United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 15, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60028
JOHN R. WILLIAMS, JOE MCQUAY,
NORMAN OLGUIN, GILBERT RODRIGUEZ,
TOM BYRD, AND STEPHEN SOTTILE
Petitioners,
v.
ADMINISTRATIVE REVIEW BOARD,
UNITED STATES DEPARTMENT OF LABOR,
Respondent.
Petition for Review of Final Order of the
Administrative Review Board of the
United States Department of Labor
Before REAVLEY, DAVIS and DeMOSS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Employees of Mason & Hanger Corporation (“Mason”) sued under
42 U.S.C. § 5851 alleging they were subjected to a hostile work
environment in retaliation for their whistle-blowing activities.
The Administrative Review Board, United States Department of Labor
(“ARB”), denied recovery to the plaintiffs. We conclude that the
ARB erred in finding that the standard developed by the Supreme
Court in Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) was not
applicable to hostile work environment cases brought under 42
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U.S.C. § 5851 where no adverse personnel action was taken.
However, even under the Ellerth-Faragher standard we conclude that
the ARB did not err in denying recovery to the plaintiffs.
I.
This action arises under the employee protection provision of
the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851
(1994) (“ERA”). The six plaintiffs in this case, John R. Williams
(“Williams”), Joe McQuay (“McQuay”), Norman Olguin (“Olguin”),
Gilbert Rodriguez (“Rodriguez”), Tom Byrd (“Byrd”), and Steven
Sottile (“Sottile”) allege that the Mason & Hanger Corporation
(“Mason”) subjected them to a hostile work environment in
retaliation for engaging in activities protected under the ERA.
Between October 1995 and November 1996 the plaintiffs worked
as Production Technicians (“PTs”) at the Pantex plant in Amarillo,
Texas, on what was called the W55 program. The W55 program had as
its purpose the disassembly of a specific type of outdated nuclear
weapon. Mason owns and operates the Pantex plant in Amarillo and
had contracted with the United States Department of Energy (“DOE”)
to run the W55 program.
In order to determine the safest, most efficient means of
disassembly, scientists, engineers, and other plant experts worked
initially on a dummy weapon to develop detailed procedures for
disassembly of the weapon. These procedures are known as Nuclear
Explosives Operating Procedures (“NEOPs”). The initial PT team,
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known as the A Group, was heavily involved in formulating the W55
NEOPs. The A Group had been randomly selected because they were
PTs who were immediately available to work on the W55; they had not
been selected to participate in development of the W55 NEOPs based
on any particular experience or qualifications. After the NEOPs
were developed, the A Group proceeded to dismantle a small group of
weapons called the pilot lot. While the A Group was working on the
pilot lot, a second team of PTs, the B Group, received training in
the W55 NEOPs using a dummy weapon. Near the completion of the
pilot lot by the A Group, the B Group was brought in to join the A
Group in dismantling weapons. The six plaintiffs in this case
worked in the B Group.
DOE guidelines and plant policy encourage PTs to provide input
regarding NEOPs development. In addition, if, in the judgment of
one or more PTs, a safety issue makes it unnecessarily risky to
proceed, PTs may exercise their “stop-work authority” to halt
disassembly on a unit. The PTs took this authority very seriously
and it was not exercised capriciously. Pantex had also established
an Employee Concerns Program (“ECP”) through which employees could
report safety concerns or other grievances. The ECP was under the
direct supervision of the plant manager in order to ensure its
separation from the ususal chain of command.
According to an investigative report drafted by Pantex Plant
Management (“Pantex Management”), the animosity between A and B
groups began when, during training, the B Group, some of whom had
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extensive experience with nuclear weaponry, requested changes to
the W55 process. Those changes were approved by Pantex Management.
When the A Group applied the new procedures in the W55 work bay,
however, problems developed. After the B Group completed training
and started work on actual weapons, they began to raise various
concerns about the process itself and questioned whether some of
the A Group PTs and first-line supervisors1 failed to comply with
safety guidelines. Over the course of the W55 program, Pantex
Management agreed with and acted upon many of the nuclear safety
concerns the plaintiffs raised.
