Case No. 08-12114-HH _______________

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

DAVID L. LEWIS,

Petitioner,

v.

U.S. DEPARTMENT OF LABOR,

Respondent.

_______________

On Petition for Review from the U.S. Department of Labor Administrative Review Board, Case No. 04-117

_______________

REPLY BRIEF OF PETITIONER DAVID L. LEWIS

_______________

Stephen M. Kohn, sk@kkc.com Richard R. Renner, rr@kkc.com Attorneys for Petitioner Kohn, Kohn, & Colapinto, LLP. 3233 P St. NW Washington D.C. 20007 (202) 342-6980 (202) 342-6984 fax

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TABLE OF CONTENTS

TABLE OF CITATIONS............................................................................ iii

JURISDICTIONAL STATEMENT ........................................................... 1

STATEMENT OF THE ISSUES ................................................................ 1

STATEMENT OF THE CASE ................................................................... 3

I. The Course of the Proceedings and Dispositions in the Agency Below ……………………………………………………………………..3

II. Statement of the Facts................................................................... 4 A. Background to the Petitioner David Lewis ..................................... 4 B. Dr. Lewis Engaged in Protected Activity ....................................... 4 C. EPA Policy: Promote the Use of Sewage Sludge as a Fertilizer..... 5 D. Dr. Walker’s Job at EPA was to Implement the EPA Policy of

Promoting the Use of Sewage Sludge as a Fertilizer ...................... 6 E. Dr. Walker’s Actions Against Dr. Lewis were Consistent with

EPA Policy and Walker’s Job Duties.............................................. 6 F. The Department of Labor Concluded that there was a “Strong

Inference” that Dr. Walker Retaliated Against Dr. Lewis ............ 12 H. The Department of Labor Concluded that EPA Was not Liable for

Dr. Walker’s Conduct ................................................................... 14

III. STANDARD OF REVIEW FOR EACH CONTENTION ...... 15

ARGUMENT AND CITATIONS TO AUTHORITY............................. 17

THE ARB COMMITTED ERROR IN FAILING TO HOLD EPA LIABLE FOR THE ACTIONS OF DR. WALKER

I. THE ARB ERRED IN FAILING TO FIND EPA LIABLE FOR JOHN WALKER’S ACTIONS WHICH WERE PERFORMED IN FURTHANCE OF HIS JOB DUTIES AND EPA POLICY .......... 17

II. THE ARB ERRED IN CONCLUDING THAT EPA WAS NOT LIABLE FOR WALKER’S HARASSMENT BASED ON ITS CLAIM OF CORRECTIVE ACTION. ................................................. 27

A. First Element, First Part: Reasonable Care to Prevent ................. 29 B. First Element, Second Part: Reasonable Care to Correct............. 30

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C. Second Element: Employee Unreasonably Failed to Take Advantage of Any Preventative or Corrective Opportunities ....... 30

CONCLUSION ........................................................................................... 30

CERTIFICATE OF COMPLIANCE ....................................................... 32

CERTIFICATE OF SERVICE ................................................................. 33

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TABLE OF CITATIONS

Regulation 40 C.F.R. Part 503 ............................................................................................ 5 Cases Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (6th Cir. 1972).......................................................................................................... 22 Bouton v. BMW of North Am., Inc., 29 F.3d 103, 107 (3rd Cir. 1994)............. 20 Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000).............. 18-19 Burlington Industries v. Ellerth, 524 U.S. 742, 756, 757, 765, 118 S.Ct. 2257, 2266 (1998)............................................................................................. 14, 17-18 27-29 Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct. 2405, 2414 (2006)............................................................................ 11-12, 26 Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir.1999) ....................... 19 Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 ...................... 24, 30 Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th Cir. 1997) ....................... 20 Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (1968)................... 24 Jansen v. Packaging Corp. of America, 123 F.3d 490 (7th Cir. 1997) (en banc) aff’d as Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998)................................................................................................................ 20 Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1453 (11th Cir. 1989) ......................... 16 Majors v. Asea Brown Boveri, Inc., 1996-ERA-33, at 1, fn 1 (ARB Aug. 1, 1997)................................................................................................................. 4 Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351-52 (4th Cir. 1995) ........ 20-21 Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986) ... 22 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) .... 25 Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972 (2003)................................................................................................................ 13 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998 (1998)......................................................................................................... 27n

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Nadler v. Mann, 951 F.2d 301, 305 (11th Cir. 1992)....................................... 16 S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990), amended, 924 F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62 (1991)................................................................................................................ 16 Other Authorities Lindemann & P. Grossman, Employment Discrimination Law 812 (3d ed.1996) ............................................................................................................ 20 Restatement (Second) of Agency §219(2)(d) (1957) ....................................... 25 Restatement (Second) of Agency §247, Illustration 1 (1957) .......................... 25

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JURISDICTIONAL STATEMENT

The parties agree that this Court has appellate jurisdiction.

STATEMENT OF THE ISSUES

The Department’s Brief, p. 3, misstates the issues. First, this case

does not address whether Dr. Walker’s actions constitute an actionable

hostile work environment. The ARB’s Order Granting Reconsideration,

R.E. 5, p. 5, recognized that Dr. Lewis’ hostile work environment claim

consisted of EPA’s actions when it:

condoned a negative peer review of one of his critical articles, disseminated a report that attacked his theories, impugned his international scientific reputation, prevented his future employment with the University of Georgia (UGA), failed to fund his research or credit his work, and collaborated with industry and EPA proponents of sewage sludge to avoid further investigation.

