Knox v. United States Department of Labor , 232 F. App'x 255 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1726
WILLIAM T. KNOX,
Petitioner,
versus
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
On Petition for Review of an Order of the Administrative Review
Board. (06-89; 01-CAA-3)
Argued: March 14, 2007 Decided: May 23, 2007
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Petition for review granted in part, order vacated in part, and
remanded by unpublished per curiam opinion.
ARGUED: Richard Edward Condit, PUBLIC EMPLOYEES FOR ENVIRONMENTAL
RESPONSIBILITY, Washington, D.C., for Petitioner. Mary J. Rieser,
UNITED STATES DEPARTMENT OF LABOR, Office of the Solicitor,
Washington, D.C., for Respondent. ON BRIEF: Howard M. Radzely,
Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Paul L.
Frieden, Counsel for Appellate Litigation, UNITED STATES DEPARTMENT
OF LABOR, Office of the Solicitor, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William T. Knox filed an administrative complaint alleging
that the United States Department of the Interior (“DOI”) violated
the whistleblower provision of the Clean Air Act (“CAA”), 42 U.S.C.
§ 7622. In Knox v. United States Department of Labor, 434 F.3d 721(4th Cir. 2006), we vacated a prior order of the United States
Department of Labor Administrative Review Board (“ARB”), which had
dismissed Knox’s complaint, and remanded this case for further
proceedings. On remand, the ARB again dismissed Knox’s complaint,
and he now petitions for review of the ARB’s second order. For the
reasons set forth below, we grant in part the petition for review,
vacate in part the second order, and remand for further
proceedings.
I
We previously set forth the underlying facts in Knox. See 434
F.3d at 722-23. Stated generally, DOI employed Knox at the
National Park Service Job Corps Center (“Center”) in Harper’s
Ferry, West Virginia. Knox’s duties included acting as the
Center’s safety officer. In this capacity, Knox became concerned
about the presence of asbestos at the Center and reported his
concerns to DOI officials. According to Knox, DOI management
retaliated against him because of his asbestos reports. Knox
eventually filed this whistleblower action. After conducting a
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hearing, an administrative law judge (“ALJ”) found that DOI had
violated the CAA by retaliating against Knox. On DOI’s appeal, the
ARB rejected the ALJ’s decision and dismissed Knox’s complaint,
finding that he had not engaged in protected activity under the
CAA.1 Knox then filed a petition for review of the ARB’s order.
In Knox, we concluded that the ARB had misapplied the legal
standard it had announced for CAA-protected activity, and we
therefore granted Knox’s petition for review. Specifically, we
noted that the ARB had stated that to establish he engaged in
protected activity under the CAA, Knox had to prove he reasonably
believed DOI was emitting asbestos into the “ambient air” (i.e.,
air external to buildings) when he expressed his concerns to DOI
officials. In attempting to apply this standard, the ARB
recognized that Knox testified he had observed asbestos escaping
from the Center into the ambient air through an exhaust fan, but it
nonetheless found that he had not engaged in protected activity
because he had not told DOI management about the exhaust fan.
Noting that there “are several ways to violate the CAA and its
implementing regulations without releases into the ambient air,” we
expressed our doubts about the correctness of the ARB’s “ambient
1
An employee asserting a CAA whistleblower claim “must
establish that his employer retaliated against him because he
engaged in a protected activity.” Knox, 434 F.3d at 724.
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air” standard, Knox, 434 F.3d at 724 n.3,2 but we determined that
the ARB’s decision was incorrect even under that standard because
the evidence established that Knox did, in fact, reasonably believe
that asbestos was escaping into the ambient air. As we explained,
“[a]lthough the contents of Knox’s complaints may provide evidence
of his reasonable beliefs, it does not follow that he must have
necessarily conveyed a notion to have reasonably believed it, as
the ARB demanded of him.” Id. at 725. Accordingly, we held that
Knox had engaged in CAA-protected activity under the ARB’s “ambient
air” standard, and we remanded the case to the ARB for further
proceedings. In doing so, we instructed the ARB to determine
whether DOI retaliated against Knox because of this protected
activity, and we noted that “[w]hile the protected activity
standard announced by the ARB did not require Knox to convey his
reasonable beliefs to DOI management, DOI’s awareness of his
complaints may prove relevant in an analysis of the causal
connection between his protected activity and the adverse action.”
Id. at n.5.