With hostility increasing, the W55 Pantex Management arranged
safety meetings with program staff from February 27-29, 1996. The
meetings were held to discuss the growing concerns raised by the
plaintiffs. At the last of those meetings Pantex Management
scheduled a re-tooling session for the following day to address
concerns raised by the B Group. After the meeting, two of the A
Group PTs spoke with Kathleen Herring (“Herring”), the W55 program
director, who took them to meet with plant manager William
Weinreich (“Weinreich”). The A Group PTs complained that the B
Group was impugning the A Group’s reputation for safety.
On March 4, 1996, hostilities between the PTs culminated in a
confrontation between plaintiff Williams and Renee Stone, a member
1
PTs working on the W55 were subject to direction from four
lower level managers - a Program Manager, an Operations
Coordinator, and two Operations Managers who served as first-line
supervisors.
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of the A Group. On March 6, 1996 the A Group PTs met with Pantex
Management and asked that Williams be removed from the program.
Pantex Management did remove Williams from the W55 program, but
only on a temporary basis while an internal team investigated the
cause of the hostilities. After the internal investigation was
completed, Pantex Management directed one of its managers, John
Rayford (“Rayford”), to analyze the hostilities problem and
recommend how it could be avoided in the future. In April, Pantex
Management acted on Rayford’s report. Specifically, they closed
down W55 operations, scheduled training in effective human
interaction and teamwork for the entire program staff, and
conducted a line-by-line review of the NEOPs. Dozens of changes
were made to the W55 process as a result of the NEOPs review.
Pantex Management also decided to separate the A and B Groups,
believing separation would reduce friction. Williams returned to
the W55 program after the teamwork training and NEOPs review and,
given the remedial measures taken by Pantex Management, the
hostility among co-workers was less pronounced.
During the remainder of the time that the plaintiffs worked on
the W55 program, May to December 1996, the focus of workplace
conflicts changed from incidents among the two PT groups to
incidents between the B Group and lower level management. These
exchanges usually involved disputes between the plaintiffs and
first- or second-level supervisors regarding compliance with
nuclear safety guidelines.
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In July 1996 Williams filed an ERA complaint with the
Occupational Safety and Health Administration (“OSHA”) claiming
that he had been subjected to a hostile work environment in
retaliation for his whistle-blowing activities. In September,
Mason engaged an outside consultant to conduct an investigation of
several issues Williams had raised concerning the W55. That report
was released in late September. Williams testified that hostility
toward him increased during the investigation, and that it worsened
in November after OSHA issued a decision in his favor on his ERA
complaint. With the W55 program nearing completion, Olguin and
Byrd were transferred to another program in early November.
Williams quit work following a heated exchange with his first-line
supervisor, Paul Harter (“Harter”), in late November. In early
December, McQuay, Sottile and Rodriguez were ordered to perform
custodial work on an interim basis before ultimately being
transferred to a different weapons program.
Plaintiffs individually sought relief from Mason for the
hostile work environment under the whistle-blower provision of 42
U.S.C. § 5851. In response Mason requested a hearing before an
administrative law judge (“ALJ”). Pursuant to the employer’s
unopposed motion the plaintiff’s claims were consolidated and the
ALJ held an evidentiary hearing. The ALJ issued a Recommended
Decision and Order denying all of the plaintiffs claims. The ARB
fully reviewed the ALJ’s decision and issued a Final Decision and
Order which concurred with the prior result but disagreed with the
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ALJ’s hostile work environment analysis. Plaintiffs appealed the
ARB’s decision directly to this Court in accord with 42 U.S.C. §
5851(c)(1).
II.
Appellate review of administrative decisions arising under the
ERA is governed by the standard established in the Administrative
Procedure Act, 5 U.S.C. § 706. See 42 U.S.C. 5851(c)(1). Under
that standard, the decision of the ARB will be upheld unless it is
“arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law.” Macktal v. United States Dep’t of Labor, 171
F.3d 323, 326 (5th Cir. 1999); 5 U.S.C. § 706(2)(A). Factual
findings are subject to substantial evidence review. 5 U.S.C. §
706(2)(E). Under the substantial evidence standard, the ARB’s
decision must be upheld if, considering all the evidence, a
reasonable person could have reached the same conclusion as the
ARB. Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996).
Substantial evidence is “more than a mere scintilla but less than
a preponderance.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.
1995). Agency interpretations of circuit law, however, are
reviewed de novo. Macktal, 171 F.3d at 326.
III.
Plaintiffs first argue that they have raised a valid hostile
work environment claim under the ERA whistle-blower statute, and
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that the ARB erred in denying that claim by applying the incorrect
standard for establishing employer liability for that hostile
environment.2 The respondent argues that the ARB used the correct
standard for establishing a hostile work environment claim, but
that even under the standard proposed by the plaintiffs employer
Mason has no liability to the plaintiffs.
A.
The ERA prohibits employers from discriminating against any
employee “with respect to his compensation, terms, conditions, or
privileges of employment” because the employee engaged in protected
whistle-blowing activity. 42 U.S.C. § 5851(a). In 1992, Congress
inserted into the ERA an independent burden-shifting framework to
be used in determining employer liability in claims brought under
§ 5851. See 42 U.S.C. § 5851(b)(3)(A); Trimmer v. U.S. Dept. of
Labor, 174 F.3d 1098, 1101 (10th Cir. 1999). This framework
requires the employee to show, inter alia, that he suffered an
adverse employment action as a result of his whistle-blowing
activity. Hasan v. U.S. Dept. of Labor, 298 F.3d 914, 916 (10th
Cir. 2002) (finding that an employee must show he (1) engaged in
protected conduct, (2) employer was aware of this conduct, (3)
2
Plaintiffs also argue that even under the purportedly
incorrect standard applied by the ARB, vicarious liability for
the hostile work environment does attach.
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employer took adverse action because of the protected conduct).3
Hostile work environment claims, however, generally result from
discrimination that does not culminate in a tangible or adverse
employment action, Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 764-65 (1998), and this case is no exception.4 On its face
this appears to be at odds with the statutory text, and we invited
the parties to brief the issue of whether the plaintiffs could
state a claim under the ERA for a hostile work environment that did
not culminate in an unfavorable personnel action. The parties
3
Section 5851(b)(3) provides that the Secretary may not
conduct an investigation into the complaint “unless the
complainant has made a prima facie showing that [the employee’s
protected activity] was a contributing factor in the unfavorable
personnel action alleged in the complaint.” 42 U.S.C. §
5851(b)(3)(A) (emphasis added). Even if the complainant makes
this showing, the Secretary still cannot conduct an investigation
into the complaint if the “employer demonstrates, by clear and
convincing evidence, that it would have taken the same
unfavorable personnel action in the absence of [the employees
protected behavior].” 42 U.S.C. § 5851(b)(3)(B) (emphasis
added). If the plaintiff survives the initial “gatekeeper” test,
the case proceeds to a hearing before Secretary. Stone &
Webster, 115 F.3d at 1572. The complainant must again
demonstrate that the protected activity was a contributing factor
in the unfavorable personnel action alleged in the complaint,”
except now this must be shown by a preponderance of the evidence.
42 U.S.C. 5851(b)(3)(C) (emphasis added); Stone & Webster, 115
F.3d at 1572; Trimmer, 174 F.3d at 1101-1102; Dysert v. Sec. of
Labor, 105 F.3d 607, 610 (11th Cir. 1997). If the complainant
meets this burden, the burden then shifts to the employer to
“demonstrate[], by clear and convincing evidence, that it would
have taken the same unfavorable personnel action in the absence
of [the employees protected behavior].” 42 U.S.C. 5851(b)(3)(D)
(emphasis added).
4
In its alternate findings the ARB concluded that the
complainants did not suffer any adverse employment action, and
this conclusion has not been challenged in this appeal.
