Knox v. United States Department of Labor ( 2007 )


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  •                              UNPUBLISHED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    remanded by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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
    2
    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
    .
    3
    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.
    4
    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
    5
    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
    6
    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
    7
    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
    8
    

Document Info

Docket Number: 06-1726

Judges: Motz, Traxler, Shedd

Filed Date: 5/23/2007

Precedential Status: Non-Precedential

Modified Date: 3/2/2024