Williams v. Administrative Review Bd.

• Decision Date: 15 July 2004
• Docket Number: No. 03-60028.,03-60028.
• Parties: John R. WILLIAMS, Joe McQuay, Norman Olguin, Gilbert Rodriguez, Tom Byrd, and Stephen Sottile, Petitioners, v. ADMINISTRATIVE REVIEW BOARD, United States Department of Labor, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

376 F.3d 471

John R. WILLIAMS, Joe McQuay, Norman Olguin, Gilbert Rodriguez, Tom Byrd, and Stephen Sottile, Petitioners, v. ADMINISTRATIVE REVIEW BOARD, United States Department of Labor, Respondent.

No. 03-60028.

United States Court of Appeals, Fifth Circuit.

July 15, 2004.

COPYRIGHT MATERIAL OMITTED

Thad M. Guyer, Gregory Alan Wolk (argued), Government Accountability Project, Seattle, WA, for Petitioners.

Paul L. Frieden, Edward D. Sieger (argued), Howard M. Radzely, Lynn Saunders McIntosh, U.S. Dept. of Labor, Washington, DC, for Respondent.

Rebecca Siegel Singer (argued), Terry G. Greenberg, Singer & Greenberg, Dallas, TX, for BWXT Pantex LLC, Intervenor.

Petition for Review of Final Order of the Administrative Review Board of the United States Department of Labor.

Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Employees of Mason & Hanger Corporation ("Mason") sued under 42 U.S.C. § 5851 alleging they were subjected to a hostile work environment in retaliation for their whistle-blowing activities. The Administrative Review Board, United States Department of Labor ("ARB"), denied recovery to the plaintiffs. We conclude that the ARB erred in finding that the standard developed by the Supreme Court in Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) was not applicable to hostile work environment cases brought under 42 U.S.C. § 5851 where no adverse personnel action was taken. However, even under the Ellerth-Faragher standard we conclude that the ARB did not err in denying recovery to the plaintiffs.

I.

This action arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1994) ("ERA"). The six plaintiffs in this case, John R. Williams ("Williams"), Joe McQuay ("McQuay"), Norman Olguin ("Olguin"), Gilbert Rodriguez ("Rodriguez"), Tom Byrd ("Byrd"), and Steven Sottile ("Sottile") allege that the Mason & Hanger Corporation ("Mason") subjected them to a hostile work environment in retaliation for engaging in activities protected under the ERA.

Between October 1995 and November 1996 the plaintiffs worked as Production Technicians ("PTs") at the Pantex plant in Amarillo, Texas, on what was called the W55 program. The W55 program had as its purpose the disassembly of a specific type of outdated nuclear weapon. Mason owns and operates the Pantex plant in Amarillo and had contracted with the United States Department of Energy ("DOE") to run the W55 program.

In order to determine the safest, most efficient means of disassembly, scientists, engineers, and other plant experts worked initially on a dummy weapon to develop detailed procedures for disassembly of the weapon. These procedures are known as Nuclear Explosives Operating Procedures ("NEOPs"). The initial PT team, known as the A Group, was heavily involved in formulating the W55 NEOPs. The A Group had been randomly selected because they were PTs who were immediately available to work on the W55; they had not been selected to participate in development of the W55 NEOPs based on any particular experience or qualifications. After the NEOPs were developed, the A Group proceeded to dismantle a small group of weapons called the pilot lot. While the A Group was working on the pilot lot, a second team of PTs, the B Group, received training in the W55 NEOPs using a dummy weapon. Near the completion of the pilot lot by the A Group, the B Group was brought in to join the A Group in dismantling weapons. The six plaintiffs in this case worked in the B Group.

DOE guidelines and plant policy encourage PTs to provide input regarding NEOPs development. In addition, if, in the judgment of one or more PTs, a safety issue makes it unnecessarily risky to proceed, PTs may exercise their "stop-work authority" to halt disassembly on a unit. The PTs took this authority very seriously and it was not exercised capriciously. Pantex had also established an Employee Concerns Program ("ECP") through which employees could report safety concerns or other grievances. The ECP was under the direct supervision of the plant manager in order to ensure its separation from the usual chain of command.

