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Issue Date: 13 November 2003 CASE NOS. 2003-CAA-11
2003-CAA-19
2004-CAA-1
IN THE MATTER OF
SHARYN A. ERICKSON,
Complainant
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY, REGION IV, ATLANTA, GEORGIA,
Respondent
APPEARANCES:
Edward Slavin, Jr., Esq.
On behalf of Complainant
Robin B. Allen, Esq,.
Karol Berrien, Esq.,
On behalf of Respondent
Before: Clement J. Kennington
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
I. Procedural History
The parties have a long and well documented history of adversarial legal relations commencing in the 1990's with Complainant filing eleven environmental whistleblowing complaints against Respondent, entitled In the Matter of Sharyn Erickson v. U.S. Environmental Protection Agency, Region 4, Atlanta, Georgia & EPA Inspector General (Erickson I) Case Nos.: 1999-CAA-2, 2001-CAA-8, 2001-CAA-13, 2002-CAA-3 and 2002-CAA-18. Following a lengthy hearing, the Court, on September 24, 2002, issued a 100 page Recommended Decision and Order (RDO), finding in part for Complainant on issues of adverse employment and hostile working conditions.
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The RDO found that Respondent (EPA and EPA Inspector General) had discriminated against Complainant by: (1) canceling Complainant's contracting warrant, transferring her to a different job, attempting to bias an Office of the Inspector General (OIG) investigation into Complainant's activities, and leaving Complainant under the impression that she was subject to a "gag order"; (2) refusing to disclose the results of the OIG investigation to Complainant after Complainant had requested such information and Respondent knew that the OIG investigation had failed to produce evidence meriting any prosecution of Complainant; (3) placing Complainant in a job as the Information Resources Coordinator which she was not qualified to perform, keeping her in that position having knowledge that she was unqualified, when her lack of qualifications helped create a hostile work environment perpetuated by the work assignment managers that Complainant had the responsibility of supervising; and (4) not ameliorating the hostile work conditions perpetuated by her work assignment managers. As a result of Respondent's conduct, the Court ordered that Complainant be reinstated to a contracting position and receive a pay increase from a GS-12 to GS-13, back pay, compensatory damages, equitable relief in the form of an appropriate posting and exemplary damages.
This proceeding (Erickson II) involves seven (7) complaints filed on October 9, 2002; March 11 and 24, 2003; April 28, 2003; June 2, 2003; September 3, 2003; and October 1, 2003 by Complainant against Respondent pursuant to employee protection provisions of the Safe Drinking Water Act (SDWA) 42 U.S.C. § 300j-9(i); Water Pollution Control Act (WPCA) 33 U.S.C. § 1367; Solid Waste Disposal Act (SWDA) 42 U.S.C. § 6971; Clean Air Act (CAA) 42 U.S.C. § 7622; and the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) 42 U.S.C. § 9610.1
The hearing on Erickson II commenced on May 13, 2003, in Atlanta, Georgia, and ran for 4 days, until May 16, 2003, followed by three (3) additional days of testimony on July 29, 30, and October 2003. The following witnesses testified at the second hearing: James Irvin Palmer (Regional Administrator); Stanley Meiberg (Deputy Regional Administrator); Gregory Allen Farmer (Deputy Assistant Regional Manager); James Russell Wright (Assistant Regional Administrator and Director of Office of Policy and Management); Matthew James Robbins (Chief of Grants and Procurement Branch, Office of Policy and Management); Ed Springer (Chief of Grants, IAG and Audit Management Section; Janice Nash Bramlett (Regional Comptroller); Patty Bettencourt (Supervisory Budget Officer); Thaddeus Allen (Senior Budget Analyst); Ronald L. Barrow (Chief, Information Management Branch); Janice Bramlett (Branch Chief, Comptroller Office); Harriet Yancey (Grants Management Specialist); Keith Mills (Head of Procurement Section); Carolyn McCray White (Information Management Specialist); Beverly Brennan (Information Security Officer); Maurice Holbert Holmes (Personnel Staffing Specialist); Jeffery Marsala (Finance Officer and Accountant, EPA Finance Center in Cincinnati, Ohio); Rafael Santamaria (former Equal Employment Opportunity Officer); Carolyn White (Information Management Specialist); James Couch (Computer Specialist); Drunell R. Williams (telecommunications Specialist); Sharyn Erickson (Complainant and Information Resources Coordinator); Debra Eastis (GSA Senior Finance Manager); and Richard Sheckell (PC Coordinator).4
An employee can prevail in showing that adverse employment action was motivated by protected activity where there is direct evidence of discrimination. TWA v. Thurston, 469 U.S. 111, 121 (1985); Walker v. Prudential Property & Casualty Insurance Co., 286 F.3d 1270, 1274 (11 Cir. 2002). Direct evidence of discrimination is evidence that "will prove the particular fact in question without reliance on inference or presumption." Pitasi v. Gartner Group, Inc., 184 F.3d 709, 714 (7th Cir. 1999). Such "evidence must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question." Id.
