Kaufman v. Perez

• Decision Date: 19 May 2014
• Docket Number: No. 12–1036.,12–1036.
• Citation: 745 F.3d 521
• Parties: Hugh B. KAUFMAN, Petitioner v. Thomas E. PEREZ, Secretary of the United States Department of Labor, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

745 F.3d 521

Hugh B. KAUFMAN, Petitioner

v.Thomas E. PEREZ, Secretary of the United States Department of Labor, Respondent.

No. 12–1036.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 18, 2013.

Decided March 14, 2014.

Rehearing En Banc Denied May 19, 2014.

On Petition for Review of the Final Decision and Order of the United States Department of Labor's Administrative Review Board.

Regina M. Markey argued the cause and filed the briefs for petitioner.

Dean A. Romhilt, Attorney, U.S. Department of Labor, argued the cause for respondent. With him on the brief was Megan E. Guenther, Attorney. Heather R. Phillips, Attorney, U.S. Department of Labor, entered an appearance.

Before: HENDERSON and SRINIVASAN, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge SENTELLE.

Opinion concurring in the judgment filed by Circuit Judge SRINIVASAN.

SENTELLE, Senior Circuit Judge.

Hugh Kaufman, an employee of the Environmental Protection Agency (“EPA”), brought several claims against his employer for allegedly retaliating against him in violation of several environmental whistleblowing provisions. An administrative law judge (“ALJ”) denied his claims, and the Administrative Review Board (“ARB”) affirmed the ALJ's decision. Kaufman now petitions this court for review of the dismissal of seven claims. Because we conclude that the Board committed no error in its conclusion that the claims were barred by the relevant statutes of limitation, we deny Kaufman's petition for review.

I. BACKGROUND

A. Factual History

Kaufman is a program analyst at the headquarters of the EPA in Washington, DC. He has been employed by the EPA since its creation in 1971. At all times relevant to this proceeding, he was employed in the Office of Solid Waste and Emergency Response (“OSWER”). In 1999, Kaufman was assigned to the OSWER Assistant Administrator's Office, his position description was changed from Environmental Protection Specialist to Program Analyst, and his job description was expanded to include responsibilities assisting the OSWER Ombudsman, Robert Martin. The Ombudsman investigated public complaints, mediated disputes, and convened hearings regarding OSWER's administration of the hazardous substance and solid waste programs. Though Martin assigned Kaufman work, Michael Shapiro was Kaufman's immediate supervisor and Timothy Fields served as his second-level supervisor. Fields, a Presidential appointee, was the Acting Assistant Administrator of OSWER at the time and Shapiro was the Acting Deputy Assistant Administrator.

Kaufman's conduct at OSWER hearings became a matter of controversy early in his tenure with the Ombudsman. His pattern of behavior culminated in an extraordinary incident at a Town Hall meeting concerning a Superfund site in Tarpon Springs, Florida, in June of 2000. The June meeting followed two earlier Tarpon Springs sessions in which Kaufman had, according to EPA officials, ridiculed personnel and failed to conduct impartial and professional hearings. Kaufman chaired the June 5, 2000 meeting. Two EPA representatives appeared: Joanne Benante, Chief of the North Florida Section of EPA's Region IV, and Michelle Staes, Assistant Regional Counsel and the Region IV attorney assigned to the site. Kaufman conducted the hearing, not as an impartial ombudsman proceeding, but in a confrontational fashion belittling and demeaning the EPA representatives, especially attorney Staes. He set the tone of his behavior from the outset, reading Benante and Staes Miranda warnings as if they were in-custody criminals. He went on to allege that the EPA in the Region was stonewalling Congress and the Justice Department. He further demeaned attorney Staes, lamenting that “all these big shot men and big shot women [in the EPA] who have been in it for 20, 30 years have to hide behind the skirts of a little black girl just out of law school.”

As the ALJ noted, “[r]esponse to Kaufman's performance was swift.” Stephen Luftig, Director of the Office of Emergency and Remedial Response, wrote a letter to the Ombudsman dated June 12, 2000 to express concern over reports of the “abusive, bullying tactics and the lack of impartiality” shown by Kaufman at the hearing one week earlier. The letter also characterized the Miranda-rights incident as part of a pattern of inappropriate behavior, and requested an explanation. In response to Luftig's letter, Kaufman accelerated the confrontation. His written response, among other things, demanded that Luftig either present substantiating evidence or apologize, and suggested that Luftig's memorandum to him “was a knowingly reckless, false, misleading, and inaccurate document intended to thwart and obstruct an ongoing federal investigation, and a knowing attempt to harm the federal officials performing the investigation.” Shapiro issued an Official Reprimand dated September 29, 2000, chastising Kaufman for his conduct at the June 5, 2000 meeting.

