Hugh Kaufman v. Thomas Perez ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2013 Decided March 14, 2014
No. 12-1036
HUGH B. KAUFMAN,
PETITIONER
v.
THOMAS E. PEREZ, SECRETARY OF THE UNITED STATES
DEPARTMENT OF LABOR,
RESPONDENT
On Petition for Review of the Final Decision and Order of
the United States Department of Labor’s Administrative
Review Board
Regina M. Markey argued the cause and filed the briefs
for petitioner.
Dean A. Romhilt, Attorney, U.S. Department of Labor,
argued the cause for respondent. With him on the brief was
Megan E. Guenther, Attorney. Heather R. Phillips,
Attorney, U.S. Department of Labor, entered an appearance.
Before: HENDERSON and SRINIVASAN, Circuit Judges,
and SENTELLE, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
Opinion concurring in the judgment filed by Circuit
Judge SRINIVASAN.
SENTELLE, Senior Circuit Judge: Hugh Kaufman, an
employee of the Environmental Protection Agency (“EPA”),
brought several claims against his employer for allegedly
retaliating against him in violation of several environmental
whistleblowing provisions. An administrative law judge
(“ALJ”) denied his claims, and the Administrative Review
Board (“ARB”) affirmed the ALJ’s decision. Kaufman now
petitions this court for review of the dismissal of seven
claims. Because we conclude that the Board committed no
error in its conclusion that the claims were barred by the
relevant statutes of limitation, we deny Kaufman’s petition for
review.
I. BACKGROUND
A. Factual History
Kaufman is a program analyst at the headquarters of the
EPA in Washington, DC. He has been employed by the EPA
since its creation in 1971. At all times relevant to this
proceeding, he was employed in the Office of Solid Waste
and Emergency Response (“OSWER”). In 1999, Kaufman
was assigned to the OSWER Assistant Administrator’s
Office, his position description was changed from
Environmental Protection Specialist to Program Analyst, and
his job description was expanded to include responsibilities
assisting the OSWER Ombudsman, Robert Martin. The
Ombudsman investigated public complaints, mediated
disputes, and convened hearings regarding OSWER’s
3
administration of the hazardous substance and solid waste
programs. Though Martin assigned Kaufman work, Michael
Shapiro was Kaufman’s immediate supervisor and Timothy
Fields served as his second-level supervisor. Fields, a
Presidential appointee, was the Acting Assistant
Administrator of OSWER at the time and Shapiro was the
Acting Deputy Assistant Administrator.
Kaufman’s conduct at OSWER hearings became a matter
of controversy early in his tenure with the Ombudsman. His
pattern of behavior culminated in an extraordinary incident at
a Town Hall meeting concerning a Superfund site in Tarpon
Springs, Florida, in June of 2000. The June meeting followed
two earlier Tarpon Springs sessions in which Kaufman had,
according to EPA officials, ridiculed personnel and failed to
conduct impartial and professional hearings. Kaufman
chaired the June 5, 2000 meeting. Two EPA representatives
appeared: Joanne Benante, Chief of the North Florida Section
of EPA’s Region IV, and Michelle Staes, Assistant Regional
Counsel and the Region IV attorney assigned to the site.
Kaufman conducted the hearing, not as an impartial
ombudsman proceeding, but in a confrontational fashion
belittling and demeaning the EPA representatives, especially
attorney Staes. He set the tone of his behavior from the
outset, reading Benante and Staes Miranda warnings as if they
were in-custody criminals. He went on to allege that the EPA
in the Region was stonewalling Congress and the Justice
Department. He further demeaned attorney Staes, lamenting
that “all these big shot men and big shot women [in the EPA]
who have been in it for 20, 30 years have to hide behind the
skirts of a little black girl just out of law school.”
As the ALJ noted, “[r]esponse to Kaufman’s performance
was swift.” Stephen Luftig, Director of the Office of
Emergency and Remedial Response, wrote a letter to the
4
Ombudsman dated June 12, 2000 to express concern over
reports of the “abusive, bullying tactics and the lack of
impartiality” shown by Kaufman at the hearing one week
earlier. The letter also characterized the Miranda-rights
incident as part of a pattern of inappropriate behavior, and
requested an explanation. In response to Luftig’s letter,
Kaufman accelerated the confrontation. His written response,
among other things, demanded that Luftig either present
substantiating evidence or apologize, and suggested that
Luftig’s memorandum to him “was a knowingly reckless,
false, misleading, and inaccurate document intended to thwart
and obstruct an ongoing federal investigation, and a knowing
attempt to harm the federal officials performing the
investigation.” Shapiro issued an Official Reprimand dated
September 29, 2000, chastising Kaufman for his conduct at
the June 5, 2000 meeting.
Fields testified before the ALJ that these and other
incidents led him to conclude that Kaufman’s support of the
Ombudsman was not working. On December 14, 2000,
Fields met with Kaufman and informed him that he would no
longer be performing Ombudsman duties. Fields embodied
this message in a memo that set forth Kaufman’s behavior at
the Tarpon Springs hearing and other hearings, characterizing
that behavior as “inappropriate, unprofessional, and lacking in
impartiality.” The memo advised Kaufman that “examples of
your lack of impartiality and professionalism are numerous.”