In the absence of direct evidence of discrimination, a complainant makes out a prima facie case of retaliation by showing that: (1) he or she is a member of a protected class; (2) he or she engaged in protected activity; and (3) respondent took adverse action and had knowledge of his or her protected activity. The threshold for establishing a prima facie case is low and the amount of evidence needed is "infinitely less than what a directed verdict demands." Saint Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2751, 125 L. Ed. 2d 407 (1993).
Once a complainant establishes a prima facie case of retaliation the burden then shifts to the respondent to produce legitimate nondiscriminatory reasons for taking the adverse employment action. Reeves v. Sanderson Plumbing, 530 U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000); Walker v. Prudential Property & Casualty Insurance Co., 286 F.3d 1270, 1274 (11 Cir. 2002). C. f. 42 U.S.C. § 5851(b)(3)(B) (2002) (stating that in ERA cases the employer must show by "clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence" of any protected activity); Dysert v. United States Secretary of Labor, 105 F.3d 607 (11th Cir. 1997). The respondent's burden is one of production and not of persuasion. Reeves, 530 U.S. at 142-43.
When a respondent offers legitimate nondiscriminatory reasons for taking the adverse employment action, the presumptions and burden disappear leaving complainant with the ultimate burden of persuasion by a preponderance of the evidence to show that the respondent's actions were motivated by a retaliatory animus. Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 516 (explaining that the complainant's burden to attack the legitimate nondiscriminatory reasons set forth by the respondents merges with the ultimate burden of persuading the court that the complainant is the victim of intentional discrimination). A complainant may meet the ultimate burden of persuasion through circumstantial evidence. Bartlik v. Tennessee Valley Auth., 88 ERA-15 (Sec'y April 7, 1993), aff'd sub. nom. Bartlik v. U.S. Dept of Labor, 73 F.3d 100 (6th Cir. 1996). When using circumstantial evidence, however, the complainant must show intentional discrimination. Leveille v. New York Air Nat'l Guard, 94-TSC-3 (Sec'y Dec. 1, 1995).
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Because this case was fully tried on the merits, I find it appropriate to combine a full analysis of Complainant's prima facie case of retaliatory animus with Respondents' burden to show legitimate nondiscriminatory reasons for undertaking adverse employment action with Complainant's ultimate burden of persuasion. SeeAdjiri v. Emory University, 97 ERA 36, p. 6 (ARB July 14, 1998) (stating that it is not necessary to go through the burden shifting analysis once the respondents show a legitimate nondiscriminatory reason for undertaking a personnel action, rather the question is whether the complainant prevailed on the ultimate question of liability); Ilgenfritz v. United States Coast Guard Academy, 99 WPC 3 (ALJ March 30, 1999).
In this case, Respondent provided no legitimate nondiscriminatory reason for requiring Complainant to perform Project Officer duties, when it knew or should have known, that Complainant was not competent to perform such duties due to a lack of technical training, little or no communication with work assignment managers, poor accounting systems that did not permit a tracking of funds and withholding of information necessary to establish fund balances. Respondent placed Complainant in an untenable situation in which she was not able to verify cost or fund balances, and thus, face potential criminal and civil charges under the Anti-Deficiency Act.
While Respondent had every right to appeal the previous RDO, it had no legitimate reason to simply keep Complainant in the same position she occupied after her transfer into the Information Management Branch. Respondent provided no legitimate reason for idling Complainant, nor any legitimate reason for telling employees that they should drop their past disputes with Respondent or else face adverse consequences. Moreover, Respondent provided no legitimate reason for failing to place Complainant on a certified list of eligibles for contract specialist positions.