2
We stated that “depending on the circumstances, an employee
could reasonably believe his employer was violating the CAA, even
if no release into the ambient air occurred,” and we pointed to 42
U.S.C. § 7412(h)(1), which authorizes the EPA to establish work
practice standards for certain pollutants such as asbestos, and 40
C.F.R. § 61.150, which is an EPA-work practice standard for
handling asbestos in certain building and demolition sites. Knox,
434 F.3d at 724 n.3.
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On remand, the ARB expressly acknowledged our skepticism about
its previously announced “ambient air” standard, and it agreed with
our suggestion that the CAA standard for protected activity is
broader. Consequently, the ARB stated “that an employee engages in
protected activity under the CAA when he or she expresses a
concern, and reasonably believes, that the employer has either
violated an [EPA] regulation implementing the CAA or has emitted or
might emit, at a risk to the general public, potentially hazardous
materials into the ambient air.” J.A. 148. The ARB then rejected
Knox’s claim for two reasons. First, the ARB concluded, without
elaboration, that “Knox neither argues nor does the record contain
any evidence that DOI was violating any EPA regulations
implementing the CAA.” J.A. 148 n.5. Second, the ARB found that
Knox did not express his concern about asbestos escaping through
the exhaust fan to DOI officials, and “since DOI was not aware of
Knox’s protected activity, it could not have retaliated against him
because of his protected activity.” J.A. 149. Accordingly, the
ARB dismissed Knox’s complaint.
II
In challenging the dismissal of his complaint, Knox primarily
argues that the ARB erred by focusing on the ambient air issue.
Knox contends that the ARB improperly disregarded evidence
concerning his belief that DOI had violated EPA-work practice
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standards. Knox states that he “was concerned about renovations
and maintenance activity that had disturbed the asbestos, causing
it to be emitted into the air and posing a hazard to students,
staff and visitors at the Center. He expressed these concerns on
a number of occasions, both to his direct supervisor and other DOI
management officials, as well as to outside agencies such as the
EPA.” Brief for Petitioner, at 11. For her part, the Secretary of
Labor primarily argues that substantial evidence supports the ARB’s
finding that DOI did not retaliate against Knox because DOI was not
aware of Knox’s reasonable belief that asbestos was being emitted
into the ambient air from the Center. Reading our Knox opinion
narrowly, the Secretary also contends that “the EPA work-practice
standard regulations are not implicated in the relevant causal
relationship analysis,” and that in any event “the evidence does
not show that, before Knox filed his whistleblower complaint . . .,
DOI was aware of any concerns Knox might have had relating
specifically to violations of these work-practice standards.”
Brief for the Secretary of Labor, at 23 & n.13.
To the extent that Knox’s claim is based on his concern about
asbestos escaping into the ambient air from the Center, we hold
that the ARB’s decision is supported by substantial evidence. As
Knox’s counsel admitted at oral argument, there is no evidence in
the record to establish that Knox specifically reported his concern
about asbestos escaping into the ambient air from the Center to DOI
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officials, and he has not pointed to any evidence that otherwise
sufficiently establishes that DOI was aware of Knox’s ambient air
concern. Thus, although Knox may have engaged in protected
activity regarding ambient air emissions under the ARB’s previously
announced standard because he reasonably believed that asbestos was
being emitted from the Center, see Knox, 434 F.3d at 725, DO could
not have retaliated against him because of this belief because of
his failure to bring it to the attention of DO officials. See
generally Dowe v. Total Action Against Poverty in Roanoke Valley,
145 F.3d 653, 657 (4th Cir. 1998) (“Since, by definition, an
employer cannot take action because of a factor of which it is
unaware, the employer’s knowledge that the plaintiff engaged in a
protected activity is absolutely necessary to establish” the causal
connection between the protected activity and an adverse action).
To the extent that Knox’s claim is based on his concern about
EPA-work practice standard violations, we believe that a remand is
necessary for further consideration by the ARB. As we noted, in
rejecting this aspect of Knox’s claim the ARB stated simply that
“Knox neither argues nor does the record contain any evidence that
DOI was violating any EPA regulations implementing the CAA.” J.A.
148 n.5. We find this conclusion to be problematic for at least
two reasons. First, although it suggests that Knox is required to
prove that DOI was actually violating EPA regulations in order to
prevail on his claim, Knox is only required to prove that he had a
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good-faith, reasonable belief that DOI was violating an applicable
EPA regulation and that he expressed that belief to DOI. Second,
Knox has, in fact, presented some evidence that arguably tends to
establish that he informed DOI officials about his concern that
EPA-work practice standards had been violated. See, e.g., J.A. 348
(Knox stating in a letter to the DOI Secretary that “[o]ver the
years, . . . EPA Laws . . . had been violated”). On remand, the
ARB should reconsider the entire record in light of Knox’s
contention that he reported EPA-work practice standard violations
to DOI management, and it should specifically explain its findings
and legal conclusions. In remanding this case, we express no
opinion on the ultimate merits of this issue.
III
Based on the foregoing, we grant in part the petition for
review, vacate in part the ARB’s order, and remand this case for
further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED IN PART,
ORDER VACATED IN PART, AND REMANDED
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