In addition to the Miranda warnings and the demeaning
treatment of Staes set forth above, the memo recited other
examples of similar behavior by Kaufman, including other
occurrences at Tarpon Springs and hearings in Ohio and
Idaho.
The memo stated that at the Idaho hearings Kaufman
“asked at least three different hearing participants the same
5
inappropriate question: ‘Do you believe there was and/or is
evidence of a cover-up related to the [industrial excess
landfill] activities?’” Fields described this type questioning as
“aimed at inciting public angst, rather than objective fact-
finding” and as reflecting “[Kaufman’s] lack of impartiality in
the performance of [his] Ombudsman-related duties.”
The memo referred to Kaufman’s having “used language
and made statements which were inappropriate for an
objective federal official in Idaho.” By way of example, he
stated that the public had been “used as pawns” and that “the
Department of Justice has asked EPA to, basically, kill the
Ombudsman program.” The memo related Kaufman’s having
stated at the same hearing that he thought the EPA was
“raping” the people of the Idaho Valley.
After reciting the examples of Kaufman’s lack of
impartiality and professionalism, the Fields memorandum
informed Kaufman that he would no longer be performing
Ombudsman’s duties and that the reference to such duties
would be removed from his position description. Without
doubt, Kaufman understood the import of Fields’s
memorandum. In a January 8, 2001 Environment News
Service article, Kaufman claimed that he had been “ousted
from the Ombudsman’s Office because he exposed EPA
wrongdoing at a number of agency-managed hazardous waste
clean-up sites.” He further characterized his “ouster” as being
“‘political revenge’ for his office’s damning revelations about
failed Democratic presidential candidate Al Gore.”
On January 20, 2001, a new administration took office.
On January 29, 2001, Martin issued a memo stating he was
unable to perform substantial Ombudsman tasks, due in part
to Kaufman’s reassignment. On January 30, 2001, Christine
Todd Whitman was confirmed as the new EPA Administrator.
6
The next day, Shapiro met with Kaufman to discuss
Kaufman’s job performance. Kaufman asked Shapiro if he
was withdrawing Fields’s memo—as a Presidential appointee,
Fields had exited with the previous administration. Shapiro
confirmed that he was not.
In early February, Martin requested Kaufman’s help with
Ombudsman tasks. Shapiro rejected his request. On
February 13 and 21, Shapiro addressed the matter again with
Martin, reaffirming that Kaufman would not be assigned
Ombudsman work. Nonetheless, on February 15, Kaufman
submitted a travel request to attend an Ombudsman hearing,
which Shapiro denied. On February 22, Shapiro issued a
memo to Martin summarizing his previous conversations and
again affirmed that Kaufman would not be available to
support the Ombudsman. Finally, on February 23, after
Shapiro again received reports of Kaufman’s participation in
Ombudsman functions, he orally informed Kaufman again
that Kaufman was prohibited from performing Ombudsman
duties. Kaufman asked Shapiro to put that prohibition in
writing.
Before Shapiro could do so, Kaufman sent him a memo
dated March 6, asserting, among other things, the “fact” that
his prohibition expired when Fields left the EPA.
Accordingly, he asked Shapiro to provide “unequivocal
clarification . . . as to whether [Shapiro was] going to take an
adverse action against” Kaufman. Around the same time,
Kaufman discovered what he perceived as a conflict of
interest on Administrator Whitman’s part at one of the
cleanup sites. He reported this possible conflict to the
Inspector General, and spoke to the press about it as well,
accusing Whitman of stopping the Ombudsman from giving
him assignments to reduce the chances that the site would be
forced to comply with environmental laws. The Inspector
7
General investigated Kaufman’s allegations and found them
to be unsubstantiated.
On March 14, 2001, Shapiro responded to Kaufman’s
March 6 memo with one of his own in which he reiterated
Kaufman’s prohibition, expressed shock at the assertion that
Fields’s memo expired with the change of administration, and
attached a copy of the memo. Shapiro also attached a copy of
Kaufman’s position description with Ombudsman-related
duties removed. Kaufman responded by alleging that Shapiro
was making false statements, and intimating that Shapiro’s
memo was motivated by Kaufman’s recent whistleblowing
activity regarding Administrator Whitman. Kaufman also
threatened “to make a criminal referral of this matter to the
Department of Justice,” if Shapiro did not let him perform
Ombudsman duties. Shapiro responded on March 16, 2001,
again reiterating the prohibition, and again noting Kaufman’s
mischaracterization of the effects of the Fields memo.
On the same date, Shapiro sent a memorandum to Martin
advising him that Kaufman had apparently transmitted a
round of “interrogatories” and requests for production of
documents in connection with a Superfund site inquiry in
Colorado, requesting that responses be sent to Martin. In the
memorandum to Martin, Shapiro reiterated that Kaufman had
been officially and verbally terminated from all Ombudsman
functions. The memorandum further advised explicitly: “As
we have discussed previously, unless otherwise directed by
me, you should not involve Mr. Kaufman in any national
Ombudsman-related activities as part of his EPA
responsibilities.”
Around the same time, another EPA employee, Barry
Stolls, was detailed to assist the Ombudsman, and the EPA
exempted several new full-time Ombudsman staff positions
8
from a hiring freeze then in effect. On April 6, Shapiro
encouraged Martin to actively recruit for those new vacant
staff positions. Martin continued to request that Kaufman be
reassigned Ombudsman duties, and Shapiro denied his
requests on April 16 and May 22.
