Therefore, EPA did not discriminate against Erickson when it appealed Erickson I, or when it did not transfer her to the Contracts Unit, or when it did not place her on the contract specialist eligibility list.
B. "Stealing" Annual Leave
On May 8, 2003, Erickson failed to appear for work without authorization or notice to Barrow. Barrow assumed she had taken annual leave and marked her time card accordingly. When Erickson discovered that she had been charged annual leave, she protested on the ground that she had worked eight hours on May 6 and 7 when she was officially on annual leave. Whereupon Barrow restored the May 8 annual leave to Erickson. CX 77A.
Erickson argues that Barrow improperly charged her with annual leave because of her protected activity. C. Opening Br. at 27-29. The ALJ found that Barrow had ample reason to believe that Erickson was out on annual leave and acted in good faith. R. D. & O. at 21.
Erickson's argument consists of three parts: (1) The bald assertion that the ALJ erred in making this finding; (2) An extended extract from the R. D. & O. on this issue; and (3) A paragraph of citations to the record and Erickson's proposed findings of fact – a paragraph which contains no discernible argument. Erickson's brief does not dispute Barrow's testimony or point to any contradictory evidence in the record. Therefore, we
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accept Barrow's testimony and find that he charged Erickson with annual leave for a legitimate business reason.
Conclusion
Erickson's complaints alleged that EPA took adverse actions against her because she engaged in activity that the environmental statutes protect. Specifically, she argued to us that EPA supervisors subjected her to a hostile work environment, an adverse action. She also argued that EPA rejected her applications for the contract specialist position and wrongfully charged her with taking annual leave, discrete adverse actions. But since Erickson did not prove by a preponderance of the evidence, as she must, that EPA actually took these alleged actions, or that they were in fact adverse, her arguments fail. Therefore, we DISMISS Erickson's complaints.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i)(1)(A) (SDWA)(West 2003); the Clean Air Act, 42 U.S.C.A. § 7622(a) (CAA)(West 2003); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610(a) (CERCLA)(West 2005); the Toxic Substances Control Act, 15 U.S.C.A. § 622(a) (TSCA)(West 1998); the Federal Water Pollution Prevention and Control Act, 33 U.S.C.A. § 1367(a)(FWPPCA)(West 2001); the Solid Waste Disposal Act, 42 U.S.C.A. § 6971(a) (SWDA)(West 2001). Regulations implementing these statutes are found at 29 C.F.R. Part 24 (2006).
2 We refer to transcript pages with the abbreviation "T," to Erickson's exhibits with the abbreviation "CX," and to EPA's exhibits with the abbreviation "RX."
3 Erickson v. EPA, ALJ Nos. 1999-CAA-2, 2001-CAA-8, 2001-CAA-13, 2002-CAA-3, 2002-CAA-18 (ALJ Sept. 24, 2002) (Erickson I).
4 Erickson v. EPA, ARB Nos. 03-002, 03-003, 03-004, 03-064, ALJ Nos. 1999-CAA-2, 2001-CAA-8, 2001-CAA-13, 2002-CAA-3, 2002-CAA-18 (ARB May 31, 2006) (ARB Erickson I). On July 28, 2006, Erickson appealed ARB Erickson I to the United States Court of Appeals for the Eleventh Circuit. Erickson v. EPA, No. 06-14120-E (11th Cir.).
5 31 U.S.C.A. § 1341 (West 2006).
6 We are addressing only the claims and arguments that the parties actually raise on appeal. Erickson devoted substantial portions of her briefs to lengthy verbatim quotations from the ALJ's recommended decision and order without any accompanying argument. We limit our review to Erickson's claims that contain discernible arguments and supporting authorities.
7 See 29 C.F.R. §§ 24.4, 24.6, 24.7, 24.8. In her complaints, Erickson named EPA's Office of Inspector General (IG) and certain supervisors as individual parties respondent. The ALJ dismissed them as respondents. R. D. & O. at 2 n.1. Erickson challenges this ruling. C. Opening Br. at 2 – 13. In ARB Erickson, we held that the IG is an integral part of EPA and not properly a separate party respondent to Erickson's environmental whistleblower complaints against EPA. Thus, OIG is not a proper separate party respondent here. ARB Erickson I, slip op. at 2 n.2. With respect to the individual supervisors, they are not proper parties either because supervisors are not "employers" within the meaning of the environmental whistleblower provisions. See Culligan v. American Heavy Lifting Shipping Co., ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-09, 2001-CAA-11, slip op. at 14-15 (ARB June 30, 2004).
The ALJ also denied Erickson's motion for discovery of any documents in the Office of the Inspector General that contained her name. R. D. & O. at 2 n.1. Erickson challenges this ruling. C. Opening Br. at 2 - 11. Erickson's sole basis for discovery into IG records was the fact that the ALJ had found in Erickson I that the IG took retaliatory action against Erickson. But the only adverse action she claimed that the IG took against her was to file a petition for review of Erickson I. As more fully discussed below, petitioning for review of an ALJ recommended decision and order is not an adverse action; it is a right afforded by law. 29 C.F.R. § 24.8(a). Therefore, the ALJ did not abuse his discretion in denying Erickson's discovery request. Cf. First Nat'l Bank of Az. v. Cities Serv. Co, 391 U.S. 253, 289-290 (1968) (rule disfavoring summary judgment without discovery does not "permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations.").
