Sasse v. U.S. Dept. of Labor

• Decision Date: 31 May 2005
• Docket Number: No. 04-3245.,04-3245.
• Citation: 409 F.3d 773
• Parties: Gregory C. SASSÉ, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR; United States Department of Justice, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

409 F.3d 773

Gregory C. SASSÉ, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR; United States Department of Justice, Respondents.

No. 04-3245.

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2005.

Decided and Filed: May 31, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

ARGUED: Gregory A. Gordillo, Law Offices of Gregory A. Gordillo, Cleveland, Ohio, for Petitioner. Edward D. Sieger, United States Department of Labor, Washington, DC, for Respondents. ON BRIEF: Gregory A. Gordillo, Law Offices of Gregory A. Gordillo, Cleveland, Ohio, Steven D. Bell, Simon Law Firm, Cleveland, Ohio, for Petitioner. Edward D. Sieger, Allen H. Feldman, United States Department of Labor, Washington, DC, for Respondents.

Before: SILER, BATCHELDER, and DAUGHTREY, Circuit Judges.

OPINION

BATCHELDER, Circuit Judge.

Petitioner Gregory Sassé appeals the order of the Department of Labor's Administrative Review Board ("ARB") dismissing his complaint, which alleged that his employer the Department of Justice ("DOJ"), retaliated against him for protected activity in violation of the whistleblower provisions of three environmental statutes: the Clean Air Act ("CAA"), 42 U.S.C. § 7622(a), the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. § 6971(a), and the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1367(a). Because Sassé did not engage in a whistleblowing activity protected by these statutes, and because in any event, Sassé's claims are untimely, we will AFFIRM the decision of the ARB.

I.

In 1983 Gregory Sassé was hired as an Assistant United States Attorney ("AUSA") in the Criminal Division of the Cleveland, Ohio, office. After moving around various sections of the Criminal Division, Sassé found his niche as an environmental crimes prosecutor and was appointed by United States Attorney Joyce George to serve as the chairman of the office's newly established environmental crimes task force. In his first environmental case, Sassé prosecuted Nick Bogas, a Cleveland businessman, for illegally dumping hazardous waste at the Cleveland Hopkins International Airport. See United States v. Bogas, 920 F.2d 363 (6th Cir.1990). Adjacent to the land that Bogas used for illegal dumping was a landfill, known as the "south forty," which was owned by the National Aeronautics and Space Administration ("NASA"). Based on his investigation of the Bogas case, Sassé concluded that NASA was illegally dumping hazardous waste at the south forty. Though Bogas was eventually settled with a plea agreement, Sassé continued to investigate environmental wrongdoing at the airport and the south forty.

In November of 1996, Sassé filed a 64-page complaint with the Department of Labor, alleging that the DOJ had retaliated against him for investigating and prosecuting environmental crimes in violation of the whistleblower provisions of three federal environmental statutes. Specifically, the complaint alleges that the discrimination was "in response to [Sassé's] efforts in promoting the Environmental Crimes Task Force for the Northern District of Ohio, the goal of which Task Force is the initiation of prosecutions for criminal environmental violations, and in response to [Sassé's] efforts in investigation and prosecution of various specific environmental prosecutions...." This alleged discrimination, which began immediately after the indictment in United States v. Bogas was handed down, took the form of less favorable performance appraisals, cruel remarks, the imposition of a heavier caseload, and a denial of training and office supplies. The complaint further alleges that DOJ officials assigned Sassé a drunken secretary ("Secretary X") in an effort to harass him.

In October of 1997, while his complaint was pending with the Department of Labor, Sassé made a business proposal to NASA whereby he would leave his employment with the United States Attorney and work for the agency in a private capacity to ensure that it complied with environmental laws. Because Sassé had learned through his work with the DOJ that NASA owned contaminated land, and because he was employed as an AUSA when he submitted the proposal, NASA forwarded Sassé's proposal to the DOJ's Office of the Inspector General. On January 14, 2000, the Executive Office for the United States Attorneys mailed Sassé a letter proposing to suspend him for five days because he had violated two ethical standards: soliciting outside employment that involves a subject matter within the DOJ's area of responsibility in violation of 5 C.F.R. § 3801.106(c), and using a public office for an employee's own private gain in violation of 5 C.F.R. § 2635.702.