On November 27, 2001, Administrator Whitman
announced her decision to move the Ombudsman function to
the Office of the Inspector General (“OIG”) in response to
concerns voiced by Congress and the General Accounting
Office. The Ombudsman was ultimately moved to OIG on
April 13, 2002.
B. Procedural History
Kaufman first complained to the Department of Labor on
April 3, 2001, alleging violations of the employee protection
provisions in various environmental statutes. The
Occupational Safety and Health Administration determined
that the EPA had unlawfully retaliated against Kaufman for
doing his job “too effective[ly].” The EPA appealed the
ruling, and after years of discovery disputes an ALJ
conducted a 14-day hearing on Kaufman’s claims.
Kaufman’s amended complaint before the ALJ requested
relief under the whistleblower provisions of seven
environmental protection statutes: the Clean Air Act, 42
U.S.C. § 7622; the Safe Drinking Water Act, 42 U.S.C.
§ 300j-9; the Solid Waste Disposal Act, 42 U.S.C. § 6971; the
Federal Water Pollution Control Act, 33 U.S.C. § 1367; the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9610; the Toxic Substances Control
Act, 15 U.S.C. § 2622; and the Energy Reorganization Act,
42 U.S.C. § 5851.
9
Kaufman’s complaint set out nine claims relating to the
following events:
 Claim 1: The December 14, 2000 removal of
Kaufman’s Ombudsman duties;
 Claim 2: The March 5, 2001 decision to assign
Stolls to the Ombudsman;
 Claim 3: The refusal to assign Ombudsman duties
to Kaufman after the removal of the hiring freeze
in March 2001;
 Claim 4: The issuance of the March 16, 2001
memo stating Kaufman was prohibited from
performing Ombudsman work;
 Claim 5: The issuance of the April 6, 2001 memo
to Martin inquiring about recruitment actions;
 Claim 6: The issuance of the April 16, 2001 and
May 22 memos to Martin denying his request to
assign Kaufman Ombudsman duties;
 Claim 7: The November 27, 2001 announcement
to transfer the EPA Ombudsman to the OIG;
 Claim 8: The April 12, 2002 transfer of the
Ombudsman to the OIG;
 Claim 9: The creation of a hostile work
environment for Kaufman from June 2000 to April
2002.
10
The ALJ dismissed all of Kaufman’s claims. First, the
ALJ dismissed Kaufman’s claims under the Toxic Substances
Control Act and the Energy Reorganization Act for lack of
jurisdiction. Second, the ALJ found Claim 1 untimely; the
statutes of limitations in the whistleblower provisions of the
remaining environmental protection statutes require a
petitioner to file a complaint within thirty days after a
“violation occurs.” Kaufman complained on April 3, 2001.
Thus any allegedly unlawful activity must have occurred on
or after March 5 to be timely. Third, the ALJ dismissed
Kaufman’s hostile work environment claim (Claim 9).
Finally, as to Claims 2–8, the ALJ rejected Kaufman’s
argument that they represented discrete retaliatory acts,
finding that they were “not adverse acts [to Kaufman] but
rather the consequences of Fields’[s] December memo . . . .”
After December 14, 2000, Kaufman “was in no position to be
considered for assignment of Ombudsman functions,” and the
ALJ found nothing in the record to support Kaufman’s claim
that a change in administration would nullify the memo.
Specifically, the ALJ concluded that
Kaufman could not have any uncertainty about the
Fields memo. The memo is unambiguous, and Fields
met with him personally to deliver the memo and to
explain that he was no longer to do Ombudsman-
related work. Both Fields and Kaufman testified that
Kaufman understood the decision, and both testified
that Kaufman responded that he would stop doing
Ombudsman work.
Ultimately, the ALJ found that “Kaufman’s argument
that he was . . . uncertain about whether he could perform
Ombudsman related duties strain[ed] credibility.” Because
Kaufman was permanently prohibited from assisting the
11
Ombudsman, the EPA’s actions in staffing the Ombudsman
office—and its repeated affirmations of Kaufman’s
prohibition from Ombudsman-related duties—had no effect
on him. Moreover, the ALJ reasoned, allowing these actions
to restart the filing clock would make “mincemeat out of the
requirement to timely file,” because “[a]ll employer adverse
actions would be subject to reopening merely by continuing to
request reinstatement, and then counting the time to file from
each denial.”
As to the decisions to transfer the Ombudsman to the
OIG (Claims 7–8), the ALJ found them non-adverse to
Kaufman as well. Kaufman had not shown that any of his
Ombudsman duties would have been reinstated after a transfer
in light of the December 14 memo: “[t]hus, the transfer of the
Ombudsman had no effect on the future employment of
Kaufman.”
On November 30, 2011, the ARB affirmed the ALJ’s
decision. It found that substantial evidence supported the
ALJ’s determination that the EPA expressly removed
Kaufman’s Ombudsman-related duties pursuant to Fields’s
memo. It also affirmed the ALJ’s legal determination that
Fields’s memo—as the final, definitive, and unequivocal
notice of the EPA’s adverse action—marked the moment the
limitations period began to run, and not the later
consequences embodied in Claims 2–8. Thus, Kaufman’s
claims were untimely.
In his appeal to this Court, Kaufman challenges the
portion of the ARB’s decision finding Claims 2–8 untimely.
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II. ANALYSIS
A. Jurisdiction
Four of the environmental statutes upon which Kaufman
relies provide for judicial review in the circuit court in which
either the complainant resides or transacts business or the
environmental violation occurred. See 42 U.S.C.
§ 7622(c)(1); 33 U.S.C. § 1367(b); 42 U.S.C. § 300j-
9(i)(3)(A); 42 U.S.C. § 6971(b), 6976(b). The fifth,
CERCLA, designates district courts as the forum for
reviewing Board decisions. See 42 U.S.C. §§ 9610(b),
9613(b). However, courts of appeal may, for “judicial
economy and consistency,” assume jurisdiction over a
CERCLA retaliation claim as long as there is also jurisdiction
under other environmental statutes. 29 C.F.R. 24.112(d),
24.100(a). Kaufman is employed by the EPA in the District
of Columbia, and his CERCLA retaliation claim stems from
the same factual and legal background as his claims under the
other statutes. Accordingly, we have jurisdiction over
Kaufman’s appeal.
B. Standard of Review
The Secretary rendered the decision under review
pursuant to the employee protection provisions of the
environmental statutes. We review such decisions in
accordance with the Administrative Procedure Act (“APA”),
5 U.S.C. § 706. See 42 U.S.C. § 7622(c)(1); 42 U.S.C.
§ 300j-9(i)(3)(A); 42 U.S.C. § 6976(b); see also Carus Chem.
Co. v. U.S. Envtl Prot. Agency, 395 F.3d 434, 441 (D.C. Cir.
2005) (applying the APA to CERCLA claim in the absence of
a specified standard of review). We overturn the Agency’s
decision if it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
13
§ 706(2)(A). We set aside the ARB’s factual findings “only if
unsupported by substantial evidence on the record as a
whole.” Chippewa Dialysis Servs. v. Leavitt, 511 F.3d 172,
176 (D.C. Cir. 2007). It is an open question in this Circuit
whether we afford Chevron deference to agency
interpretations of statutes of limitations. See AKM LLC v.
Sec’y of Labor, 675 F.3d 752, 754 (D.C. Cir. 2012). We need
not resolve that question here. Substantial evidence supports
the ARB’s factual findings, and given its factual findings, its
legal conclusions follow under any standard.
C. Disposition
To make out a prima facie case of retaliation under the
whistleblower statutes, Kaufman was required to prove: (1)
that he engaged in protected activity; (2) that he suffered an
adverse action; and (3) that the protected activity was a
motivating factor in the adverse action. See, e.g., McGrath v.
Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012); 29 C.F.R.
§ 24.109. Critically, given that the ALJ and the Board
dismissed the claims as being outside the statute of
limitations, Kaufman was required to show that at least one of
Claims 2–8 evidenced all the elements of a prima facie case
on or after March 5, 2001. As the ALJ concluded, and we
agree, none of the acts raised in Claims 2–8 alleged any
adverse action suffered by Kaufman after that critical date.
The original adverse action argued by Kaufman is the
removal of his Ombudsman-related duties in Fields’s letter of
December 14, 2000. We note at the outset that it is not crystal
clear that the change of duties constitutes an adverse
employment action within the meaning of whistleblower and
other employment discrimination statutes. Cf. Brown v.
Brody, 199 F.3d 446, 455 (D.C. Cir. 1999) (even when there
is a “significant change in duties or responsibilities . . . there
14
must still be some kind of injury for a federal employee to
state a claim”). Nonetheless, assuming for purposes of this
decision that Kaufman’s allegation of the original charge
raises such an adverse action, the ALJ, and the Board in
affirming the ALJ, correctly determined that Kaufman
suffered no adverse action by any of the subsequent responses
from the EPA to his pleas for restoration of the duties.
Kaufman couches his challenges to the ARB’s decision
as two issues: first, that the Board did not analyze whether
Claims 2–8 were motivated by independent retaliatory intent,
and second, that the ARB applied the wrong standard for
determining whether there was an adverse action. Logically,
however, one determination governs both. If there was no
adverse action evidenced in Claims 2–8, then the ALJ
correctly dismissed those claims and the Board correctly
affirmed. Substantial evidence supports the decision to
dismiss those claims.
The ARB concluded that Claims 2–8 set forth no adverse
action on the finding that the EPA unequivocally barred
Kaufman from performing Ombudsman duties on December
14, 2000, and that neither Kaufman nor Martin was confused
about the effect of that action. Substantial evidence supports
this conclusion. On December 14, 2000, Fields met with
Kaufman, and told Kaufman he would no longer be
performing Ombudsman duties. He issued Kaufman a memo
which could not have been clearer about its effect: “you will
no longer perform any Ombdusman-related duties, effective
immediately.” Shortly after this meeting, Kaufman spoke to
the press about his removal, describing his “ouster” as
“‘political revenge’ for his office’s damning revelations about
failed Democratic presidential candidate Al Gore.”
15
If that were not enough, Shapiro reiterated time and again
the finality of the EPA’s actions to both Kaufman and Martin.
On January 31, 2001—after the change of administration—
Kaufman asked Shapiro if he would be withdrawing Fields’s
memo. Shapiro confirmed he would not. In early February,
Martin requested Kaufman’s help to assist him with
Ombudsman duties. Shapiro rejected his request and
readdressed the matter twice more on February 13 and
February 21, reaffirming that Kaufman would not be assigned
Ombudsman work. Finally, on February 23, 2001, Shapiro
again reminded Kaufman that he was prohibited from
performing Ombudsman duties.
This review demonstrates the more than substantial
evidence the ALJ had at hand to conclude that after the
December 14 memo Kaufman “was in no position to be
considered for assignment of Ombudsman functions.”
Fields’s memo was clear and Shapiro never wavered in his
commitment to its effect.
Because Kaufman was barred from performing
Ombudsman duties as of December 14, he could not have
suffered adverse action through the EPA’s direct and indirect
failure to subsequently assign him such work. The EPA’s
decision to assign Stolls to the Ombudsman, its inquiries
about recruiting efforts, its continuing refusal to assign
Ombudsman work to Kaufman, and its memos to this effect
(Claims 2–6) were not adverse to Kaufman. Thus the
motivation behind these actions is immaterial.
Moreover, the ARB correctly identified these subsequent
actions as “delayed, but inevitable, consequence[s]” of the
decision embodied in the Fields memo, and thus not
themselves actionable. See Del. State Coll. v. Ricks, 449 U.S.
250, 257–58 (1980). The ALJ likened Kaufman’s case to
16
Ricks in which the Supreme Court held that the allegedly
discriminatory denial of tenure triggered the limitations
period, not the eventual end of a professor’s employment as a
result. Id. In Ricks, “the only alleged discrimination
occurred—and the filing limitations periods therefore
commenced—at the time the tenure decision was made and
communicated to Ricks.” Id. at 258. This was so “even
though one of the effects of the denial of tenure—the eventual
loss of a teaching position—did not occur until later.” Id.(emphasis in original).
As the ALJ noted, the “proper focus is upon the time of
the discriminatory acts, not upon the time at which the
consequences of the acts became most painful.” Id. at 258(emphasis in original, quotations omitted). Because the EPA
actions underlying Claims 2–6 were no more than
consequences of the December 14 memo, they were not
themselves actionable. See also Jarmon v. Powell, 208 F.
Supp. 2d 21, 30 (D.D.C. 2002) (employee’s claim that he was
denied a promotion to a GS-15 position—for which he was
ineligible due to an earlier allegedly discriminatory promotion
denial—was “not an actionable violation in its own right”
because the employee’s “subsequent ineligibility for the GS-
15 promotion . . . [was] just ‘a delayed, but inevitable
consequence’ of the non-promotion to GS-14”) (quoting
Ricks, 449 U.S. at 257–58).
Kaufman’s Claims 7–8 fare no better. These two claims
do not concern any employment action taken toward Kaufman
at all. Kaufman bases these claims on the policy decision of
the agency to transfer the EPA Ombudsman to the Office of
the Inspector General, which Kaufman breaks into two parts:
Claim 7, referring to the announcement to transfer the
Ombudsman, and Claim 8, the eventual transfer. Again,
assuming that such a reorganization could ever constitute an
17
employment action for purposes of a whistleblower claim,
Kaufman has not established such a case here. Kaufman has
not shown that any of his Ombudsman duties would have
been reinstated after a transfer in light of the December 14
memo. Even Kaufman concedes that he was prohibited from
performing Ombudsman duties as of Shapiro’s March 16,
2001 memorandum to him. Thus there is no way the
reorganization could have been adverse action toward him.
Perhaps a failure to reinstate might in some
circumstances constitute an independent discriminatory act,
but Kaufman’s case does not present such a scenario. True,
courts have found failures to reinstate actionable in the face of
uncertainty regarding the initial adverse action. Cf. Rich v.
Associated Brands, Inc., 379 F. App’x 78, 82 (2d Cir. 2010)
(suggesting failure to rehire can be independently actionable
if employee does not receive “definite notice” that original
termination foreclosed employment for foreseeable future).
Similarly, courts have found failures to reinstate actionable
given an intermediate change in the substantive policy that
produced the initial firing. See, e.g., Inda v. United Air Lines,
Inc., 565 F.2d 554, 557–58 (9th Cir. 1977). Finally, courts
have found failures to reinstate actionable where a
complainant can show disparate treatment or bias in the
reinstatement process. See E.E.O.C. v. City of Norfolk Police
Dep’t, 45 F.3d 80, 84 (4th Cir. 1995) (“[Plaintiff] asserts that
. . . while similarly suspended white officers were
immediately reinstated after criminal charges against them
were dismissed, because of his race, Black, he was denied
immediate reinstatement after the criminal charges against
him were dismissed.”) (alterations and quotations omitted);
Samuels v. Raytheon Corp., 934 F.2d 388, 391 (1st Cir. 1991)
(“Were Samuels able to establish the existence of unlawful
bias in . . . hearing process or . . . decision, . . . refusal to
reinstate . . . might provide a separate, actionable event under
18
title VII.”); E.E.O.C. v. Hall’s Motor Transit Co., 789 F.2d
1011, 1015 (3d Cir. 1986) (“Sharpe contended not that he had
been denied an appeal nor that his appeal was not processed
through the usual procedure, but that it was resolved on less
favorable terms than those of younger employees.”).
All of those cases evince features absent in Kaufman’s.
