Case: 19-60561 Document: 00515638489 Page: 1 Date Filed: 11/13/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60561
November 13, 2020
Summary Calendar
Lyle W. Cayce
Clerk
FREDERICK B. WRIGHT,
Petitioner,
v.
ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT
OF LABOR,
Respondent.
On Petition for Review of a Final Decision and Order
of the United States Department of Labor’s Administrative Review Board
Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM:*
Frederick Wright sued his former employer, the Railroad Commission of
Texas (RRC), alleging that his employment was terminated in retaliation for
engaging in protected activity under the Federal Water Pollution Control Act1
(FWPCA) and the Safe Drinking Water Act2 (SDWA). After a hearing and an
*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 33 U.S.C. § 1367.
2 42 U.S.C. § 300j-9(i).
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initial rejection of those claims that was vacated on appeal, an administrative
law judge (ALJ) at the Department of Labor again rejected Wright’s claims,
and the Administrative Review Board (ARB) upheld that rejection. We affirm.
I
The RRC is responsible for regulating the oil and gas industry in Texas.3
Part of the RRC’s responsibility includes overseeing underground injection
programs under the SDWA.4 The RRC is also the state agency that certifies
federal permits under the FWPCA.5
In October 2007, the RRC hired Wright as an engineer specialist who
handled field operations in the oil and gas sector.6 Wright’s job included
“conducting surveys, making inspections, investigating complaints, and
collecting and analyzing engineering data.”7 Wright’s primary duty was to
work with oil and gas operators to ensure compliance with state and federal
rules, statutes, and regulations.8
During Wright’s tenure with the RRC, there were numerous complaints
about Wright’s behavior from colleagues and from oil and gas operators.9
Wright received several employee evaluations and participated in counselling
sessions urging him to improve his behavior,10 but he did not do so.11 In one
instance, a witness said that an operator asked Wright how he could bring
several wells into compliance with state and federal rules.12 Wright laughed
3 EN.250.
4 EN.250.
5 EN.250.
6 EN.250; CX-52.
7 EN.250.
8 EN.743.
9 EN.250-55.
10 EN.250-55.
11 EN.250-55.
12 EN.250-55.
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at the operator and threatened to cite the operator for further violations.13 In
another instance, a witness testified that operators complained that Wright
had engaged in name-calling, including calling an operator “stupid.”14
Colleagues complained that Wright was arrogant, rude, and insulting.15
Wright frequently ignored his manager’s instructions.16 For instance,
near the end of his employment with the RRC, Wright’s manager had approved
a new form for operators to complete in conducting compliance reviews.17 An
operator submitted this new form to the RRC, but Wright requested that the
operator complete the old form.18 Wright made this request despite the fact
that his manager had told him that a phone call about the missing information
from the already-completed form would suffice.19 When this operator
complained to Wright’s manager, the manager reiterated his request for
Wright simply to ask for the new information by phone.20 Wright continued to
disagree with his manager over the use of the new form. This disagreement
led to disciplinary recommendations, which resulted in the termination of
Wright’s employment with the RRC.21
According to Wright, the RRC retaliated against him for trying to enforce
federal laws protecting safe drinking water.22 During his employment, Wright
had submitted a complaint for a hostile work environment, alleging that his
managers and colleagues did not understand the state and federal rules they
13 EN.260, 270, 785.
14 EN.157, 258.
15 RX-14, 17; Tr. 338-40, 465-66, 469-70, 476-77.
16 EN.250-55.
17 EN.254-55.
18 EN.255.
19 EN.255.
20 Dep’t of Labor’s Br. at 14.
21 EN.254-56.
22 See Wright’s Br. at 18-19.
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were charged with enforcing and often disregarded them.23 Wright also argued
for the use of the old compliance review form, contending that it would improve
enforcement of federal and state laws and would better inform the public about
wells.24
After Wright’s employment with the RRC was terminated, Wright asked
the Occupational Safety and Health Administration (OSHA) to investigate
whether his termination was because he had engaged in protected activity
under the SDWA and FWPCA.25 OSHA concluded that “it had no cause to
believe” that the RRC had violated either the SDWA or FWPCA by retaliating
against Wright for protected activity.26 Wright appealed OSHA’s decision to
an ALJ at the Department of Labor.27 The ALJ concluded that Wright had not
engaged in protected activity.28 Wright appealed to the ARB, which vacated
the ALJ’s decision, ordered that one of Wright’s exhibits be admitted into
evidence, clarified the law regarding protected activity, and remanded the
decision to the ALJ for further proceedings.29 The ALJ again rejected Wright’s
claims, concluding in part that any protected activity he engaged in was not a
motivating factor for his termination from the RRC’s employment.30 The ARB
affirmed the ALJ’s decision.31 This appeal followed.
II
Wright’s first argument on appeal is that the ALJ abused his discretion
by not admitting several of Wright’s exhibits which, he argues, would have
“presented evidence that the negative comments in [the RRC’s employee
23 EN.576-80; CX 56-60; Dep’t of Labor’s Br. at 19-20.
24 See Wright’s Br. at 18-19.
25 EN.121.
26 EN.121.
27 EN.121.
28 EN.142.
29 EN.183, 376.
30 EN.376.
31 EN.379.
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performance evaluation] were retaliation for protected activity.”32 We
generally review evidentiary rulings for abuse of discretion.33 In an
evidentiary ruling, an abuse of discretion occurs “only where the challenged
ruling affects a substantial right of a party.”34
Wright’s contention that the ALJ abused his discretion in not admitting
several exhibits is unavailing. Wright fails to show how any of the rejected
exhibits, if admitted, might have “had a substantial influence on the outcome
of the” proceedings and thus affected a substantial right of his.35 Several of
the rejected exhibits would have been cumulative as they were identical to
other admitted exhibits.36 Other exhibits, although not identical, would have
also been cumulative because of their similarity to testimony from the hearing.
For instance, several of the rejected exhibits are requests for admission from
state court,37 which are remarkably similar to testimony at the ALJ’s
hearing.38 Still other exhibits, such as email correspondence about the Texas
Legislature’s renumbering of all engineering specialist jobs at the RRC, are not
relevant to whether Wright’s supervisors retaliated against him for engaging
in protected activity under the SDWA, FWPCA, and related regulations.39
Therefore, Wright has failed to show that the ALJ abused his discretion in
denying these exhibits.
32 Wright’s Br. at 38.
33 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).
34 Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1400 (5th Cir. 1983) (first citing
Muzyka v. Remington Arms Co., 774 F.2d 1309, 1313 (5th Cir. 1985); and then citing Jon-T
Chems., Inc. v. Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir. 1983)); see also FED. R.
EVID. 103(a).
35 See United States v. Limones, 8 F.3d 1004, 1008 (5th Cir. 1993).
36 See, e.g., Wright’s Br. at 36 (“Judge Kennington rejected this exhibit as irrelevant
despite the fact that he admitted this exact same exhibit as one of Respondent’s exhibits.”).
37 See Wright’s Br. at 38-39.
38 Compare EN.457 (discussing a 10-day delay) with EN.395 (discussing the same 10-
day delay).
39 See CX-224-25.
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Wright similarly contends that the ALJ abused his discretion by not
allowing him to “elicit testimony about the [e]xhibit that the ALJ was required
to admit . . . on remand” from the ARB.40 But Wright has likewise failed to
show how this “had a substantial influence on the outcome of the” proceedings
and thus affected a substantial right of his.41 He simply makes conclusory
statements that not allowing him to elicit testimony on this exhibit was
prejudicial.42 Wright has failed to show the ALJ abused his discretion in not
allowing him to elicit testimony on this exhibit.
III
Wright’s second argument on appeal is that the ALJ’s decision relied on
inadmissible hearsay evidence.43 Specifically, Wright contends that witnesses’
testimony recounting complaints from former colleagues and oil and gas well
operators is inadmissible hearsay.44 Wright’s argument is unpersuasive.
Hearsay is defined as “an out-of-court statement offered to prove the truth of
the matter asserted.”45 Generally, “a statement is not hearsay if it is offered
to prove the statement’s effect on the listener.”46
Here, the witnesses did not offer their statements to prove the truth of
the complaints from former colleagues and oil and gas well operators. Rather,
the witnesses’ provided these to statements show why they believed Wright
was acting unprofessionally and why they recommended that the RRC
terminate Wright’s employment.47 For instance, one witness testified that he
40 Wright’s Br. at 15, 32 (internal citations omitted).
41 See Limones, 8 F.3d at 1008.
42 Wright’s Br. at 15, 32.
43 Wright’s Br. at 30-31, 37.
44 Wright’s Reply Br. at 17-18; EN.286-87.
45 United States v. Piper, 912 F.3d 847, 855 (5th Cir. 2019), cert. denied, 139 S. Ct.
1639 (2019) (citing United States v. Reed, 908 F.3d 102, 119 (5th Cir. 2018)); see also FED. R.