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declined, and appear to agree that hostile work environment claims
not involving an adverse employment action are cognizable under the
ERA. Furthermore, the ARB has consistently held that hostile work
environment claims are actionable under the ERA. Williams v. Mason
& Hanger Corp., ARB No. 98-ERA-030, ALJ Nos. 97-ERA-14 et al., slip
op. at 12 (ARB Nov. 13, 2002) (hereinafter “Williams, ARB at __”);
Smith v. Esicorp, Inc., No. 93-ERA-00016, slip op. at 23 (Sec’y
Mar. 13, 1996); Marien v. Northeast Nuclear Energy Co., No. 93-ERA-
00049, slip op. at 7 (Sec’y Sept. 18, 1995). This position has
also been embraced by the Fourth Circuit. See English v.
Whitfield, 858 F.2d 957, 963-64 (4th Cir. 1988)(comparing the
language of the ERA to the identical language under Title VII).
Given the parties agreement that the ERA permits hostile work
environment claims and the absence of case law or other authority
to the contrary we see absolutely no reason to swim upstream on
this issue, and we conclude that the ERA, 42 U.S.C. § 5851, does
recognize hostile work environment actions that do not result in
unfavorable personnel action.
B.
Because the § 5851 framework concerns only those situations
where the retaliatory discrimination results in some adverse
employment action, we are left without guidance as to the proper
standard for determining employer liability in this case. The
plaintiffs argue that, contrary to the decision of the ARB, the
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proper standard for determining employer liability in a hostile
work environment claim under the ERA is that adopted by the Supreme
Court in Ellerth, 524 U.S. 742 and Faragher, 524 U.S. 775.
In its Final Decision and Order, the ARB concluded that the
Ellerth/Faragher standard was only applicable to Title VII sexual
harassment cases and not to claims brought under the ERA. The ARB
held instead that the proper standard for determining employer
liability in hostile work environment cases bought under 42 U.S.C.
§ 5851 is the less stringent standard of Varnadore v. Lockheed
Martin Energy Systems, Inc., 1996 WL 363346 (ARB June 14, 1996).5
The ARB set out three reasons for reaching this conclusion: (1) the
Ellerth/Faragher decisions suggest that the “analysis is
specifically tailored to address employer liability in sexual
harassment, rather than other harassment prohibited by Title VII”;
(2) sexual harassment is an “especially vexing form of employment
discrimination that frequently is perpetrated . . . to personally
exploit the victim’s presence in the workplace,” as opposed to
whistle-blower harassment which is intended to drive the employee
from the workplace; and (3) sexual harassment often involves
invasive touching which, unlike whistle-blower harassment, is
usually carried out covertly. Williams, ARB at 54-55.
5
Under Varnadore, an employer will be liable for a
supervisors actions where (1) the supervisor’s actions were
forseeable or were committed within the course and scope of
employment, and (2) the employer failed to respond adequately and
effectively to the harassment. 1996 WL 363346 at 31.
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We are unpersuaded by the ARB’s reasoning. In Walker v.
Thompson, 214 F.3d 615, 626 (5th Cir. 2000), this Court applied the
Ellerth/Faragher standard to determine employer liability where
persistent racial harassment resulted in a hostile working
environment for two employees. There we noted the Supreme Court’s
approval of appellate court attempts to harmonize standards in
sexual and racial harassment cases. 214 F.3d at 626 n.13 (citing
Faragher, 524 U.S. at 787 n.1). Numerous other circuits have also
held that the Ellerth/Faragher standard is applicable to racial
harassment cases. See Allen v. Mich. Dep't of Corr., 165 F.3d 405,
411 (6th Cir. 1999); Wright-Simmons v. City of Oklahoma City, 155
F.3d 1264, 1270 (10th Cir. 1998); Spriggs v. Diamond Auto Glass,
242 F.3d 179, 186 n.9 (4th Cir. 2001); Caridad v. Metro-North
Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999); Hill v. Am. Gen.
Finance, Inc., 218 F.3d 639, 641 (7th Cir. 2000); Jackson v. Ark.
