As we previously pointed out, we examine the employer's actions, not the results. Therefore, we reject Overall's argument that because the harassment did not end, TVA is liable.
[Page 24]
Conclusion
We have concluded that TVA is not immune from Overall's ERA whistleblower claims. Nevertheless, Overall did not prove by a preponderance of the evidence, as he must, that TVA took materially adverse action against him when it assigned him work appropriate to his level of training after he returned to Watts Bar, or when he was not invited to participate in certain meetings, or when his name was not added to the e-mail lists upon his return, or when Smith sought information about his activities concerning the rally at the Cook nuclear plant. And Overall did not prove, as he must, that TVA failed to adequately and effectively address the hostile work environment to which he
was subjected. Failure to prove these essential elements of his case means that Overall cannot prevail. Therefore, we DISMISS this complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 42 U.S.C.A. § 5851 (West 2003).
2 Under the ERA employee protection provisions, the term "employer" includes "a licensee" of the NRC. 42 U.S.C.A. § 5851(a)(2)(A). Therefore, the TVA is a covered employer for purposes of this case.
3 TVA closed PER 246 in August 1995 without taking corrective action and without reporting the safety issue to the NRC.
4 ALJ's Recommended Decision and Order (R. D. & O.) at 26.
5 R. D. & O. at 26-45.
6 Id. at 33-34.
7 See 29 C.F.R. § 24.8 (2005). See also Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).
8 See 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir. 1997); Berkman v. U.S. Coast Guard Acad., ARB No. 98-056, ALJ No. 97-CAA-2, 97 CAA-9, slip op. at 15 (ARB Feb. 29, 2000).
9 See Attorney Gen. Manual on the Administrative Procedure Act, Chap. VII, § 8 pp. 83-84 (1947) ("the agency is [not] bound by a [recommended] decision of its subordinate officer; it retains complete freedom of decision as though it had heard the evidence itself"). See generally Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986) (under principles of administrative law, agency or board may adopt or reject ALJ's findings and conclusions); Mattes v. U.S. Dep't of Agric., 721 F.2d 1125, 1128-1130 (7th Cir. 1983) (relying on Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951), in rejecting argument that higher level administrative official was bound by ALJ's decision).
10 United States v. Testan, 424 U.S. 392, 399 (1976) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
11 Fed. Mar. Comm'n v. South Carolina State Ports Auth., 535 U.S. 743, 761 (2002) ("[I]t would be quite strange to prohibit Congress from exercising its Article I powers to abrogate state sovereign immunity in Article III judicial proceedings . . . but permit the use of those same Article I powers to create court-like administrative tribunals where sovereign immunity does not apply"); United States v. Puerto Rico, 287 F.3d 212 (1st Cir. 2002) (holding that the United States was entitled to invoke sovereign immunity in proceedings before the administrative agency).
12 FDIC v. Meyer, 510 U.S. 471, 475 (1994) (quoting Sherwood, 312 U.S. at 586).
13 Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980), and United States v. King, 395 U.S. 1, 4, (1969)) (waivers of sovereign immunity by Congress "cannot be implied but must be unequivocally expressed").
14 McMahon v. United States, 342 U.S. 25, 27 (1951).
15 Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983).
16 ARB No. 99-071, ALJ No. 99-ERA-11, slip op. at 23 (ARB May 30, 2003).
17 Pastor, slip op. at 5.
18 Hill v. U.S. Dep't of Labor, 65 F.3d 1331, 1333 (6th Cir. 1995); 11 U.S. Op. Off. Legal Counsel 70 (1987).
19 16 U.S.C.A. § 831 et seq. (West 2000). TVA is authorized under 16 U.S.C.A. § 831c to construct nuclear power electric generating plants. Young v. TVA, 606 F.2d 143 (6th Cir. 1979).
20 16 U.S.C.A. § 831c(b).
21 Queen v. TVA, 689 F.2d 80, 85 (6th Cir. 1982); see also F.H.A. v. Burr, 309 U.S. 242, 245 (1940).
22 North Carolina ex rel Cooper v. TVA, 439 F. Supp. 2d 486, 490 (W.D.N.C. 2006) (noting that "[o]ne of the governmental features specifically denied to TVA was the right to sovereign immunity, which Congress withheld by virtue of the TVA Act's ‘sue and be sued' clause.").