III D. Remedy
In its brief, Complainant seeks multiple remedies from establishment of a non-hostile work environment; purging of derogatory information from Respondent's files; flexiplace to accommodate her disabilities; reinstatement in contracting to a comparable level of Keith Mills; removal of every manager found substantially responsible for retaliation; joint and several liability of individual managers for damages; back pay, front pay, restoration of sick and annual leave; restoration of time lost due to a refusal to provide official time; $2.5 million in compensatory damages; exemplary damages of $2.5 million, legal fees and expenses; notices to employees informing them of their rights under environmental whistle blower laws; cease and desist orders; injunctive relief; orders requiring mandatory meetings of all employees to allow Respondent to apologize to Complainant and provide for appropriate sensitivity training; orders requiring Respondent to cease and desist from unlawful surveillance and referring appropriate managers to the Justice Department, FBI, and DOL Office of Inspector General for investigation of possible violations of 5 U.S.C. § 1505, 1512, and 1513.
Having reviewed the previous RDO in Erickson I, the Court finds it appropriate to reissue that Order requiring Respondent to reinstate Complainant to a GS-13 contract officer position effective March 10, 1995, with back pay from that date to present including timely step increases plus interest on that amount in accord with the rate employed by the United States District Courts under 28 U.S.C. § 1961. In addition, the Court finds compensatory damages in the amount of $50,000 to be appropriate along with exemplary damages in the amount of $225,000, with a thirty day notice posting throughout Region 4's facilities in Atlanta, containing a short summary of these proceedings setting forth Complainant's protected activity, Respondent's discriminatory action and the remedy found appropriate herein, together with Respondent's recognition of the right of employees to engage in whistleblowing activities free of retaliation. In addition to a notice posting, Respondent shall provide and require its managers to attend meetings, wherein it will provide training on compliance with environmental whistleblowing laws.
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III. E Attorney Fees and Costs
Attorney's fees are available to the prevailing Complainant as authorized by statute. SDWA, 42 U.S.C. § 300j-9(i)(2)(B); WPCA, 33 U.S.C. § 1367(c); SWDA, 42 U.S.C. § 6971(c); CAA 42 U.S.C. § 7622(b)(2)(B); and CERCLA 42 U.S.C. § 9610. No award of attorney's fees for services rendered on behalf of the Complainant is made herein since no application for fees has been made by the Complainant's counsel. Counsel is hereby allowed thirty (30) days form the date of service of this decision to submit an application for attorney's fees. A service sheet showing that service has been made on all parties, including the Complainant, must accompany the petition. Parties have twenty (20) days following the receipt of such application within which to file any objections thereto.
CLEMENT J. KENNINGTON
ADMINISTRATIVE LAW JUDGE
NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W. Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief, Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).
[ENDNOTES]
1 Complainant sought to include EPA Inspector General (Respondent OIG) in Erickson II. Respondent OIG appealed on the grounds that they had taken no action in this case other than appeal the Recommended Decision and Order in Erickson I. Since Complainant had no evidence of any discriminatory conduct towards Complainant in Erickson II, and Respondent OIG was not an indispensible party in that proceeding, the Court issued an Order Dismissing EPA Inspector General from the Case on April 21, 2003. Complainant's attempt to subject Respondent to the provisions of the Toxic Substance Control Act, 15 U.S.C. § 2622, was likewise rejected, inasmuch as Respondent never waived its grant of sovereign immunity. See Stephenson v. NASA, 11994-TSC-5 (ALJ June 27, 1994); Mackey v. U.S. Marine Corps., 1999-WPC-6 (ALJ July 13, 1999).
Complainant also sought to include various supervisors as named respondents in this case so as to hold them jointly and severally liablefor their acts of discrimination against Complainant. The Court denies this motion; the proper party in this case is the U.S. Environmental Protection Agency, Region IV, Atlanta, Georgia. If violations as identified herein are upheld on appeal, Respondent can remedy all infractions.
The Court grants Complainant's motion to consolidate her October 1, 2003, complaint with the previous six (6), in which she seeks to include Respondent's Counsel, Robin B. Allen, as a person responsible for blacklisting Complainant by referring to her on three (3) separate occasions in Respondent's post-hearing brief as being insubordinate, when none of Respondent's supervisors, including Barrow, accused her of such misconduct. (Tr. 1825, 1826). However, after reviewing the parties' positions in this matter, the Court finds no basis in law for finding any discriminatory action by Respondent's Counsel when she referred to Complainant in her brief as insubordinate.
