BY FAX AND FEDERAL EXPRESS
February 20, 2004
Charles R. Fulbruge III, Clerk
John Minor Wisdom
U.S. Court of
Appeals Building
United
States Court of Appeals
for the Fifth
Circuit
600 Camp Street
New Orleans,
LA 70130-3425
Attn:
Valerie L.
Bellanger
Assistant Calendar Clerk/Courtroom Deputy
Re: Williams v. Administrative Review
Bd.
No. 03-60028 (to be argued March 1, 2004)
Dear Ms. Bellanger:
As directed by the oral argument panel, counsel for the
Administrative Review Board submits this letter brief to address the following
question:
If this court determines that it
should follow the decisions by the 10th and 11th Circuits in Trimmer v. U.S.
Dept of Labor, 174 F.3d 1098 (10th Cir. 1999), and Stone and Webster
Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997), should
liability be imposed on the employer under 42 U.S.C. § 5851(b)(3)(C) and (D) based on the Board's conclusion
that "the animosity toward the complainants would not have reached an
abusive level in the absence of their protected activities." See ARB Decision and Order, page 51, n. 28.
As we discuss below, the answer is no: liability should not
be imposed on the employer if the Court follows
Trimmer and
Stone
& Webster because those decisions are consistent with the Board's
decision not to impose liability in this case.
Trimmer and
Stone & Webster apply the causation rules
in 42 U.S.C. 5851(b)(3)(C) and (D) in determining whether an employer took
adverse action against a complainant because of the complainant's protected activities.
The Board considered those rules in
determining whether the employer's actions here were related to petitioners'
protected activities.
ER 639 n.28 (ARB
Decision and Order (ARB D&O) 51 n.28).
The Board's conclusion -- that the employer failed to show lack of
causation -- does not resolve the question of employer liability, however,
because this case, unlike
Trimmer and
Stone & Webster,
involves a hostile work environment.
In
a hostile work environment case, an employer has an additional defense to
liability (besides lack of causation) that is determined under either a
negligence standard (as the Board concluded) or under the
Ellerth/Faragher
vicarious liability standard imported from Title VII (as petitioners
argue).
As discussed in the Secretary's
brief, the Board properly concluded that under either standard, the employer is
not liable for the hostile work environment in this case.
Nothing in the Board's decision, or in
Trimmer
or
Stone & Webster, requires a different conclusion.
A. The Board properly applied 42 U.S.C.
5851(b)(3)(C) and (D) in determining the cause of the hostile work environment,
not in determining the employer's ultimate liability
1. The
Board's reasoning
The petitioners in this case claim that their employer
subjected them to a hostile work environment in retaliation for activities
protected by Section 211 of the Energy Reorganization Act (ERA), 42 U.S.C.
5851.
ER 589 (ARB D&O 1).
In resolving that claim, the Board considered
two separate questions:
(1) whether
petitioners established the existence of a hostile work environment, and (2)
whether petitioners established that their employer is liable for the hostile
work environment.
ER 597 (ARB D&O
9).
In determining that petitioners established a hostile work
environment, the Board reasoned that the ERA's prohibition against
discrimination with respect to the "terms, conditions, or privileges of
employment," 42 U.S.C. 5851(a)(1), has been construed to prohibit
retaliatory harassment that creates a hostile work environment.
ER 600 (ARB D&O 12); see,
e.g.,
English
v.
Whitfield, 858 F.2d 957, 963-964 (4th Cir. 1988).
The elements of such a claim are proof by a
complainant (1) that he engaged in protected activity, (2) that he suffered
intentional harassment related to that activity, (3) that the harassment was
sufficiently severe or pervasive so as to alter the conditions of employment
and create an abusive working environment, and (4) the harassment would have
detrimentally affected a reasonable person and detrimentally affected the
complainant.
ER 600-601 (ARB D&O
12-13).
The Board concluded that
petitioners established these elements through incidents of harassment by
co-workers and low-level supervisors.
ER
601-639 (ARB D&O 13-51).
At the end of its discussion of the hostile work environment
issue, the Board noted that the employer could have avoided liability under 42
U.S.C. 5851(b)(3)(C) and (D) by establishing by clear and convincing evidence
that petitioners would have experienced the same level of hostility even if
they had not engaged in protected activity.
ER 639 n.28 (ARB D&O 51 n.28).
That provision presents a "dual, or mixed motive paradigm,"
the Board explained.
