Onysko v. Administrative Review Board ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2013
Elisabeth A. Shumaker
Clerk of Court
STEVEN ONYSKO,
Petitioner,
v. No. 13-9529
(Petition for Review)
ADMINISTRATIVE REVIEW BOARD;
UNITED STATES DEPARTMENT OF
LABOR; THOMAS E. PEREZ, Secretary
of Labor,
Respondents.
----------------------------
UTAH DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Intervenor.
ORDER AND JUDGMENT
Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.

Pursuant to Fed. R. App. P. 43(c)(2) Thomas E. Perez is substituted as
Secretary of Labor for Seth D. Harris, effective July 23, 2013.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Steven Onysko, an environmental engineer with the Utah Department of
Environmental Quality (DEQ), proceeding pro se, filed a series of complaints with
the Occupational Safety and Health Administration (OSHA) in which he alleged that
he was demoted from a managerial position in retaliation for reporting alleged
violations of the Safe Drinking Water Act of 1974 (SDWA). OSHA investigated and
dismissed the complaints.
Following a four-day evidentiary hearing, an administrative law judge (ALJ)
issued a decision and order that dismissed Onysko’s “whistleblower” complaint
because, among other reasons, he failed to prove causation:
[Onysko] has set forth a number of theories in an attempt to
demonstrate his engagement in protected activities in some way served
as a motivating factor to alleged adverse actions taken against him by
[DEQ]. After examination of these theories against the record,
however, I find them entirely based on [Onysko’s] own subjective
interpretation of the facts presented in this case and entirely without
merit. Consequently, I find lack of causation constitutes an additional
basis for dismissal of [Onysko’s] whistleblower complaint.
Admin. R. at 2890.
In a two-to-one decision, the United States Department of Labor
Administrative Review Board (Board) found that the ALJ’s causation
determination was supported by substantial evidence, and affirmed the ALJ’s
decision “on that narrow basis.” Id. at 3294. Exercising jurisdiction under 42 U.S.C.
§ 300j-9(i)(3)(A), we affirm the Board’s final decision and order.
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I. BACKGROUND
A. Onysko’s Promotion
Onysko is a registered professional engineer who works for DEQ. In 2007, the
Division of Drinking Water (DDW), which is part of DEQ, was divided into two
sections: engineering and construction. Onysko’s then supervisor, Ken Wilde,
became manager of construction, and on July 1 Onysko was conditionally promoted
from environmental engineer to engineering section manager. As part of the
promotion process, Onysko signed a performance plan detailing the responsibilities
of his new job, which included: (1) the development and adoption of rules; (2) the
development of a tracking scheme for rule exceptions; (3) the enabling of web access
for DDW partners and clients; (4) evaluating the feasibility of a newsletter;
(5) ensuring the quality of data entered by subordinate staff; (6) managing the
engineering section of DDW; (7) implementing DEQ’s operating principles;
(8) keeping DDW’s director informed of client concerns; and (9) providing weekly
intra-section reports. Onysko’s promotion was subject to a twelve-month career
mobility period during which DEQ had the right to terminate or end the assignment,
without prior notice, for any reason. Upon completion of the mobility period,
Onysko was to be placed in the job on a permanent basis.
B. “Whistleblowing” Incidents
Onysko alleged the first incident of whistleblowing took place in May 2007,
when he discovered an undersized water line at Pheasant Meadows, a subdivision
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that had already received DEQ approval of its waterlines. Onysko notified Kenneth
Bousfield, the executive director of DDW, who in turn took steps to correct the
potential hazard.
The next incidents concerned Slate Canyon. Onysko inspected a water
pipeline on October 4, 2007, and observed the use of non-approved glues and
sealants and air vents instead of air valves. He reported his concerns to Bousfield
that same day. On October 25, Onysko renewed his concerns. Nonetheless, DEQ’s
deputy director, William Sinclair, directed Onysko to prepare an operating permit,
which was eventually issued pursuant to a letter authored by Onysko and signed by
Bousfield on October 29.
C. Managerial Problems
By mid-August 2007, and not long after his promotion, DEQ staff began to
complain about Onysko’s lack of management skills. In addition to personality
conflicts, they offered comments about the untimeliness of his work and his failure to
communicate effectively with customers. In mid-October 2007, Sinclair had two
meetings with Bousfield in which they discussed these problems. The meetings were
memorialized in two memoranda prepared by Sinclair.