Complainant cites no precedent in support of her position. In contrast, the United States Supreme Court has held that a government agency's attorney has "an absolute privilege for any courtroom statement relevant to the subject matter of the proceeding." Imbler v. Pachtman, 424 U.S. 409, 426, n. 23 (1976); see alsoButz v. Economou, 98 S.Ct. 2894 (1978). As such, the government's attorney is fully immune from prosecution for statements made in the course of representation; nor can such statements constitute illegal actions of the agency itself. Furthermore, the Court finds such conduct to constitute nothing more than an unwarranted personal attack on Respondent's Counsel designed to waste time and make Respondent's counsel a witness thereby depriving Respondent of effective representation. Accordingly, the Court dismisses Complainant's 7th complaint.
Following the hearing on this complaint, the undersigned set a due date for post-hearing briefs on October 22, 2003. On the afternoon of October 21, 2003, Complainant filed a Motion for Enlargement of Time to file her brief, stating she "has still not yet received the transcript, which she must cite in her brief." (See Complainant's Renewed Motion for Enlargement of Time, p. 1, October 21, 2003). However, as Complainant did not specify the date on which she requested the transcript, it must be presumed the transcript was made available to her on October 16, 2003, the same day it was received by the Court. This is sufficient time in which to produce an adequate post-hearing brief. Moreover, Complainant was not required to cite the transcript in her post-hearing brief, thus, receipt of the transcript should not affect the timeliness of her brief. (Tr. 1916). The Court therefore denies Complainant's Motion for Enlargement of Time.
2 In her brief, Complainant asserted that Respondent perpetuated a hostile work environment by: (a) refusing to read the RDO, and thus, engaging in willful blindness; (b) refusing to revoke a previous illegal gag order described at pages 63, 80-83 of the RDO; (c) refusing to reinstate Complainant to a contracting position after improperly canceling her contract warrant and transferring her to Information Management Branch; (d) excluding her from a Region 4, Laboratory Information Management System meeting; (e)delaying her mid-year evaluation; (f) accusing her of disruptive conduct at an Integrated Grants Management System meeting in April 2003; (g) criticizing her for not being a team player, but rather, being negative and finger pointing; (h) subjecting her to ridicule; (i) denying her flexiplace; (j) covertly trying to revoke her project officer duties due to her e-mail and trying to force transfer her out of the Information Management Branch.
With the exception of those allegations already found objectionable in the RDO (allegations (b) and (c)), the Court finds no credible evidence of any hostile work environment involving allegations (a) and (d) through (i). Respondent's supervisors are free to read or not read the RDO. However, failure to read it will not excuse their actions if found objectionable by the Administrative Review Board. Concerning allegation (d), the record shows that Respondent had a meeting in early July, 2003, concerning the R4 LIM, a complex data base laboratory information system. Complainant was not invited to the meeting because of a lack of technical expertise and managerial status. Once management approved of the system, Complainant was fully involved with its implementation. (Tr. 1309-1333). Concerning allegation (e), Respondent produced no direct evidence of any disruptive behavior and took no action against Complainant because of such conduct. Criticism of Complainant as being negative, not a team player, and pointing fingers, even if made as alleged, does not constitute severe or pervasive harassment so as to alter terms and conditions of employment, and thus, create a hostile work environment.
3 Complainant presented no credible evidence on allegations numbers 4, 6, 9, 11 and 14.
4 For sake of brevity, witnesses are referred to only by their last name.
5 When asked how she approved contractor invoices, Complainant admitted that she had to certify them blindly. (Tr. 1554).
6 Although not alleged in her complaints, Complainant asserted that Respondent asked her to perform ill-advised and impossible tasks, such as adding clauses to contracts requiring contractors to perform security background checks on their own employees. Indeed, Beverly Brennan asked Complainant to help her with this task to which Complainant responded by citing a number of problems associated with this task. (RX-28, p.5; RX-33, 38, 41, 42). Brennan and other employees were assigned this job by EPA Headquarters in response to the Government Information Security Reform Act, which required all agencies to file an annual report with OPM regarding their security program. Brennan acknowledged that Complainant raised a number of valid concerns and objections to having contractors do their own security checks, with the end result being that OPM continued to perform such checks. (Tr. 756-797; CX-70, pp. 4, 15, 30, 32, 40). On May 27, 2003, Complainant e-mailed Barrow complaining about being asked to perform an impossible task of adding contract language requiring contractors, in essence, to provide background checks for their, as well as, their subcontractor's employees as published in the Federal Register and then reporting compliance when in fact she could do neither. Complainant asked Barrow to reassign the task, which he did. (CX-70A, pp. 1 and 2). Barrow admitted the difficulty of doing this work, but said it was not impossible and had been assigned to other EPA regions, and that Complainant raised valid objections to the assignment. (Tr. 1409-1411, RX-32).
