DAVID L. LEWIS v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR

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.

ii


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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

vii


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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

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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

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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.

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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).

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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.

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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.).

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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

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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

DAVID L. LEWIS v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR

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Transcript of DAVID L. LEWIS v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR