U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA, GEORGIA, KAROL SMITH & EPA INSPECTOR GENERAL,
Respondents
ORDER GRANTING AND DENYING IN PART COMPLAINANT'S AND RESPONDENTS' MOTIONS FOR SUMMARY DECISION
On January 15, 2002, counsels for U.S. Environmental Protection Agency, Region IV, Atlanta, Georgia and EPA Inspector General (herein individually Respondent EPA and EPA OIG and collectively Respondents) filed extensive motions for summary decision pursuant to 29 C.F.R. § 18.41 (2001). On January 30, 2002, counsel for Complainant timely filed an opposition to said motions with multiple supporting exhibits. Counsels for Respondents provided a background to Complainant's alleged whistleblowing activities, while she was employed with the EPA, contending in essence that Complainant failed to establish a prima facie case of either adverse employment action or hostile work environment either in whole or part because of a protected activity.
1. Standard of Review
Granting a motion for a summary decision is proper when there is no genuine issue of material fact. 29 C.F.R. § 18.41 (2001). The "party opposing the motion may not rest upon the mere allegations or denials of such pleading[, but shall] set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. 29.40(c) (2001); Peppers v. Coats, 887 F. 2d 1493, 1498 (11th Cir. 1989)(stating that when "a nonmoving party's response to the summary judgment motion consists of nothing more than mere conclusory allegations then the court must enter judgment in the moving party's favor."). The court must view the facts, and all reasonable inferences drawn from those facts, in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Summary decision is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). While the court will not weigh the evidence, a mere scintilla of evidence will not suffice to defeat the motion. Johnson v. Fleet Finance, Inc., 4 F.3d 946, 949 (11th Cir. 1993).
Respondent EPA asserts that Complainant engaged in no protected activity prior to filing her first whistleblowing complaint in 1998. Respondent EPA further asserts that Complainant's activities prior to 1998 did not concern a violation of an environmental act as her actions were only in relation to a faulty contract specification that require contract reformation and such a discovery is not "grounded in conditions reasonably perceived to be violations of the environmental acts."
The Code of Federal Regulations, however, clearly state that "assisting or participating in any other action to carry out the purposes of the statute" is a protected activity. 29 C.F.R. § 24.2(b)(3) (2001). The phrase "any other action" is not defined by the applicable statutes. SeeKemp v. Volunteers of America, 2000-CAA-6 (ALJ July 10, 2000). The use of such far ranging language, however, reveals an intent to afford broad rather than narrow protection. NLRB v. Scrivener, 405 U.S. 117, 124, 92 S. Ct. 798, 803, 31 L. Ed. 2d 79 (1971). Case law has established that the phrase "any other action" can mean raising safety concerns with an employer, Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926, 931-33 (11th Cir. 1995), intra-corporate complaints, Passaic Valley Sewerage Com'rs v. Department of Labor, 992 F.2d 474, 480 (3rd Cir. 1993), or speaking with the new media. Pooler v. Snohomish County Airport, 87-TSA-1 (Sec'y Feb. 14, 1994). Also, following Tyndall, Complainant's actions are protected as long as she is furthering the purpose of the applicable environmental statute. See also Jarvis v. Battelle Pacific NW Laboratory, 1997-ERA-15 (ARB August 27, 1998)(finding that no violation of an environmental statute was necessary).
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Here complainant alleged that her actions prior to filing her first complaint in 1998, related to problems with EPA regulations and analytical methods that resulted in waste and impossibility of performance issues with regards to Superfund clean-up projects. As a result of such regulations and analytical procedures, Superfund clean-up sites would not undergo bio-remediation to the required standards. Complainant's actions led to contract reformation in 1993 and led to a restructuring of contractual language in 1995. Accordingly, I find that there is more than a scintilla of evidence demonstrating that Complainant actions prior to filing her first complaint in 1998 constitute protected activity making a grant of summary decision on this issue inappropriate.
