F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 2, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ADRIENNE ANDERSON,
Petitioner,
v. No. 03-9570
UNITED STATES DEPARTMENT
OF LABOR,
Respondent,
---------------------------------------------
METRO WASTEWATER
RECLAMATION DISTRICT
Intervenor - Respondent,
PACE 5-477; PAPER, ALLIED-
INDUSTRIAL, CHEMICAL AND
ENERGY WORKERS UNION,
LOCAL 5-477 (PACE),
Amicus Curiae.
Appeal from the United States Department of Labor
Administrative Review Board
Lee Katherine Goldstein, Senn, Visciano, Kirschenbaum, P.C., Denver, Colorado
(Susan J. Tyburski, Boyle & Tyburski, Denver, Colorado, with her on the briefs),
for Petitioner.
Mary J. Rieser, Attorney, (Howard M. Radzely, Solicitor of Labor; Steven J.
Mandel, Associate Solicitor; and Paul L. Frieden, Counsel for Appellate
Litigation, United States Department of Labor, Office of the Solicitor with her on
the briefs), Washington, D.C., for Respondent.
Joel A. Moritz, Richard P. Brentlinger, Robert J. Thomas, Inman, Flynn,
Biesterfeld, Brentlinger & Moritz, P.C., Denver Colorado; Donn C. Meindertsma,
Winston & Strawn LLP, Washington, D.C., filed an answer brief for Intervenor.
Donald S. Holmstrom, Denver, Colorado, filed an amicus curiae brief for Paper,
Allied-Industrial, Chemical & Energy Workers Union, Local 5-477 (PACE).
Before HARTZ, McKAY and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
This is a whistleblower action brought by Adrienne Anderson (Anderson)
against Metro Wastewater Reclamation District (Metro) pursuant to various
environmental statutes which prohibit discrimination against “any employee or
any authorized representative of employees.” Pursuant to the recommendation of
one of Metro’s local unions, the City of Denver’s mayor appointed Anderson to
Metro’s Board of Directors (Board) to represent the citizens of Denver. Anderson
contends that during her tenure on the Board, Metro discriminated against her for
speaking out against its plan to treat the effluent from the Lowry Superfund site
on account of her belief that its effluent contained plutonium and other
radionuclides which Metro was incapable of treating. Among other things,
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Anderson alleges Metro discriminated against her by (1) ruling her out of order
and cutting her off at Board meetings, (2) denying her requests to distribute
materials to other directors and to hold a special Board meeting, (3) threatening
her with censure, (4) accusing her of lying, (5) altering the Board’s meeting
minutes, and (6) leading a campaign to defame her and destroy her professional
reputation.
We are called upon to determine whether Anderson, as a political appointee
to Metro’s Board, was an “authorized representative of employees” during her
tenure as a Board director. The Administrative Review Board (ARB) of the
United States Department of Labor (DOL) 1 concluded she was not and therefore
determined she lacked standing to sue under the employee protection provisions
of the environmental statutes. 2 We agree. 3
1
In 1996, the Secretary of Labor created the ARB to inter alia act for the
Secretary in reviewing decisions of Administrative Law Judges pertaining to the
environmental whistleblower statutes. 61 Fed. Reg. 19,978, 19,978 (May 3,
1996).
2
All citations to the record in this case refer to the administrative record.
Citations to Metro’s Vol. I, II or III and Anderson’s Vol. III-A, III-B or III-C
refer to the volumes of exhibits which were introduced into evidence at the
administrative hearing before Administrative Law Judge David W. Di Nardi.
3
Six of the seven environmental statutes at issue in this case provide for
judicial review of the ARB’s decision in the Circuit Court of Appeals in which
either the complainant resides or transacts business or where the environmental
violation occurred. See 15 U.S.C. § 2622(c)(1), 33 U.S.C. §§ 1367(b),
1369(b)(1), 42 U.S.C. §§ 300j-9(i)(3)(A), 5851(c)(1), 6971(b), 6976(b),
7622(c)(1). However, one statute, the Comprehensive Environmental Response,
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I. Factual Background
Metro Reclamation District
Metro was created in 1961 by the Metropolitan Sewage Disposal Districts Act,
Colo. Rev. Stat. §§ 32-4-501-547, and is a political subdivision of the State of
Colorado. It provides wholesale wastewater treatment to its members, which consist
of over fifty municipalities and sanitation districts in metropolitan Denver. These
members provide retail wastewater services to their constituents, approximately 1.3
million people.
Metro is governed by a policy-setting Board of Directors (Board). Individual
directors are appointed for a two-year term by the chief executive officers of the
Compensation and Liability Act (CERCLA) vests exclusive jurisdiction in the
federal district courts. 42 U.S.C. §§ 9610(b), 9613(b). The ninth circuit
confronted a similar conundrum in Ruud v. United States Dep’t of Labor, 347
F.3d 1086 (9th Cir. 2003), a case involving the Clean Air Act and CERCLA. It
concluded:
We hold that the court of appeals should entertain a petition to
review an agency decision made pursuant to the agency’s authority
under two or more statutes, at least one of which provides for direct
review in the courts of appeals, where the petition involves a
common factual background and raises a common legal question.
Consolidated review of such a petition avoids inconsistency and
conflicts between the district and appellate courts while ensuring the
timely and efficient resolution of administrative cases.
Id. at 1090. See also Int'l Bhd. of Teamsters v. Peña, 17 F.3d 1478, 1481-82
(D.C. Cir. 1994) (review of United States Federal Highway Administration’s
implementing rule). We agree and hold we have jurisdiction to review the merits
of this case in its entirety.
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member municipalities. The number of directors each member has on the Board is
based on its population. 4
The Board holds monthly meetings which are open to the public and run by a
chairman. The Board follows Robert’s Rules of Order and a majority vote is
required for Board action. In addition to the directors, members of Metro’s
management team, including the District Manager and Metro’s legal counsel, are
present at the meetings. The meetings are tape-recorded and action minutes are
prepared from those tapes. The tapes are destroyed once the minutes are approved by
the full Board at the next meeting.
Metro has over 330 employees. Approximately 26-27 of those employees
belong to the Oil, Chemical and Atomic Workers Union (OCAW) 5 and 140-145
belong to the International Union of Operating Engineers. In 1993, OCAW’s
collective bargaining agreement with Metro expired. Despite numerous negotiations,
a new agreement was not reached until December 1997. Because of the lack of a
contract, the relationship between OCAW and Metro was acrimonious in 1996-1997.
4
During the relevant time period of this suit, the Board consisted of fifty-
nine directors. The City of Denver, the largest municipal member, had twenty
directors on the Board, including Anderson.
5
Due to a merger in 1999, OCAW was succeeded by the Paper, Allied-
Industrial, Chemical and Energy Workers Union (PACE). For purposes of this
opinion, we will continue to refer to the union as OCAW. The union has filed an
amicus curiae brief in support of Anderson.
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Metro’s Treatment and Pretreatment Process
Metro receives approximately 160,000,000 gallons of wastewater a day from
its members. When the wastewater first enters Metro’s treatment plant, large objects
are screened out. The water is then placed into large settling tanks where heavy
solids settle to the bottom. Bacteria and other micro-organisms are added to the
waste water; these “bugs” eat the organic pollutants and nitrogen in the wastewater.
To kill these “bugs,” chlorine is added to the water; to remove the chlorine, sulphur
dioxide is added. The treated wastewater, called wastewater effluent, is then
discharged pursuant to a state permit into the South Platte River.
During the treatment process, solids, called sludge, are removed. Each day,
Metro’s treatment process produces well over a hundred tons of wastewater sludge.
This sludge is placed into tanks where bugs digest a large quantity of it and disinfect
the remainder. Once disinfected, this sludge, now called bio-solids, is applied as
fertilizer to farmland in eastern Colorado, including Metro’s own farmland. 6 Metro
produces between 70 to 80 dry tons of bio-solids each day.
In addition to treating wastewater that comes to it from its members, Metro has
a pretreatment program which regulates the wastewater it receives from industry.
This program is mandated by the Clean Water Act and helps maintain the quality of
6
In 1993, Metro began purchasing farmland in Arapahoe and Elbert
Counties. In 2000, Metro owned 51,000 acres of farmland, growing wheat and
other grains.
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Metro’s treatment process and its bio-solids program. Metro’s pretreatment program
requires industries, pursuant to the requirements of a pretreatment permit, to remove
certain pollutants from its wastewater prior to sending it to Metro. In addition to
limiting the pollutants that may enter Metro’s treatment facility, these pretreatment
permits contain monitoring and reporting requirements. Metro enforces these
permits by issuing notices of violation, compliance orders, cease discharge orders
and penalties; a failure to enforce these permits could result in action against Metro
by the Environmental Protection Agency (EPA).
Lowry Site and Settlement
The Lowry site consists of 480 acres at the intersection of Quincy Avenue and
Gun Club Road, approximately fifteen miles east of the City and County of Denver.
From about 1940 to 1962, the United States Air Force utilized the Lowry site, as well
as surrounding land, as a bombing range. From 1966 until 1980, the City of Denver
operated part of the Lowry site as a landfill. Over 120 million gallons of liquid
wastes were disposed of in waste pits at the Lowry Landfill. Approximately eight
million tires and thirty-seven million gallons of sewage sludge were also disposed of
at Lowry.
In 1984, the Lowry site was named a Superfund site. 7 It was estimated that it
7
A site qualifies as a Superfund site and is placed on the National Priorities
List when it is determined that “there may be an imminent and substantial
endangerment to the public health or welfare or the environment because of an
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would cost 4.5 billion dollars to clean it up. Over 400 entities were designated as
“potentially responsible parties” (PRP) including Adolf Coors Company, Conoco
Inc., Gates Rubber Company, Rockwell International (Rocky Flats Plant) and Shell
Oil Company. In May 1988, Metro was named a PRP based on its application of
sewage sludge at the site. Subsequently, the EPA issued two administrative orders
requiring several PRP’s, including Metro, to perform remedial investigations and
feasibility studies on Lowry. Pursuant to these orders, Metro, along with several
other PRP’s, formed a coalition, called the Lowry Coalition, to study Lowry and
determine how best to clean it up. Metro contributed over $4,700,000 dollars to
demonstrate it was not a responsible party and to perform its obligations under the
administrative orders. Its efforts to disprove its liability were unsuccessful. Based
solely on the volume of sludge it applied to the Lowry site, Metro was considered a
ten percent contributor, which exposed Metro to 450 million dollars in liability.
Metro attempted to look to its general liability insurance carriers but they denied
coverage, eventually leading to litigation between Metro and its insurers in 1988-89.
In 1994, the City and County of Denver, Waste Management of Colorado and
Chemical Waste Management, the owners/operators of the Lowry Landfill, sued
Metro and several other PRP’s in the United States District Court for the District of
Colorado seeking contribution to the costs they were incurring in cleaning up
actual or threatened release of a hazardous substance. . . .” 42 U.S.C. § 9606(a).