The October 12, 2007 memorandum noted that Onysko was a micro-manager
who: (1) circumvented a district engineer’s decision-making authority; (2) damaged
DEQ’s relationships with private engineers; and (3) insisted on gold-standard
engineering, which made it difficult to meet deadlines and created the potential for
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increased costs. The October 15 memorandum addressed Onysko’s failure to timely
review plans and his insistence on following his interpretation of DEQ’s rules. The
memorandum also mentioned an argument between Onysko and Wilde during a
presentation to an outside agency. Sinclair noted two options, although he did not
advocate for either outcome: (1) correcting Onysko’s behavior while allowing him to
remain as a manager; or (2) returning Onysko to his previous job.
D. Onysko’s Demotion
On October 25, 2007, Onysko was demoted. The letter issued in conjunction
with this action noted that Onysko’s interactions with DEQ staff and its customers
had been ineffective and inappropriate. More specifically, the letter noted Onysko’s
failure to: (1) respond to the customer’s requests to meet so as to move the Slate
Canyon project forward; (2) timely complete the review of plans; and (3) properly
coordinate an investigation of funding. As the overarching reason for the demotion,
the letter cited Onysko’s “inability to work with others, which is in violation of
[DEQ’s] Operating Principles and [his] specific performance plan.” Admin. R. at
2858. At the conclusion of this meeting, Onysko renewed his concerns about Slate
Canyon. Sinclair nonetheless directed him to prepare an operating permit.
E. OSHA Complaints
In June, July and September 2008, Onysko filed complaints with OSHA in
which he alleged that DEQ had retaliated against him as a “whistleblower.”
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Onysko’s June 1 complaint concerned his demotion, which occurred more than 200
days earlier on October 25, 2007.
Onysko’s second complaint, filed on July 8, 2008, stemmed from a July 3
performance review of Onysko’s four-month tenure as engineering section manager
in which he received ratings of “successful” in six categories and “unsuccessful” in
the seventh. With regard to the unsuccessful category, Bousfield wrote:
[Onysko] views DEQ’s Operating Principles . . . as an impediment to
enforcing the Safe Drinking Water Act and Rules. [Onysko]
demonstrates an unwillingness to see that one can achieve compliance
with Rules by implementing [Operating Principles]. [He] is also
unwilling to accept management’s directions regarding [the Operating
Principles]. This disconnect between [the Operating Principles] and
Rule compliance overshadowed [Onysko’s] good work and showed he
was not ready for leadership within DDW.
Id. at 2860.
Onysko’s third and final OSHA complaint was filed on September 9, 2008.
This complaint had its origins in a warning letter Onysko received on August 11 as a
result of having sent an inappropriate email to a co-worker in July. In the email,
Onysko cautioned a fellow employee about taking advice from a particular supervisor
and also accused that supervisor of lodging a secret complaint about Onysko that
resulted in the demotion. OSHA dismissed the complaints.
II. LEGAL FRAMEWORK
A. The SDWA
The SDWA prohibits an employer from discharging or discriminating against
an employee because of his involvement in activities concerning the administration
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or enforcement of drinking water regulations. § 300j-9(i)(1)(A-C); 29 C.F.R.
§ 24.102(a)-(b). “Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation of [the SDWA] may,
within 30 days after such violation occurs, file . . . a complaint.” § 300j-9(i)(2)(A).
See also 29 C.F.R. § 24.103(d)(1).
To prevail on his “whistleblower” claim Onysko was required, among other
things, to prove causation. The element of causation required Onysko to
“demonstrate[] by a preponderance of the evidence that the protected activity caused
or was a motivating factor in the adverse action alleged in the complaint.” 29 C.F.R.
§ 24.109(b)(2). Only if Onysko met his burden to prove causation and the other
elements of his claim was DEQ required to come forward with evidence “that it
would have taken the same adverse action in the absence of the protected activity.”
Id. A motivating factor is the same as a substantial factor. Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); see also Hulen v. Yates,
322 F.3d 1229, 1237 (10th Cir. 2003) (holding that an employee is required “to
demonstrate that [engaging in the protected activity] was a substantial or motivating
factor in the adverse employment action.”).
B. Standard of Review
This court reviews the Board’s final decision and order under the
Administrative Procedure Act (APA). 5 U.S.C. § 706. We must sustain the Board’s
decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
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accordance with law,” or “unsupported by substantial evidence.” § 706(2)(A), (E);
see Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 850 (10th Cir. 2007). Our review of
the Board’s legal determinations is de novo. Trimmer v. U.S. Dep’t of Labor,
174 F.3d 1098, 1102 (10th Cir. 1999).
Our review of the facts is limited to a determination of whether they are
supported by substantial evidence. Hall, 476 F.3d at 854. “Substantial evidence is
such relevant evidence a reasonable person would deem adequate to support the
ultimate conclusion.” Id. (internal quotation marks omitted). This standard “requires
more than a scintilla but less than a preponderance of the evidence.” Id. It “does not
allow a court to displace the agency’s choice between two fairly conflicting views,
even though the court would justifiably have made a different choice had the matter
been before it de novo.” Trimmer, 174 F.3d at 1102 (internal quotation marks
omitted). As such, “[o]ur review . . . is quite narrow.” Hall, 476 F.3d at 850(internal quotation marks omitted). Moreover, because the Board’s final decision and
order was based in part on the ALJ’s credibility determinations, “it is entitled to great
deference.” Trimmer, 174 F.3d at 1102. When applying the substantial-evidence
standard, “[t]his court reviews the entire record, including the ALJ’s recommendation
and any evidence contrary to the [Board’s] decision.” Id.-8-
III. ANALYSIS
A. Adverse Action
In issues one, two, four, and six, Onysko argues that the ARB majority and the
ALJ erred in either not finding adverse action or incorrectly analyzing and failing to
assign proper weight to various incidents. We need not decide these issues because
they are irrelevant to our resolution of the case, i.e., they concern whether the actions
taken by DEQ were adverse actions. In his decision and order, the ALJ found that
the October 27, 2007 demotion was an adverse action, but it was not actionable
because Onysko did not file an OSHA complaint within 30 days of the demotion as
required by law. See § 300j-9(i)(2)(A); § 24.103(d)(1). As to the performance
evaluation and warning letter, the ALJ decided that they were not adverse actions.
The ALJ could have concluded his analysis at that point, but he did not. Instead, he
concluded that even if the performance evaluation and warning letter were adverse
actions, there was no causation. The Board affirmed on this narrow ground.
Therefore, Onysko’s arguments about adverse action are irrelevant and we do not
consider them. See Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991) (“We will
not undertake to decide issues that do not affect the outcome of a dispute.”).
B. Board’s Dissent
Issues three and five, arguing that the ARB majority erred in affirming on lack
of causation without addressing adverse action concerning various events, are
essentially the same. Onysko urges this court to adopt the rationale of the Board’s
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dissenting member. Although Onysko did not file a timely OSHA complaint
concerning the demotion, he did file a timely complaint about the subsequent
performance evaluation. The dissent reasoned that because the evaluation
“effectively reached back to [the] demotion for its substance and cause . . . it was
error for the ALJ to fail to address causation in connection with the demotion itself –
i.e., whether Onysko’s protected activity was a motivating factor in his October 25[],
2007 demotion.” Admin. R. at 3296. Alternatively, the dissent noted that
“[a]rguably, [DEQ] ‘tolled’ the statute of limitations by addressing the demotion in
the ‘after-the-fact’ July 3[] [e]valuation.” Id.We address the tolling argument first. Setting aside the fact that Onysko does
not offer any authority to support this reasoning, the statute of limitations had already
run by the time of the performance evaluation; thus, there was nothing to “toll.”
Next, Onysko’s argument that the demotion and performance review were effectively
a single action is contrary to the law. See Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002) (“[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.”); see also
Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1178 (10th Cir. 2011) (holding
that discrete acts such as demotion, “trigger the statute of limitations when
announced to the claimant, and do so whether or not all of their adverse effects or
consequences are immediately felt”). As such, Onysko’s third and fifth issues lack
merit.
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C. Contributing Factor Test
In his seventh and eighth issues, Onysko argues for application of the
contributing factor test and a concomitant burden on DEQ to demonstrate by clear
and convincing evidence that it would have taken the alleged adverse actions in the
absence of Onysko’s protected activities. This test does not apply to claims under the
SDWA. See § 24.109(b)(2).
D. Previous Performance Evaluations
Onysko frames the ninth issue as follows: “The ALJ mined 10 years of 100
percent successful/exceptional performance evaluations as staff engineer looking for
pretext to dismiss Onysko’s complaints.” Pet’r Opening Br. at 70. Onysko has failed
to establish the relevance of this argument to whether the Board’s decision is
supported by substantial evidence.