8 United States v. Testan, 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941).
9 ARB Erickson I, slip op. at 12 (citing binding opinion of the Office of Legal Counsel).
10 Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 24.8.
11 See 5 U.S.C.A. § 557(b) (West 2004).
12 Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ No. 97-CAA-2, slip op. at 15 (ARB Feb. 29, 2000).
13 Sayre v. Veco Alaska, Inc., ARB No. 03-069, ALJ No. 00-CAA-7, slip op. at 7-8 (ARB May 31, 2005); 29 C.F.R. § 24.2(a).
14 29 C.F.R. § 24.2(b). See 42 U.S.C.A. § 6971(a) (SWDA); 42 U.S.C.A. § 7622(a) (CAA).
15 Jenkins v. EPA, ARB No. 98-146, ALJ No. 88-SWD-2, slip op. at 18 (ARB Feb. 28, 2003).
16 See, e.g., Devers v. Kaiser-Hill Co., ARB No. 03-113, ALJ No. 01-SWD-3, slip op. at 11 (ARB Mar. 31, 2005); Kesterson v. Y-12 Nuclear Weapons Plant, ARB No. 96-173, ALJ No. 95-CAA-12, slip op. at 2 (ARB Apr. 8, 1997). Cf. Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 931-932 (11th Cir. 1995) (applying "reasonably perceived" test to analogous Energy Reorganization Act, 42 U.S.C.A. § 5851).
17 See, e.g., Knox v. United States Dep't of Interior, ARB No. 06-089, ALJ No. 01-CAA-3, slip op. at 3 (ARB Apr. 28, 2006).
18 Yellow Freight Sys. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992); Minard v. Nerco Delamar Co., No. 92-SWD-1 (Sec'y Jan. 25, 1994); Crosby v. Hughes Aircraft Co., No. 85-TSC-2, slip op. at 25-26 (Sec'y Aug. 17, 1993).
19 Cf. Passaic Valley Sewerage Comm'rs v. United States Dep't of Labor, 992 F.2d 474, 479 (3d Cir. 1993) (protecting employee warnings even when the employee is mistaken encourages resolution of the dispute without litigation and affords management the opportunity to justify or clarify its policies to the employee).
20 High v. Lockheed Martin Energy Sys., ARB No. 03-026, ALJ No. 96-CAA-8, slip op. at 8 (ARB Sept. 29, 2004) ("High's expression of concern did not have to be borne out later in catastrophe to have protected status.").
21 Kesterson, slip op. at 2; Gain v. Las Vegas Metro. Police Dep't, ARB No. 03-108, ALJ No. 02-SWD-4, slip op. at 3 n.3 (ARB June 30, 2004).
22 Crosby, slip op. at 27-28.
23 42 U.S.C.A. § 6971(a); 42 U.S.C.A. § 7622(a).
24 ARB Erickson I, slip op. at 15, 16.
25 Id.
26 See, e.g., Trachman v. Orkin Exterminating Co., ARB No. 01-067, ALJ No. 2000-TSC-3, slip op. at 4 (ARB Apr. 25, 2003).
27 In the seven complaints she filed, Erickson alleged 18 different adverse actions. R. D. & O. at 3-6. The ALJ found merit in some, not all, of those claims. And, as earlier noted, we are deciding the merits of only the claims that Erickson and EPA raised and sufficiently argued on appeal. See n.6.
28 29 C.F.R. § 24.2(b).
29 See Jenkins, slip op. at 21-22; Shotz v. Plantation, 344 F.3d 1161, 1181-1182 (11th Cir. 2003) ("an employee must show a serious and material change in the terms, conditions, or privileges of employment . . . as viewed by a reasonable person in the circumstances.").
30 National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-115 (2002).
31 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
32 Berkman, slip op. at 16.
33 The ALJ referred to Dyntel as Dynatel. R. D. & O. at 7.
34 We refer to Erickson's opening brief as "C. Opening Br.," to Erickson's second brief, as "C. 2d Br.," and to her third brief at "C. 3d Br." We refer to EPA's opening brief as "EPA Opening Br."
35 Jenkins, slip op. at 43.
36 Vicki Schultz, Reconceptualizing Sexual Harassment, 107 Yale L.J. 1687, 1764 (1998), cited with approval in Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999).
37 Pub. L. No. 103-62, 107 Stat. 285 (codified at 31 U.S.C.A. § 1115, and in scattered sections of 5 U.S.C.A. and 39 U.S.C.A.).
38 Mary L. Heen, Congress, Public Values, and the Financing of Private Choice, 65 Ohio St. L.J. 853, 907 (2004).
39 The ALJ mistakenly concluded that Wright's written remarks were not part of the record. R. D. & O. n.19. But the memo was admitted as Complainant's Exhibit 67. T 5.
40 Jenkins, slip op. at 43-44.
41 See Morgan, 536 U.S. at 115 (a hostile work environment "claim is composed of a series of separate acts that collectively constitute one unlawful employment practice") (emphasis added).
42 Id. at 115.
43 29 C.F.R. § 24.8(a) ("If a timely petition for review is filed, the recommended decision of the administrative law judge shall be inoperative unless and until the [Administrative Review] Board issues an order adopting the recommended decision . . . ."). See also 5 U.S.C.A. § 557(b) (when an agency employee makes an initial or recommended decision, it "becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule.") (emphasis added).