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Lowry. In early 1996, as trial was approaching, the parties began settlement
negotiations. Denver, Waste Management and Chemical Waste Management
initially sought $30-35,000,000 to settle the matter with Metro. However, the
parties eventually reached a settlement in June 1996, which required Metro to: (1)
pay $1,900,000; (2) contribute $400,000 to the construction of a sewer line from
Lowry to the City of Aurora’s wastewater system; and (3) treat the effluent from the
Lowry Landfill pursuant to the terms and conditions of a pretreatment permit.
Under the treatment portion of the agreement, called the Publicly Owned Treatment
Works (POTW) treatment option, Lowry’s wastewater would be pretreated at the
site pursuant to a pretreatment permit, discharged into the City of Aurora’s public
sewer system and Metro’s Sand Creek sewer, and then sent to Metro’s facility for
further treatment. If at any time the Lowry effluent failed to satisfy the standards
set forth in the permit, discharge to Metro would be stopped. 8 Metro’s Board
unanimously approved the settlement at a special meeting on June 4, 1996.
Anderson’s Appointment to the Board
In late 1995, seeking the appointment of a director sympathetic to OCAW’s
views, Patricia Farmer and Marilyn Ferrari, OCAW Local’s Chief Steward and Vice
President, respectively, contacted Paul Wishard, the labor liaison for Wellington
8
Indeed, in late 2000, Metro stopped the discharge because the effluent
failed a test required by the permit.
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Webb, then-mayor of the City of Denver. Wishard suggested they submit the names
and resumes of individuals they wished to see appointed to the Board. Thereafter,
Ferrari called Anderson, asking her whether she would be willing to serve as a
director on the Board. 9 Anderson agreed and her name and resume were submitted
for Mayor Webb’s consideration. 10 On February 22, 1996, Mayor Webb sent
9
In the 1980’s, Anderson had served as a consultant to OCAW
International. In 1994, she served as Special Projects Director for OCAW
International in which she assisted the local union at Metro with its health and
safety concerns and lack of a contract. Due to pregnancy complications,
Anderson left this position.
10
In her letter to the Mayor’s office in which she submitted Anderson’s
resume, Farmer stated:
Please accept the enclosed resume of Adrienne Anderson in
consideration for the open position on the [Metro] Board of
Directors. Ms. Anderson is a recognized expert on environmental
issues and is well versed on matters regarding the Lowery [sic]
Landfill. Considering [Metro’s] position to force the City and
County of Denver into litigation rather than live up to [its] obligation
to clean up the landfill, it seems appropriate that someone be
appointed . . . who will hold [Metro] management accountable on this
matter. Ms. Anderson has also been helpful to [Metro] employees . .
., who are represented by [OCAW], in their fight for a fair contract.
These employees have been working under an expired contract for
three years while [Metro] management refuses to bargain with the
union over any meaningful contract issues.
As a representative for the Metro OCAW bargaining unit, I have
spoken with Mayor Webb . . . about our struggles. The majority of
our members are taxpayers in the city of Denver and we believe the
Denver Directors have a duty to represent the citizens of this city.
We hope the appointment of Board members like Adrienne Anderson
will lead to a kinder and gentler District management who will put
people and the environment first.
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Anderson a letter appointing her to the Board through June 30, 1998. The letter
informed Anderson her appointment would need to be confirmed by the Denver City
Council and would take approximately one month to process.
Prior to her confirmation hearing, Anderson, believing she needed to “get up
to speed on outstanding issues that the union had expressed concern about,” began
reviewing public records concerning Lowry. (Tr., Nov. 7, 2000 hearing, Vol. II at
274.) Through this initial research, she discovered the United States Army Corp of
Engineers had designated the Lowry site as a catastrophic risk zone, meaning “the
chance of somebody being injured or killed was high, by going out to that territory.”
(Id.) Because she believed the public was unaware of this and because the building
of subdivisions was being planned for the area, Anderson wrote to then-Colorado
Governor Roy Romer expressing her concern. She also appeared on a Denver radio
talk show program to alert the public to the information she had discovered and to
urge full radiological testing be performed at Lowry.
Confirmation Hearing
In May 1996, Anderson appeared before the Public Works Committee of the
Denver City Council. At the hearing, Donna Good from Mayor Webb’s office
sought the Committee’s confirmation of Anderson as a Metro director and informed
the Committee her appointment had been made pursuant to OCAW’s
(Anderson’s Vol. III-A, Ex. 4.)
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recommendation. After Anderson answered the committee’s questions, she was
informed her confirmation would go before the full city council at its next weekly
meeting. Anderson expected to be on the Board by June. However, at the next city
council meeting, Councilman Ted Hackworth, also a Metro Board director, raised
objections to Anderson’s confirmation and wanted to personally question her.
Therefore, in June 1996, Anderson appeared again before the Public Works
Committee.
There, Hackworth questioned Anderson’s association with OCAW and
environmental groups. As to her union association, he questioned whether it
presented a conflict of interest. Anderson explained her past associations and
informed Hackworth her position on the Board would be to craft solutions which are
protective of worker health and safety but also cost effective. Satisfied with her
answers, Hackworth voted for Anderson’s confirmation and she was unanimously
confirmed by the entire City Council. 11
11
Anderson’s official appointment paper, signed by Mayor Webb on July 8,
1996, stated:
I, Wellington E. Webb, Mayor of the City of Denver, Colorado, by
virtue of the authority vested in me by law, do hereby appoint
Adrienne Anderson as the City of Denver’s representative on the
Board of Directors of Metro Wastewater Reclamation District, to
serve a term of two years . . ., beginning July 1, 1996, and ending
June 30, 1998, in accordance with the laws of the State of Colorado
and the By-laws of the Metro Wastewater Reclamation District.
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Anderson’s Research Prior to First Board Meeting
Before attending her first Board meeting as a director, Anderson received a
package of introductory materials and the meeting agenda. She noticed an item on
the agenda was the approval of approximately $100,000 in attorneys’ fees related to
Lowry. 12 Also prior to her first meeting, Anderson had lunch with then-Chairman of
the Board, Richard Plastino, who informed her of the Lowry settlement and what it
generally entailed. Thereafter, she continued her research on Lowry, discovering
that Metro had at one time refused to accept the Lowry effluent and that radioactive
waste had been disposed of at the site.
Anderson’s First Board Meeting
On July 16, 1997, immediately preceding her first Board meeting, Anderson
attended a dinner with the Denver directors at Gaetano’s restaurant. Anderson
brought with her some documents she uncovered in her research which indicated the
presence of radionuclides at Lowry. She informed the other directors of her
concerns and offered to share the documents with them. One of the directors, John
Wilder, became very angry and (according to Anderson) slammed down his fork and
(Metro’s Vol. II, Ex. 30.) Anderson testified she believed the “odd” delay in her
confirmation to the Board was to prevent her from being on the Board at the time
it approved the Lowry settlement, what she refers to as the “secret deal[].” (Tr.,
Nov. 8, 2000 hearing, Vol. III at 589-90, 591.)
12
This attorneys’ fee request related to the litigation between Metro and its
insurance carriers.
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yelled at her. Thereafter, Wilder, Hackworth and Robert Werner allegedly stood up
and left. 13 Directors Al Levin and Steven Foute, also a new director, were shocked
at the treatment Anderson received. Director Foute informed them he would make a
motion at the Board meeting to have the EPA brief the Board on the Lowry
treatment plan.
Later that evening, at the Board meeting, Anderson was sworn in as a
director. District Manager Robert Hite testified that when Anderson introduced
herself, she stated she was there to correct the mistakes they were making at Lowry
and that if she had been on the Board, the Lowry settlement would never have been
reached. Director Levin recalled Anderson introducing herself and indicating she
was appointed by the Denver City Council and Mayor’s office to represent the
concerns and welfare of Metro employees. Chairman Plastino testified Anderson
informed everyone she was appointed to represent environmental interests. Other
individuals present at the meeting testified they thought Anderson was arrogant and
aggressive, especially considering she was a new director. Anderson did not recall
making any introductory statements at her first meeting. However, she did perceive
a cool attitude towards her by certain Board members.
As planned, Director Foute moved to have the EPA brief the Board on Lowry
13
Hackworth testified he never attended any dinner where Anderson was
present.
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and Anderson seconded the motion. According to Anderson, Chairman Plastino
stated such briefing was unnecessary because Metro staff could provide such
information. 14
Anderson’s First Operations Committee meeting
Anderson was appointed to serve on the Board’s Operations standing
committee. 15 At that time, Hackworth was the committee’s chairman. At her first
Operations committee meeting on August 8, 1996, Anderson felt the same cool
reception towards her that she had felt at her first Board meeting. During the
meeting, Anderson requested to go into an executive session in order to discuss the
information she had discovered in her research regarding Lowry. Allegedly,
Hackworth angrily banged his gavel and ruled her out of order. Hackworth testified
14
Although Anderson testified Foute made this motion at her first Board
meeting, the meeting minutes show this motion was not made until her second
Board meeting on August 20, 1996. The minutes also reveal Plastino stated he
was open to having the EPA and Colorado Department of Health speak directly to
the Board but wanted Metro personnel to initially sponsor an informational
meeting. Hite stated he was willing to commit Metro’s staff to “all the time it
takes to bring everybody up to speed” on Lowry. (Board’s Aug. 20, 1996 meeting
minutes at 14.)
15
The Board has four standing committees: (1) Future Programs, (2)
Operations, (3) Budget/Finance and (4) Personnel. Each of these committees has
its own chairman and holds monthly meetings. The Board also has an Executive
committee which is composed of the four officers of the Board (Chairman,
Chairman Pro Tem, Secretary and Treasurer), the chairpersons of each standing
committee, and five other members appointed by the Board’s chairman. Except
for the Executive committee, which has limited spending authority, these
committees may only make recommendations to the full Board; they may not take
action on behalf of the Board.
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he merely informed Anderson the Lowry decision had been made by the Board and
therefore it was inappropriate to discuss it further. 16 After that meeting, Anderson
learned that at the prior month’s Operations committee meeting, Hackworth had told
another director that Anderson had lied at her confirmation hearing. In response to
hearing this, Anderson wrote Hackworth a letter, seeking an apology. Hackworth
replied to the letter, indicating he merely told the other director that if Anderson
represented OCAW or environmental extremists, then she had lied to him at her
confirmation hearing.
August 20, 1996 Board Meeting
On August 20, 1996, Don Holmstrom, then-President of OCAW Local, wrote
a letter, with Anderson’s assistance, to Marc Herman of the EPA, requesting a
public comment period be held on the decision to have Metro treat the Lowry
effluent. On that same date, employees of Metro’s laboratory and members of
OCAW conducted an informational picket at the Board meeting, distributing
Holmstrom’s letter. The next day, Plastino telephoned Anderson, informing her he
had received a number of calls from other Board members concerning their belief
that she was a “whacko” and that she had told the employees about the Lowry
settlement. He also informed her they were concerned about her having conducted a
16
This incident is not addressed in the August 8, 1996 Operation committee
meeting minutes. Anderson refers to this omission as an example of Metro’s
falsification/alteration of Board minutes.
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Colorado Open Records Act (CORA) request while representing herself as a Board
member. Anderson admitted she had told the workers about Lowry, reminding
Plastino she had been put on the Board to represent the workers, and stated she had
made CORA requests in an effort to educate herself about Lowry.
Anderson’s Appearance at EPA Public Hearing
The EPA issued its Record of Decision (ROD) concerning the clean-up of
Lowry on March 10, 1994. The 1994 ROD called for onsite treatment of Lowry’s
wastewater. Because Metro’s agreement to treat the Lowry effluent offsite altered
the 1994 ROD, the EPA issued an “Explanation of Significant Differences” and held
a public comment period from March 24, 1997, to April 22, 1997. On April 2,
1997, Anderson attended a public comment hearing held by the EPA. 17
There, Anderson spoke, introducing herself as follows:
My name is Adrienne Anderson. I’m a [B]oard member of the Metro
Wastewater Reclamation District appointed by Mayor Webb of Denver,
which owns the landfill, and I also teach environmental ethics at the
University of Colorado at Boulder.
(Metro’s Vol. I, Ex. 2 at 35.) During her comments, Anderson noted several times
she was a Board member and called for rejection of Metro’s proposed treatment of
the Lowry effluent, claiming it contained plutonium and other radionuclides.
17
Prior to attending this public hearing, Anderson had informed the
Operations committee that she was conducting an extensive review of the Lowry
matter and would be making public statements concerning her findings.
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Director Al Levin also appeared at the hearing, voicing his concerns. 18
Thereafter, on April 9, 1997, Plastino issued a memo to the Board’s directors.
In this memo, he indicated two directors had spoken out against Metro’s plan to
treat the Lowry effluent. While recognizing that the two directors did not claim to
be speaking on the Board’s behalf, Plastino stated “they failed to make a disclaimer
that they were not speaking for or representing the Board.” (Metro’s Vol. I, Ex. 4.)
He stated that while every director has the right to voice his or her opinion, the
Board’s by-laws provide that the chairman shall be the general spokesperson for the
Board and every director has the obligation to state he or she is not speaking on
behalf of Metro or the Board. To avoid further misrepresentations and to correct
any misrepresentation that may have resulted, Plastino urged the Board to adopt a
proposed resolution reaffirming its position on Lowry and the by-laws’ designation
of the chairman as the Board’s spokesperson.
At the next Board meeting on April 15, 1997, discussion was held on
Plastino’s proposed resolution. Anderson objected to the resolution. She stated she
18
Levin introduced himself as follows:
My name is Al Levin. I’m a director at the Metro Wastewater
Reclamation Agency. And I’m here as a concerned citizen,
concerned with the health, safety and welfare of everybody that is
here today and the community at large.
(Metro’s Vol. I, Ex. 2 at 50.)
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clearly expressed at the EPA meeting that she held a minority position on the Board
and did not represent the Board. She further expressed her concern that the Lowry
waste stream included plutonium and neither the Lowry on-site treatment plant nor
Metro’s treatment facility had the capability of removing radionuclides. She then
moved to amend the resolution to include language that the Board was fully
informed that the Lowry waste stream contained plutonium and other man-made
radionuclides. Her motion failed. Plastino’s proposed resolution passed with only
two “no” votes, one of which was cast by Anderson, with the caveat that she did
support the by-law’s designation of the chairman as the Board’s spokesperson.
The next day, Plastino issued a letter to Anderson and Levin, indicating the
full Board had passed a resolution re-affirming its position on Lowry and the by-
laws’ designation of the chairman as general spokesperson for the Board. 19 Plastino
also informed them that if they continued to express their personal opinions related
to Metro without giving a proper disclaimer, “there [was] a potential that the Board .
. . will censure you.” (Metro’s Vol. I, Exs. 6, 7.) Anderson testified she interpreted
this letter as “an attempt at intimidation. That they were attempting to curb my
rights to speak out on this. I was upset that they were trying to isolate me further on
19
This letter, referred to as the April 16, 1997 letter, was also sent to Hite,
the Executive committee and Joel Moritz, Metro’s legal counsel. Contrary to
Anderson’s assertions during the administrative proceedings, it was not circulated
to the entire Board.
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the Board . . . and I felt trivialized, that I would be subject to a letter telling me
what I should say. I felt that [they were] treating me like a child. . . .” (Tr., Nov. 7,
2000 hearing, Vol. II at 366.) In response to Anderson’s belief that she had made a
proper disclaimer, Plastino issued another letter to her on May 20, 1997, informing
her he did not believe she made a proper disclaimer and suggesting one for her. 20
May 1997 Board Meeting
Before the May 1997 meeting, Director Levin provided Anderson with a
memorandum which Hite allegedly circulated to all of the Board’s directors except
Anderson. Attached to this memo was a verbatim transcript of an interview
Anderson conducted on a Boulder radio station on May 14, 1997, concerning her
belief that Metro’s treatment of the Lowry effluent would result in plutonium-laced
biosolids being used as fertilizer in eastern Colorado. Anderson interpreted the
memo as a “way for [Hite] to attempt to get the [B]oard concerned and upset about
20
Plastino suggested the following disclaimer:
I would like to state that I am not speaking on behalf of the Metro
Wastewater Reclamation District, and the views expressed are my
own personal opinions and not those of the Metro District.
(Metro’s Vol. I, Ex. 10.) Plastino was instructed by the Executive committee to
draft this letter. Prior to receiving it, Anderson became aware Plastino would be
issuing the letter and made a motion at the May 20, 1997 Board meeting that any
issue concerning disclaimers should be referred to the By-Laws Review
committee. Plastino refused to entertain the motion, preferring to answer any
questions once the letter was issued.
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the fact that I was continuing to speak out on [the Lowry] issue.” (Tr., Nov. 8, 2000
hearing, Vol. III at 439.) On May 30, 1997, Hite also sent a letter to Denver
Councilman William Himmelmann concerning the campaign “being waged by a
small number of people” against Metro’s proposal to treat the Lowry effluent.
(Anderson’s Vol. III-A, Ex. 55 at 1.) Attached to the letter was a fact sheet
addressing several specific allegations and the scientific and factual information
countering them. This fact sheet was distributed to the Board at the May 1997
hearing; Anderson claims she was not allowed to distribute material at this same
meeting.
The “Smoking Gun”
In June 1997, Anderson uncovered a letter from the Lowry Coalition, dated
December 13, 1991, to the EPA Director of Region VIII, in which it objected to the
EPA reaching any type of settlement with the Department of Energy or any other
entity associated with the Rocky Flats Plant regarding Lowry because “[t]he
information and data . . . demonstrates that man-made radionuclides which only
could have originated from the Rocky Flats Plant are present in significant
quantities at Lowry Landfill.” (Anderson’s Vol. III-A, Ex. 28 at 1.) The
information concerning the presence of man-made radionuclides at the Lowry site
was based on a study Harding Lawson Associates had performed at the site. Upon
learning of the document, Anderson informed members of OCAW staff; they were
-21-
shocked and outraged. Thereafter, Anderson and the OCAW held a news
conference at the Metro plant site concerning the Lowry Coalition’s December 13,
1991 letter, which was later referred to as “the smoking gun” during the
administrative proceedings. (Tr., Nov. 8, 2000 hearing, Vol. III at 453-54.)
June 1997 Board Meeting
At the June 17, 1997 Board meeting, the Board suspended the rules to allow
for a public forum. During this forum, residents from eastern Colorado and
representatives of OCAW appeared. In addition to voicing concerns about Metro’s
proposed treatment of the Lowry effluent, individuals raised concerns regarding
Metro’s non-tax paying status, erosion, and the deterioration of the roads used by
Metro’s trucks. Metro’s management briefly responded to these concerns at the
forum and followed up with a more detailed letter dated June 27, 1997.
Anderson’s Request for Special Meeting
On June 25, 1997, Anderson authored a letter to Beverly McAdam, Metro’s
staff assistant, seeking a special Board meeting. She asked McAdam to mail out her
request for a special meeting and a packet of materials to all Board members. This
packet of materials contained evidence that the Lowry site contained plutonium
(including the December 13, 1991 Lowry Coalition letter) and information she had
received from two employees who accused
-22-
Metro of blackmail. 21 This information was mailed out to all directors. Enclosed
with the mailing was a memorandum issued by Chairman Plastino, stating that as
chairman he would not be calling a special meeting and would recommend against
such a meeting. 22 Plastino testified he recommended against holding a special
meeting because he believed it was unnecessary as the Lowry issue had already been
settled by the Board. Because it failed to garner the necessary support from the
other directors, Anderson’s request for a special meeting was denied. Based on this
denial, Anderson drafted a letter concerning her allegations and attempted to
distribute it at the July 1997 Board meeting. Her attempts to pass it out were not
well-received. Anderson alleges directors threw it in the trash and one director
21
These two employees, Delwin Andrew and Anthony Broncucia, were
terminated in 1997, along with two other individuals, for falsification of records
(falsely punching time cards for other employees) and dishonesty. They contacted
Anderson believing she could assist them in getting their jobs back because they
had heard Anderson represented the workers. They informed Anderson that
Metro had offered to reinstate two of the four fired employees if their union, the
International Union of Operating Engineers, would endorse Metro’s treatment of
the Lowry effluent. Hite admitted that Jose Padilla, a member of Metro’s Human
Resources Department, had approached Jim Smolynsky, the Business Agent for
the Operating Engineers’ Local Union at Metro, with a “deal” whereby two of the
four terminated employees would get their jobs back if the Operating Engineers
wrote a letter to the EPA supporting Metro’s position on Lowry. Hite testified
Padilla acted without his knowledge and was orally reprimanded.
22
The Board’s by-laws state: “Special meetings shall be called by the
Chairman of the Board, whenever, in his opinion, such a meeting is necessary or
desirable, or whenever the same is requested in writing by 20 percent or more of
the members of the Board.” (Metro’s Vol. I, Ex. 1 at 2.)
-23-
stated “I never read anything she distributes” and “[s]he can go to hell.” 23 (Tr.,
Nov. 8, 2000 hearing, Vol. III at 484.) She claims no one censured this director and
in fact, Hite laughed.
Anderson’s Tape-Recording of Meetings
At the July 3, 1997 Operations committee meeting, Anderson brought a tape
recorder and attempted to record the meeting. Hackworth made her turn off the
recorder. A general discussion was had and a vote was taken, the majority opposing
Anderson tape-recording the meeting.
On July 15, 1997, Anderson issued a memorandum to Hackworth alleging
certain errors and misrepresentations in the July 3, 1997 Operations committee
meeting minutes including the omission of her request for a roll call vote on
whether she could record the meeting and Hackworth’s refusal to hold such vote.
At the next Operations committee meeting in August, Hackworth addressed the
memo, reiterating that meeting minutes are not verbatim. After discussing the
alleged distortion of the July 3 meeting minutes, the majority of the committee voted
not to amend them. At this meeting, there was also discussion concerning the
recording of meetings. Hackworth stated the By-Laws Review committee would be
23
There was also testimony that Anderson, with Ferrari’s assistance, had
attempted at other meetings to pass out documents. Allegedly, directors threw
these documents at Anderson. Both Ferrari and Anderson admitted they did not
have permission to distribute these documents during the meeting.
-24-
addressing the tape-recording of meetings. In any event, Anderson was allowed to
tape record the meeting. 24 On December 16, 1997, the by-laws were amended; the
amendments contained a specific provision that meetings could be recorded.
Anderson’s CORA request
On July 9, 1997, Anderson made a CORA request to Metro regarding whether
Metro was receiving wastes from any other Superfund sites. Anderson testified she
asked for this information because the workers had concerns about it. She stated
she felt she had to obtain this information through CORA because she did not
believe Metro would have voluntarily provided her with the information based on
the reactions she received at meetings. On July 11, 1997, Betty Anne Trampe,
Metro’s Records Management Administrator, responded to the request, indicating
Metro was currently receiving wastes from two Superfund sites. Trampe informed
her documents concerning those sites would be available for her to review and
copies would be provided to her “upon payment of 25 cents per page, consistent
with the provisions of [CORA].” (Anderson’s Vol. III-A, Ex. 74.) Anderson stated
other directors did not appear to have to pay for copies and Metro could have
24
Anderson subsequently did a CORA request to listen to the tapes of
certain meetings of committees of which she was not a member. She listened to a
By-Laws Review committee meeting and an Executive committee meeting. She
claimed that during both meetings there was a discussion about how to prevent
her from being able to tape record future meetings. Allegedly, these committees
admitted they would not object if anybody else was tape-recording meetings but
were concerned about Anderson taping them.
-25-
responded to her request stating she had a right to the documents without having to
proceed through CORA. She also testified Hite joked about the fact Metro was
billing her for copies. 25
“Public Relations War”
After over a year of the Board refusing to listen to her, Anderson took her
opposition to Metro’s treatment of the Lowry effluent and her beliefs that plutonium
and other radionuclides were present at Lowry directly to the media. Between April
23, 1997, and July 24, 1997, she was quoted in several Colorado newspapers,
including the Colorado Daily, the Boulder Weekly, the Boulder Daily Camera and
the Westward, as well as in In These Times, a national publication based in
Chicago, Illinois. In June 1997, Anderson was interviewed by Moneyline, a CNN
television program, for an investigative series concerning the EPA’s policy allowing
sewage sludge to be used as fertilizer. As part of that series, Moneyline focused on
Metro’s plan to treat Lowry’s wastewater and to use the resulting sludge as fertilizer
25
Hite testified Anderson had asked him for information concerning
whether Metro treated other Superfund site waste at the July 3, 1997 Operations
committee meeting. Hite informed her it did. When Anderson asked for records
concerning those sites, Hite stated he would make them available for her. Before
he was able to retrieve the records from archives, he received Anderson’s July 9
CORA request. Because Anderson made a CORA request, Hite was required to
treat her request like any other CORA request by a citizen, including charging her
for it. He admits he “joked around” about having to charge her. (Tr., Nov. 16,
2000 hearing, Vol. VII at 1412.) He testified that had she allowed him to comply
with her initial request, he would have provided her the information free of
charge.
-26-
in eastern Colorado. Anderson videotaped this series and presented it to her
students at the University of Colorado, 26 Metro employees, OCAW members and the
public.
In response to Anderson taking her concerns public, Metro began its own
“campaign” to defend its position on Lowry by issuing fact sheets, news releases
and letters to the community to educate it about Lowry. 27 In addition to distributing
his May 30, 1997 letter to Councilman Himmelmann to the media, Hite authored a
letter on July 23, 1997, to “Interested Parties,” including OCAW officials,
government officials, Metro employees and eastern Colorado residents, addressing
the December 13, 1991 Lowry Coalition Letter. In this letter, Hite stated that a
report by Doty & Associates, dated August 10, 1992, refuted the findings by
Harding Lawson Associates of the presence of radioactivity at Lowry. Specifically,
the Doty & Associates report questioned the science and validity of the Harding
Lawson Associates’ findings and indicated radionuclides “are, at best, questionably
present, and more likely not present at the Lowry Landfill above ‘background’
During her tenure on the Board, Anderson was an instructor in the
26
Environmental Studies Program and Ethic Studies Department at the University of
Colorado.
27
Metro’s Public Information Officer, Steve Frank, testified he and Metro
management decided to take a “low key” approach in response to Anderson’s
statements to the media. (Tr., Nov. 14, 2000 hearing, Vol. V at 890.) He stated:
“Basically, what [we decided] to do is talk about the facts. We [were] not going
to talk about her. We [were] not going to use her name.” (Id.)
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levels.” (Metro’s Vol. II, Ex. 43 at 1) (quotations omitted). Metro also sent a
memorandum to Colorado Water Quality professionals alerting them to the
Moneyline program. In this memorandum, Metro asserted its proposed treatment of
the Lowry effluent was protective of the public health and environment. It also
discounted Anderson’s belief that plutonium was present at the Lowry site, stating
“[s]he is not telling the truth, but she is getting her message to the media.”
(Anderson’s Vol. III-A, Ex. 108.)
EPA Approves Lowry Plan
On October 28, 1997, Metro issued a press release informing the public that
the EPA had approved Metro’s plan to treat the Lowry effluent. In this release both
Hite and Steve Pearlman, Director of Metro’s Regulatory & Connector Relations
Department, stated the plan would pose no risk to the public or environment. The
Colorado Department of Health also gave its approval.
Anderson’s Failure to be Re-Appointed to the Board
During the remainder of her term on the Board, Anderson continued to speak
out, both publically and at Board meetings, against Metro’s plan to treat the Lowry
effluent. Anderson’s appointment to the Board expired in June 1998. Anderson
sought reappointment but Mayor Webb did not reappoint her. Anderson believed
her failure to be reappointed was due to her having unveiled the Lowry plan to the
public and her rejection of it. After not being reappointed to the Board, Anderson
-28-
was retained by OCAW Local as a part-time consultant to continue to work to block
the Lowry plan. In May 1998, OCAW presented Anderson with an award in
recognition for her work on behalf of Metro workers. 28
July 1999 Lowry Pretreatment Permit
Once the Lowry settlement was reached, Pearlman and other individuals in
Metro’s pretreatment department began to develop a draft pretreatment permit for
the Lowry site. On November 13, 1998, Metro issued its draft permit which limited
fifty-three chemicals and fifteen radionuclides. It also imposed monitoring
requirements on the Lowry operators, including the monitoring of pollutants not
limited by the permit in the event they became present. Metro was also to monitor
all parts of the Lowry treatment plan eight times a year. Metro accepted public
comments on the draft permit for thirty days. After receiving comments from forty-
three individuals and groups, including Anderson, Metro published a responsive
summary in June 1999. As a result of the public’s comments, Metro made thirteen
changes to the permit, the most significant being a substantial lowering of allowable
radionuclides Metro would receive from Lowry. 29 The final permit was issued on
28
Earlier, OCAW International had provided Anderson with $5,000 to
assist her in her whistleblower proceedings in gratitude for her “persistent
dedication” in looking out for the interests of OCAW-Local as a Board member.
(Anderson’s Vol. III-A, Ex. 71.)
29
Pearlman testified that the risk associated with radionuclides is their
potential to cause cancer in humans. Pearlman stated that the EPA’s allowable
standard of radionuclides in drinking water is “a level that allows one additional
-29-
July 14, 1999, effective August 1, 1999. However, Metro did not begin to treat the
Lowry effluent until July 2000.
April 2000 Press Conference
On April 14, 2000, OCAW sued Metro and others seeking an injunction “on
behalf of the lab employees of [Metro] who are represented members of [OCAW]”
against Metro’s plan to treat the Lowry effluent. (Anderson’s Vol. III-A, Ex. 93.)
On April 18, 2000, OCAW held a news conference at the Metro facility which
Anderson attended. 30 Steve Frank, Metro’s Public Information Officer, testified he
first learned of the conference when individuals from the media appeared in Metro’s
lobby inquiring about it. Frank stated no permission was either sought or given to
hold the conference. He admitted he was angry and confronted Anderson, informing
her she had no permission to be there. Nevertheless, Anderson continued to hold
the press conference.
On April 26, 2000, twenty-one Metro laboratory employees belonging to
OCAW authored a letter to OCAW Local President James Gilman, informing him
cancer case per million of population over a 70 year life time.” (Tr., Nov. 15,
2000 hearing, Vol. VI at 1158.) He stated the draft permit established a limit for
plutonium ten times more restrictive than the EPA standard for drinking water.
Due to public concern, the final permit limited plutonium to allow for a cancer
risk of one in one billion over a seventy year life time.
30
James Gilman, President of OCAW Local at the time of the press
conference, testified OCAW’s lawsuit against Metro was filed in February 2000
and the press conference took place in March 2000. However, according to a
statement Gilman made on April 19, 2000, OCAW sued Metro on April 14, 2000.
-30-
they were unaware of the litigation filed on their behalf to enjoin Metro’s treatment
of the Lowry effluent until they read about it in the newspaper. They further stated
they were “confident about the safety issues involved, and [were] willing to treat
groundwater from the Lowry Superfund site.” (Metro’s Vol. II, Ex. 54.) In
conclusion, they stated they did not support OCAW’s actions regarding Lowry and
“[felt] that this issue [was] supportive of the personal agenda of Adrienne Anderson,
and we do not wish to be associated with this fight, nor do we wish to fund this
campaign with our union funds.” (Id.) These employees also issued a letter to the
editor of the Denver Rocky Mountain News expressing a similar sentiment. On
December 20, 2000, a majority of the OCAW union members at Metro voted to de-
certify OCAW as its collective bargaining agent.
II. Procedural Background
On May 2, 1997, in response to receiving Chairman Plastino’s April 16, 1997
letter threatening her with censure, Anderson filed a pro se complaint against Metro
with the DOL alleging Metro retaliated against her for engaging in protected
activities in violation of the employee protection provisions of seven environmental
statutes: the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), the Solid Waste Disposal Act (SWDA), the Federal Water Pollution
Control Act (FWPCA), the Energy Restoration Act of 1974 (ERA), the Safe
Drinking Water Act (SDWA), the Clean Air Act (CAA) and the Toxic Substances
-31-
Control Act (TSCA). Specifically, she alleged Metro took the following actions
against her in retaliation for her protected activities: (1) circulating to the Board
Plastino’s April 9, 1997 memorandum containing “unfounded accusations and
insinuations of impropriety,” (2) holding secret sessions of two of the Board’s
committees in her absence and without her knowledge, and (3) sending her the April
16, 1997 letter threatening her with censure. (Anderson’s May 2, 1997 Complaint at
3.) She sought rescission of the “offending threats,” declaratory relief, and “[a]ny
other damages that may be related to this claim, in order to make [her] whole and
protect [her] capacity to advocate for the workers [she] was designated to represent,
as well as the wider public on environmental health and safety issues.” (Id. at 4.) 31
On June 6, 1997, David Decker, Regional Supervisory Investigator for the
Occupational Safety and Health Administration of the DOL, upheld Anderson’s
claims under the whistleblower provisions of the CERCLA, FWPCA and SWDA but
made no findings on her claims under the other statutes. Decker determined Metro
had discriminated against Anderson by issuing “intimidating and threatening letters”
31
In her formal statement of charges to Monica Oba, a DOL investigator,
Anderson also complained concerning (1) Hackworth’s accusations that she had
lied at her confirmation hearing, (2) the Board’s attempts to silence her at her
first regular Board meeting, (3) Hackworth angrily ruling her out of order when
she requested to go into executive session at her first Operations committee
meeting, (4) the treatment she received at Gaetano’s restaurant, (5) Plastino’s
telephone call raising other directors’ concerns about her, and (6) the alleged
altering of the Board’s meeting minutes.
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as a result of her “protected activities,” failing to “accurately reflect concerns and
comments made by [Anderson] in public records of meetings held by the Board,”
and refusing to “hear motions for amendments which [Anderson] made.” (Letter
from David Decker to Joel Moritz dated June 6, 19907 at 1.) Decker ordered Metro
to publically rescind the April 16 and May 20, 1997 letters and to make clear in the
public record that Metro and its Board cannot discriminate against employees and
their representatives for participation in activities protected by the CERCLA,
FWPCA and SWDA.
Both Metro and Anderson appealed. Anderson did not appeal OSHA’s failure
to make findings under the SDWA, CAA or TSCA but did appeal “the questions of
remedy and relief” and the “denial” of her claim under the ERA. (Letter from
Anderson to Chief ALJ dated June 12, 1997.) Metro appealed “[a]ll adverse
findings and determinations.” (Letter from Joel Moritz to Chief ALJ dated June 11,
1997.) The matter was referred to Administrative Law Judge (ALJ) Samuel J.
Smith.
On appeal to ALJ Smith, Metro filed a Motion for Summary Decision, arguing
Anderson lacked standing as an “authorized representative of employees” under the
CERCLA, FWPCA and SWDA. Anderson opposed the motion. 32 In support of her
32
Anderson retained counsel on August 5, 1997, and continues to be
represented by an attorney.
-33-
standing as an “authorized representative of employees,” she attached her own
affidavit as well as affidavits from Ferrari and Holmstrom. On February 19, 1998,
ALJ Smith granted Metro’s motion. He concluded Anderson had failed to provide
any evidence supporting her assertion she was the “authorized representative” of
Metro employees or the OCAW. Specifically, he stated Anderson had produced no
correspondence between herself and OCAW or the Mayor’s office in support of her
claimed representative status or any documentation establishing when and how she
became an authorized representative. Anderson appealed to the Administrative
Review Board (ARB).
On March 30, 2000, the ARB reversed ALJ Smith’s decision and remanded
the case for further proceedings. The ARB first addressed the meaning of
“authorized representative” under the CERCLA, FWPCA and SWDA, determining it
encompassed “any person requested by any employee or group of employees to
speak or act for the employee or group of employees in matters within the coverage
of the environmental whistleblower statutes . . . .” (ARB’s May 30, 2000 Decision
& Remand Order at 7-8.) It further stated that “an individual selected by a union
representing employees covered by the whistleblower protection provisions to speak
or act for the union (and by extension the employees) in matters within the purview
of the environmental statutes . . . is also protected . . . .” (Id. at 8.) Based on the
affidavits of Anderson, Ferrari and Holmstrom, the ARB determined there was a
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genuine issue of material fact as to whether Anderson was an “authorized
representative.” Therefore, it remanded the case for a trial on the merits. As to the
ERA, noting the difference between its statutory language and the other three
statutes, 33 the ARB directed the parties on remand to brief, and the ALJ to resolve,
whether Anderson fell within its coverage.
On remand, the case was assigned to ALJ David W. Di Nardi 34 and a seven
day hearing was held on November 6-8 and 13-16, 2000. After the hearing,
Anderson filed a second and third whistleblower complaint under all seven
environmental statutes based on alleged retaliatory conduct occurring subsequent to
the hearing. The second complaint, filed on December 15, 2000, alleged Metro
“acted to remove [her] from the [Metro Board] as a workers’ representative after
[she] engaged in protected activity” 35 and “acted to defame [her] and . . . destroy
[her] professional reputation in an organized campaign . . . to [Metro employees],
members of the media, state and government officials, legislators and others.” 36
As we discuss below, the ERA, unlike the CERCLA, SWDA, and
33
FWPCA, limits relief to employees only.
34
ALJ Smith had retired.
35
This allegation was based on Hackworth’s testimony at the hearing that
he had expressed to someone in the Mayor’s office that he hoped Anderson was
not reappointed to the Board.
36
In support of this allegation, Anderson points to a number of e-mails and
documents in which Frank accuses Anderson of lying. She also points to his
testimony that he provided a fact sheet to Denver Post editor Al Knight which
-35-
(Anderson’s Dec. 15, 2000 Whistleblower Complaint at 2.) The third complaint,
filed on January 5, 2001, asserted: (1) Frank falsely testified that Metro had not
hired any outside public relations agent and that there were no statements
concerning Anderson in the package of materials he submitted for an award he
received from the Water Environment Federation (WEF), (2) Frank failed to produce
several incriminating documents pursuant to Anderson’s subpoena, (3) Metro altered
its policy allowing access to its public records in direct response to and retaliation
for Anderson’s attempts to obtain health and safety information in 1999 and greatly
restricted her ability to obtain information under CORA, 37 (4) Metro circulated false
and defamatory materials concerning Anderson to its workers which resulted in
OCAW employees denouncing their support for her in their April 26, 2000 letter
resulted in an article by Knight on Easter Sunday 1999. In this article, Knight
states “Given Adrienne Anderson’s record for accuracy it is a wonder that anyone
still listens to this self-appointed ‘environmental activist.’” (Anderson’s Vol. III-
A, Ex. 88.) Anderson claims Frank “set up” Knight to write this article.
(Anderson’s Vol. III-C, Anderson Aff. ¶ 62.) Anderson also claims Hackworth
defamed her outside the Board, referring to his statement in a July 1997 Westward
article that she is a “troublemaker” who “hurls charges without much validity.”
(Anderson’s Vol III-A, Ex. 66.) Anderson alleges that despite not making a
specific disclaimer in this article that he was not speaking on the Board’s behalf,
Hackworth was not censored or reprimanded by the Board.
37
Anderson alleges Metro’s new rules pertaining to public inspection of
documents made it more difficult for her to obtain information by prohibiting the
use of her own recording equipment, increasing the price of copies from 25 cents
to $1.25 per page, restricting record review to Tuesdays and Thursdays, the days
she teaches classes at the University of Colorado, and requiring her to be
monitored during her review of documents.
-36-
which Anderson alleges Metro asked its employees to sign, and (5) Metro led an
“award winning” campaign of libel and slander to the media, elected officials and
others in an effort to destroy Anderson’s credibility and professional reputation. 38
(Anderson’s Jan. 5, 2001 Whistleblower Complaint at 2-3.) These two complaints
were consolidated with her May 2, 1997 complaint. 39
On September 18, 2001, ALJ Di Nardi issued a “Recommended Decision and
Order” in favor of Anderson. As to her initial May 2, 1997 complaint, he
determined Anderson was an “authorized representative” of Metro employees under
the CERCLA, SWDA, and FWPCA and Metro had retaliated against her based on
her protected activities. 40 He also determined her second and third whistleblower
38
This allegation concerns the materials Frank submitted to the WEF, for
which he won an award. Anderson asserts these materials included defamatory
statements about her.
39
ALJ Di Nardi allowed the parties to conduct additional discovery
concerning Anderson’s second and third whistleblower complaints. However, no
additional hearing was held; all evidence concerning these additional complaints
was presented via affidavits and deposition testimony.
40
ALJ Di Nardi found Metro had taken the following adverse actions
against Anderson based on her protected activities: “(a) cutting her off or ruling
her out of order during Board meetings; (b) keeping her from voting on the Lowry
settlement by delaying her confirmation by the City Council until June 1996; (c)
ordering her off Metro property in March 2000 when she appeared for a press
conference to voice her concerns about the Lowry settlement; (d) denying her
requests to distribute material concerning the Lowry Landfill to the Metro Board
or to put this issue on the Metro Board agenda; (e) denying her June 25, 1997
request for a special Board meeting to investigate public and worker health and
safety concerns raised by Metro employees; (f) forcing her to make Open Records
Act requests for information, and then charging her for such information; (g)
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complaints were timely. In granting relief on the supplemental complaints, ALJ Di
Nardi determined Anderson could sue under all seven environmental statutes. He
concluded that despite the difference in statutory language between them, all seven
statutes should be interpreted consistently to allow claims by employee
representatives. Based on his finding of discrimination, ALJ Di Nardi ordered
Metro to (1) expunge all negative references from Anderson’s personnel file
including the “highly threatening” April 16, 1997 letter from Plastino to Anderson,
(2) cease and desist from retaliating against Anderson and its employees because of
their protected activity, (3) provide a copy of the “Recommended Decision and
Order” to a number of different agencies and individuals as well as post it on its
website and in its facility, and (4) issue an apology to Anderson in a full page paid
ad in the Denver Post. (ALJ Di Nardi’s Sept. 18, 2001 Recommended Decision &
Order at 77.) Additionally, he awarded Anderson $150,000 in compensatory
damages, $150,000 in punitive damages (pursuant to 15 U.S.C. § 2622(b)(2)(B)(iv)
(TSCA) and 42 U.S.C. § 300j-9(i)(2)(B)(ii)(IV) (SDWA)), and $125,000 for
emotional distress. Metro appealed again to the ARB.
monitoring her activities and public statements; (h) circulating derogatory e-mails
and other communications about her; (i) subjecting her, via an April 16, 1997
letter, to a special disclaimer requirement which was not imposed on other Board
members, specifically Ted Hackworth; (j) communicating its desire to the Denver
Mayor’s office that she not be reappointed to the Metro Board, which resulted in
her failure to be reappointed.” (ALJ Di Nardi’s Sept. 18, 2001 Recommended
Decision & Order at 59.)
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On May 29, 2003, the ARB issued its “Final Decision and Order,” reversing
ALJ Di Nardi’s decision. It first concluded Anderson was not entitled to relief
under the ERA, SDWA, CAA, and TSCA because, unlike the other three statutes,
these statutes only provided a cause of action to employees not their authorized
representatives. 41 As to the CERCLA, SWDA and FWPCA, the ARB determined
Anderson had failed to prove she was an “authorized representative” of Metro
employees and therefore, failed to establish a necessary element of her claim under
the whistleblower statutes. This appeal followed.
III. Standard of Review
We review a decision by the ARB under the Administrative Procedure Act
(APA), 5 U.S.C. §§ 701-706. Trimmer v. United States Dep’t of Labor, 174 F.3d
1098, 1102 (10th Cir. 1999). Consequently, it will only be set aside if it is
41
Despite recognizing that the statutory language of the SDWA, CAA,
TSCA and ERA was similar and did not afford a separate cause of action to
authorized representatives of employees, the ARB actually denied relief under the
SDWA, CAA and TSCA because they “are not applicable to the facts in this
case.” (ARB’s May 29, 2003 Final Decision & Order at 8.) By this statement, it
appears the ARB believed the SDWA, CAA and TSCA were no longer at issue in
the case because Anderson had not appealed Decker’s initial failure to make
findings regarding them. Indeed, Anderson’s brief to the ARB was misleading.
On page six of her brief, Anderson states she seeks relief on appeal under the
CERCLA, SWDA, FWPCA and ERA. However, on page thirty-seven, she seeks
punitive damages under the SDWA and TSCA. It appears that despite any
statements to the contrary in her brief, Anderson’s appeal to the ARB involved all
seven environmental statutes. Nevertheless, the ARB did hold that the SDWA,
CAA and TSCA, like the ERA, did not provide whistleblower protection to non-
employees.
-39-
“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). The ARB’s factual determinations will only be set
aside if they are not supported by substantial evidence. § 706(2)(E). “Substantial
evidence is such relevant evidence a reasonable person would deem adequate to
support the ultimate conclusion.” Grubb v. F.D.I.C., 34 F.3d 956, 961 (10th Cir.
1994). We review matters of law de novo, providing Chevron deference to the
ARB’s construction of the environmental whistleblower statutes. Trimmer, 174
F.3d at 1102.
Under Chevron, we must first ask whether Congress has directly spoken to the
precise question at issue. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984). “If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43. If we determine Congress has not
directly spoken on the precise question at issue, i.e. the statute is silent or
ambiguous, we do not simply impose our own construction on the statute, but rather,
we must ascertain whether the agency’s interpretation is a permissible construction
of the statute. Id. at 843.
IV. Discussion
Before addressing the merits of this case, we must first decide whether
Anderson has waived her claims under the ERA, SDWA, CAA and TSCA. In her
-40-
opening brief, Anderson expressly states in a footnote that she is seeking relief on
appeal under the CERCLA, SWDA, FWPCA and ERA. Although she includes the
ERA in this footnote, she fails to assert any argument concerning the ARB II
panel’s 42 determination that the ERA only provides a cause of action to employees.
Based on these deficiencies, Metro argues Anderson has waived her claims under
the ERA, SDWA, CAA and TSCA.
After filing her opening brief, Anderson obtained new counsel. Her current
counsel has filed a Motion to Correct and/or Clarify Opening Brief on her behalf.
In this motion, Anderson contends her former counsel inadvertently omitted the
SDWA, CAA and TSCA and she never intended to waive the relief she was awarded
by ALJ Di Nardi under those statutes. She asserts this is evident in the conclusion
of her opening brief in which she requests affirmance of ALJ Di Nardi’s decision
“in its entirety.” (Anderson’s Amended Opening Br. at 29.) Anderson also points
out that none of the issue statements in her opening brief mention any particular
statute and because the scope of all seven environmental statutes is the same, her
arguments apply to them all. Lastly, as to her claims under the ERA, Anderson
maintains she did not waive them because she specifically stated in her opening
42
Because there were two ARB panels involved in this case, we will refer
to the ARB panel which issued the March 30, 2000 “Decision and Remand Order”
as “ARB I” or the “ARB I panel” and the ARB panel which issued the May 29,
2003 “Final Decision and Order” as “ARB II” or the “ARB II panel.”
-41-
brief she was seeking relief under the ERA and that the ARB II’s decision
concerning the ERA was erroneous.
Metro opposes Anderson’s motion. 43 It notes: (1) citations to the SDWA,
CAA and TSCA were not only omitted from Anderson’s opening brief but also from
the jurisdictional statement of her docketing statement and her statement of issues,
(2) because the ARB II panel’s denial of relief under the ERA, SDWA, CAA and
TSCA was based on a different ground than its denial under the other three statutes,
Anderson’s former counsel apparently made a strategic decision not to appeal under
the ERA, SDWA, CAA and TSCA, and (3) although Anderson raises the ERA in her
opening brief, she fails to identify as an issue or to even superficially challenge the
ARB II’s decision that the ERA does not provide a cause of action to employee
representatives.
The failure to raise an issue in an opening brief waives that issue. State Farm
Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). “An issue not
included in either the docketing statement or the statement of issues in the party’s
initial brief is waived on appeal.” Adams-Arapahoe Joint Sch. Dist. No. 28-J v.
Continental Ins. Co., 891 F.2d 772, 776 (10th Cir. 1989). Consistent with these
principles is the general rule that “appellate courts will not entertain issues raised
43
The Secretary of the DOL also filed a brief in this appeal. However,
because its position essentially mirrors that of Metro, we will refer to Metro only.
-42-
for the first time on appeal in an appellant’s reply [brief].” Headrick v. Rockwell
Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994). The reasons for this rule are
plain:
It robs the appellee of the opportunity to demonstrate that the record does not
support an appellant's factual assertions and to present an analysis of the
pertinent legal precedent that may compel a contrary result. The rule also
protects this court from publishing an erroneous opinion because we did not
have the benefit of the appellee's response.
Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000) (citation omitted).
Nevertheless, there are “circumstances in which a court may consider, or even raise
sua sponte, arguments ignored or left undeveloped by counsel in the first round of
briefing.” Herbert v. National Acad. of Sciences, 974 F.2d 192, 196 (D.C. Cir.
1992); see also Headrick, 24 F.3d at 1278. For example, we are always obligated to
consider our jurisdiction, regardless of whether or when the parties raise it.
Herbert, 974 F.2d at 196.
Here, despite Anderson’s failure to address the SDWA, CAA or TSCA or to
present any argument concerning the ERA in her opening brief, we will consider
these statutes on appeal, specifically, whether the ARB II panel erred in determining
they only provide relief to employees, not their authorized representatives. In doing
so, the reasons for our waiver rule will not be defeated. The parties adequately
briefed this issue during the administrative proceedings; thus, we have the benefit of
both parties’ position on the issue. The issue was also addressed by both ALJ Di
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Nardi and the ARB II panel. Further, because we agree with Metro that these
statutes only provide a remedy to employees, which we discuss next, Metro will not
be prejudiced. 44
A. Whether Anderson can proceed under the ERA, SDWA, CAA, TSCA
Before discussing whether Anderson can proceed under the ERA, SDWA,
CAA and TSCA, we pause briefly to address what we are not deciding in this case.
We are not deciding the propriety of Metro’s agreement to treat the Lowry effluent
or whether there is plutonium or other radionuclides present in the Lowry waste
stream. Our task is limited to ascertaining whether Anderson, as a Board director,
can proceed under the employee protection provisions of the environmental statutes.
We start with the ERA, SDWA, CAA and TSCA.
The employee protection provision of these statutes provide:
No employer may discharge any employee or otherwise discriminate
against any employee with respect to [his or her] compensation, terms,
conditions, or privileges of employment because the employee (or any
person acting pursuant to a request of the employee) [engaged in
protected activity].
See 15 U.S.C. § 2622(a)(TSCA); 42 U.S.C. §§ 300j-9(i)(1) (SDWA), 5851(a)(1)
(ERA), 7622(a) (CAA) (emphasis added). In contrast, the same provision under the
CERCLA, SWDA and FWPCA provide:
44
Consequently, we grant Anderson’s Motion to Correct and/or Clarify
Opening Brief and deny Metro’s Motion to Strike Anderson’s Reply Brief or in
the Alternative to File a Sur-Reply.
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No person shall fire, or in any other way discriminate against, or cause
to be fired or discriminated against, any employee or any authorized
representative of employees by reason of the fact that such employee or
representative [engaged in protected action under this statute].
See 33 U.S.C. § 1367(a) (FWPCA); 42 U.S.C. §§ 6971(a) (SWDA), 9610(a)
(CERCLA) (emphasis added). The remedial provisions of the seven statutes are
also dissimilar. While the CERCLA, SWDA and FWPCA provide a remedy for
either an employee or an employee’s representative, 45 the ERA, SDWA, CAA and
TSCA expressly provide a remedy only to an employee. 46
Although recognizing the difference in their statutory language, ALJ Di Nardi
nevertheless concluded Anderson was covered under all seven environmental
45
These statutes provide:
Any employee or a representative of employees who believes that he
has been fired or otherwise discriminated against by any person in
violation of subsection (a) of this section may . . . apply to the
Secretary of Labor for a review of such firing or alleged
discrimination. . . .
See 33 U.S.C. § 1367(b) (FWPCA); 42 U.S.C. §§ 6971(b) (SWDA), 9610(b)
(CERCLA) (emphasis added).
46
These statutes state:
Any employee who believes that [he or she] has been discharged or
otherwise discriminated against by any person . . . may . . . file (or
have any person file on his behalf) a complaint with the Secretary of
Labor. . . alleging such discharge or discrimination . . . .
See 15 U.S.C. § 2622(b)(1) (TSCA); 42 U.S.C. §§ 300j-9(i)(2)(A) (SDWA),
5851(b)(1) (ERA), 7622(b)(1) (CAA) (emphasis added).
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statutes. He determined all seven statutes should be interpreted consistently based
on (1) Congress’ intent to protect employee representatives, (2) the legislative
history, and (3) the fact the DOL has administered and interpreted all seven statutes
through a single uniform body of regulations, specifically, 29 C.F.R. Part 24.
Therefore, he concluded the language “any person acting pursuant to a request of
the employee” in the ERA, SDWA, CAA and TSCA should be construed to allow
claims by employee representatives. The ARB II panel disagreed. Relying on the
plain meaning of the statutory language, it concluded that even if “any person acting
pursuant to a request of the employee” has the same meaning as “authorized
representative,” the ERA, SDWA, CAA and TSCA do not provide a cause of action
for “any person acting pursuant to a request of the employee” but rather only to the
employee. Therefore, it determined “Congress must have intended that only
employees would be entitled to file a claim” under these statutes. (ARB’s May 29,
2003 Final Decision & Order at 8.) Consequently, it concluded Anderson was
precluded from seeking relief under these statutes.
In her reply brief, Anderson advocates ALJ Di Nardi’s position. She claims
that while the standing provisions of the ERA, SDWA, CAA and TSPA are different
from those contained in the CERCLA, SWDA and FWPCA, the legislative purpose
behind each is the same and thus all seven statutes should be construed consistently
to permit employee representatives to seek protection under them. She alleges the
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ARB II’s decision to the contrary is unreasonable given the remedial purpose of
these statutes and the DOL’s singular uniform body of regulations implementing
them. Although Metro did not address this issue in its responsive brief (due to
Anderson’s failure to raise it in her opening brief), its position is no mystery given
its briefing during the administrative proceedings. It contends the statutory
language and legislative history of the ERA, SDWA, CAA and TSPA demonstrate
that employee representatives are not protected under these acts. Additionally, it
asserts that because of the significantly different language between these statutes
and the CERCLA, SWDA and FWPCA, it is clear Congress intended them to have
different meaning.
“Our analysis of statutory construction must begin with the language of the
statute itself, and [absent] a clearly expressed legislative intention to the contrary,
that language must ordinarily be regarded as conclusive.” NISH v. Rumsfeld, 348
F.3d 1263, 1268 (10th Cir. 2003) (citations and quotations omitted).
As in all statutory construction cases, we begin with the language of the
statute. If the statutory language is not ambiguous, and the statutory
scheme is coherent and consistent, further inquiry is unneeded. The
plainness or ambiguity of statutory language is determined by reference
to the language itself, the specific context in which that language is
used, and the broader context of the statute as a whole.
In re Wise, 346 F.3d 1239, 1241 (10th Cir. 2003) (citations and quotations omitted).
See also Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 253-54 (1992)
(“[C]ourts must presume that a legislature says in a statute what it means and means
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in a statute what it says there.”).
