476 F.3d 847 (10th Cir. 2007), 05-9512, Hall v. United States Dept. of Labor, Admin. Review Bd.

Docket Nº:05-9512.
Citation:476 F.3d 847
Party Name:David W. HALL, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent.
Case Date:February 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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476 F.3d 847 (10th Cir. 2007)

David W. HALL, Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, Respondent.

No. 05-9512.

United States Court of Appeals, Tenth Circuit.

February 13, 2007

PETITION FOR REVIEW OF AN ORDER FROM THE UNITED STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD, Agency Docket No. 02-108.

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[Copyrighted Material Omitted]

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Mick G. Harrison, Berea, Kentucky, appearing for Petitioner.

Ian H. Eliasoph, Attorney (Howard M. Radzely, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, and Paul L. Frieden, Counsel for Appellate Litigation, with him on the brief), United States Department of Labor, Washington, D.C., appearing for Respondent.

Before TACHA, Chief Circuit Judge, McKAY and HENRY, Circuit Judges.

TACHA, Chief Circuit Judge.

Petitioner-Appellant Dr. David W. Hall, a civilian chemist for the United States Army Dugway Proving Ground ("Dugway" or "Army"), filed a complaint with the United States Department of Labor on February 13, 1997, alleging violations of the employee protection provisions of several environmental statutes, which protect employees from being discriminated against for engaging in specified protected activity.1After investigating the allegations, on April 17, 1997, the Occupational Safety and Health Administration ("OSHA") determined that there was no merit to Dr. Hall's complaint. Dr. Hall requested a hearing before an Administrative Law Judge ("ALJ"), and effective June 12, 1997, he resigned his position at Dugway.

On August 8, 2002, following an exhaustive 57-day hearing, the ALJ issued a Recommended Decision and Order ("RD & O") finding that Dr. Hall's resignation was a constructive discharge due to a hostile work environment created by Dugway in retaliation for Dr. Hall's protected activities under the environmental statutes. Dugway petitioned the Administrative Review Board ("ARB" or "Board") for a review of the ALJ's RD & O. The ARB rejected the ALJ's conclusion, finding that Dr. Hall failed to prove Dugway acted with retaliatory motive in any of the alleged hostile acts taken against him. Dr. Hall now asks this court to review the ARB's ruling. We exercise jurisdiction to review the Secretary of Labor's final ruling pursuant to 42 U.S.C. § 6971(b) and AFFIRM.

I. BACKGROUND

Dr. Hall worked as a civilian chemist in the Chemical Laboratory Division ("Chem Lab") at Dugway, a munitions test and evaluation range, from 1986 through June 1997. His position as a chemist with access to hazardous chemicals required him to have a valid security clearance. Between 1987 and 1997, Dr. Hall reported several perceived environmental and safety hazards to federal and state agencies, some of which resulted in investigations of and enforcement actions against Dugway.

On February 13, 1997, Dr. Hall filed a complaint with the United States Department of Labor alleging Dugway violated the employee protection provisions of several environmental statutes. Dr. Hall alleged that after he reported environmental and safety concerns to the Army and outside agencies, Dugway retaliated by creating a hostile work environment. For example, he alleged that the Army retaliated

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against him by reinvestigating and recommending revocation of his security clearance, requiring him to undergo unnecessary mental health and fitness-for-duty exams, subjecting him to hostile comments and policies in the workplace, unfairly lowering his performance evaluations and threatening disciplinary action against him, and interfering with his work in an effort to stymie completion of his assignments.

Upon the initial filing of Dr. Hall's complaint, OSHA investigated and concluded that it had no merit. Dr. Hall then requested a hearing before an ALJ. He retired effective June 12, 1997, prior to the hearing; consequently, the ALJ construed Dr. Hall's original complaint of retaliation to include a claim that he was constructively discharged. In a lengthy RD&O, the ALJ concluded that Dr. Hall had engaged in protected activity, and that Dugway had indeed retaliated against Dr. Hall because of his protected activities, in violation of the environmental statutes. The ALJ's recommended order awarded substantial damages and attorney's fees to Dr. Hall.