7 Barrow admitted that Complainant was dependent upon work assignment managers over ACS and Dynatel to tell her how much and what work was done by these contractors, and that if the work assignment managers refused to talk with Complainant, she would have no way of learning what services had been provided. (Tr. 1449-1451).
8 Both Respondent and its contractors were concerned about the timely payment of IAG bills. Respondent's Office of Inspector General had criticized Respondent for untimely payment approvals since 1998, while contractor ACS noted a deficiency of $237,016.36 in funding for work performed in June, 2003. (CX-69A, pp.10, 19-23). Unlike Complainant, Shekell had a background in computers and a direct working relationship with Respondent's contractors, thus he was in a better position to ascertain what the contractors had in fact done.
9 In its brief, Respondent contended that Barrow repeatedly told work assignment managers not to bypass, but to go directly to, Complainant. Work assignment managers corrborated Barrow's testimony. Indeed, the only work assignment manager who testified, Carolyn White, denied this fact. (Tr. 744-745). Accordingly, I do not credit Barrow on his assertion that he instructed work assignment managers to deal with Complainant directly and not bypass her.
10 In its brief, Respondent contended that it provided Complainant with sufficient information to do her job by the assistance rendered by Allen, Bettencourt, Marsala, and Yancey combined with her access to web sites and her ability to contact Eastis. Respondent, however, ignores the fact that the information supplied Complainant even over the internet did not contain current balances, nor did it allow Complainant to track or associate cost to work performed. While Sheckell did approve contractor invoices, he unlike Complainant, had a computer background. However, even with that background he was unable to tell what bills went with what work. Eastis on the other hand, as Senior Manager for GSA responsible for applying funding to various tasks, testified that she did not track contractor costs on a monthly basis and that although she was unaware of anti-deficiency violation, Respondent had been short on funds on several occasions as late as June, 2003, and had to be reminded to increase funding. (Tr. 1664, 1680, 1681).
Respondent also contended that Barrow made the certification process possible by telling Complainant that she did not have to track cost to work performed. Rather, all she had to do in approving contractor invoices was to ascertain whether the hours of work billed by the contractors were reasonable, and if she had no reason to disbelieve what the contractors claimed, then she could approve such invoices. However, this approach relies upon an erroneous assumption that Complainant was in a position, either by training, experience or contact with work assignment managers, to know what work was done and how much time was reasonable to allocate to such work.
11 Respondent argued that Complainant failed to prove a violation of the Anti- Deficiency Act, and that such a violation occurred only when the amount of the obligation exceeded the amount available in an appropriation or fund. However, the test is not what constituted a violation of the Anti-Deficiency Act, but what Complainant reasonably believed to be a violation of the Act based upon information Respondent communicated to her about funding and expenditures. If Respondent knew there was no potential violation, why did it not respond to her numerous e-mails and advise her of that fact and tell her that in approving contractor invoices she would not be held accountable because funds were available for payment of contractor invoices?
12 Eastis, Senior Contracting Officer for GSA, testified that she was responsible for putting IAG funding documents into the system when they were received and notifying EPA's, Contracting Officer, Spratling of such action. (Tr. 1660). Eastis recalled only one conversation with Complainant when she and Spratling came to her office and Complainant expressed concerns about approvals of contractor invoices. Eastis was aware of Complainant's concerns about Anti-Deficiency Action violations, but testified she was unaware of any violations or funding deficiencies. (Tr. 1662-1667). Eastis denied having conversations with Complainant concerning IAG funding and transfer of funds between old and new IAGs and also denied being told to withhold information on funding from Complainant. (Tr. 1669-1672). Eastis admitted that in June, 2003, funds came up short, but when she notified Respondent of that fact Respondent provided additional funds and in fact, will have to supply an additional $500,000 before the end of the term. (Tr. 1680-1682).