Ibid.; see
42 U.S.C. 5851(b)(3)(C) (Secretary may determine that an ERA violation occurred
only if protected activity "was a contributing factor in the unfavorable
personnel action alleged in the complaint"); 42 U.S.C. 5851(b)(3)(D)
(relief may not be ordered if employer "demonstrates by clear and
convincing evidence that it would have taken the same unfavorable personnel
action in the absence of such [protected] behavior").
The Board concluded, however, "that the
animosity toward [petitioners] would not have reached an abusive level in the
absence of their protected activities."
ER 639 n.28 (ARB D&O 51 n.28).
Having determined that a hostile work environment existed,
the Board then held that the employer was not liable for that environment.
ER 639-655 (ARB D&O 51-67).
The Board reached this conclusion by applying
a negligence standard, under which an employer is liable for a hostile working
environment caused by a supervisor when the employer had notice of the
harassment and failed to respond adequately.
ER 640-643 (ARB D&O 52-55); see
Varnadore v.
Oak Ridge
Nat'l Lab., No. 92-CAA-2, 1996 WL 363346, at *31 (ARB June 14, 1996), aff'd
on other issues sub nom.
Varnadore v.
Secretary of Labor, 141
F.3d 625 (6th Cir. 1998).
The Board also
concluded that the employer was not liable under the vicarious liability
standard that petitioners sought to import from Title VII sexual harassment
cases.
ER 644-655 (ARB D&O 56-67).
2. The
Board's reasoning is correct
The Board properly applied 42 U.S.C. 5851(b)(3)(C) and (D)
in determining that petitioners established a hostile working environment.
The ERA prohibits discrimination
"because" an employee has engaged in protected activity.
42 U.S.C. 5851(a)(1).
Sections 5851(b)(3)(C) and (D) set rules for
determining when discrimination is "because" of protected activity to
replace earlier rules that courts applied in dual motive cases.
See 138 Cong. Rec. 32,081, 32,082 (1992)
(statement of Rep. Miller) (lowered burden of proof before ARB to facilitate
relief for employees who have been retaliated against);
id. at
32,116-32,117 (statement of Rep. Ford) (same);
Stone & Webster Eng'g
Corp. v.
Herman, 115 F.3d at 1572 (citing
Mackowiak v.
University
Nuclear Sys. Inc., 735 F.2d 1159, 1164 (9th Cir. 1984)).
One of the elements of a hostile work
environment claim is proof that harassment is "because" of protected activity.
See ER 601 (ARB D&O 13) (requiring proof
that a complainant "suffered intentional harassment related to [protected]
activity").
Accordingly, the Board
properly considered the causation rules in 42 U.S.C. 5851(b)(3)(C) and (D) in
determining whether petitioners established the elements of a hostile work
environment claim.
Its conclusion
"that the animosity toward [petitioners] would not have reached an abusive
level in the absence of their protected activities," ER 639 n.28 (ARB
D&O 51 n.28), fully supported its finding of a hostile work environment due
to discrimination in this case.
The finding of a hostile work environment, however, is
insufficient to establish employer liability.
The Board thus also properly concluded that an employer's failure to
disprove causation under 42 U.S.C. 5851(b)(3)(C) and (D) does not result in
employer liability for supervisory and co-worker harassment.
As under Title VII, the ERA prohibits
discrimination by an "employer," 42 U.S.C. 5851(a)(1), which raises a
question whether acts by a supervisor or a co-worker should be attributed to an
"employer."
Title VII's
definition of "employer" provides a defense to employer liability
when acts by a supervisor or a co-worker create a hostile work environment, but
not when they result in a tangible adverse employment action.
See
Burlington Indus., Inc. v.
Ellerth,
524
U.S. 742, 754 (1998)
(supervisor harassment);
Faragher v.
City of Boca Raton, 524
U.S. 775, 791 (1998) (same);
Waymire v.
Harris
County, 86 F.3d 424, 428-429 (5th
Cir. 1996) (co-worker harassment).
That defense exists even though Title VII,
like the ERA, provides specific rules for determining when an adverse
employment action is caused by prohibited discrimination.
See 42 U.S.C. 2000e-2(m) (unlawful employment
practice established "when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the
practice"); 42 U.S.C. 2000e-5(g)(2)(B) (employer may avoid liability for
damages by demonstrating that it "would have taken the same action in the
absence of the impermissible motivating factor");
Desert Palace, Inc.
v.
Costa, 539 U.S. 90 (2003).