Initial or subsequent uncertainty, or a defect in the
reinstatement process, rendered the failure to reinstate
independently adverse to the claimant. All of the employees
in those cases could claim that, but for the later retaliatory
action, they may have resumed the employment that was
earlier terminated. Kaufman has failed to demonstrate any
uncertainty about his prohibition. Since there was never in
this case a termination, there was no reinstatement process,
nor indeed any other process, let alone a defective process.
Because his prohibition was clear from the beginning, and
that clarity never abated, Kaufman has failed to demonstrate
that any later actions were adverse. The ARB did not err in
ending its analysis with this conclusion.
Kaufman’s arguments that the acts complained of in
Claims 2–8 commence the rerunning of the statute of
limitations would effectively write the statutes of limitations
out of the law. Congress cannot have intended in setting
periods of limitation that claimants could begin the clock
running anew simply by demanding the undoing of a time-
barred employment action. Under Kaufman’s interpretation,
the statute would never run. A terminated employee, whether
or not he had a valid claim in his termination, cannot come
back later and revive a barred claim simply by asking, “Am I
still fired?” Neither can Kaufman recommence his period of
limitations by declaring that the employing administration
should reinvest him with his divested duties.
19
CONCLUSION
For the foregoing reasons, the petition for review is
denied.
So ordered.
1
SRINIVASAN, Circuit Judge, concurring in the judgment: I
concur in the court’s decision to deny Kaufman’s petition for
review. I respectfully disagree, however, with the majority’s
reasons for rejecting Kaufman’s claims. I write separately to
clarify the circumstances in which, as I see it, an employer’s
refusal to reinstate an employee to his former position might be
independently actionable.
To state a claim under federal antiretaliation laws, an
employee must show that he suffered a materially adverse action
by his employer that was causally linked to his statutorily
protected activity. Ante, at 13; accord Howard R.L. Cook &
Tommy Shaw Found. for Black Emps. of the Library of Cong.,
Inc. v. Billington, 737 F.3d 767, 772 (D.C. Cir. 2013); see also
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2532-33
(2013). If the employer articulates a “legitimate nonretaliatory
reason” for the adverse action, the employee must establish that
the employer’s proffered reason for the action is “pretext.”
Holcomb v. Powell, 433 F.3d 889, 901 (D.C. Cir. 2006). The
requirements for a retaliation claim largely track the
requirements for a discrimination claim, although in the
discrimination context, the employee must show that the adverse
action was connected to his membership in a statutorily
protected class rather than to his statutorily protected activity.
See Gilbert v. Napolitano, 670 F.3d 258, 261-62 (D.C. Cir.
2012).
The majority assumes that EPA’s original decision to
prohibit Kaufman from performing Ombudsman-related duties
was “adverse” to Kaufman. Ante, at 14.* The majority then goes
* The majority suggests that it is “not crystal clear” that EPA’s
original decision to bar Kaufman from performing Ombudsman-
related work would constitute an “adverse” action under federal
antiretaliation laws. Ante, at 13. But the case that the majority cites
2
on to conclude that EPA’s later actions denying reinstatement of
Kaufman’s Ombudsman duties failed to constitute adverse
actions and that any claims arising from those subsequent
actions were therefore untimely. Although I agree that
Kaufman’s claims concerning those subsequent actions are
deficient and that the ARB’s rejection of those claims should be
affirmed, I part ways with the majority on the rationale by which
to reach that conclusion.
This case began when Kaufman initially filed his
whistleblower complaint on April 3, 2001. The limitations
for this claim, Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999),
appears to have been superseded on that point by a later Supreme
Court decision. See Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 68 (2006) (action is “adverse” under Title VII antiretaliation
provision if “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination”) (internal quotation
marks omitted); see also Steele v. Schafer, 535 F.3d 689, 695-96 (D.C.
Cir. 2008) (district court erred by relying on Brody standard rather
than Burlington Northern standard). The Secretary of Labor, the
respondent in this case, acknowledges that “Kaufman suffered an
actionable harm when the EPA barred him from performing
Ombudsman duties.” Resp’t Br. 43. The Secretary’s recognition is
unsurprising, as EPA’s decision to prohibit Kaufman from performing
Ombudsman-related work falls squarely within the now-settled
understanding of an “adverse action” in the retaliation context. See
generally Baird v. Gotbaum, 662 F.3d 1246, 1248-50 (D.C. Cir.
2011). And while transfer to a materially less favorable set of
responsibilities would itself suffice to constitute an adverse action,
Kaufman also contends that EPA’s decision to bar him from
performing Ombudsman work had the effect of preventing his
promotion from a GS-14 salary level to a GS-15 level. A forced
transfer resulting in denial of a salary increase readily qualifies as
“adverse” under any definition. See Burlington Northern, 548 U.S. at
68; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
3
period under federal antidiscrimination and antiretaliation laws
starts to run when the challenged action is made and the
employee is notified. Del. State Coll. v. Ricks, 449 U.S. 250,
259 (1980). Here, Kaufman had been informed on December
14, 2000, in the Fields memorandum, that he could no longer
perform Ombudsman work. The 30-day limitations period for
any claim based on the original decision to remove Kaufman’s
Ombudsman duties thus expired on January 13, 2001, well
before Kaufman filed his complaint. Kaufman nevertheless
initially asserted such a claim, but the ARB found it untimely,
and Kaufman does not appeal that determination.
His appeal instead concerns seven claims (Claims 2-8)
arising from later actions by EPA that, as Kaufman sees it,
manifest EPA’s subsequent refusal to reinstate him to his
Ombudsman responsibilities. Ante, at 9. Two of the claims
(Claims 7 and 8) pertain to EPA’s decision to transfer
Ombudsman functions to the Office of Inspector General. The
ALJ found that “the transfer of the Ombudsman had no effect on
the future employment of Kaufman,” ALJ’s Decision & Order
at 43, and I see no reason to reject that factual determination.
The remaining claims (Claims 2-6) concern actions taken by
EPA in March, April, and May 2001, declining to reinstate
Kaufman’s Ombudsman duties and assigning those
responsibilities elsewhere. Kaufman alleges that, in refusing to
reinstate him to his former role, EPA retaliated against him for
his protected whistleblower activities.
The majority allows that “[p]erhaps a failure to reinstate
might in some circumstances constitute an independent
discriminatory act.” Ante, at 17. That is undoubtedly the case.
See Josephs v. Pac. Bell, 443 F.3d 1050, 1060 (9th Cir. 2006)
(“[W]e join the First, Third, Fourth, Tenth, and Eleventh
Circuits and expressly recognize discriminatory failure to
reinstate as a separately actionable claim.” (collecting cases)).
4
Even if an employer’s original decision to transfer or terminate
an employee is entirely legitimate—or, as here, is immune from
challenge because of the running of the limitations period—the
employer’s subsequent refusal to reinstate the employee to his
former position or responsibilities, if itself motivated by
discriminatory or retaliatory animus, is actionable in its own
right. The employer’s invulnerability for its original adverse
action affords no free pass to engage in discrimination or
retaliation when asked to reverse that action. The majority thus
correctly includes, in its nonexhaustive list of situations in which
a failure to reinstate might be independently actionable,
circumstances “where a complainant can show disparate
treatment or bias in the reinstatement” decision. Ante, at 17.
Kaufman’s allegations fit in that category because they
allege retaliatory bias in the EPA’s denial of reinstatement.
Those claims fail, but, respectfully, not for the reasons cited by
the majority. In the course of explaining its rejection of
Kaufman’s claims, the majority observes that, “[s]ince there was
never in this case a termination, there was no reinstatement
process, nor indeed any other process, let alone a defective
process.” Id. at 18. But the majority ultimately does not—and
could not—rest on the absence of a “termination.” While
Kaufman was never fired from his position, he was divested of
his Ombudsman-related duties. And the Supreme Court draws
no distinction for discrimination or retaliation purposes between
“termination” and other adverse actions such as “failure to
promote” or “denial of transfer.” See Morgan, 536 U.S. at 114.
Nor does—or could—the majority ultimately hinge its decision
on the absence of any formal “reinstatement process.” The
denial of reinstatement can give rise to a claim if grounded in
discriminatory or retaliatory bias, regardless of whether any
formal process attends the denial. Indeed, one of the cases cited
by the majority in setting out when reinstatement claims might
be made, EEOC v. City of Norfolk Police Department, 45 F.3d
5
80 (4th Cir. 1995) (cited ante, at 17), establishes that refusal of
reinstatement through informal means can be actionable. See
Norfolk Police, 45 F.3d at 84-85 (holding that where white
police officers were customarily reinstated immediately after
criminal charges against them were dropped, while an African-
American officer was required to complete a formal
administrative appeal process, EEOC can pursue a
discrimination claim against the police department for failing to
reinstate the African-American officer through informal
procedures).
The majority ultimately rests its decision on the conclusion
that EPA’s actions denying reinstatement to Kaufman do not
constitute adverse actions, and that the “motivation behind these
actions” is thus “immaterial.” Ante, at 15. I fail to see how that
could be the case. Indeed, the majority—correctly—assumes
that EPA’s original removal of Kaufman’s Ombudsman
functions qualifies as an adverse action. Id. at 14. If so, the later
refusal to reinstate precisely the same functions should equally
count as an adverse action, no less than a refusal to rehire a
previously terminated employee surely constitutes an adverse
action. The question, then, is whether the adverse action was
undertaken for an illicit reason. The motivation behind the
EPA’s denial of reinstatement here, consequently, is very much
material. Considering the question of motivation to be
“immaterial,” in my respectful view, unduly complicates the
resolution of reinstatement cases and deflects attention away
from what should be the central issue: whether the denial of
reinstatement was motivated by discriminatory or retaliatory
bias.
I believe Kaufman’s claims run aground on that issue. In
certain cases, an employer’s refusal to reinstate an employee to
his former role may be motivated by the employer’s adherence
to its prior decision. And an employer’s policy of declining to
6
revisit previous personnel decisions could constitute a
legitimate, nonretaliatory, and non-pretextual reason for refusing
to reinstate the employee. See, e.g., Collins v. Henderson, 180
F.3d 988, 989-90 (8th Cir. 1999) (where plant manager said that,
“‘[i]n the interest of fairness and consistent treatment of all
employees,’” the plant “‘does not entertain reinstatements or
transfers of personnel who have previously been released,’” the
plant manager’s explanation qualified as a “legitimate
nondiscriminatory reason” for his decision). Moreover, an
employer’s refusal to reinstate an employee “cannot resurrect the
old discriminatory act.” Burnam v. Amoco Container Co., 755
F.2d 893, 894 (11th Cir. 1985). For the failure to reinstate to be
actionable in its own right, there must be “a new and discrete act
of discrimination in the refusal to [reinstate] itself.” Id.; see also
Poolaw v. City of Anadarko, 660 F.2d 459, 465 (10th Cir. 1981)
(employee’s “allegation that his post-termination treatment was
discriminatory is a claim separate and distinct from his
allegation of discriminatory discharge”).