According to an investigative report drafted by Pantex Plant Management ("Pantex Management"), the animosity between A and B groups began when, during training, the B Group, some of whom had extensive experience with nuclear weaponry, requested changes to the W55 process. Those changes were approved by Pantex Management. When the A Group applied the new procedures in the W55 work bay, however, problems developed. After the B Group completed training and started work on actual weapons, they began to raise various concerns about the process itself and questioned whether some of the A Group PTs and first-line supervisors¹ failed to comply with safety guidelines. Over the course of the W55 program, Pantex Management agreed with and acted upon many of the nuclear safety concerns the plaintiffs raised.

With hostility increasing, the W55 Pantex Management arranged safety meetings with program staff from February 27-29, 1996. The meetings were held to discuss the growing concerns raised by the plaintiffs. At the last of those meetings Pantex Management scheduled a re-tooling session for the following day to address concerns raised by the B Group. After the meeting, two of the A Group PTs spoke with Kathleen Herring ("Herring"), the W55 program director, who took them to meet with plant manager William Weinreich ("Weinreich"). The A Group PTs complained that the B Group was impugning the A Group's reputation for safety.

On March 4, 1996, hostilities between the PTs culminated in a confrontation between plaintiff Williams and Renee Stone, a member of the A Group. On March 6, 1996 the A Group PTs met with Pantex Management and asked that Williams be removed from the program. Pantex Management did remove Williams from the W55 program, but only on a temporary basis while an internal team investigated the cause of the hostilities. After the internal investigation was completed, Pantex Management directed one of its managers, John Rayford ("Rayford"), to analyze the hostilities problem and recommend how it could be avoided in the future. In April, Pantex Management acted on Rayford's report. Specifically, they closed down W55 operations, scheduled training in effective human interaction and teamwork for the entire program staff, and conducted a line-by-line review of the NEOPs. Dozens of changes were made to the W55 process as a result of the NEOPs review. Pantex Management also decided to separate the A and B Groups, believing separation would reduce friction. Williams returned to the W55 program after the teamwork training and NEOPs review and, given the remedial measures taken by Pantex Management, the hostility among co-workers was less pronounced.

During the remainder of the time that the plaintiffs worked on the W55 program, May to December 1996, the focus of workplace conflicts changed from incidents among the two PT groups to incidents between the B Group and lower level management. These exchanges usually involved disputes between the plaintiffs and first- or second-level supervisors regarding compliance with nuclear safety guidelines.

In July 1996 Williams filed an ERA complaint with the Occupational Safety and Health Administration ("OSHA") claiming that he had been subjected to a hostile work environment in retaliation for his whistle-blowing activities. In September, Mason engaged an outside consultant to conduct an investigation of several issues Williams had raised concerning the W55. That report was released in late September. Williams testified that hostility toward him increased during the investigation, and that it worsened in November after OSHA issued a decision in his favor on his ERA complaint. With the W55 program nearing completion, Olguin and Byrd were transferred to another program in early November. Williams quit work following a heated exchange with his first-line supervisor, Paul Harter ("Harter"), in late November. In early December, McQuay, Sottile and Rodriguez were ordered to perform custodial work on an interim basis before ultimately being transferred to a different weapons program.

Plaintiffs individually sought relief from Mason for the hostile work environment under the whistle-blower provision of 42 U.S.C. § 5851. In response Mason requested a hearing before an administrative law judge ("ALJ"). Pursuant to the employer's unopposed motion the plaintiff's claims were consolidated and the ALJ held an evidentiary hearing. The ALJ issued a Recommended Decision and Order denying all of the plaintiffs claims. The ARB fully reviewed the ALJ's decision and issued a Final Decision and Order which concurred with the prior result but disagreed with the ALJ's hostile work environment analysis. Plaintiffs appealed the ARB's decision directly to this Court in accord with 42 U.S.C. § 5851(c)(1).

II.

Appellate review of administrative decisions arising under the ERA is governed by the standard established in the Administrative Procedure Act, 5 U.S.C. § 706. See 42 U.S.C. 5851(c)(1). Under that standard, the decision of the ARB will be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Macktal v. United States Dep't of Labor, 171 F.3d 323, 326 (5th Cir.1999); 5 U.S.C. § 706(2)(A). Factual findings are subject to substantial evidence review. 5 U.S.C. § 706(2)(E). Under the substantial evidence standard, the ARB's decision must be upheld if, considering all the evidence, a reasonable person could have reached the same conclusion as the ARB. Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir.1996). Substantial evidence is "more than a mere scintilla but less than a preponderance." Ripley v. Chater, 67 F.3d 552,...