[Page 8]
Conclusion
We have decided that the only issue that warrants reconsideration of our March 30, 2007 Final Decision and Order is Lewis's argument that he had asserted a hostile work environment claim before the ALJ, that the ALJ ignored that claim, and that we should therefore decide its merits. We have reconsidered that issue. We have assumed without finding that all of the acts Lewis alleges constitute harassment and that his hostile work environment claim is actionable. Even so, the claim fails because Lewis did not prove by a preponderance of the evidence, as he must, that EPA harassed him because of his protected conduct.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The Clean Air Act 42 U.S.C.A. § 7622(a) (West 2003) (CAA); the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i)(1)(A) (West 2003) (SDWA); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610(a) (West 2005) (CERCLA); the Toxic Substances Control Act, 15 U.S.C.A. § 622(a) (West 1998) (TSCA); the Federal Water Pollution Prevention and Control Act, 33 U.S.C.A. § 1367(a) (West 2001) (FWPPCA); and the Solid Waste Disposal Act, 42 U.S.C.A. § 6971(a) (West 2001) (SWDA). Regulations implementing these statutes are found at 29 C.F.R. Part 24 (2006).
2 Lewis v. U.S. Envtl. Prot. Agency, ARB No. 04-117, ALJ Nos. 2003-CAA-005, -006 (ARB Mar. 30, 2007).
3 536 U.S. 101 (2002).
4 548 U.S. 53 (2006).
5 Motion for Reconsideration, 3-20.
6 Macktal v. Chao, 286 F.3d 822, 826 (5th Cir. 2002), aff'g Macktal v. Brown & Root, Inc., ARB Nos. 98-112/122A, ALJ No. 1986-ERA-023, slip op. at 2-6 (ARB Nov. 20, 1998); Powers v. Pinnacle Airlines, Inc., ARB No. 04-102, ALJ No. 2004-AIR-006, slip op. at 1 (ARB Feb. 17, 2005). See also Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-051, slip op. at 11 (ARB May 30, 2007).
7 Powers v. Pinnacle Airlines, Inc., ARB No. 06-078, ALJ Nos. 2006-AIR-004, 2006-AIR-005, slip op. at 3 (ARB Jan. 30, 2008).
8 Fed. R. App. P. 40(a)(2).
9 United States v. Smith, 781 F.2d 184 (10th Cir. 1986).
10 Utahns for Better Transp. v. United States Dep't of Transp., 319 F.3d 1207, 1210 (10th Cir. 2003); FDIC v. Massingill, 30 F.3d 601, 605 (5th Cir. 1994); American Policyholders Ins. Co. v. Nyacol Prods., 989 F.2d 1256, 1264 (1st Cir. 1993).
11 Lowry v. Bankers Life & Cas. Ret. Plan, 871 F.2d 522, 523 n.1, 525-526 (5th Cir. 1989).
12 Powers, supra; Chelladurai v. Infinite Solutions, Inc., ARB No. 03-072, ALJ No. 2003-LCA-004, slip op. at 2 (ARB July 24, 2006); Rockefeller v. U.S. Dep't of Energy, ARB Nos. 03-048, 03-184; ALJ Nos. 2002-CAA-005, 2003-ERA-010, slip op. at 2 (ARB May 17, 2006); Saban v. Morrison-Knudsen, ARB No. 03-143, ALJ No. 2003-PSI-001, slip op. at 2 (ARB May 17, 2006); Halpern v. XL Capital, Ltd., ARB No 04-120, ALJ No. 2004-SOX-054, slip op. at 2 (ARB Apr. 4, 2006); Getman v. Southwest Secs., ARB No. 04-059, ALJ No. 2003-SOX-008, slip op. at 1-2 (ARB Mar. 7, 2006); Knox v. Dep't of the Interior, ARB No. 03-040, ALJ No. 2001-LCA-003, slip op. at 3 (ARB Oct. 24, 2005).
13 Complainant David L. Lewis' Brief-In-Chief at 37 n.38.
14 Lewis, slip op. at 23 citing Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-001, slip op. at 9 (ARB April 30, 2004) (argument not presented to ALJ waived on appeal).
15 Varnadore v. Oak Ridge Nat'l Lab. (Varnadore II), Nos. 1992-CAA-002, et al., slip op. at 71 (ARB June 14, 1996), aff'd, Varnadore v. Sec'y of Labor, 141 F.3d at 625 (6th Cir. 1998).
16 Morgan, 536 U.S. at 114-115.
17 See Erickson v. U.S. Envtl. Prot. Agency, ARB Nos. 03-002 - -004, 03-064; ALJ Nos. 1999-CAA-002, 2001-CAA-008, -013, 2002-CAA-003, -018, slip op. at 19 (ARB May 31, 2006).
18 Lewis Brief-In-Chief at 37; Complainant's Conclusions of Law at 47. Lewis argued that other incidents or harassment also contributed to the HWE. He claimed that EPA sought to "muzzle" him, and to limit his participation in certain functions. He claimed that EPA's actions affected his ability to serve as an expert witness, that there were numerous conflicts and disputes about how EPA applied its disclaimer rules, and that EPA restricted his sludge research. Brief-In-Chief at 41-42; Conclusions of Law at 59-60.
19 42 U.S.C.A. § 7622 (b)(1). John Walker, Lewis's co-worker, disseminated the report on September 24, 2001, a date that is fewer than 30 days before Lewis filed his October 15, 2001 whistleblower complaint. See Morgan, 536 U.S. at 117 ("Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability."). The Morgan holding applies to whistleblower complaints. Erickson, slip op. at 21 n.60.
20 Complainant's Conclusions of Law at 62.
21 Lewis v. U.S. Envtl. Prot. Agency, 2003-CAA-005, -006, slip op. at 66 (ALJ June 9, 2004).
22 Brief-In-Chief at 38.
23 Lewis cited Findings of Fact Nos. 4, 9, 28, 142, 168-169, 171-178, 223, 656, 659, and 676 contained in his Post-Hearing Brief/Findings of Fact and Conclusions of Law.
24 Brief-In-Chief at 36.
25 Complainant's Exhibit 1, p. 96-104.
26 See Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ No. 1997-ERA-014, slip op. at 47-48 (ARB Nov. 13, 2002) where, inter alia, the Board held that when a whistleblower asserts a hostile work environment claim, the employer will be liable for co-worker harassment when it knew or should have known about the harassment and failed to take prompt remedial action.