the Synagro White Paper.
B. First Element, Second Part: Reasonable Care to Correct
In response to the Department’s argument on page 32, the Faragher
defense requires not only that the remedial action be prompt, but also that it
be effective. Here, it was too late to be effective. The discipline, however, is
immaterial to EPA’s liability for Walker’s actions within the scope of his
employment and in furtherance of the employer’s objectives, or to the extent
that his actions were aided by his position with EPA.
Lewis is not quibbling here about the level of discipline. No
discipline can undo what Walker committed as part of his job duties from his
position of authority on behalf of the EPA. Subsequent discipline is
immaterial to the issue of employer liability for Walker’s official actions.
Walker’s participation in the peer review was official. It was part of
his job. His comments were never stricken from the official record.
C. Second Element: Employee Unreasonably Failed to Take Advantage of Any Preventative or Corrective Opportunities
The Department’s Brief does not address this element.
CONCLUSION Dr. Lewis presents a truly unique case. Undersigned counsel is
unaware of any other case in which Congress held bipartisan hearings to
31
express concern about the harassment of whistleblowers on the subject at
hand (sludge), where the Agency promised to make amends by issuing a
policy against whistleblower harassment, and then chose not to issue the
previously agreed upon preventative policy. The ARB found a “strong
inference that Walker was retaliating against Lewis due to Lewis’ position
on sludge fertilization.” R.E. 5, p. 5. Still, the ARB would not hold the EPA
accountable for Dr. Walker’s harassment.
Dr. Lewis asks this Court to find that the employer in this case, the
U.S. Environmental Protection Agency, is liable for the actions of its
employee, Dr. John Walker, and remand this case for proceedings to
determine the scope of harassment under a hostile work environment theory
and the applicable damages. In the alternative, he asks this Court to hold that
the ARB erred as a matter of law when it failed to consider the factual
evidence that supported a finding that EPA is liable for the actions of Dr.
Walker, and remand the case for further proceedings.
32
Respectfully submitted,
_________________________ Stephen M. Kohn, sk@kkc.com
Richard R. Renner rr@kkc.com Attorneys for Petitioner
Kohn, Kohn, & Colapinto 3233 P St. NW Washington D.C. 20007 (202) 342-6980 (202) 342-6984 fax
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Brief of Petitioner complies with Rule
32(a)(7) of the Federal Rules of Appellate Procedure. It is presented in
Times New Roman, 14 point font. Using Microsoft Word 2008 for Mac, the
word count for this brief is 6,610.
By: ________________________ Richard R. Renner
33
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Reply Brief of
Petitioner was served by U.S. Mail, postage prepaid (the brief was also
served electronically), on this 20th day of February, 2009, upon:
Jennifer Marion Attorney for Respondent U.S. Department of Labor 200 Constitution Ave., N.W. Room N-2716, FPB Washington, D.C. 20210 Thomas K. Kahn, Clerk U.S. Court of Appeals for the 11th Circuit 56 Forsyth St. N.W. Atlanta, Georgia 30303 By: ________________________ Richard R. Renner