EVID. 801(c).
46 Reed, 908 F.3d at 120 (citations omitted).
47 See, e.g., EN.851-53; see also EN.250-60.
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“recommend[ed] that Mr. Wright be terminated for unprofessional behavior”
and, when asked for the basis of that recommendation, testified about specific
complaints he received about Wright that led him to make that
recommendation.48 The statements that Wright claims were inadmissible
hearsay were not offered to prove the truth of their content but were offered
for their effect on the listener, and are not hearsay.49
IV
Wright’s third argument on appeal is that the ALJ’s conclusions lack
substantial evidence.50 Wright contends that substantial evidence does not
support the ALJ’s conclusions that (1) Wright did not engage in protected
activity meant to safeguard drinking water in accordance with SDWA,
FWPCA, and relevant regulations, and (2) even if he did, the RRC terminated
Wright’s employment for reasons rather than in retaliation for engaging in
protected activity.51
We first examine whether substantial evidence supports the ALJ’s
conclusion that the RRC terminated Wright’s employment for reasons other
than retaliation.52 The substantial evidence standard requires that a “decision
must be upheld if, considering all the evidence, a reasonable person could have
reached the same conclusion.”53 Substantial evidence requires “more than a
mere scintilla but less than a preponderance.”54
48 EN.851-54.
49 Reed, 908 F.3d at 120 (citations omitted) (“Ordinarily, a statement is not hearsay if
it is offered to prove the statement’s effect on the listener.”); see also White v. Fox, 470 F.
App’x 214, 222 (5th Cir. 2012).
50 Wright’s Br. at 31, 37.
51 Wright’s Br. at 31, 37.
52 See Ameristar Airways, Inc. v. ARB, Dep’t of Labor, 771 F.3d 268, 272 (5th Cir. 2014)
(“An agency’s conclusions of law are reviewed de novo and its findings of fact are reviewed
for substantial evidence.” (citing Willy v. Admin. Rev. Bd., 423 F.3d 483, 490 (5th Cir.2005))).
53 Id. (quoting Williams v. Admin. Rev. Bd., 376 F.3d 471, 476 (5th Cir. 2004).
54 Id. (internal quotations omitted) (quoting Williams, 376 F.3d at 476).
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We conclude that the ALJ’s decision is supported by substantial
evidence. In his opinion, the ALJ points to the numerous instances of Wright’s
“interpersonal conflicts with other employees [and] operators” as well as his
disregard for directions from his managers.55 The ALJ cited several
employment evaluations occurring over a span of years that document Wright’s
need to “strive for better relations” with colleagues and operators,56 how
difficult Wright was to work with,57 and a continued failure on Wright’s part
to improve his behavior.58 Witnesses testified about the numerous complaints
against Wright by his colleagues and by operators, including “multiple
incidents where [he] clashed with operators and behaved in a rude and
threatening manner.”59 One witness recalled seeing Wright laugh at an
operator and threaten additional violations when asking for his help,60 and
another witness said that Wright had engaged in name-calling, such as calling
people “stupid” and “liars.”61 Another witness testified that Wright ignored the
instructions of his manager, requesting an operator to complete outdated forms
after Wright’s manager had explicitly told Wright that the old form did not
need to be completed and that a phone call about the missing information from
the already-completed form would suffice, as discussed above.62 Witnesses also
testified that operators found Wright so difficult to work with that they would
actively avoid having to speak with him.63
The main evidence that would support a conclusion that Wright was
terminated for engaging in protected activity is that some acts Wright alleges
55 EN.269-72.
56 EN.271-72.
57 EN.272.
58 EN.272.
59 EN.272.
60 EN.260, 270, 785.
61 EN.157, 258.
62 EN.258.
63 EN.260.
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were protected happened in relatively close proximity to his termination.64 The
ALJ declined to make the inference that this close temporal proximity was
enough given the significant evidence that the RRC terminated Wright’s
employment solely because of behavioral issues.65 The evidence of behavioral
issues, together with other documents and testimony from several witnesses
about similar behavioral issues, sufficiently supports the ALJ’s finding that
Wright’s employment with the RRC was terminated for behavioral issues and
not because he engaged in protected activity.