23 In asserting sovereign immunity before the ALJ and to us, TVA likened itself to the United States Postal Service (USPS). The "sue and be sued" clause contained in the Postal Reorganization Act, 39 U.S.C.A. § 101 et seq.(West 1980), generally waives the USPS's sovereign immunity. That waiver, however, is not absolute and instead is based upon the nature of the claims asserted. See, e.g., Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736 (2004) (USPS not liable under Sherman Act because USPS not a "person" separate from the United States for purposes of antitrust laws.) But TVA did not argue that Congress limited its "sue and be sued" waiver. Therefore, its analogy to USPS is unavailing.
24 F.H.A. v. Burr, 309 U.S. 242 at 245.
25 English v. General Elec. Co., 496 U.S. 72, 83 (1990).
26 Queen, 689 F.2d at 85.
27 42 U.S.C.A. § 5851 (a)(1).
28 See Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-031, slip op. at 8 (ARB Sept. 30, 2003).
29 R. D. & O. at 17-22.
30 TVA Post-Hearing Brief at 130 n.43.
31 Overall's February 19, 1999 whistleblower complaint alleged only that TVA subjected him to a hostile work environment. TVA argues that Overall's discrete adverse action claims cannot be asserted because they were not contained in this complaint. Brief at 2. But "[w]hen issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as it they had been raised in the pleadings . . . ." 29 C.F.R. § 18.5(e). Thus, since the parties developed both hearing testimony and the documentary record about these discrete adverse action claims and fully litigated them before the ALJ, though not contained in Overall's complaint, we find that these claims were tried by consent of the parties. See, e.g., Transcript (T.) 144, 205, 206, 209, 214, 224-228, 497, 1261-1262, 1267, 1271, 1860, 2723-2724, 2800-2802, 2819, 2826, 2846-2849; Complainant's Exhibits (CX) 25, 30, 42, 436-441, 465; Respondent's Exhibits (RX) 20-22, 191.
32 536 U.S. 101 (2002).
33 Id. at 114.
34 Id. at 110.
35 Id. at 114-115.
36 Id. at 115.
37 The allegation concerning the security clearance was contained in a complaint Overall filed separately from the one at issue here. He later withdrew this complaint when TVA restored his security clearance. In the interim, the ALJ found that TVA did not revoke the security clearance because of Overall's protected activity. R. D. & O. at 64-67. Overall does not contest this finding in his brief to us. Therefore, he waives argument on that issue. See Hall v. U.S. Army Dugway Proving Ground, ARB Nos. 02-108, 03-013, ALJ No. 97-SDW-5, slip op. at 6 (ARB Dec. 30, 2004).
38 Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 12 (ARB Feb. 29, 2000) (approving Smart and other cases that "make the unexceptionable point that personnel actions that cause the employee only temporary unhappiness do not have an adverse effect on compensation, terms, conditions or privileges of employment"); cf. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) (the American with Disabilities Act, like Title VII, is neither a "general civility code" nor a statute making actionable ordinary tribulations of the workplace).
39 See Jenkins v. United States EPA, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 20 (ARB Feb. 28, 2003); see also, e.g., Calhoun v. United Parcel Serv., ARB No. 00-026, ALJ No. 1999-STA-7 (ARB Nov. 27, 2002) (holding that a supervisor's criticism does not constitute an adverse action); Ilgenfritz v. U.S. Coast Guard, ARB No. 99-066, ALJ No. 1999-WPC-3, slip op. at 8 (ARB Aug. 28, 2001) (holding that a negative performance evaluation, absent tangible job consequences, is not an adverse action); Shelton v. Oak Ridge Nat'l Labs., ARB No. 98-100, ALJ No. 1995-CAA-19, slip op. at 6-7 (ARB Mar. 30, 2001) (holding that in the absence of a tangible job consequence, a verbal reprimand and accompanying disciplinary memo are not adverse actions). But a whistleblower bringing a hostile work environment claim is not required to prove an "economic" or "tangible" job detriment such as that resulting from discharge, failure to hire, or reassignment to an inferior position.
40 See Hirst v. Se. Airlines, Inc., ARB Nos. 04-116, 04-160; ALJ No. 2003-AIR-47, slip op. at 9-11 (ARB Jan. 31, 2007).
41 Brief at 10-14.
42 The ALJ wrote that an ERA whistleblower can prove that the employer's reasons for taking the adverse action are a pretext "by showing . . . that discrimination was more likely the motivating factor." R. D. & O. at 58 (emphasis added). If the ALJ meant that an ERA whistleblower must show that his protected activity was a motivating factor in the adverse action that the employer took, he erred. As Overall points out, the ERA requires that the complainant demonstrate that his protected activity was a contributing factor in the adverse action he alleges. Initial Brief at 31-32. See 42 U.S.C.A. § 5851(b)(3)(C). But the ALJ's error is harmless because he did not apply the erroneous motivating factor standard. That is to say, since he found that not immediately assigning Overall work comparable to that which he had previously performed was not an adverse action, he never reached the issue of whether Overall's protected activity "motivated" TVA's alleged adverse action.