Applying those principles to Kaufman’s case, I believe
Kaufman would be able to assert a viable retaliation claim based
on EPA’s denial of reinstatement if he could establish that the
refusal was itself motivated by retaliatory intent. For instance,
if Kaufman could show that the new EPA Administrator had
reversed other personnel decisions made under her predecessor,
and if Kaufman could further show that the Administrator
refused to reinstate Kaufman because of his whistleblowing
activities, Kaufman’s retaliation claim might well succeed. By
contrast, if EPA declined to reconsider the merits of the
December 2000 Fields memorandum because it adhered to prior
personnel decisions as a matter of policy, the refusal to reinstate
Kaufman in the spring of 2001 presumably would not be a
discrete retaliatory act. As I see it, this case therefore comes
down to whether the Department of Labor, as the agency that
adjudicated Kaufman’s claims, afforded adequate consideration
7
to Kaufman’s argument that EPA refused to reinstate him for
retaliatory reasons.
In the proceedings before the ALJ, Kaufman alleged that
EPA did reconsider the merits of the December 2000 decision
and that its refusal to reinstate him was retaliatory in its own
right. EPA, for its part, argued that it “simply reiterated” the
December 2000 decision without ever revisiting it. Resp’t Post-
Hr’g Br. 3. The ALJ considered these arguments and credited
EPA’s version of events. See ALJ’s Decision & Order at 43
(finding that EPA’s actions with respect to Kaufman in March
2001 and thereafter were “the consequences of Fields’ December
memo precluding Kaufman from performing the Ombudsman
duties”). The ALJ’s conclusion is supported by substantial
evidence and provides a sufficient basis for upholding the
Department of Labor’s decision.
At times, however, the ALJ suggested that EPA’s refusal to
reinstate Kaufman in the spring of 2001 was not “adverse” to
him, and the ARB affirmed the ALJ with little independent
analysis. While those references, for the reasons explained,
introduced unnecessary confusion into the case, “we will uphold
a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-
Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); accord Wis.
Pub. Power, Inc. v. FERC, 493 F.3d 239, 273 (D.C. Cir. 2007)
(per curiam) (“Although FERC’s wording may have been less
than precise on this point, the agency’s path may reasonably be
discerned . . . .”) (internal quotation marks omitted); Nat’l
Treasury Emps. Union v. FLRA, 835 F.2d 1446, 1450 n.4 (D.C.
Cir. 1987) (denying petition for review where “the substantive
thrust of our reasoning accords with that of the [agency]”).
Accordingly, my own view is that, with respect to the claims
concerning EPA’s refusal to reinstate Kaufman in the spring of
2001, the petition for review should be denied because Kaufman
8
has failed to show that EPA’s proffered reason for its
refusal—adherence to the prior personnel decision—was pretext
for retaliatory animus. I would not hold, however, that Kaufman
“failed to demonstrate that [the refusals to reinstate him] were
adverse.” Ante, at 18.
Nor, finally, would I hold that Claims 2 through 6,
concerning EPA’s challenged March-May 2001 actions, “were
barred by the relevant statutes of limitation.” Id. at 2. There is
no contention that Kaufman filed (or amended) his complaint
more than 30 days after the allegedly retaliatory actions about
which he complains. Claims 2 through 6 all refer to events on
or after March 5, 2001, and Kaufman filed his first complaint on
April 3. As a matter of straightforward arithmetic, Kaufman’s
claims face no limitations bar. His claims may be
unmeritorious, but they are not untimely. And those two
questions should be kept distinct in light of the particular interest
in maintaining a straightforward approach when addressing
statutes-of-limitations questions at the threshold. See, e.g.,
Gonzalez v. Thaler, 132 S. Ct. 641, 655 (2012); Wilson v.
Garcia, 471 U.S. 261, 275 (1985).
The majority states that, if a refusal to reinstate can
“commence the rerunning of the statute of limitations” in the
circumstances of this case, that “would effectively write the
statutes of limitations out of the law.” Ante, at 18. I respectfully
disagree. Many circuits recognize that the denial of
reinstatement is independently actionable if motivated by
discriminatory or retaliatory bias, see Josephs, 443 F.3d at 1060,
and there is no indication that courts in those circuits have been
deluged with claims concerning long-ago events. It is true that
a terminated employee cannot “revive a barred claim simply by
asking, ‘Am I still fired?’” Ante, at 18. An employee could not
get past the limitations bar by attempting to “revive a barred
claim,” but instead would need to raise a new claim alleging new
9
discrimination connected to a new action (that of denying
reinstatement). An employee who can do so should be permitted
to proceed. If his employer refused to reinstate him for reasons
proscribed by Congress, the fact that he had already suffered an
adverse action at some previous point should pose no limitations
bar against his bringing a new claim based on the new
discriminatory or retaliatory act. That is what Kaufman attempts
to do here. His claims fail on the merits for the reasons
explained, but not for failure to bring them on time.