C. Adverse Employment Action
An employer violates a whistleblowing statute when the covered employer "intimidates, threatens, restrains, coerces, blacklists, discharges, or in any manner discriminates against any employee. . . ." 29 C.F.R. § 24.2(b) (2001). The Eleventh Circuit discerned a difference between discrimination and adverse action, defining adverse action as "simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone and Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997). Adverse actions must be more than a mere inconvenience or an alteration of job responsibilities. Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993). Thus, memoranda of reprimand or counseling that amounts to no more than a mere scolding, without any following disciplinary action, do not rise to the level of adverse action. Davis v. Town of Lake Park, 245 F.3d 1232, 1236 (11th Cir. 2001). Here, Complainant alleges that she suffered discriminatory adverse action through a hostile work environment and denial of promotion.
Respondent EPA asserts that Complainant is unable to show that an adverse action was ever taken against her for any reason stating that Complainant never suffered a tangible job detriment. Respondent EPA asserts that for every action it undertook with regards to Complainant's employment, there was always a separate, unrelated precipitating event for that action that was unrelated to any alleged protected activity. Respondent OIG asserts that an investigation by it can never be adverse action in light of its congressional mandate and asserts that it never attempted to "cover up" the results of the investigation, and even if it did, such a "cover up" does not implicate a term or condition of employment.
C(1) Hostile Work Environment
Adverse employment action can include the creation of a hostile work environment. Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995)(finding a hostile work environment when employees were instructed not to talk to the complainant, called the complainant "inept" and a "s.o.b." and the prevailing attitude was a "loss of trust" directed toward complainant). The Secretary of Labor approved of importing the concept of hostile work environment from employment discrimination cases based on race and sex in violation of Title VII of the Civil Rights Act of 1964 in to the
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whistleblowing statutes. Varnadore v. Oak Ridge Nat'l Laboratory, 92-CAA-2 (Sec'y Jan. 26, 1996)(reissued with non-substantive changes on Feb. 5, 1996). Accordingly, to prove the existence of a hostile work environment, a complainant must show:
(1) Complainant suffered intentional discrimination because of her membership in a protected class;
(2) The discrimination was pervasive and regular;
(3) The discrimination detrimentally affected the Complainant;
(4)the discrimination would have detrimentally affected a reasonable person in the same position; and
(5) the existence of respondeat superior liability.
See Varnadore, 95 ERA-1, citing West v. Philadelphia Electric Co. 45 F.3d 744, 753 (3rd Cir. 1995).
A critical factor in the a hostile work environment claim is whether the discrimination was pervasive and regular. West, 45 F.3d at 755-57. The determination of whether the employer is liable for its supervisor's action depends on whether the supervisor's harassing actions were foreseeable or fell within the scope of his employment, and even if they were, whether the employer responded adequately and effectively to negate liability. An employer is liable for a discriminatory abusive work environment created by a supervisor if the supervisor has actual or apparent authority to further the harassment, or if he otherwise aided in accomplishing the harassment by the existence of an agency relationship. In contrast, where a low level supervisor does not rely on authority to carry out harassment the situation is the same as if a co-worker had carried out the harassment with the employer being liable only if it provided no reasonable avenue for complaint or knew of the harassment and did nothing. Varnadore v. Oak Ridge National Labatory, 92-CAA-2 (ARB June 14, 1996) slip op. at 43., citing Baskerville v. Culligan International Co., 50 F.3d 428, 431-32 (7th Cir. 1995); Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 803 (6th Cir. 1994). An employer is not liable if the employer takes reasonable steps to discover and rectify discrimination and such reasonableness of reaction is determined by the gravity of the harassment.
As discussed supra, there is more than a scintilla of evidence that Complainant, as a whistleblower, is a member of a protected class. To satisfy the pervasive and regular element, Complainant details, among others, the following actions by Respondents:
1) Removed Complainant from the contracting field, and assigned her boring or menial work;
2) Initiated an IG investigation and misled her into believing it was still open until October 1998 when the U.S. attorney had declined prosecution in June 1995;
3) Ostracized Complainant by putting her on display in the library for eighteen months;
4) Issued a gag order ordering her not to speak with other employees concerning the IG investigation, denying her access to the contract file room;
5) Subjecting her to excessive scrutiny, criticism, and name calling;
6) Issuing a written warning;
7) Removal of flexiplace, searching and confiscating items from her office; and
8) Taking photographs of her office and sharing those photographs with OSHA investigators.