Thus, under either a vicarious liability (
Faragher/Ellerth)
standard imported from Title VII, as petitioners urge, or a negligence
standard, as the Board held and we urge, an employer may assert a defense to an
ERA hostile work environment claim that, if successful, will absolve it of
liability.
The Board's finding that
there was "animosity . . . [that] reached an abusive level," ER 639
n.28 (ARB D&O 51 n.28), helps resolve the question whether a hostile work
environment existed, but not the ultimate question whether the employer's defense
fails and liability thus falls on the employer.
B. The Board's decision is consistent with
Trimmer and Stone & Webster
In
Trimmer, 174 F.3d at 1102-1104, the Tenth Circuit
applied the burden of proof rules in 42 U.S.C. 5851(b)(3)(C) and (D) in
affirming the Board's conclusion that an employee failed to establish a
necessary element of his case, adverse action by the employer.
In
Stone & Webster Engineering Corp.
v.
Herman, 115 F.3d at 1572-1576, the Eleventh Circuit applied those
rules in affirming a determination by the Secretary of Labor that an employer
violated the ERA.
Trimmer and
Stone & Webster
are consistent with the Board's decision in this case because neither
Trimmer
nor
Stone & Webster presented a question of employer liability for a
hostile work environment.
Instead, they
presented questions of employer liability for alleged tangible employment
actions.
An employer may be liable for
such actions without any inquiry into whether the actions should be attributed
to the employer.
See
Ellerth, 524
U.S.
at 762 ("a tangible employment action taken by the supervisor becomes for
Title VII purposes the act of the employer").
In particular, the employee in
Trimmer claimed that
his employer wrongfully delayed an alternative placement process because he
engaged in activity protected by the ERA.
174 F.3d at 1099.
The issue
presented was whether this delay was an unfavorable personnel decision, as
required for the complainant to establish an ERA violation under the ERA's
burden of proof rules.
Id. at 1101-1102; see 42 U.S.C.
5851(b)(3)(C) (complainant must prove that protected activity was a
contributing factor in an "unfavorable personnel action").
The Board concluded that the delay did not
constitute an unfavorable personnel action, and the Tenth Circuit agreed.
174 F.3d at 1102-1104.
Neither the Board nor the Tenth Circuit had
any occasion to consider burdens of proof or employer liability when the
alleged discrimination involved a hostile work environment.
Since the question at issue in
Trimmer
is not at issue here,
Trimmer has no bearing on this case and does not
support reversing the Board on the question of employer liability that is
presented.
In
Stone & Webster, an employer demoted an
employee and transferred him to a job involving "less prestigious, less
essential tasks."
115 F.3d at
1571.
The Secretary concluded that the
demotion and transfer violated the ERA.
Ibid.
The Eleventh Circuit affirmed the Secretary's
decision, reasoning that the complainant established that he experienced
adverse action motivated at least in part by his protected activities, as
required by 42 U.S.C. 5851(b)(3)(C), and the employer failed to prove by clear
and convincing evidence that it would have demoted and transferred the employee
for legitimate reasons, despite the impermissible one, as required by 42 U.S.C.
5851(b)(3)(D).
115 F.3d at 1572-1576.
Stone & Webster is consistent with the Board's
decision here because the demotion and transfer to a less favorable job in
Stone
& Webster amounted to a tangible employment action that is attributable
to the employer.
See
Ellerth, 524
U.S.
at 761 ("[a] tangible employment action constitutes a significant change
in employment status," including "reassignment with significantly
different responsibilities").
The
alleged adverse actions at issue in this case were not tangible employment
actions, as the Board recognized in distinguishing
Stone & Webster,
and as the Secretary explained in her brief as respondent.
See ER 619 n.16, 631 n.27, 654-658 (ARB
D&O 31 n.16, 43 n.27, 66-70); Sec'y Br. 39.
For these reasons, liability should not be imposed on the
employer even if the Court follows
Trimmer and
Stone & Webster.
Respectfully
submitted,
HOWARD
M. RADZELY
Solicitor
of Labor
STEVEN
J. MANDEL
Associate
Solicitor
PAUL
L. FRIEDEN
Counsel
for Appellate Litigation
(202)
693-5552
________________________________
EDWARD
D. SIEGER
Senior
Appellate Attorney
(202)
693-5771
United
States Department of Labor
200 Constitution Avenue, N.W.
Washington, DC
20210
I hereby certify that on February
20, 2004, one copy of this letter brief was sent by fax and one copy with a
diskette was sent by federal express to the following counsel of record: