Riсhard DUNCAN, Petitioner, v. OFFICE OF COMPLIANCE, Respondent, and Office of the Architect of the Capitol, Respondent.
No. 2007-6001
United States Court of Appeals, Federal Circuit
Sept. 16, 2008
1377
CONCLUSION
Accordingly, we affirm the district court‘s dismissal of ExcelStor‘s complaint for lack of subject matter jurisdiction.
AFFIRMED.
Jeffrey H. Leib, of Washington, DC, argued for petitioner.
William Wachter, Attorney, Office of the General Counsel, Office of Compliance, of Washington, DC, argued for respondent Office of Compliance. With him on the brief was Pеter A. Eveleth, General Counsel.
Kelsi Brown Corkran, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent Office of the Architect of the Capitol. With her on the brief was Marleigh D. Dover, Attorney.
Before MICHEL, Chief Judge, NEWMAN, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit Judge NEWMAN.
Mr. Richard Duncan petitions for review of a decision of the Board of Directors of the Office of Compliance (“Board“) dismissing his complaint against his employer the Office of the Architect of the Capitol (“AOC“) for violation of section 207(a) of the Congressional Accountability Act of 1995 (“CAA“), codified at
I. BACKGROUND
Mr. Duncan has been employed since 1986 as a mechanic in the Maintenance Division of the AOC. On September 5, 2002, Mr. Duncan, his immediate supervisor Robert Perry, and two other employees attempted to install a 550-pound fan motor in an air handling unit in the attic area of the East Wing of the U.S. Capitol. The record indicates that the space around the installation area was cramped, with some low ceilings, pipes, and duct work. Hard hat area signs were posted in the attic area, in accordance with the standards of the Occupational Safety and Health Act (“OSHA“),
As the four men attempted to lift the fan motor, Mr. Duncan‘s hard hat hit Mr. Perry‘s head. Mr. Duncan apologized. Mr. Perry asked him to remove thе hard hat, but Mr. Duncan said nothing and did not remove the hard hat. During the second attempt to lift the fan motor, Mr. Duncan‘s hard hat once again hit Mr. Perry‘s head. Mr. Perry instantly responded with profanity, grabbing Mr. Duncan‘s hard hat and throwing it to the floor. Later that day, the team successfully lifted the fan motor into place.
Mr. Duncan filed an informal and then a formal grievance, in accordance with the procedures established by the CAA. He requested transfer to another AOC work area, claiming that Mr. Perry‘s act of forcibly removing the hard hat created a hostile work environment. The AOC denied the grievances and the requested transfer, and Mr. Duncan filed a complaint with the Office of Compliance under section 207(a) of the CAA,
On remand, the hearing officer ruled in favor of the AOC, finding that Mr. Duncan failed to show that Mr. Perry‘s removal of the hard hat was causally related to Mr. Duncan‘s silent refusal to remove the hard hat. The Board affirmed that decision, stating that it need not decide whether Mr. Duncan had engaged in protected activity in refusing to remove his hard hat, or
We have jurisdiction over this appeal of a final decision of the Board pursuant to
II. DISCUSSION
A. Jurisdiction
The CAA provides legislative branch employees with the protеction of various labor and employment statutes, and it prohibits reprisal against any covered employee who opposes any practice made unlawful by the Act.
The AOC argues that the CAA does not extend anti-reprisal protеction to OSHA-related claims and that, accordingly, the Board lacked subject matter jurisdiction over Mr. Duncan‘s claim. We disagree. As argued by the Office of Compliance, the Board had subject matter jurisdiction over Mr. Duncan‘s claim because the express, unambiguous language of the CAA accords legislative employees anti-reprisal prоtection for OSHA-related claims.
Section 215 of the CAA states that “[e]ach employing office and each covered employee shall comply with the provisions of section 5 of [OSHA].”
It shall be unlawful for an employing office to intimidate, take reprisal against, or otherwise discriminate against, any covered employee because the covered employee has opposed any practice made unlawful by this Act, or because the covered employee has initiated proceedings, made a charge, or testified, assisted, or participated in any manner in a hearing or other proceeding under this Act.
The AOC argues that section 207 applies only to issues invoking the laws that are expressly mentioned in Part A of the CAA, and that because OSHA is mentioned only in Part C the anti-reprisal protections of the CAA do not extend to OSHA-related claims. Accordingly, in the AOC‘s view, there is no jurisdiction in the Board for OSHA-related retaliation claims. The AOC alsо argues that “Part A‘s title enumerates the federal laws to which it applies” and that “Congress did not include the OSHA in this list.” The language used by Congress in section 207, however, clearly provides that it is applicable when a covered employee opposes any practice made unlawful “by this Act.” Like the Board, we refuse to construe the placеment of section 207(a) in Part A to trump its express language.
Finally, we note that the AOC and the Office of Compliance each argue that the legislative history of the CAA supports their respective positions as to the applicability of anti-reprisal protections to OSHA-related claims. While we agree with the Offiсe of Compliance that the legislative history supports our conclusion that the CAA extends its anti-reprisal protections to OSHA-related claims, we do not rely on the legislative history in this case because our judicial inquiry was complete once we determined that the statutory language unambiguously resolves this issue. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003) (“Our precedents make clear that the starting point for our analysis is the statutory text. And where, as here, the words of the statute are unambiguous, the ‘judicial inquiry is complete.‘” (citations omitted)).
Accordingly, we conclude that the Board properly determined that it had subject matter jurisdiction over Mr. Duncan‘s OSHA-related reprisal claim.
B. Retaliation
We are obligated to affirm the Board‘s decisiоn unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law; (2) not made consistent with required procedures; or (3) unsupported by substantial evidence.” See
The Board noted that in order to meet the causation requirement, “Duncan would have to establish by direct or indirect evidence that Perry‘s action was motivated by Duncan‘s refusal to remove his hat.” After сonsidering the evidence presented, the Board concluded that, “[w]ithout additional evidence, Duncan fails to establish a nexus between his refusal to remove his hat, and his supervisor‘s removal of same.” The record does not indicate that Mr. Perry disciplined or otherwise reacted negatively when Mr. Duncan ignored his order to remove his hard hat aftеr the first head-bump. Rather, the crew proceeded with a second attempt to lift the fan with Mr. Duncan still wearing his hard hat. Only when Mr. Duncan bumped Mr. Perry‘s head with his hard hat during this second attempt did Mr. Perry react with an outburst of anger. It is reasonable to conclude, as the Board did, that Mr. Perry was simply angry at being hit in the head with a hard hat irrespective of Mr. Duncan‘s prior refusal tо remove it. Under the substantial evidence standard, we must therefore uphold the Board‘s finding that Mr. Duncan failed to meet the causation requirement of his reprisal claim under section 207(a).
Although Mr. Duncan‘s insistence on wearing a hard hat in a “hard hat area” may be protected by law, the head collisions appear to have been an unfortunate accident. While Mr. Perry‘s spontaneous response to the accidental head-bumps may have been inappropriate, these are not the kind of actions and reactions to which section 207(a) is directed.
CONCLUSION
For the foregoing reasons, we affirm the Board‘s decisions that it had subjеct matter jurisdiction over Mr. Duncan‘s OSHA-related reprisal claim and that there was insufficient evidence to support said claim on the merits.
AFFIRMED
NEWMAN, Circuit Judge, dissenting.
My colleagues find that Supervisor Perry‘s angry and forceful reaction to being twice struck in the head by Duncan‘s hard hat is unrelated to Duncan‘s refusal to remove the hard hat after the first strike, and therefore that Duncan‘s complaint to the Board must be dismissed. I respectfully dissent.
Mr. Duncan filed these grievances after being disciplined for disobeying the supervisor‘s order to remove the hard hat in the hard hat area. At a minimum, the merits of his complaint require review. It cannot be disputed that the employer‘s action was taken because Mr. Duncan‘s hard hat struck Mr. Perry a second time, after Duncan declined to remove his hard hat despite Perry‘s order. Mr. Duncan stated in his complaint to the Board that his supervisor‘s forceful and curse-laden action in grabbing the hat and throwing it on the floor created a hostile work environment. It was prima facie intimidating, and Duncan did not replace his hard hat.
The Architect of the Capitol argues that the Congressional Accountability Act does not provide legislative-branch protection against employment actions that may violate the provisions of the Occupational Safety and Health Act. Whether the OSHA was violated underlies the issues before the Board. My colleagues appear to excuse the entire battery of events, on the theory that Duncan‘s refusal to remove his hard hat after its first strike to Perry‘s head had no causal relation to the ensuing events, and therefore that OSHA-prohibited retaliation or intimidation cannot lie.
DISCUSSION
Richard Duncan and three co-workers, one of whom was his immediate supervisor Robert Perry, were attempting to install a 550-pound replaсement motor in an air handling unit in the attic area of the Capitol‘s East Wing. The record describes the East Attic as having some low ceilings that prevent persons from standing erect: low-hanging fixtures, pipes, duct work, valves, and metal projections. Hard hat signs were posted in this area, in accordance with the standards of the Occupational Safеty and Health Act,
While the four men were attempting to lift the heavy motor, the motor slipped from their collective grasp and the brim of Duncan‘s hard hat accidentally “knocked heads” with Perry‘s forehead. Duncan apologized. Perry told Duncan to remove the hat, but Duncan did not respond and did not remove the hat. Another lift was attempted, the heavy motor again slipped, and the brim of Duncan‘s hard hat again hit Perry‘s unhatted head. Perry, cursing, grabbed the hat from Duncan‘s head and threw it on the floor. A higher-level supervisor entered an adverse report in Duncan‘s personnel file, as a disciplinary action for Duncan‘s failure to follow his supervisor‘s order.
Duncan‘s position before the Board and on this appeal is that he was wearing a hard hat as required by OSHA, pointing out that Section 5 of the OSHA requires that the employer furnish “employment
On this appeal, no party has taken the position adopted by the panel majority, and no party has argued that Perry‘s combination of curse and force did not deter Mr. Duncan from wearing his hard hat. Indeed, he did not wear the hat for the remainder of the installation. And no party has argued that the first head-strike and Duncan‘s refusal to remove the hat were not factors in the later intemperate response. Whatever went awry in this employment relation, it is not properly disposed of by pretending that some of the contributing events do not count.
Although it does seem to me that these unfortunate accidents need not have escalated into this federal case, the discipline against Duncan was for refusing to follow the supervisor‘s order to remove the hard hat. Although the record states that the disciplinary action was removed from Duncan‘s record, the grievаnces continued, apparently because his request to be transferred to another work area—the only relief he requested—was refused. However, instead of considering this aspect, the Board ruled that Duncan had nothing to complain about. This court agrees, sustaining the Board‘s reasoning that there was no causal relation between the first head-strike and Duncan‘s refusal to remove the hard hat, and Perry‘s angry response to the second head-strike. This strained logic cannot be supported.
I would analyze the situation in light of the recognition of precedent that “the requirements of the job and the tolerable limits of conduct in a particular setting must be explored.” Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976). I would invite attention to precedent concerning the role of intent in asserted retaliation and intimidation in OSHA violations, for although “bad intent” has not been directly charged, Mr. Duncan has raised charges of hostile work environment. The requirement of intent as an element of retaliation has support in precedent; for example, In Reich v. Hoy Shoe Co., 32 F.3d 361, 367-68 (8th Cir. 1994) the court inferred bad intent when a mоtive to retaliate was shown. The better approach to this appeal is to consider the entirety of the facts, the applicable law, and the Board‘s application of the Congressional Accountability Act, in accordance with congressional intent. I must, respectfully, dissent from the perfunctory treatment of the issues raised by Mr. Duncan on this appeal.