The ARB stated that it would “assume, without finding, that all of these

complained of actions and conditions constitute harassment.” Id. at 6. It

continued to, “find that Lewis’ hostile work environment claim is actionable

. . ..” Id. Whether the “allegedly harassing actions” are or are not

actionable, therefore, is not an issue in this review. They are actionable for

our purposes here.

Second, the Statement of the Issue in the Department’s Brief omits the

issue of EPA’s direct liability for the actions its chief spokesperson on

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sludge issues, Dr. John Walker, took in furtherance of his assigned duties.

This issue of employer liability is reviewed de novo. See Petitioner’s Brief,

pp. 28-29, and cases cited therein. The Department’s Brief, p. 14, focuses

on whether Dr. Walker informed his superiors about his actions against Dr.

Lewis. However, the Department’s Brief never addresses whether the EPA

authorized Dr. Walker to speak on its behalf about sludge issues, without

specific authorization for each statement he made. Dr. Walker’s position

description, CX 150, and the testimony of Dr. Ellen Harrison (R. 36, CX

140, T. 15) make clear that Dr. Walker did have authority to speak for the

Agency. Thus, the issue here becomes an issue of law. Is the employer

liable for what Dr. Walker said in pursuing his official job duties? See also,

R.E. 2, p. 8.

Third, the Department’s Brief states, but does not support, its claim

that Dr. Walker was a “non-supervisory co-worker.” Dr. Lewis contests this

claim with record evidence that Dr. Walker was a management level

spokesperson for the agency, with the authorization needed to inflict the

damage at issue. That is the status of a supervisor.

Finally, the parties contest whether EPA took reasonable action to

prevent unlawful retaliatory harassment after the bipartisan Congressional

hearings identified the problem, specifically arising from the Agency’s

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activities in promoting sludge. Those hearings elicited a promise from the

Agency that they would adopt a policy against whistleblower harassment,

and then the Agency decided to renege on that promise.

There is no dispute on the following ARB findings:

• That Lewis engaged in protected activity;1

• That the EPA knew of this protected activity;2

• That the record supports a “strong inference that Walker was

retaliating against Lewis due to Lewis’ position on sludge

fertilization [i.e. his protected activities] . . ..”3

STATEMENT OF THE CASE

I. The Course of the Proceedings and Dispositions in the Agency Below

The Department’s brief mentions the contents of the OSHA

determination. Respondent’s Brief, 3. Dr. Lewis urges this Court to omit

reference to the contents of the OSHA determination as they are not

germane to this appeal, and they have no weight once the case reaches the

adjudicatory offices of the Department. The parties agree that subsequent

consideration of Dr. Lewis’ case is de novo. See Petitioner’s Brief, pp. 1, 5;

Respondent’s Brief, 19. The OSHA determination is made on an 1 R.E. Tab 3, Final D&O of ARB, pp. 7-8. 2 R.E. Tab 3, Final D&O of ARB, p. 8. 3 R.E. Tab 5, ARB Order Granting Reconsideration, p. 7.

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investigation without any due process rights. The Department’s precedent

calls for according the OSHA determination “no weight.” Majors v. Asea

Brown Boveri, Inc., 1996-ERA-33, at 1, fn 1 (ARB Aug. 1, 1997).4

Referencing the contents of the OSHA determination could be misconstrued

as giving that determination weight.

II. Statement of the Facts

A. Background to the Petitioner David Lewis

Respondent’s Brief does not contest that Dr. Lewis is a top level

scientist, with a remarkable record of achievement, whose job requirements

and career development require that he maintain his stellar international

reputation.

B. Dr. Lewis Engaged in Protected Activity

Respondent’s Brief does not contest that Dr. Lewis engaged in

protected activity. At the top of page 11 (with a similar argument on p. 17 in

reference to RD&O), the Department states, “Lewis also submitted copies of

Adverse Interactions without confidentiality requests to several other people

both inside and outside the EPA (R.E. 2. p. 17).” The Department suggests

that Dr. Lewis had no care about confidentiality. The ARB’s Final Decision,

4 Available at: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/ERA/97_017.ERAP.PDF

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R.E. 3, p. 9, found that Dr. Lewis noted that his submission to Dr. Smith was

confidential.5 Dr. Smith brought in Dr. Walker. Id. at 10. Dr. Lewis chose

to whom he would give his article. Dr. Walker did not receive the article

from Dr. Lewis, and the only breach of confidentiality was made by Dr.

Walker.

C. EPA Policy: Promote the Use of Sewage Sludge as a

Fertilizer

At p. 6, the Department’s brief suggests in the following description

that following Rule 503 means that the sludge application is safe:

the EPA rule (“Rule 503”) that provides guidance to states and industries on how to disinfect sludge (otherwise known as “biosolids”) and apply it safely to land (R.E. 3 pp. 2-3; R.E. 2 p. 7; CX 49, pp. 67-8; CX 59-60, 120-21). See also 40 C.F.R. Part 503.