43 T. 214, 378, 2717-18.
44 R. D. & O. at 25. Overall requested information from James Adair, Watts Bar's lead civil engineer in nuclear engineering, about an open PER (PER 823). Overall argued that Adair rebuffed him. PER 823, however, was not assigned to Overall's group, NSSS, but to Adair who was in the Civil Engineering group. CX 442.
45 Initial Brief at 14.
46 T. 2994-2995.
47 See Hirst, slip op. 9-11.
48 R. D. & O. at 63.
49 Id.
50 R. D. & O. at 62-64.
51 R. D. & O. at 64.
52 Id.
53 Brief at 13, 34.
54 Overall argues that this monitoring was part of the hostile work environment. Brief at 37 n. 27. The ALJ found that Smith's actions pertaining to Overall and the D. C. Cook plant rally did not constitute intentional harassment or retaliation. R. D. & O. at 88. As we indicate below, the record supports these findings. Therefore, we treat this incident as a discrete adverse action.
55 Overall was on paid leave until February 2000 when he went to work for TVA at its Fossil Fuel Plant.
56 R. D. & O. at 87-88.
57 Id. at 88.
58 Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ Nos. 97-ERA-14 et al., slip op. at 10 (ARB Nov. 13, 2002) (citations omitted); Berkman, slip op. at 17-18 (citations omitted).
59 Jenkins, slip op. at 16-17; Williams, slip op. at 13 (ARB Nov. 13, 2002).
60 Sasse v. Office of the U.S. Attorney, ARB Nos. 02-077, 02-078, 03-044, ALJ No. 1998-CAA-7, slip op. at 35 (ARB Jan. 30, 2004).
61 See Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
62 R. D. & O. at 69-80, 87.
63 R. D. & O. at 74-81.
64 Williams, slip op. at 44, citing Harris v Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
65 R. D. & O. at 82.
66 Id. at 82-83.
67 T. 174-175.
68 T. 179-180; CX 60.
69 T. 294-295.
70 Sasse, slip op. at 35; Williams, slip op. at 48.
71 Williams, slip op. at 48.
72 Id.
73 RX 19.
74 R. D. & O. at 89-90.
75 Id. at 90-91.
76 Id. at 91-95.
77 Id. at 89, 91, 95.
78 Id. at 95.
79 Williams, slip op. at 48.
80 Jackson v. Quanex Corp., 191 F. 3d 647, 663 (6th Cir. 1999).
81 See Blankenship v. Parke Care Ctrs., 123 F.3d 868, 872-873 (6th Cir. 1997) ("[W]hen an employer responds to charges of co-worker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. The act of discrimination by the employer in such a case is not the harassment, but rather the inappropriate response to the charges of harassment. Upon the facts before the district court, the employer's good-faith response was entirely sufficient to escape liability . . . ."); Spicer v. Commonwealth of Va. Dep't of Corr., 66 F.3d 705, 710 (4th Cir.1995) (en banc) (employer liable for co-worker sexual harassment "only if no adequate remedial action is taken."); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995) (employer generally not liable unless "the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.").
82 542 U.S. 129 (2004).
83 Brief at 37.
84 Faragher,524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
85 542 U.S. at 140.
86 Suders, 542 U.S. at 134.
87 Brief at 37.
88 Suders, 542 U.S. at 134.
89 Nor did they take tangible employment action against Overall.
90 R. D. & O. at 87-89.
91 Under our well-established precedent, we decline to consider an argument that a party raises for the first time on appeal. Rollins v. Am. Airlines, Inc., ARB No. 04-140, ALJ No. 2004-AIR-009, slip op. at 4 n.11 (ARB Apr. 3, 2007 (corrected)); Carter v. Champion Bus, Inc., ARB No. 05-076, ALJ No. 2005-SOX-23, slip op. at 7 (ARB Sept. 29, 2006).
92 Brief at 37-39.
93 Brief at 39.
94 Id.
95 ARB No. 98-056, ALJ Nos. 1997- CAA-2, 1997-CAA-9, slip op. at 23 (ARB Feb. 29, 2000).
96 Berkman, slip op. at 5-10.
97 Williams, slip op. at 48.