E. Onysko’s Witnesses
As to the tenth issue, Onysko alleges that “[t]he ALJ . . . dismissed the
testimony of all of Onysko’s witnesses.” Id. at 35. This argument is based on a
misreading of the ALJ’s decision. The ALJ said he was not going to discuss the
testimony of each of Onysko’s witnesses: “Before moving on to the background of
[Onysko’s] work history, however, I here note my reasoning for omitting from the
following background discussion the testimony of some of the witnesses called by
[Onysko] in this case.” Admin. R. at 2832. In particular, and as to the witnesses
Onysko offered to establish his abilities as an engineer and the nature of the problems
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he discovered at Pheasant Meadows and Slate Canyon, the ALJ wrote: “Although
considered, I do not discuss this testimony as I ultimately find other witnesses’
testimony is sufficient to establish [Onysko’s] technical expertise and gives merit to
[his] allegations of having engaged in protected activity.” Id. at 2833. The decision
not to discuss the testimony of each witness is different from dismissing their
testimony.
F. Protected Activity
Onysko’s eleventh issue is a reprise of whether the use of air vents instead of
air vales on the Slate Canyon project created a risk of contamination. The ALJ found
that there was no such risk and that Onysko’s report of the same was not a protected
activity. Because the Board resolved the case on causation, it did not consider the
issue. We do not decide the issue because it “do[es] not affect the outcome of [the]
dispute.” Griffin, 929 F.2d at 554.
G. Pro Se Bias
The twelfth issue concerns the ALJ’s alleged bias against Onysko as a pro se
litigant. Onysko argues that the ALJ found his testimony less credible than other
witnesses due to the form of his questions. This ignores much of what the ALJ
found. In addition to his criticism of Onysko’s leading questions, the ALJ observed
that he “argue[d] with witnesses who did not agree with his phrasing of events . . .
[his] questions were . . . sometimes infused with extreme characterizations of events
and descriptions of circumstances . . . [and he] misrepresent[ed] . . . certain events
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within the record.” Admin. R. at 2870-71. Onysko, however, ignores that the ALJ
found him especially credible “with respect to his professional and technical
knowledge,” id. at 2871, and assisted in putting on his case. More to the point,
Onysko has not cited any authority that the ALJ’s credibility determination was
based on improper factors.
H. Post-Hearing Motion
For his thirteenth issue, Onysko points to a post-hearing motion to supplement
the record with a letter he authored and in which he noted a third potential hazard at
Slate Canyon. DEQ explained the contents of the letter in its opposition to the
motion: “The third issue [Onysko] claims to have raised [in the letter] is the lack of
fencing around the spring collection areas.” Id. at 2823. The ALJ denied the motion
because the letter was known to Onysko at the time of the hearing and he failed to
introduce it.
Onysko never explains why the ALJ’s ruling was incorrect. See
Fed. R. App. P. 28(a)(9) (requiring supporting reasons). Instead, he asserts that if the
ALJ had granted the motion, he would have been able to “prov[e] yet another
instance of DEQ shifting its (pretextual) explanations for [his] demotion and negative
Performance Evaluation.” Pet’r Opening Br. at 80. But Onysko’s failure to develop
any argument means that he has waived the issue. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (holding that a party, including
a pro se litigant, waives an inadequately briefed issue).
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I. DEQ Operating Principles
Onysko’s fourteenth issue on appeal concerns his contention that DEQ’s
Operating Principles were used as a pretext for the demotion. In essence, he argues
that they were merely guidelines and could not serve as a legitimate basis for an
adverse employment action. Once again, Onysko cites no authority for this
argument. More to the point, Onysko signed a performance plan detailing the
responsibilities of his management job, which included the requirement to implement
DEQ’s operating principles. He cannot argue now that the operating principles were
immaterial.
J. De Novo Review
Onysko’s final issue is more of a request than an argument. He asserts that the
Board erred because it “did not conduct a de novo review of the facts in this case,”
Pet’r Opening Br. at 83, and urges this court to conduct such a review. This request
is without merit because our review of the Board’s decision is limited to a
determination of whether its factual determinations are supported by substantial
evidence, Hall, 476 F.3d at 854, and they are.
IV. CONCLUSION
The Board’s final decision and order is affirmed.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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