13 As of October 2, 2002, Barrow thought Complainant was on a compressed tour working from 9:00 a.m .to -5:30 p.m., having previously requested work schedules from Complainant on September 12 and 17, 2002. (RX- 7, 10, 11). On March 25, 2003, Barrow learned from employee Dela Moore that Complainant had taken no leave in 2003. (RX-5).
14 Complainant's absence from staff meetings was confirmed by Computer Specialist, James Couch. (Tr. 968). Couch, a Telecommunications Specialist, when question by Barrow about Complainant's lateness for work area, indicated that such was not an unusual occurrence. (Tr. 1001-1008).
15 Rather than disciplining Complainant for being late, Barrow asked Complainant to merely call and inform him when she was going to be late. (Tr. 1364, 1365, 1380). Respondent's attendance policy requires employees who are late to call in and explain why they are going to be late. (Tr. 1385-1388). The core hours of work are 9:00 a.m. to 3:00 p.m. Claimant has, on occasion, worked overtime and has not requested leave nor has she taken leave when late. (Tr. 1389-1391).
16 Information management specialist, Carolyn White, testified that Barrow has left notes on her desk when trying to locate her. (Tr. 748,749). Telecommunication specialist also confirmed Barrow's practice of leaving notes when trying to locate employees. (Tr. 976-978).
17 Complainant alleged that Barrow improperly allowed White, who was at the same pay grade level as Complainant, to assume supervisory responsibilities regarding changes to the AOs program.
18 Wright's predecessor was Mike Peyton. Wright replaced him in November, 2002, as part of a national rotation directed by EPA headquarters. (Tr. 357).
19 Wright's memo was never produced or made an exhibit.
20 Complainant's Counsel called employee, Rafael Santamaria, to testify about the November 6, 2002, meeting. Santamaria had served as an EEO officer from 1991 to January, 2000, when Respondent posted the position as a GS-13 and selected another candidate other than Santamaria. Santamaria's testimony had very little to do with the November 6 meeting, except to say that both he and Complainant were upset, because Wright had refused to address problems that were pending prior to his appointment. (Tr. 485, 486, 507). Santamaria testified that he feared retaliation from Respondent because of his testimony, and said he believed he had been removed as EEO officer by Peyton and Meiberg in January, 2000, because of 40 EEO complaints he had brought to their attention and failed to resolved. Santamaria testified that he brought suit against Respondent when he was not selected for a GS-13 EEO officer position, but lost the suit for failure to prosecute. (Tr. 587-511).
21 In Shelton v. Oak Ridge National Laboratories, ARB No. 98-100, p. 7 (March 30, 2001), the ARB stated:
The Secretary and this Board often have been guided by cases decided under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§§§2000 et seq.("Title VII"), where the language used in Title VII is similar to that used in the employee protection provisions of the whistleblower statutes. See Hobby v. Georgia Power Company, ARB Nos. 98-166/169, ALJ No. 90-ERA-30, slip op. at 16 and 26 (ARB Feb. 9, 2001). The employee protection provisions of the CAA, TSCA, SDWA, and the ERA all state "[n]o employer may discharge or otherwise discriminate . . . with respect to . . . compensation, terms, conditions, or privileges of employment." Because Title VII utilizes virtually the same language in describing prohibited discriminatory acts and shares a common statutory origin, we have looked to cases decided under Title VII for guidance regarding the meaning of this phrase. Martin v. Department of the Army, ARB No. 96-131, ALJ No. 93-SWD-1, slip op. at 7 (ARB July 30, 1999).
Accordingly, I am guided by the Eleventh Circuit case law under Title VII as to what constitutes adverse action. The most recent expression of what constitutes actionable adverse action in the Eleventh Circuit is that the action must amount to a "serious and material change" in the terms, conditions, or privileges of employment. Davis v. Town of Lake Park, 245 F.3d 1232, 1239-40 (11th Cir. 2001).
22 Section 1341 (a)(1) (A) of The Anti-Deficiency Act prohibits officers or employees of the U.S. government authorizing expenditures which exceed amounts appropriate for the fund or obligation in question. Section 1518 of the Act subjects the individual who authorizes excessive expenditures to administrative discipline including suspension without pay or removal from office. Section 1519 of the Act further provides that an officer or government employee who knowingly and willfully violates the Act by authorizing excessive expenditures shall be fined not more than $5,000.00 and imprisoned for not more than 2 years or both.