Since we conclude that the ALJ’s finding that Wright’s employment was
terminated for behavioral issues is supported by substantial evidence, we need
not examine whether the ALJ’s finding that Wright did not engage in protected
activity is supported by substantial evidence. Either would have been
sufficient to reject Wright’s claims.
V
Wright’s fourth argument on appeal is that the ALJ improperly rejected
his motion for recusal, and Wright was therefore deprived of the right to have
his case heard by an impartial arbiter.66 “We review a denial of a motion to
recuse for abuse of discretion.”67 An ALJ has abused his discretion when “a
reasonable man, cognizant of the relevant circumstances surrounding [the]
judge’s failure to recuse, would harbor legitimate doubts about that judge's
impartiality.”68 Although the Department of Labor contends that Wright failed
to exhaust his administrative remedies regarding his motion for recusal by not
64 EN.269-70.
65 EN.269.
66 Wright’s Br. at 33-37.
67 Brown v. Oil States Skagit Smatco, 664 F.3d 71, 80 (5th Cir. 2011) (citing Andrade
v. Chojnacki, 338 F.3d 448, 454 (5th Cir.2003)).
68 Id. (alteration in original) (citing Andrade, 338 F.3d at 454).
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raising them with the ARB,69 the record shows that Wright did raise them
before the ARB.70
In his brief to this court, Wright references eleven reasons why the ALJ
should have recused himself and why the ALJ could not be impartial.71
Wright’s first argument is that there were technical issues with the record the
ALJ forwarded to the ARB.72 But there is no allegation that the ALJ
intentionally removed the missing documents from the record forwarded to the
ARB. Even Wright himself says the ALJ might have “unconsciously” created
the technical errors in the record.73 The issue was also corrected before the
ARB.74 Unintentional, technical errors do not represent prejudicial bias that
would warrant recusal.75
Wright’s second argument is that the ALJ should be recused because he
requested the opposing party submit a response to Wright’s motion for
recusal.76 But simply requesting a response to a motion to recuse does not
represent bias in the judge.77
Wright’s third argument is that the ALJ rejected Wright’s attempt to
admit an exhibit that was already admitted by the opposing party. 78 But the
rejection of a duplicate exhibit is not indicative of bias because rejecting
69 Department of Labor’s Br. at 38-42.
70 EN.244, 303; Wright’s Reply Br. at 9-10.
71 Wright’s Br. at 33-37.
72 Wright’s Br. at 34-35.
73 Wright’s Br. at 35.
74 Dep’t of Labor’s Br. at 42-43.
75 See Liteky v. United States, 510 U.S. 540, 556 (1994) (noting that “routine trial
administration efforts” are not a basis for prejudicial bias); see also United States v. O'Keefe,
169 F.3d 281, 287 n.5 (5th Cir. 1999).
76 Wright’s Br. at 34.
77 See Liteky, 510 U.S. at 556 (noting that “routine trial administration efforts” are not
a basis for prejudicial bias).
78 Wright’s Br. at 36.
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duplicative exhibits is a prerogative of a judge to prevent confusion as well as
the wasting of time and resources.79
Wright’s fourth argument is that the ALJ admitted alleged hearsay
during the hearing on Wright’s case.80 But this argument is not persuasive.
As we concluded, Wright has not pointed to any actual hearsay that was
admitted in the proceeding before the ALJ. Furthermore, even if the ALJ did
admit hearsay and Wright did timely object to it, Wright has failed to show
how the ALJ’s evidentiary rulings are evidence of bias since “judicial rulings
alone almost never constitute a valid basis for a bias or partiality motion.” 81
Wright’s fifth argument is that the ALJ was “reluctan[t] to go into the
required detail” in the case because he only held a three-day hearing rather
than a two-week hearing and because the ALJ said, in an off-hand remark,
that he had no intention of becoming a petroleum engineer through the
proceedings.82 Insisting upon haste in judicial proceedings is generally not
indicative of prejudicial bias.83 Additionally, “judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or partiality
challenge.”84
Wright’s sixth argument is that the ALJ did not make it clear when he
admitted a certain exhibit.85 Unless a judge is intentionally trying to frustrate
a party’s case, not making clear when a certain exhibit has been admitted is
79 See FED. R. EVID. 403.
80 Wright’s Br. at 37-38.
81 Liteky, 510 U.S. at 555 (1994) (citing United States v. Grinnell Corp., 384 U.S. 563,
583 (1966)).