The whole point of Dr. Lewis’ research and scholarly article was that this

claim is not founded on good science, and current research points to serious

public health dangers from land application of biosolids. R.E. 3, p. 8. It is

not clear if Respondent’s Brief intends to say that land application pursuant

to the rule is safe. If so, then the government’s thinking goes a long distance

5 As the Agency decided to conduct the formal peer review only after Dr. Lewis submitted the article to Dr. Smith, there was no way Dr. Lewis could have known at the time that there would be an EPA peer review. See R.E. 3, D&O of ARB, p. 9.

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toward explaining its continuing motive for wanting to suppress Dr. Lewis’

research and discredit his reputation.

D. Dr. Walker’s Job at EPA was to Implement the EPA Policy of

Promoting the Use of Sewage Sludge as a Fertilizer

Respondent’s Brief does not contest this point. It does not even

mention Dr. Walker’s position description, CX 150.

E. Dr. Walker’s Actions Against Dr. Lewis were Consistent with

EPA Policy and Walker’s Job Duties

On page 13, fn 12, the Department’s brief states, “The OIG, however,

found no evidence to support Lewis’s claim that the EPA had collaborated

with the WEF (R.E. 2 p. 64).” This report does not address Dr. Walker’s

leak of the Synagro White Paper or the other components of the hostile work

environment found by the ARB at R.E.5, p. 5.

On page 14, the Department’s Brief states, “Walker did not let his

supervisory chain know that he was forwarding Synagro’s White Paper or

sending the letter . . ..” Dr. Walker was still acting within the scope of his

employment. The Department’s Brief does not cite any record evidence that

EPA required Dr. Walker to inform his superiors about what he would say.

His official job description, CX 150, p. 4, ¶ 6, permitted him to decide for

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himself what to say, and then to say it without further disclosure to or

authorization from his superiors as follows:

provide[] interpretations of regulations, guidelines and other documents prepared and published by the Branch to other . . . non-EPA agencies, organizations, and individuals interested in municipal waste water treatment facilities. Reviews and comments on work of other EPA organizational elements and non-EPA agencies, organizations and individuals which are related to assigned program area. Works in an advisory, consulting, and coordinating capacity to other EPA organizational elements and non-EPA agencies, organizations and individuals. Works with the Office of Research and Development to develop and implement research and development programs which will satisfy identified needs. . . . Prepares responses to correspondence for Congress and the general public relating to program activities.

This description directly authorizes Dr. Walker to speak on behalf of EPA in

matters related to land application of sludge. It directs him to coordinate

with non-EPA organizations. Dr. Walker was carrying forward his

assignment of promoting land application of sewage sludge and coordinating

with outside organizations to advance the Agency’s objectives. The EPA

knew that Dr. Walker was using his own judgment on how to promote land

application, and squash those who question its safety. Dr. Walker’s biosolid

advocacy was his main job duty. His actions against Dr. Lewis were not part

of any private hobby. The Agency knew that it had given Dr. Walker a blank

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check to say what he wanted within the scope of promoting land application

of sludge. He was the Agency’s lead spokesperson in this arena. R.E. 2, p.

8; R. 36, CX 140, Tr. 15 (testimony of Ellen Harrison). It is appropriate to

hold the employer liable for the actions of the employee undertaking within

the scope of employment. See Petitioner’s Brief, pp. 38-39, 46-47.

If the Department prevails in this argument, then the EPA could

authorize a spokesperson to speak on its behalf, and then disclaim liability

for what was said merely because EPA did not require any pre-approval of

the contents of what that person says. EPA could speak without anyone

being liable for what was said.

On page 18, the Department’s Brief states, “the purpose of the

meeting between Walker, O’Dette, and Michael Cook (Walker’s supervisor)

was to discuss the EPA’s refusal to provide Synagro with an expert witness

in the Marshall case; it was not to discuss Lewis’s activities or his article . .

..” The purpose of the meeting is not what determines EPA’s liability. Hiring

Dr. Walker and assigning him the task of speaking and coordinating

advocacy on behalf of the Agency is sufficient for that purpose. What

actually happened at the meeting, however, can still be helpful to determine

EPA’s liability. As confessed by the Department, the participants did

discuss Dr. Lewis’ article. That shows knowledge and participation. EPA

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knew Dr. Walker, knew he had Dr. Lewis’ article, and knew that his job

duties included speaking on behalf of the Agency on these subjects.

On page 19, the Department’s Brief states,

In sum, the ALJ concluded that although Walker “clearly overstepped his bounds in matters affecting [Lewis],” he had no authority over Lewis, his activities could not be imputed to the EPA, and the EPA took prompt disciplinary action against Walker (R.E. 2 p 66).

As Dr. Walker was acting in furtherance of his job duties, and not for any

personal purpose exceeding the scope of his employment, EPA’s subsequent

discipline does not relieve it of liability. Distribution of the Synagro White

Paper was no “frolic and detour” for which employers have no vicarious

liability. In the context of scientific research and publication, the analysis of

adverse actions must be adjusted from that of a typical workplace.6

Similarly, the EPA is a large and complex organization where actors in

different offices can impact each other’s work and careers irrespective of the

traditional chains of command and supervision. Thus, Dr. Walker could

have authority to speak on behalf of the Agency with respect to Dr. Lewis’

6 The ALJ’s RD&O, R.E. 2, did not address Dr. Lewis’ hostile work environment claim, but addressed the adverse actions separately. The ARB corrected this legal error in its reconsideration decision, R.E. 5. The ARB reviewed the hostile actions as a whole, and then assumed, without finding, that they constitute harassment. The ARB went on to find that this harassment was actionable. R.E. 5, p. 6.