Early in the year 2000, a staffer from Congressman Dennis Kucinich's office contacted Sassé and requested that he assist the Congressman in evaluating environmental issues at Cleveland Hopkins Airport. On February 2, 2000, Sassé relayed news of this contact to the First AUSA, who asked him to write a memo detailing his concerns. Sassé's memo concluded that NASA officials were covering up contamination of NASA property near the airport. NASA, DOJ, the Federal Bureau of Investigation and the Environmental Protection Agency all investigated these allegations but unanimously concluded that no prosecution could be undertaken because there was no evidence of a wrongdoing that had occurred within the statute of limitations. On May 2, 2000, the Director of the Executive Office of the United States Attorneys suspended Sassé for five days for his October 1997 attempt to obtain private employment with NASA. The letter that the director sent to Sassé specified that he was being suspended for using government facilities to prepare documents for a private business venture and for his improper solicitation of NASA.

An administrative law judge ("ALJ") of the Department of Labor conducted a hearing on Sassé's complaint and issued a written decision on May 8, 2002. The ALJ dismissed all of the claims contained in the complaint because it did not allege that Sassé had engaged in a protected activity. The ALJ reasoned that because Sassé had a duty as an AUSA to prosecute and investigate environmental crimes, these activities were not protected by the whistleblower provisions of the pertinent statutes. However, the ALJ sua sponte amended the complaint to include Sassé's May 2000 suspension as an alleged act of retaliation for Sassé's contacts with Congressman Kucinich's office. The ALJ held that the DOJ violated the whistleblower provisions of the pertinent acts by suspending Sassé and recommended awarding compensatory and exemplary damages. The ARB reversed and dismissed Sassé's complaint as untimely. Alternatively, the ARB stated that Sassé's claim failed on the merits but it did not rule on the issue of whether Sassé's work on environmental crimes was protected by the whistleblower provisions of the cited statutes. The ARB also held that the ALJ erred by sua sponte amending Sassé's complaint to include his May 2000 suspension. Sassé timely appealed the ARB's ruling.

II.

We may disturb the Secretary of Labor's decision "only if we find that the decision `is unsupported by substantial evidence' or if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Varnadore v. Secretary of Labor, 141 F.3d 625, 630 (6th Cir.1998) (quoting the Administrative Procedure Act at 5 U.S.C. 706(2)(A)). The ARB acts for the Secretary of Labor and is responsible for issuing "final agency decisions." Id. at 630. To satisfy the substantial evidence standard, the Board's decisions must be supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." ITT Auto v. NLRB, 188 F.3d 375, 384 (6th Cir.1999). "The substantial evidence standard is a lower standard than weight of the evidence and `the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'" Painting Co. v. NLRB, 298 F.3d 492, 499 (6th Cir.2002) (quoting NLRB v. Kentucky May Coal Co. Inc., 89 F.3d 1235, 1241 (6th Cir.1996)). "This highly deferential standard of review is not altered merely because the Secretary disagrees with the ALJ, see Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and we `defer to the inferences that the Secretary derives from the evidence, not to those of the ALJ.'" Varnadore, 141 F.3d at 630 (quoting Lockert v. United States Dep't of Labor, 867 F.2d 513, 519 n. 2 (9th Cir.1989)).

The CAA, SWDA, and FWPCA contain whistleblower provisions, which prohibit an employer from discharging or discriminating against an employee for reporting environmental violations or instituting proceedings resulting from the administration or enforcement of the statutes.¹ To state a claim under the whistleblower provision of an environmental statute, the plaintiff must establish that his employer retaliated against him because he engaged in a protected activity. Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir.1995) (analyzing the whistleblower provisions of the SWDA and FWCPA); see also American Nuclear Resources, Inc. v. United States Department of Labor, 134 F.3d 1292, 1295 (6th Cir.1998); Passaic Valley Sewerage Com'rs v. Department of Labor, 992 F.2d 474, 481-82 (3d Cir.1993). Sassé alleges that he engaged in two types of protected activities which subjected him to retaliation by the DOJ: 1) his investigation and prosecution of environmental crimes and 2) his contacts with Congressman Kucinich's office. We consider each type of activity in turn.

Sassé's claim that the DOJ retaliated against him for his participation in the investigation and prosecution of environmental crimes requires us to determine whether the whistleblower provisions of the CAA, SWDA, and FWPCA protect an employee who is merely performing his assigned duties. In Willis v. Department of...