82 Wright’s Br. at 35-36.
83 See Nicodemus v. Chrysler Corp., 596 F.2d 152, 156 (6th Cir. 1979).
84 Liteky, 510 U.S. at 555; see also Andrade v. Chojnacki, 338 F.3d 448, 462 (5th Cir.
2003) (“‘[E]xpressions of impatience, dissatisfaction, annoyance and even anger’ do not
establish bias or partiality.” (quoting Liteky, 510 U.S. at 555-56)).
85 EN.199-201.
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not indicative of prejudicial bias. If Wright was uncertain whether the ALJ
had admitted a certain exhibit, he should have asked the ALJ.
Wright’s seventh argument for why the ALJ should have recused himself
is that the ALJ did not compel the RRC to allow Wright access to a personnel
file of a former colleague.86 Wright does not explain how this reflects the ALJ
was biased.87 The mere act of denying a specific discovery request, without
more, can almost never show that an ALJ was prejudicially biased.88
Wright’s eighth argument is that the ALJ allegedly made factual
conclusions unsupported by the evidence.89 As we concluded, the ALJ’s factual
conclusions that were necessary to dispose of the case were supported by
substantial evidence. But even if other conclusions made by the ALJ were not,
that does not automatically render the ALJ unfairly biased against Wright,
otherwise every mistaken conclusion would be evidence of bias.90
Wright’s ninth argument is that the ALJ unfairly denied Wright a
hearing on his FWPCA claims by limiting the only hearing solely to
consideration of Wright’s SWDA claims.91 Wright contends this is evidenced
by the Notice of Hearing and Pre-Hearing Order issued by the ALJ.92 However,
the notice and order does not contain such a limitation.93 Moreover, Wright
concedes that the ALJ referenced the FWPCA in his opinion, reflecting that
the ALJ was considering Wright’s FWPCA claims in the context of the hearing,
86 EN.212-13.
87 EN.212-13.
88 See Liteky, 510 U.S. at 555 (“[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” (citing United States v. Grinnell Corp., 384 U.S. 563,
583 (1966))).
89 EN.209-10.
90 See Liteky v. United States, 510 U.S. at 555 (1994) (“[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” (citing Grinnell Corp., 384 U.S.
at 583)).
91 EN.200-01.
92 EN.200.
93 EN.003-005.
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and that the ARB discussed Wright’s FWPCA claims in some detail in its
opinion.94 Wright has failed to show that the ALJ did not allow him to present
his FWPCA claim.
Wright’s tenth argument is that the ALJ allegedly allowed Wright to
admit evidence only for actions after 2010 while allowing the RRC to admit
evidence from before 2010.95 But Wright has failed to demonstrate that this
actually occurred. In the portion of the transcript Wright cites, the ALJ
inquired about situations that caused a hostile work environment within the
30 days prior to Wright’s complaint.96 The transcript does not show that the
ALJ barred Wright from introducing evidence from prior to 2010.97
Wright’s eleventh argument is that the ALJ refused to admit several of
Wright’s exhibits.98 Rulings on the admission of exhibits generally does not
constitute prejudicial bias without some showing that the judge was acting
antagonistically towards the party whose exhibit was rejected.99
Even considering all of Wright’s arguments together, Wright has failed
to show that the ALJ exhibited prejudicial bias against Wright. The ALJ did
not abuse his discretion in rejecting Wright’s motion for recusal.
VI
Lastly, Wright contends that this court must determine which of several
differing transcripts is the correct version in order to resolve this appeal.100 We
94 EN.201.
95 EN.208-09; see also EN.438-43.
96 EN.438-43.
97 EN.438-43.
98 Wright’s Br. at 32.
99 See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” (citing United States v. Grinnell
Corp., 384 U.S. 563, 583 (1966))).
100 Wright’s Br. at 16, 40 (“[I]t appears that a ruling on which Transcript, is the correct
Transcript, is warranted.”).
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disagree. Wright does not allege which part of the transcript is not in the
record before us.101 Wright was not unfairly prejudiced by the existence of
several different transcripts of his hearing before the ALJ, and thus we do not
need to resolve which iteration of the transcript was the official version to
resolve this appeal.
* * *
For the foregoing reasons, the judgment of the Administrative Review
Board is AFFIRMED.
101 See generally Wright’s Br.
14