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article and research even from the distance of his Washington office. All

EPA offices work under its Administrator, and they are expected to

coordinate on science that affects another office. R.E. 2, p. 5. Dr. Walker’s

statements about whether Dr. Lewis’ article passed peer review had more

impact due to Dr. Walker’s position as a spokesperson on behalf of the

Agency in this subject matter area. As Dr. Walker was acting within the

scope of his duties and authority, the Agency is liable for his actions

irrespective of any subsequent discipline.

On page 20, the Department’s Brief states:

In this regard, Lewis provided no evidence that Walker’s dissemination of the White Paper adversely effected the terms, conditions, or privileges of his EPA employment, and the Board concluded that it would not have dissuaded a “reasonable worker” from engaging in protected activity [citation and footnote omitted].

Here the Department’s Brief diverges from the issue on review here. The

analysis of whether an individual action is materially adverse does not apply

to the determination of whether the employer is liable for a hostile work

environment. While Dr. Lewis did provide evidence that the dissemination

damaged his reputation, and that reputation is the name of the game for

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career advancement in the upper levels of science, 7 for purposes of this

appeal, Dr. Lewis is accepting the ARB’s assumption that Dr. Lewis

established a hostile working environment made up of actions that do not

constitute discrete adverse employment actions. The Department cannot

argue this case both ways. The ARB listed the litany of adverse actions that

make up Dr. Lewis’ claim of harassment. R.E. 5, p. 5; see p. 1 above. The

ARB held this was actionable. It is inappropriate for the Department to now

disaggregate these items and argue that one of them is not materially adverse

as a discrete adverse employment action, after the ARB determined that the

harassment as a whole was actionable as a hostile work environment.

In footnote18, the Department’s Brief states, “Indeed, as the Board

noted, the dissemination of the White Paper did not prevent Lewis from

continuing to present his views about sludge fertilization in research articles

and public hearings . . ..” In the determination of what constitutes a discrete

adverse employment action, the effect on the plaintiff is immaterial. The

issue for adverse employment actions, according to the Burlington decision,

is whether it would dissuade others from protected activity. Burlington 7 See Petitioner’s Brief, p. 6 at fn 7; Tr. 40 (Lewis); R. 34, CX 1, Tr. 8-12 (Russo). A scientist’s reputation is a “critical factor” for job advancement at the EPA and for obtaining post-EPA employment. This fact was acknowledged by all of the relevant witnesses, including the former Assistant Administrator for the Office of Research and Development. R. 36, CX 43, Tr. 182-83 (Noonan), Tr. 107, Tr. 161 (Lewis); R. 34. CX 24.

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Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 67-70, 126 S. Ct.

2405, 2414 (2006). One could be concerned that top scientists would see

another’s name and reputation smeared, and then choose to investigate the

common cold instead of sewage sludge. The issue here, as framed by the

ARB’s reconsideration decision, is whether EPA is liable for Dr. Walker’s

harassment of Dr. Lewis.

F. The Department of Labor Concluded that there was a “Strong

Inference” that Dr. Walker Retaliated Against Dr. Lewis

At page 22, the Department’s Brief tacitly concedes that the ARB

found a “strong inference that Walker was retaliating against Lewis due to

Lewis’ position on sludge fertilization.” R.E. Tab 5, ARB Order Granting

reconsideration, 7. The Department’s Brief reiterates the ARB’s legal

conclusion that EPA is not liable for Dr. Walker’s actions.

G. The EPA Failed to Implement the Recommendations of the

EPA Inspector General that a Policy be Published and Managers obtain

Training in the Environmental Whistleblower Laws

The Department’s Brief addresses the OIG recommendation and the

Congressional hearings on pages 31-32. “At most, it shows that prior to the

congressional testimony, the EPA did not have a formal anti-discrimination

policy that included retaliation against whistleblowers and that this was both

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an internal and congressional concern.” The OIG finding in 1999, and the

bipartisan Congressional hearings in 2000, show that the EPA was on notice

that its sludge program was causing harassment of whistleblowers. The OIG

reported that the Agency had decided to issue a written policy and conduct

training against this harassment. CX 60, p. 95-96. At the first Congressional

hearing, the EPA’s Assistant Administrator confirmed the Agency’s plans to

issue such a policy. CX 59, p. 249. This was a plea for action, in the most

public of fora. At the second hearing, EPA’s representative announced that

the Agency decided not to proceed with these plans. CX 60, pp. 88, 90.

Indeed, Dr. Walker testified that he received no such training. Tr. 1112.

In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 123

S.Ct. 1972 (2003), the Supreme Court considered the effect of an employer’s

failure to establish effective policies. The Court was considering whether

the FMLA was passed based upon a record of discrimination against women

by the states. Justice Rehnquist took the opportunity to remark on the

manner in which such discrimination can fester. For instance, he observed

that when “the authority to grant leave and to arrange the length of that leave

rests with individual supervisors,” it leaves “employees open to

discretionary and possibly unequal treatment.” Id. at 732, quoting H.R. Rep.

No. 103-8, pt. 2, pp. 10-11 (1993). He also noted that “a lack of uniform . . .

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policies in the work place has created an environment where [sex]

discrimination is rampant.” Id, quoting testimony of Peggy Montes in 1987

Senate Labor Hearing, pt. 2, at 170.

The Supreme Court made clear that the policy driving its

determination of employer liability is “designed to encourage the creation of

antiharassment policies . . ..” Burlington Industries v. Ellerth, 524 U.S. 742,

763, 118 S.Ct. 2257, 2270 (1998). The EPA was on notice of its need for

such a policy by both its own OIG report, and the bipartisan Congressional

hearing. EPA, as an institution, gave Dr. Walker the authority to speak on

sludge matters. After initially agreeing to issue a policy to address it, EPA

chose to do nothing. Had EPA taken timely responsible action in response

to this bipartisan inquiry and implemented checks and balances on Dr.

Walker’s actions, it could well have prevented the damage to Dr. Lewis’

career and reputation. Dr. Walker’s position description remained

unchanged. Agency employees received no direction from the Agency about

limits on harassing whistleblowers. Dr. Walker received no training, and no

limitation on his public statements. EPA could have put the reins on Dr.

Walker at any time; it had notice of the call for action, and the action to take.

This case is well within those in which the Ellerth decision calls for

employer liability.

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H. The Department of Labor Concluded that EPA Was not Liable

for Dr. Walker’s Conduct

The Department’s Brief, p. 14, hones this issue to one of whether Dr.

Walker had any duty to inform his superiors of the statements he planned to

make, and the actions he planned to commit, before he said and did them.

It’s brief offers no citation to any such obligation. Dr. Walker’s written job

description contains no such requirement. To the contrary, it shows that he

had authority to speak for the Agency. Ms. Harrison’s testimony confirmed

that he used such authority in the field to become the Agency’s lead

spokesperson on sludge issues.

III. STANDARD OF REVIEW FOR EACH CONTENTION

On page 25, the Department’s Brief states:

In the present case, the “substantial evidence” standard of review applies to the question whether the Board correctly concluded that the EPA is not liable for the harassing actions of Lewis's co-worker because it took prompt disciplinary action against the co-worker upon learning of the harassment.

The standard of review for factual findings does not matter when the

material facts are not in dispute. There is no dispute that EPA gave Dr.

Walker official discipline, such as it was. The issue here is whether EPA’s

actions of giving Dr. Walker the mission of promoting land application,

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commenting on the work of other Agency staff, and coordinating with

outside organizations, make it liable for what Walker does with that mission.

That is an issue of law for which de novo review is the standard.

In this circuit, issues concerning the scope of employment are decided

de novo by this Court. Determination of whether an employee’s actions are

within the scope of employment involves a question of law as well as fact.

S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990),

amended, 924 F.2d 1555 (11th Cir.), cert. denied, 502 U.S. 813, 112 S.Ct. 62

(1991) (a case the Department’s brief does not address). This Court will

review de novo a determination regarding the scope of employment. Nadler

v. Mann, 951 F.2d 301, 305 (11th Cir. 1992), citing Int’l Ins. Co. v. Johns,

874 F.2d 1447, 1453 (11th Cir. 1989) (other cases the Department’s Brief

omitted).

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ARGUMENT AND CITATIONS TO AUTHORITY THE ARB COMMITTED ERROR IN FAILING TO HOLD EPA LIABLE FOR THE ACTIONS OF DR. WALKER

I. THE ARB ERRED IN FAILING TO FIND EPA LIABLE

FOR JOHN WALKER’S ACTIONS WHICH WERE PERFORMED IN FURTHANCE OF HIS JOB DUTIES AND EPA POLICY

The core error of the Department’s Brief is that it ignores the

established law on an employer’s direct liability for the actions of its

employees, when those actions “however misguided” are performed “wholly

or in part to further the master’s business.” Burlington Industries v. Ellerth,

524 U.S. 742, 756, 118 S.Ct. 2257, 2266 (1998) (internal quotations

omitted). This citation to Ellerth is the first legal authority quoted in

Petitioner’s legal argument (at p. 38) and the Department’s Brief just ignores

it. The Defendant’s Brief is focused on the affirmative defense available for

indirect vicarious liability. It fails to appreciate how the legal analysis

changes when the acts of harassment are committed in furtherance of the

employer’s work assignments, as opposed to a “frolic and detour” away

from the employer’s business.

The Department’s Brief also ignores Petitioner’s second quote from

Ellerth, that an employee acts within the scope of his or her employment,

and an employer is liable for those actions, when the conduct is “actuated, at

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least in part, by a purpose to serve the employer even if [the conduct] is

forbidden by the employer.” Id. (internal quotations omitted). If an

employer decides to punish and harass one of its employees for speaking

unpleasant truths, it matters not whether that employer chooses one of its

supervisors, or a non-supervisory employee, or even a stranger off the street.

It is liable for the actions taken within the scope of the assignments it gives

to anyone it hires. The victim of a mob hit cares not whether the trigger is

pulled by the mob boss or by a street thug. The mob boss is still liable for

actions taken pursuant to a kiss of death.

The Summary of Argument in the Department’s Brief makes its first

citation to Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.

2000). The Department cites this case for the proposition that, “To establish

a hostile work environment claim based on retaliation, an employee must

show, inter alia, that his employer was responsible for the hostile

environment.” In Breda, this Court reversed a summary judgment for the

employer on a sexual harassment claim. The issue was whether Breda’s

complaints to a store manager established the company’s knowledge of the

harassment. This Court looked to the employer’s own policies to determine

whether the store manager had actual authority to receive sexual harassment

complaints. That policy stated, “Anyone who believes that he or she is being

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subjected to harassment or who has witnessed such harassment must

immediately notify his or her manager. If the problem is not immediately

resolved, that associate should contact the Personnel Department.” As the

policy itself designated the manager as a person to receive such complaints,

this Court held that Breda’s complaint to that manager established employer

knowledge. That manager was acting within the scope of agency established

by the employer. The employer “itself answered the question of when it

would be deemed to have notice of the harassment sufficient to obligate it or

its agents to take prompt and appropriate remedial measures.” Coates v.

Sundor Brands, Inc., 164 F.3d 1361 (11th Cir.1999). As the employer gave

the manager actual authority to handle such complaints, the employer was

liable for what that manager did or did not do with such authority. The lower

court ruling to the contrary was an error of law. In Dr. Walker’s case, CX

150 answers the question about the scope of his authority. His actions

within that scope are actions of the employer, for which that employer is

liable.

The Breda case is distinguishable by this fact: her harasser was not

carrying out a company policy to promote employment of males. Walker

was carrying out an EPA policy to promote land application of sewage

sludge. This fact makes the typical analysis of employer liability for sexual

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harassment immaterial as that analysis is based on circumstances in which

the harassment is inflicted outside the scope of employment duties. In most

sexual harassment cases, the courts of appeals have typically found, or

assumed, that the conduct falls outside the scope of employment. See, e.g.,

Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1444 (10th Cir. 1997) (sexual

harassment “‘simply is not within the job description of any supervisor or

any other worker in any reputable business’ ”); Bouton v. BMW of North

Am., Inc., 29 F.3d 103, 107 (3rd Cir. 1994) (sexual harassment is outside

scope of employment); see also Ellerth v. Burlington Industries, Inc.,

decided with Jansen v. Packaging Corp. of America, 123 F.3d 490, 561 (7th

Cir. 1997) (en banc) (Manion, J., concurring and dissenting) (supervisor’s

harassment would fall within scope of employment only in “the rare case

indeed”), aff’d as Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct.

2257 (1998); Lindemann & P. Grossman, Employment Discrimination Law

812 (3d ed.1996) (“Hostile environment sexual harassment normally does

not trigger respondeat superior liability because sexual harassment rarely, if

ever, is among the official duties of a supervisor”).

The case of Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1351-52

(4th Cir. 1995), is exceptional and instructive. There, the court held the

employer vicariously liable in part based on finding that the supervisor’s

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rape of employee was within the scope of employment. Although the rape

itself was ultra vires, the employer placed the victim in a position where she

was unaware of anyone else she could go to, the supervisor had the power to

terminate her employment, and he threatened to use that power to silence the

victim. Upon finding that the supervisor’s action was taken on work

premises, on the clock, and using the supervisory power granted by the

employer, the court determined that the supervisor was acting within the

scope of employment and the employer was, therefore, liable.

In this case, EPA certainly knew that it had given Walker the duty of

promoting land application of sewage sludge, speaking on behalf of the

Agency, and coordinating with outside organizations. Walker had official

authorization to say and do whatever he determined was best to promote the

sludge policy. That makes it liable for the actions Walker took in furtherance

of his official duties. In the instant case, there is no question that Walker’s

actions were taken to further the employer’s interest in promoting land

application of sewage sludge. The EPA is naturally liable for the actions

Walker took in furthering that interest -- regardless of what bounds or

discipline it imposes after the fact. The conflict between Walker’s

promotional duties and Lewis’ scientific integrity was inevitable. EPA

could not rationally expect to take a position of promoting the untested land

22

application of sewage sludge, and think that its hired promoter would not be

peeved by Lewis’ intellectual criticism of the policy’s bona fides. The two

trains were set on a collision course, EPA picked the engineer and gave him

no navigator, Congress sounded an alarm about the impending collision, the

OIG pointed to another available track, and EPA didn’t lift a finger until

after the crash. EPA does not escape liability by picking up some of the

pieces after the crash.

There is nothing remarkable in how claims against employers for

discriminatory employment actions with tangible results, like hiring, firing,

promotion, compensation, and work assignment, have resulted in employer

liability once the discrimination was shown. See Meritor Savings Bank, FSB

v. Vinson, 477 U.S. 57, at 70-71 (noting that “courts have consistently held

employers liable for the discriminatory discharges of employees by

supervisory personnel, whether or not the employer knew, should have

known, or approved of the supervisor’s actions”); id., at 75 (Marshall, J.,

concurring in judgment) (“[W]hen a supervisor discriminatorily fires or

refuses to promote a black employee, that act is, without more, considered

the act of the employer”); see also Anderson v. Methodist Evangelical

Hospital, Inc., 464 F.2d 723, 725 (6th Cir. 1972) (imposing liability on

23

employer for racially motivated discharge by low-level supervisor, although

the “record clearly shows that [its] record in race relations…is exemplary”).