Here, the plain language of the ERA, SDWA, CAA and TSCA is clear – while
the ERA, SDWA, CAA and TSCA prohibit discrimination based on an employee’s
or his representative’s protected activity, the discrimination must be directed toward
the employee and it is the employee, not his representative, which is clothed with a
cause of action for that discrimination. Anderson was not Metro’s employee. 47
Therefore, further inquiry is inappropriate. Moreover, “[w]here Congress includes
particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Russello v. United States , 464 U.S. 16, 23
(1983) (quotations omitted). Although this rule does not strictly apply here because
the seven whistleblower statutes are not all part of the same Act, its reasoning is
instructive. Based on the language of the CERCLA, SWDA, and FWPCA, Congress
knew how to provide whistleblower protection to employees and “authorized
representatives of employees.” Therefore, the absence of such similar language in
the other four statutes is telling.
In concluding Anderson was covered under the ERA, SDWA, TSCA and
CAA, ALJ Di Nardi relied in part on the uniform regulations applicable to all seven
Anderson argued to the ARB II panel she was Metro’s “employee.” The
47
ARB II rejected this argument, noting it was in direct conflict with previous
concessions Anderson made. Anderson has not repeated this argument on appeal.
-48-
statutes. Although this is true, see 29 C.F.R. § 24.1(a), (b), 48
the regulations only
proscribe discrimination against an employee, § 24.2(a), and only confer a cause of
action for such discrimination on the employee. See § 24.3(a) (“ [A]n employee who
believes he or she has been discriminated against by an employer . . . may file, or
have another person file on his or her behalf, a complaint . . . .”) (emphasis added).
Indeed, the regulations substantially mirror the language of the ERA, SDWA, CAA
and TSCA. Therefore, the mere fact one set of implementing regulations applies to
all seven statutes does not override the plain language of the ERA, SDWA, TSCA
and CAA which provides relief only to employees.
Based on the above, we affirm the ARB II’s determination that Anderson
cannot proceed under the ERA, SDWA, TSCA or CAA. We now turn to whether
Anderson was an “authorized representative of employees” under the CERCLA,
SWDA, and FWPCA while serving as a director on Metro’s Board.
48
29 C.F.R. § 24.1(a), (b) provides:
(a) This part implements the several employee protection provisions for
which the Secretary of Labor has been given responsibility pursuant to the
following Federal statutes: [SDWA, FWPCA, TSCA, SWDA, CAA, ERA
and CERCLA].
(b) Procedures are established by this part pursuant to the Federal statutory
provisions listed in paragraph (a) of this section, for the expeditious
handling of complaints by employees, or persons acting on their behalf, of
discriminatory action by employers.
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B. Whether Anderson is an “authorized representative of employees” under
CERCLA, SWDA, and FWPCA
In order to establish a prima facie claim of discrimination under the employee
protection provisions of the CERCLA, SWDA and FWPCA, Anderson must show:
(1) she is an employee or authorized representative of employees, (2) she engaged in
protected activity; (3) Metro knew of the protected conduct; (4) the alleged
discrimination occurred; and (5) a nexus exists making it likely that the protected
activity led to the alleged discrimination. See Simon v. Simmons Foods, Inc. , 49
F.3d 386, 389 (8th Cir. 1995). Applying the parameters set forth by the ARB I
panel to the term “authorized representative of employees,” the ARB II panel
concluded Anderson failed to prove she was an “authorized representative” of Metro
employees or OCAW and therefore, failed to establish an essential element of her
claim under the CERCLA, SWDA, and FWPCA.
In reaching this decision, the ARB II panel first determined Anderson could
not, as a matter of law, “represent” employees as a Board director because (1) the
Colorado statutes governing Metro only authorize directors to represent the citizens
of the appointing municipality, not a particular interest group or segment of society,
(2) Metro’s by-laws, which define the duties of a director, do not refer to a
director’s representation of employees and specifically require a director’s recusal
on matters in which the director has a personal or private interest, thereby strongly
indicating that a director may not serve two masters, and (3) Mayor Webb appointed
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Anderson to serve on the Board as the City of Denver’s representative and his
motivation for the appointment did not confer on her the legal authority to act as an
authorized representative of employees. The ARB II panel further concluded
Anderson did not establish by a preponderance of the evidence that Metro
employees or OCAW officials “authorized” her to be their representative during her
tenure on the Board. It found “Anderson was, at best, self-authorized.” (ARB May
29, 2003 Final Decision & Order at 13.) It also discounted the testimony of Ferrari,
Farmer, Holmstrom and other individuals associated with OCAW that Anderson was
the OCAW’s or its employees’ representative, concluding that “none of [these
individuals’] personal states of mind conferred any authority on Anderson to be
OCAW’s authorized representative.” ( Id. at 16.) In conclusion, the ARB II stated:
“[T]he union’s wishes and public perceptions did not confer ‘authorized
representative’ status [on Anderson], any more than one’s affinity for political
discourse makes one an official representative of a particular point of view or being
sympathetic to a particular point of view gives the sympathizer the authority to act
as an agent for one similarly inclined.” ( Id. at 17-18.)
Anderson challenges the ARB II panel’s decision in several respects. First,
she asserts that by requiring “legal” authority, rather than merely a simple request
by employees to represent them, the ARB II’s decision was unduly narrow, thereby
violating the broad remedial purposes of the statutes and directly conflicting with
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the ARB I panel’s construction of the term “authorized representative of
employees.” Anderson further maintains that nothing in the Colorado statutes or
Metro’s by-laws prohibited her from representing workers’ interests while serving
as a director. Lastly, she asserts the evidence clearly established that individual
Metro employees, groups of Metro employees and OCAW repeatedly requested her
to speak and act on their behalf concerning environmental, public and worker safety
issues. Therefore, she contends the ARB II’s decision to the contrary is not
supported by substantial evidence.
Metro argues we should affirm the ARB II’s decision in its entirety. While
conceding that directors may presumably advocate on behalf of a particular interest,
Metro contends the Colorado statutes and Metro by-laws clearly provide that Board
directors are representatives of the citizens of their appointing municipality. It
contends the mere fact Anderson was sympathetic to OCAW’s position and may
have harbored labor-friendly views did not make her OCAW’s “authorized
representative” any more than a United States Senator endorsed by the AFL-CIO is
that union’s representative. Metro further maintains that substantial evidence
supports the ARB II’s decision that Anderson failed to prove she was an “authorized
representative” of Metro employees or OCAW. It points out that no documentation
from the OCAW identifying her as its representative exists and none of the
communications from OCAW officials to Metro or the public refer to Anderson as
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OCAW’s representative. Metro also contends the ARB I panel’s decision is
irrelevant because it is the ARB II decision which is being reviewed and in any
event, the two decisions are not inconsistent. Lastly, Metro asserts Anderson’s
whistleblower complaints merely represent the friction that existed between her and
her fellow Board members who held contrary views. It maintains the environmental
whistleblower statutes were not intended to encompass claims by political
appointees challenging discord in the legislative and policy-making process.
Before we can determine whether the ARB II panel correctly found that
Anderson was not an “authorized representative of employees,” we must first define
that term. The statutes and implementing regulations do not define the term nor
does case law provide any guidance. Below, the ARB II panel relied on the ARB I
panel’s interpretation of “authorized representative.” The ARB I panel examined
not only the statutes’ plain language but also their legislative history. Because the
legislative history of the FWPCA (the forerunner of the environmental
whistleblower statutes) indicated its employee protection provision was patterned
after the National Labor Management Act (NLMA) and a similar provision in the
Coal Mine Health and Safety Act (CMHSA), see S. R EP . N O . 92-414 (1971),
reprinted in 1972 U.S.C.C.A.N. 3668, 3748, the ARB I panel began its analysis with
these statutes. The NLMA’s employee protection provision (29 U.S.C. § 158(a)(4))
does not include the phrase “authorized representative of employees.”
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Consequently, the ARB I panel turned to the CMHSA’s employee protection
provision (which did prohibit discrimination against “any authorized representative
of miners”) and its legislative history. 49
This history explained the meaning of
“representative of the miners” as including “any individual or organization that
represents any group of miners at a given mine [and] does not require that the
representative be a recognized representative under other labor laws.” C ONF . R EP .
N O . 91-761 (1969), reprinted in 1969 U.S.C.C.A.N. 2578, 2582. Relying on this
definition and the remedial nature of the environmental whistleblower statutes, the
ARB I panel concluded “authorized representative of employees” under the
CERCLA, SWDA and FWPCA should be given a comparably broad meaning.
Therefore, it concluded Anderson was an “authorized representative of employees”
if a Metro employee, group of Metro employees or a union requested or selected her
to speak or act for the employee, group of employees or union within the purview of
the CERCLA, SWDA or FWPCA. Although the ARB II relied on the ARB I’s
The ARB I panel relied on the CMHSA as it existed when it was first
49
enacted in 1969. See Federal Coal Mine Health and Safety Act of 1969, Pub. L.
No. 91-173, § 110(b)(1), 1969 U.S.C.C.A.N. 823, 841. The current version of the
employee protection provision of the CMHSA does not contain the word
“authorized.” See 30 U.S.C. § 815(c)(1), (2). Its implementing regulations,
however, define “representative of miners” as including “[r]epresentatives
authorized by the miners, miners or their representative, authorized miner
representative, and other similar terms as they appear in the act.” 30 C.F.R. §
40.1(b)(2).
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construction of “authorized representative,” it focused on the word “selection,”
concluding that the ARB I’s use of this word suggested there must be some tangible
act of selection by employees in order for one to be an “authorized representative of
employees.”
In reviewing the ARB II’s 50
construction of the term “authorized
representative of employees,” our first step under Chevron is to determine whether
Congress’ intent is clear; if so, we must give effect to that intent. Chevron , 467
U.S. at 842-43. To determine whether Congress had an intent on the precise
question at issue, courts utilize the traditional tools of statutory construction,
including the statutory language and legislative history. Id. at 843 n.9; see also
State of Utah v. Babbitt , 53 F.3d 1145, 1148 (10th Cir. 1995). Here, the plain
meaning of “authorized” is “1: [gave] authority to: empower[ed][;] 2: [gave] legal or
official approval to . . .[;] 3: [established] by or as if by authority: sanction[ed].”
W EBSTER ’ S C OLLEGE D ICTIONARY 59 (2003). Black’s Law Dictionary defines it as:
“1. [gave] legal authority; . . . empower[ed] . . . 2. [] formally approve[d]; . . .
50
Anderson argues inter alia that the ARB II’s decision should be reversed
because its construction of “authorized representative” directly conflicts with the
ARB I panel’s construction of that term, thereby implying it violates the law of
the case doctrine. However, our review is of the ARB II’s decision and
therefore, its construction of the term is the one we examine. Additionally, we
have found no cases applying the law of the case doctrine between administrative
courts. In any event, the ARB II reasonably construed the ARB I’s use of the
word selection as requiring some tangible act of selection.
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sanction[ed] . . . .” B LACK ’ S L AW D ICTIONARY 129 (7th ed. 1999). The plain
meaning of “representative” is “standing or acting for another especially through
delegated authority . . . .” W EBSTER ’ S C OLLEGE D ICTIONARY 762 (2003). Black’s
Law Dictionary defines it as “[o]ne who stands for or acts on behalf of another. . . .”