Fields testified before the ALJ that these and other incidents led him to conclude that Kaufman's support of the Ombudsman was not working. On December 14, 2000, Fields met with Kaufman and informed him that he would no longer be performing Ombudsman duties. Fields embodied this message in a memo that set forth Kaufman's behavior at the Tarpon Springs hearing and other hearings, characterizing that behavior as “inappropriate, unprofessional, and lacking in impartiality.” The memo advised Kaufman that “examples of your lack of impartiality and professionalism are numerous.” In addition to the Miranda warnings and the demeaning treatment of Staes set forth above, the memo recited other examples of similar behavior by Kaufman, including other occurrences at Tarpon Springs and hearings in Ohio and Idaho.

The memo stated that at the Idaho hearings Kaufman “asked at least three different hearing participants the same inappropriatequestion: ‘Do you believe there was and/or is evidence of a cover-up related to the [industrial excess landfill] activities?’ ” Fields described this type questioning as “aimed at inciting public angst, rather than objective fact-finding” and as reflecting “[Kaufman's] lack of impartiality in the performance of [his] Ombudsman-related duties.”

The memo referred to Kaufman's having “used language and made statements which were inappropriate for an objective federal official in Idaho.” By way of example, he stated that the public had been “used as pawns” and that “the Department of Justice has asked EPA to, basically, kill the Ombudsman program.” The memo related Kaufman's having stated at the same hearing that he thought the EPA was “raping” the people of the Idaho Valley.

After reciting the examples of Kaufman's lack of impartiality and professionalism, the Fields memorandum informed Kaufman that he would no longer be performing Ombudsman's duties and that the reference to such duties would be removed from his position description. Without doubt, Kaufman understood the import of Fields's memorandum. In a January 8, 2001 Environment News Service article, Kaufman claimed that he had been “ousted from the Ombudsman's Office because he exposed EPA wrongdoing at a number of agency-managed hazardous waste clean-up sites.” He further characterized his “ouster” as being “ ‘political revenge’ for his office's damning revelations about failed Democratic presidential candidate Al Gore.”

On January 20, 2001, a new administration took office. On January 29, 2001, Martin issued a memo stating he was unable to perform substantial Ombudsman tasks, due in part to Kaufman's reassignment. On January 30, 2001, Christine Todd Whitman was confirmed as the new EPA Administrator. The next day, Shapiro met with Kaufman to discuss Kaufman's job performance. Kaufman asked Shapiro if he was withdrawing Fields's memo—as a Presidential appointee, Fields had exited with the previous administration. Shapiro confirmed that he was not.

In early February, Martin requested Kaufman's help with Ombudsman tasks. Shapiro rejected his request. On February 13 and 21, Shapiro addressed the matter again with Martin, reaffirming that Kaufman would not be assigned Ombudsman work. Nonetheless, on February 15, Kaufman submitted a travel request to attend an Ombudsman hearing, which Shapiro denied. On February 22, Shapiro issued a memo to Martin summarizing his previous conversations and again affirmed that Kaufman would not be available to support the Ombudsman. Finally, on February 23, after Shapiro again received reports of Kaufman's participation in Ombudsman functions, he orally informed Kaufman again that Kaufman was prohibited from performing Ombudsman duties. Kaufman asked Shapiro to put that prohibition in writing.

Before Shapiro could do so, Kaufman sent him a memo dated March 6, asserting, among other things, the “fact” that his prohibition expired when Fields left the EPA. Accordingly, he asked Shapiro to provide “unequivocal clarification ... as to whether [Shapiro was] going to take an adverse action against” Kaufman. Around the same time, Kaufman discovered what he perceived as a conflict of interest on Administrator Whitman's part at one of the cleanup sites. He reported this possible conflict to the Inspector General, and spoke to the press about it as well, accusing Whitman of stopping the Ombudsman from giving him assignments to reduce the chances that the site would be forced to comply with environmental laws. The InspectorGeneral investigated Kaufman's allegations and found them to be unsubstantiated.

On March 14, 2001, Shapiro responded to Kaufman's March 6 memo with one of his own in which he reiterated Kaufman's prohibition, expressed shock at the assertion that Fields's memo expired with the change of administration, and attached a copy of the memo. Shapiro also attached a copy of Kaufman's position description with Ombudsman-related duties removed. Kaufman responded by alleging that Shapiro...