What makes the employer liable is that the employer placed the

discriminator in a position where the discriminatory act is within the

discriminator’s scope of duties. That is why employers are liable for

tangible actions of sexual harassment by supervisors and managers. The

EPA is liable for Walker’s actions because his actions were within the scope

of his job assignment of promoting land application of sewage sludge. The

issue here does not come up in sexual or racial harassment cases because we

no longer have employers who assign a job duty of promoting employment

by males or whites. EPA, however, did have an employee charged with

promoting land application, and it is liable for the actions of that employee

that are within the scope of that assignment. Since Meritor, the Supreme

Court looked to traditional principles of agency to determine employer

liability for harassment when it is committed within the scope of

employment. It held that neither the existence of a company grievance

procedure nor the absence of actual notice of the harassment on the part of

upper management would be dispositive of such a claim; while either might

be relevant to the liability, neither would result automatically in employer

immunity.

24

In Faragher v. City of Boca Raton. 524 U.S. 775, 793 118 S.Ct. 2275,

the Supreme Court applied agency law as follows:

A “master is subject to liability for the torts of his servants committed while acting in the scope of their employment.” Restatement §219(1). This doctrine has traditionally defined the “scope of employment” as including conduct “of the kind [a servant] is employed to perform,” occurring “substantially within the authorized time and space limits,” and “actuated, at least in part, by a purpose to serve the master,” but as excluding an intentional use of force “unexpectable by the master.” Id., §228(1).

The determination of liability turns not on the employer’s actual

knowledge of the tortuous conduct, but whether the conduct was reasonably

foreseeable. In Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167

(1968), for example, the Second Circuit charged the Government with

vicarious liability for the depredation of a drunken sailor returning to his

ship after a night’s carouse, who inexplicably opened valves that flooded a

drydock, damaging both the drydock and the ship. Judge Friendly

acknowledged that the sailor’s conduct was not remotely motivated by a

purpose to serve his employer, but relied on the “deeply rooted sentiment

that a business enterprise cannot justly disclaim responsibility for accidents

which may fairly be said to be characteristic of its activities,” and imposed

vicarious liability on the ground that the sailor’s conduct “was not so

25

‘unforeseeable’ as to make it unfair to charge the Government with

responsibility.” Id., at 171.

It was EPA management that placed Dr. Walker in an EPA office,

gave him EPA letterhead and title, and authorized him to speak on behalf of

the Agency in matters that promoted land application of sludge. Under

§219(2)(d) of the Restatement, Walker “was aided in accomplishing the tort

by the existence of the agency relation.” It was foreseeable that Dr. Walker

would use his position to attack Dr. Lewis and his article, and Dr. Walker’s

actions were consistent with his job description. See also Restatement §247,

Illustration 1 (noting a newspaper’s liability for a libelous editorial published

by an editor acting for his own purposes). Similarly, it was Dr. Walker’s

position at EPA that gave his attack against Dr. Lewis the weight that stung

against his reputation. “It is clearly chilling.” CX 140, Tr. 72 (Harrison).

Respondent’s reliance on Miller v. Kenworth of Dothan, Inc., 277

F.3d 1269, 1275 (11th Cir. 2002), is misplaced. This Court did not consider

vicarious liability in Miller’s case:

Since we conclude that Miller presented evidence sufficient to establish that Kenworth had constructive knowledge of coworker harassment, and that Kenworth failed to take remedial action, we need not consider whether Miller established a case of vicarious liability.

26

At pp. 27-33, the Department’s Brief is focused on theories based on indirect

liability for co-worker harassment. These theories do not apply when the

harassment is committed within the scope of the harasser’s job duties.

The Department’s Brief rests on its claim that Dr. Walker was not in

Dr. Lewis’ chain of command. As argued above, this fact is immaterial to

the determination of whether Dr. Walker acted within the scope of his

employment. Still, Dr. Lewis does not concede that Dr. Walker’s actions

should be evaluated under the traditional co-worker scheme. As quoted

above, EPA’s position description for Dr. Walker, CX 150, placed him in

the high levels of making and implementing the Agency’s policy relating to

biosolids. More than just a manager, he was a policy maker. His policy

making function specifically extended to the research activities of ORD –

Dr. Lewis’ branch. Scientists at ORD who are concerned about Agency

funding and direction of their work have just as much to worry about from

the likes of Dr. Walker as any woman factory worker would have to fear

from a harassing supervisor. Either one could jeopardize the future

economics of employment. More importantly in this context8 at the

8 “Context matters. ‘The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.’” Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2414 (2006),

27

pinnacles of science, Dr. Walker demonstrated his ability to use his position

within the Agency to sully the scientific reputation of a critic. That is the

power of a supervisor, and even of a manager, to inflict serious career

damage, and it is the power that the Ellerth decision treated as supervisory.

Ellerth, 524 U.S. at 760-61, 118 S.Ct. at 2268.

At pp. 29-31, the Department’s Brief claims that the facts do not show

the level of pervasive harassment that would constitute constructive

knowledge. It is not necessary to show constructive knowledge to establish

employer liability for actions taken within the scope of employment, or for

actions aided by the employment relationship. The EPA knew that it hired

Dr. Walker, gave him an office, letterhead, and a job description to speak as

he saw fit for the purpose of promoting land application of sludge. That is

sufficient employer knowledge to establish employer liability.