B LACK ’ S L AW D ICTIONARY 1304 (7th ed. 1999). Therefore, based solely on the
statutory language used, the term “authorized representative” appears to require
some sort of tangible delegation to act in one’s shoes.
We next turn to the legislative history. The legislative history of the FWPCA,
the forerunner of the CERCLA and SWDA, states the purpose of its employee
protection provision was to “offer[] protection to employees who believe they have
been fired or discriminated against as a result of the fact they have testified or
brought suit under [the FWPCA].” S. R EP . N O . 92-414 (1971), reprinted in 1972
U.S.C.C.A.N. 3668, 3748 (emphasis added). It further provides:
[The employee protection provision was] patterned after the [NLMA]
and a similar provision in Public Law 91-173 [the CMHSA of 1969] . .
. . Under this section employees and union officials could help assure
that employers do not contribute to the degradation of our environment.
Any worker who is called upon to testify or who gives information with
respect to an alleged violation of a pollution control law by his
employer or who files or institutes any proceeding to enforce a
pollution control law against an employer may be subject to
discrimination. The section would prohibit any firing or discrimination
and would provide an administrative procedure under which the
employee or his representative could seek redress for any violation of
this prohibition. . . .
Id. (emphasis added).
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The employee protection provision of the CMHSA of 1969 (Public Law 91-
173) prohibited discrimination against “any miner or any authorized representative
of miners” and provided a remedy for “any miner or a representative of miners.”
See Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-173, §
110(b)(1), (2), 1969 U.S.C.C.A.N. 823, 841. Its legislative history defined
“representative of miners” as including “any individual or organization that
represents any group of miners at a given mine [and] does not require that the
representative be a recognized representative under other labor laws.” C ONF . R EP .
N O . 91-761 (1969), reprinted in 1969 U.S.C.C.A.N. 2578, 2582. The NLMA
contains a provision describing unfair labor practices by an employer. One such
practice is “to discharge or otherwise discriminate against an employee because he
has filed charges or given testimony . . . .” 29 U.S.C. § 158(a)(4) (emphasis added).
Its definitions section defines “representatives” as “includ[ing] any individual or
labor organization.” 29 U.S.C. § 152(4).
Unlike the ARB I panel, we find the legislative history not particularly
helpful in ascertaining Congress’ intent. Although the CMHSA of 1969 utilized the
term “authorized representative of miners,” its legislative history only defined
“representative of the miners.” Additionally, the NLMA does not prohibit
discrimination against employee representatives and its definition of
“representative” does not include the word “authorized.”
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Based on the above, although the plain meaning of the words provides some
guidance, we conclude Congress’ intent in using the term “authorized
representative” is far from clear. For instance, even applying the plain meaning of
the terms, Congress could have intended to protect only individuals employed by a
union or those individuals under contract to represent an employee or group of
employees, i.e. an attorney or union. Therefore, under Chevron , our inquiry
becomes whether the ARB II’s construction of “authorized representative” is a
permissible one. Under this standard, “[t]he agency’s interpretation need not be the
only one it could have adopted, or the one that this court would have reached had
the question initially arisen in a judicial proceeding.” See Salt Lake City v. Western
Area Power Admin. , 926 F.2d 974, 978 (10th Cir. 1991). Based on the statutory
language and the legislative history of the statutes, we conclude the ARB II’s
construction of “authorized representative” to require some sort of tangible act of
selection is a permissible one.
We now turn to the ARB II’s conclusion that Anderson failed to show she was
an “authorized representative of employees” while serving as a Board director. 51
As
stated previously, the ARB II panel’s decision contained a legal and factual
51
In her reply brief, Anderson argues for the first time that even if she was
not an “authorized representative” while a director, she was such representative
after she was “removed” from the Board in June 1998. Due to her failure to raise
this argument in her opening brief, we consider it waived. State Farm Fire &
Cas. Co., 31 F.3d at 984 n.7.
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component. Therefore, under the APA, our review of the legal issue is de novo; we
review its factual findings to determine whether they are supported by substantial
evidence. Trimmer , 174 F.3d at 1102 (citing 5 U.S.C. § 706(2)).
We agree with the ARB II that as a Board director, Anderson could not, as a
matter of law, “represent” Metro employees or OCAW because she was legally
required to represent the citizens of Denver, not any particular segment of society or
a particular interest group. We further agree that any political motivation behind
her appointment to the Board is irrelevant. We also conclude the ARB II’s factual
conclusion that Anderson failed to prove she was “authorized” to represent Metro
employees or OCAW while on the Board is supported by substantial evidence. As
the ARB II stated, Anderson’s evidence of authorization amounted to self-
authorization at best. Additionally, none of the individuals who testified in favor of
Anderson’s alleged “authorized representative” status could point to any
documentation placing Metro on notice that Anderson’s appointment to the Board
was any different than any other director’s appointment. Indeed, Anderson testified
there was none. Merely seeking a director sympathetic to one’s views is insufficient
to demonstrate a delegation of representative authority. 52
In addition to the ARB II’s well-reasoned conclusions, the nature of
52
We express no opinion as to whether a letter, similar to the one Ferrari
sent Mayor Webb seeking Anderson’s appointment to the Board, would be
sufficient in a different context to authorize an individual to represent employees.
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Anderson’s complaints demonstrate she is not entitled to protection under the
environmental whistleblower statutes. Anderson claims inter alia that Metro
discriminated against her by cutting her off or ruling her out of order at meetings,
denying her requests to distribute material and for a special Board meeting,
subjecting her to a special disclaimer requirement when making public statements
and threatening her with censure if she did not do so, omitting allegedly relevant
actions in Board meeting minutes, seeking that she not be reappointed to the Board,
and defending its position on Lowry to the media and public, which included
defaming her and destroying her personal reputation. We have difficulty
understanding how those complaints amount to “discrimination” from which these
statutes afford protection. While frustrating and unpleasant, the matters about
which she complains appear to be part of the rough and tumble of politics and the
by-product of a minority position on a political board.
A political remedy is best suited to a political wrong. The political process
brought Anderson to the Board and she obviously understands its role in board
dynamics and decision-making. In concert with others she publically advocated her
position, advertised her disagreement with past decisions, and made her differences
with the Board a matter of public debate. Clearly, she hoped to rally public opinion
to her point of view and thereby influence the Board’s decisions. Just as clearly,
that is her right. Public service should encourage, not muzzle, public debate. On
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the other hand, Anderson should not have been surprised when bare knuckles were
met with bare knuckles. And when the gloves came off bloody knuckles as well as
bloody noses were exposed to public view and comment. Her claims that she
suffered disparate, even disparaging, treatment was rightfully part of her very public
campaign to win the hearts and minds of the greater Denver citizenry. 53
But it does
not follow that her political wounds need be met with healing balm in this forum.
She has pointed to no case, and we can find none, layering whistle-blower
protections on an overtly political process such as this. That is not surprising.
Selectively providing the insulating blanket of whistle-blower protection to one
political appointee on a public board might well disadvantage other board members
and alter group dynamics; assuredly it would impact the Board’s decision-making
process. Anderson might embrace that as wholesome. But fairness, like beauty, is
often a matter of perspective.
Our detailed review of the record reveals Anderson’s perspective to be quite
narrow. While complaining that Metro made defamatory remarks against her, she
53
For example, in the article “Radioactive Sludge,” which was published
April 26, 1997, in In These Times, Anderson is quoted as saying: “I was chided
for informing workers at Metro about the plan. . . . The board chairman told me
that there were board members who thought I was being devious for looking into
this issue.” (Anderson’s Vol. III-A, Ex. 51 at 1-2 (quotations omitted)).
Additionally, in the article “Sister Sludge,” which appeared in the Westward on
July 24, 1997, Anderson is quoted as follows: “[Metro] is a cesspool of threats
and intimidation. . . . [It] launched a defamation campaign to portray me as a
wacko.” (Id., Ex. 66 (quotations omitted)).
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fails to acknowledge her own statements to the media accusing Hite of lying and
describing Metro as a “cesspool of threats and intimidation.” (Anderson’s Vol. III-
A, Ex. 66.) Apparently, Anderson believes Metro should have just sat back and
allowed her to make such statements without defending itself, in particular its
position on Lowry. This skewed perspective is readily apparent from Anderson’s
April 20, 2001 deposition, where the following exchange occurred between Metro’s
counsel and Anderson:
Q. Before we broke for lunch, you talked about Mr. [Frank’s] references . .
. to you as a dissident board member, and he also said that you weren’t
telling the truth. Do you recall that testimony?
...
A. Yes.
Q. And you seem offended by that.
A. Yes.
Q. In the “Sister Sludge” article . . . you say that Marc Herman [from the
EPA] is lying in an effort to save the government money. Did you tell
that to [the author]?
A. Yes, I did.
Q. Is that defamation?
A. No.
Q. Because you’re telling the truth, aren’t you?
A. Yes, and he is not.
(Anderson’s Apr. 20, 2001 Depo. at 74-75.)
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The essence of Anderson’s complaints is that the Board would not listen to
her. However, the record demonstrates numerous instances where Anderson was
given the opportunity to be heard by the Board. For instance, Anderson was allowed
to be heard at the December 1996 Operations committee meeting in which she
informed the committee that she would be speaking out against Metro’s treatment of
the Lowry effluent. She was also allowed to speak against Plastino’s proposed
resolution at the April 15, 1997 Board meeting. Additionally, Anderson’s request for
a special Board meeting was mailed to all directors and she frequently distributed
materials to directors at meetings. Anderson was also allowed to be heard at the
August 1997 Operations committee meeting concerning alleged omissions in the
committee meeting minutes and the propriety of tape-recording the meetings. She
was permitted to speak out against the Lowry settlement at the June 17 and July 15,
1997 meetings and again at the November 18, 1997 and June 16, 1998 meetings,
where she voiced her concerns that Metro’s treatment of the Lowry effluent would
affect the quality of its bio-solids. Moreover, Anderson was always allowed to vote
“no” on any issue before the Board with which she disagreed and she exercised this
right on a number of occasions. With boundless energy, and enthusiasm to match,
Anderson appears to believe that one who listens carefully will not only hear, but
also heed, her words. Her unbridled zeal demands attention without regard to
correlative rights; one board member’s right to speak is no more potent than another
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member’s right to lend a deaf ear.
The ARB II panel correctly concluded Anderson lacked standing to sue under
the CERLCA, SWDA, and FWPCA.
V. Conclusion
We GRANT Anderson’s Motion to Correct and/or Clarify Opening Brief and
the Secretary of Labor’s unopposed Motion to Supplement the Record. Concluding
Anderson has no standing to pursue her whistleblower complaints under the
CERCLA, SWDA, FWPCA, ERA, SDWA, CAA and TSCA, we AFFIRM the ARB II
panel’s May 29, 2003 Final Decision and Order in its entirety. Based on this
conclusion and finding no prejudice to Metro, we DENY Metro’s Motion to Strike
Anderson’s Reply Brief or in the Alternative to File a Sur-Reply.
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Anderson v. United States Department of Labor
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-09-02
Citations: 422 F.3d 1155, 422 F.3d 1155, 422 F.3d 1155
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