Dugway challenged the ALJ's recommended order, and the case was submitted for review to the ARB. See 29 C.F.R. § 24.8 (explaining that the ARB "has been delegated the authority to act for the Secretary [of Labor] and issue final decisions" as to such discrimination claims). In its Final Decision and Order, issued in December 2004, the ARB rejected the ALJ's recommendations and dismissed Dr. Hall's complaint, finding (1) under Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), it had no authority to review the merits of Dugway's reinvestigation and revocation of Dr. Hall's security clearance; and (2) with respect to the remaining hostile actions alleged, Dr. Hall failed in his burden to prove retaliatory motive.

On appeal, Dr. Hall argues that: (1) the ARB abused its discretion by misconstruing Egan and failing to review the Army's security clearance decisions; (2) the ARB's decision is not supported by substantial evidence because the ARB improperly evaluated direct and circumstantial evidence of retaliatory motive; and (3) the ARB abused its discretion by misconstruing Dr. Hall's complaint and the law of constructive discharge.

II. DISCUSSION

We review the ARB's decision under the standard established by the Administrative Procedure Act, 5 U.S.C. §§ 701-06. See Anderson v. U.S. Dep't of Labor, 422 F.3d 1155, 1173 (10th Cir.2005). Thus, the Court will reverse the Final Order only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). We review the factual findings of the Board, not those of the ALJ, and the Board's findings are conclusive if they are supported by "substantial evidence." See id. § 706(2)(E); Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir.2004). Our review under this "substantial evidence" standard is "quite narrow." Zoltanski, 372 F.3d at 1200. We review questions of law de novo. See Anderson, 422 F.3d at 1173.

The various environmental statutes Dr. Hall alleges Dugway to have violated contain employee protection provisions that prohibit an employer from discharging or discriminating against an employee for reporting environmental violations. See, e.g., 42 U.S.C. § 6971(a) (SWDA's employee protection provision); see also 29 C.F.R. § 24.2(a) (providing for implementation of the employee protection provisions of the SWDA and other

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environmental statutes). 2 "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." Sasse v. U.S. Dep't of Labor, 409 F.3d 773, 779 (6th Cir.2005). Specifically, Dr. Hall must show: (1) he was an employee; (2) he engaged in protected activity; (3) Dugway knew of the protected conduct; (4) the alleged discrimination occurred--that is, the alleged hostile acts occurred; and (5) a nexus exists making it likely that the protected activity led to the alleged discrimination. See Anderson, 422 F.3d at 1178. The plaintiff bears the burden of proving discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

Dr. Hall alleges that Dugway created a hostile work environment in retaliation for his environmental reporting activities that ultimately led to his constructive discharge. The ARB found, and the parties do not contest, that Dr. Hall engaged in protected activity and that Dugway was aware of his activities. On appeal, the only challenge concerns the ARB's conclusion that there was no nexus between Dr. Hall's protected activity and Dugway's allegedly hostile acts. An employer creates a hostile work environment when "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998) (quotations omitted) (hostile work environment claim brought under Title VII). A constructive discharge claim based on a hostile work environment goes a step farther. An employee is constructively discharged when the employer by his illegal discriminatory acts makes "working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th Cir. 1998) (quotation omitted) (discrimination and retaliation action brought under Age Discrimination in Employment Act and Title VII). Thus, a constructive discharge "can be regarded as an aggravated case of . . . hostile work environment." Pa. State Police v. Suders, 542 U.S. 129, 146, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). In either case, the plaintiff must show that he was targeted for harassment because of his protected activity. See Sasse, 409 F.3d at 779.3 That is, there must be evidence that justifies "an inference of retaliatory motive" for Dugway's allegedly hostile actions. Burrus v. United Tel. Co. of Kan., 683 F.2d 339, 343 (10th Cir. 1982).

A. Authority to Review Security Clearance Decisions

Dr. Hall contends that Dugway retaliated against him by reinvestigating, suspending, and recommending revocation of his security clearance. The ARB declined to review these actions because it concluded that it lacked authority to do so. We agree with the Board that it lacked authority

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to review the...

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