II. THE ARB ERRED IN CONCLUDING THAT EPA WAS NOT LIABLE FOR WALKER’S HARASSMENT BASED ON ITS CLAIM OF CORRECTIVE ACTION.

The Department’s brief argues for treating Dr. Walker as a coworker

without discussing how a court determines if an employee is subject to a

coworker analysis. In organizations as complex and interactive as the EPA,

such determinations could often be difficult. The facts of this case, however, quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82, 118 S. Ct. 998 (1998).

28

point to Dr. Walker’s definitive powers to speak with the official agency

imprimatur within the domain of land applied sludge. When it is the official

Agency word that counts as to whether Dr. Lewis’ article did or did not pass

peer review, then Dr. Walker was the one in charge on behalf of the Agency.

The coworker analysis is not the correct analysis in this context.

Even where the coworker analysis is properly applied, employers have

to do more than just slap wrists after the fact. In Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270 (1998), the Supreme

Court established the following rule for an employer’s affirmative defense to

harassment claims:

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. [Emphasis added.]

29

The first element of the Ellerth affirmative defense has two parts. It requires

the employer to establish that it “exercised reasonable care to prevent,” and

secondly that it exercised reasonable care to “correct promptly” the

harassing behavior.

A. First Element, First Part: Reasonable Care to Prevent

The parties apparently agree that the ARB did not address the first

part required by the Supreme Court in Ellerth – that “the employer exercised

reasonable care to prevent.”

At pp. 31-32, respondent argues that EPA resistance to issuing a

policy against harassment of whistleblowers does not equal constructive

notice of any pervasive harassment. The congressional hearings certainly put

the EPA on notice that harassment of its whistleblowers was a serious

problem and one that it ought to address. Those hearings specifically

concerned the EPA’s policies with respect to sewage sludge. EPA’s reneging

on the promise to issue a policy against such harassment constitutes a top

level policy decision to discourage whistleblowing by leaving

whistleblowers at the mercy of all who might harass them. EPA’s claim that

no law required it to issue such a policy reflects a narrow view of the law

and a myopic view of its legal liability. The Department’s brief does not

30

point to any other preventative actions taken before Dr. Walker disseminated

the Synagro White Paper.

B. First Element, Second Part: Reasonable Care to Correct

In response to the Department’s argument on page 32, the Faragher

defense requires not only that the remedial action be prompt, but also that it

be effective. Here, it was too late to be effective. The discipline, however, is

immaterial to EPA’s liability for Walker’s actions within the scope of his

employment and in furtherance of the employer’s objectives, or to the extent

that his actions were aided by his position with EPA.

Lewis is not quibbling here about the level of discipline. No

discipline can undo what Walker committed as part of his job duties from his

position of authority on behalf of the EPA. Subsequent discipline is

immaterial to the issue of employer liability for Walker’s official actions.

Walker’s participation in the peer review was official. It was part of

his job. His comments were never stricken from the official record.

C. Second Element: Employee Unreasonably Failed to Take Advantage of Any Preventative or Corrective Opportunities

The Department’s Brief does not address this element.

CONCLUSION Dr. Lewis presents a truly unique case. Undersigned counsel is

unaware of any other case in which Congress held bipartisan hearings to

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express concern about the harassment of whistleblowers on the subject at

hand (sludge), where the Agency promised to make amends by issuing a

policy against whistleblower harassment, and then chose not to issue the

previously agreed upon preventative policy. The ARB found a “strong

inference that Walker was retaliating against Lewis due to Lewis’ position

on sludge fertilization.” R.E. 5, p. 5. Still, the ARB would not hold the EPA

accountable for Dr. Walker’s harassment.

Dr. Lewis asks this Court to find that the employer in this case, the

U.S. Environmental Protection Agency, is liable for the actions of its

employee, Dr. John Walker, and remand this case for proceedings to

determine the scope of harassment under a hostile work environment theory

and the applicable damages. In the alternative, he asks this Court to hold that

the ARB erred as a matter of law when it failed to consider the factual

evidence that supported a finding that EPA is liable for the actions of Dr.

Walker, and remand the case for further proceedings.

32

Respectfully submitted,

_________________________ Stephen M. Kohn, sk@kkc.com

Richard R. Renner rr@kkc.com Attorneys for Petitioner

Kohn, Kohn, & Colapinto 3233 P St. NW Washington D.C. 20007 (202) 342-6980 (202) 342-6984 fax

CERTIFICATE OF COMPLIANCE

I certify that the foregoing Brief of Petitioner complies with Rule

32(a)(7) of the Federal Rules of Appellate Procedure. It is presented in

Times New Roman, 14 point font. Using Microsoft Word 2008 for Mac, the

word count for this brief is 6,610.

By: ________________________ Richard R. Renner

33

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Reply Brief of

Petitioner was served by U.S. Mail, postage prepaid (the brief was also

served electronically), on this 20th day of February, 2009, upon:

Jennifer Marion Attorney for Respondent U.S. Department of Labor 200 Constitution Ave., N.W. Room N-2716, FPB Washington, D.C. 20210 Thomas K. Kahn, Clerk U.S. Court of Appeals for the 11th Circuit 56 Forsyth St. N.W. Atlanta, Georgia 30303 By: ________________________ Richard R. Renner