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Further evidence of a hostile working environment is presented through the declaration of Robert Place (CX 49), an EPA contractor manager from 1995-2001. Mr. Place related managers at EPA made it very clear that they did not like Complainant and did not want to involve her in day to day decision making, they continually undermined her authority and he personally witnesses an EPA employee make repulsive hand gestures and facial distortions directed toward Complainant.15
1 References to the exhibits in the respective Motions for Summary Decision are as follows: Respondent EPA - EPA, p. ___; Respondent OIG - OIG , p.; Complainant - CX , p..
2 Notations made by Mr. Mills on June 18, 1993, reflect that when Mr. Mills asked Complainant to make a "chronological listing of events on the Southeastern contract that contributed to the delayed completion." Complainant responded, "No." (EPA, 5, p. 2). After Complainant refused to adequately document the file to her supervisor's standards, Mr. Mills documented the file himself. (EPA 13).
3 Bechtel was not the only contractor to complain about Complainant. According to William Waldrop, the contractor EBASCO, approached EPA about returning to work on the Superfund projects and indicated that they were willing to work with anyone except Complainant. (OIG 8).
4 Complainant was at home because she had taken leave from February 13, 1995 to February 17, 1995. (OIG 3, p. 2). Complainant had also requested and received permission from her supervisor, Ed Springer, to work nine hours of flexiplace over several days. Id.
5 In an interview with an agent from the Inspector General's office, Lel Medford and Louis Ponce concluded that Complainant was a project manager and not a contracting officer although Complainant did not identify herself. (OIG 6). On February 14, 1995, however, Complainant had contacted Larry Wright, and identified herself as a contracts specialist for Region IV. (OIG 18, p. 4).
6 In an interview with special agents Mullins and Townsend, Complainant stated that she did not care who received the contract and her only concern was as a taxpayer. (OIG 2, p. 3).
7 Complainant even wrote to former Vice President Al Gore, who responded on May 8, 1995 stating:
[T]he President and I will continue to support federal employee protection measures and other efforts to bring about better internal and external sources of agency control."
(CX 20).
Complainant also wrote a letter to Representative Dingle the ranking member of the House Committee on Commerce on March 23 & 29, 1995. (CX 34). Representative Dingle referred Complainant to Representative Joe Barton, chairperson on the Subcommittee on Oversight and Investigation. Id.
8 The "appropriate administrative action" was taken on March 28, 1996 when Mr. Waldrop decided to permanently assign Complainant to the Information Management Branch in light of the investigation. (OIG 23).
9 Special Agent Townsend had participated in the investigation of Complainant. (OIG 2; OIG 5).
10 The Inspector General's office referred Complainant to EPA Region IV for many documents as that was their point of origination. (CX 12 Z-1, p.1).
11 Complainant also was involved in articles written in the Environmental Insider on June 14, 1998, and the Investors Business Daily on August 20, 1998, concerning retaliation against her for whistleblowing activity.
12 Claimant was diagnosed with gastritis on September 12, 1997, and her treating physician, Dr. Zack Martin, suspected that Complainant had irritable bowel syndrome and Complainant related that her symptoms increased when she was under stress. (CX 10, p. 128).
13 Respondent EPA asserts that the United States has not waived sovereign immunity with regards to the Toxic Substances Control Act. See Stephenson v. NASA, 1994-TSC-5 (ALJ June 27, 1994); Mackey v. United States Marine Corps, 1999-WPC-6 (ALJ July 13, 1999).
14 According to Complainant, this letter informed her supervisor, Mr. Mills and the Union president, Mr. Yeast, of problems with EPA's regulations and analytical methods and threatened to open up the demonstrated problems to public scrutiny through the courts.
15 Because Complainant presented more than a scintilla of evidence that she suffered discriminatory treatment that was pervasive and regular, it is not appropriate to make a determination that her whsitleblower complaints are not timely.