Conclusion
Lewis's various claims fail either because they are not actionable, or because Lewis waived argument about them, or because Lewis did not prove by a preponderance
[Page 24]
of the evidence that they were materially adverse or that EPA took them because of his protected criticism of Rule 503. Therefore, we DISMISS the complaints.
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) (CAA) (West 2003); the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i)(1)(A) (SDWA) (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); and 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). The Administrative Law Judge (ALJ) assumed that all of the statutes applied. Recommended Decision and Order (R. D. & O.) at 52. Though neither the parties nor the ALJ addressed the issue, federal agencies such as the EPA are immune from suit unless Congress unequivocally waives that immunity. We have recently decided that among these six environmental whistleblower statutes, Congress waived federal sovereign immunity only with respect to the employee protections of the SWDA and CAA. See Erickson v. U.S. Envtl. Prot .Agency, ARB Nos. 03-002 – 004, 03-064; ALJ Nos. 99-CAA-2, 01-CAA-8, 13, 02-CAA-3, 18, slip op. at 10-12 (ARB May 31, 2006). EPA has not argued against coverage under either of these statutes, nor has Lewis specifically argued for such coverage. Our decision would be the same regardless of which of the two statutes is assumed to apply. Therefore, for purposes of this decision we will assume coverage under the CAA.
2 EPA is divided into 12 program offices, each headed by an assistant administrator. One of the 12 is the Office of Research and Development (ORD), which has five divisions. Lewis's tenure at EPA was with the Ecosystems Research Division (ERD) within the National Exposure Research Laboratory (NERL), which is one of ORD's five divisions. R. D. & O. at 4.
3 The following abbreviations will be used: Complainant's Exhibit, CX; Respondent's Exhibit, RX; Joint Stipulation, JS; Joint Exhibit, JX; Hearing Transcript, TR.
4 Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 24.8.
5 See 5 U.S.C.A. § 557(b) (West 2004).
6 Berkman v. U.S. Coast Guard Acad., ARB No. 98-056, ALJ No. 97-CAA-2, slip op. at 15 (ARB Feb. 29, 2000).
7 Sayre v. Veco Alaska, Inc., ARB No. 03-069, ALJ No. 00-CAA-7, slip op. at 5 (ARB May 31, 2005); 29 C.F.R. § 24.2(a).
8 42 U.S.C.A. § 7622(a).
9 Jenkins v. U.S. Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 88-SWD-2, slip op. at 18 (ARB Feb. 28, 2003).
10 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).
11 See, e.g., Knox v. U.S. Dep't of Interior, ARB No. 06-089, ALJ No. 01-CAA-3, slip op. at 3 (ARB Apr. 28, 2006).
12 42 U.S.C.A. § 7622(a).
13 29 C.F.R. § 24.2(b).
14 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) ("personnel actions that cause the employee only temporary unhappiness do not have an adverse effect on compensation, terms, conditions or privileges of employment").
15 See Hirst v. Se. Airlines, Inc., ARB Nos. 04-116,160, ALJ No. 03-AIR-47, slip op. at 9-11 (ARB Jan. 31, 2007).
16 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114-115 (2002). The Morgan holding applies to whistleblower complaints. Erickson, slip op. at 21 n.60.
17 42 U.S.C.A. § 7622 (b)(1).
18 Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1, slip op. at 8 (ARB Apr. 30, 2004).
19 Id.
20 Morgan, 536 U. S. at 114.
21 Here the ALJ relied upon Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ No. 97-ERA-14, 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.
22 Hirst, slip op. at 8-10.
23 Pickett v. Tenn. Valley Auth., ARB No. 00-076, ALJ No. 00-CAA-9, slip op. at 8-9 (ARB Apr. 23, 2003).
24 Id.
25 Lewis v. Synagro Techs., Inc., 2002-CAA-8, 12, 14 (ALJ Apr. 26, 2002).
26 Lewis focuses his argument only on EPA's lack of response to Synagro's February 6, 2002 letter. Though he claims that EPA's lack of response to Synagro's other inquiries constitutes discrimination, he does not present argument about these other letters. Complainant's Brief at 29-32. Therefore, he waives that argument. 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) (failure to present argument or pertinent authority waives argument).
27 The position description for Lewis's IPA extension states clearly that Lewis's research on the environmental survival of pathogens on dental and medical devices directly applies to EPA's environmental goals, including clean and safe water and better waste management. CX 10.
28 Dr. Robert Hodson, chairman of the marine sciences department at UGA, testified in deposition that prior to the IPA controversy, Lewis was being considered for a tenured professorship, but that after EPA's failure to clarify the scope of his IPA, his standing within the university soured. CX 24 at 29-31, 37-40.
29 See Hall, slip op. at 6 (failure to present argument or pertinent authority waives argument).
30 Lewis v. Envt'l Prot. Agency, 99-CAA-12, 00-CAA-10, 11 (ALJ Jan. 17, 2001).
31 Eventually, EPA stipulated that Lewis had not violated the terms of his IPA. JS 10. EPA also stipulated that Lewis had not used his IPA to support his expert witness work. JS 17. And, according to EPA, Lewis's work on bio-solids research "did not violate any applicable [EPA] policies." JS 32.
32 See Hall, slip op. at 6 (failure to present argument or pertinent authority waives argument).
33 The March 2000 hearing addressed whether EPA failed to "foster sound science" in managing Rule 503 and whether EPA was harassing scientists who expressed concerns about the science supporting the rule. CX 59.
34 "When 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 if they had been raised in the pleadings . . . ." 29 C.F.R. § 18.5(e). See Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 02-STA-35, slip op. at 8-9 (ARB Aug. 6, 2004).
35 See Sayre, slip op. at 9-11.
36 See Hall, slip op. at 6 (failure to present argument or pertinent authority waives argument).
37 Complainant's Post-Hearing Brief at 68.
38 Morgan, 536 U.S. at 114.
39 Erickson, slip op. at 13.
40 See Schlage, slip op. at 9.