Dep’t of Educ., 272 F.3d 1020, 1024 (8th Cir. 2001).
We fail to see a legal difference between a hostile
environment created because of a supervisor’s animosity toward his
subordinate on account of race and a hostile environment created to
restrict the truth about inadequate nuclear weapons dismantling
procedures--the purpose of both is to improperly remove an unwanted
employee from the workplace through the use of intimidation.
Indeed, in its reasons for not using the Ellerth/Faragher standard
the ARB explicitly acknowledged this fact, stating: “Whistleblower
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harassment, like race-based harassment, is a form of public
ridicule and is often intended to pressure the employee to leave
the workplace.” Williams, ARB at 55. If the Ellerth/Faragher
standard applies in a race discrimination case, there is no reason
not to apply the same standard in a whistle-blower case. We
therefore conclude that Ellerth/Faragher is the appropriate
standard to be applied in this ERA hostile work environment case
where the employee suffered no adverse employment action and the
ARB’s decision to the contrary is in error.
C.
Despite holding that the application of Ellerth/Faragher was
inappropriate, the ARB held in the alternative that even under the
Ellerth/Faragher standard Mason could not be held liable for the
hostile work environment. Williams, ARB at 67 (“We thus conclude
that, under the negligence standard or the Ellerth and Faragher
vicarious liability standard, the evidence does not establish a
basis for employer liability for the hostile work environment that
resulted from co-worker and supervisory harassment on the W55
program.”).
Under Ellerth/Faragher, a defendant can avert vicarious
liability for a hostile work environment by showing that (1) the
employer exercised reasonable care to prevent and correct promptly
any harassing behavior, and (2) the harassed employee unreasonably
failed to take advantage of any preventive opportunities provided
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by the employer. Ellerth, 524 U.S. at 765; Casiano v. AT&T Corp.,
213 F.3d 278, 284 (5th Cir. 2000).
The ARB concluded that Mason met both prongs of the
Ellerth/Faragher affirmative defense. Williams, ARB at 67. With
respect to the first prong, i.e., whether Mason exercised
reasonable care to prevent and correct promptly any harassing
behavior, the evidence shows that (1) in 1995 Pantex established
the Employee Concerns Program (“ECP”) “as a formal system through
which employees may report concerns associated with safety, . . .
or reprisal for raising such concerns,” (2) the ECP was independent
of the ususal chain of supervisory command, (3) the ECP was in
place well before the instant harassment took place, (4) and all
employees were made aware of the ECP. Id. at 57. Furthermore,
once Pantex Management was informed of the hostile environment in
March 1996 it acted swiftly to address the situation.
Specifically, Pantex Management promptly assembled an investigative
team to look into the alleged hostilities and offered
recommendations on how the problem might be solved. Id. at 57-58.
After the investigative team completed its report, Pantex
Management shut down the W55 program and required the entire staff
to complete forty hours of training in effective human interaction
and teamwork. Id. at 58. In addition, the company conducted a
line-by-line group-review of the program’s safety procedures in
order to ease tensions among employees. After the W55 program was
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restarted, Pantex ordered a follow-up investigation into the
hostilities and found that hostilities had reduced significantly.
Id. at 60. Finally, Pantex Management ordered a root-causes
analysis be performed, which resulted in the publication of written
guidelines for supervisors on avoiding future hostility. Id. at
58-59. The ARB found these procedures and the response of Pantex
Management sufficient to meet the first part of the
Ellerth/Faragher defense.
The ARB also concluded that Pantex met the second aspect of
the Ellerth/Faragher defense, i.e., the plaintiffs unreasonably
failed to take advantage of preventive opportunities provided by
Pantex. The ARB found that the harassment started as soon as, and
maybe prior to, the plaintiffs’ arrival “on line” with the W55
program on February 6, 1996; however, none of the plaintiffs filed
a harassment complaint with the ECP or proceeded through any other
channels until one month later on March 6, 1996. Id. at 57. The
ARB further found that after Pantex restarted the W55 program in
May of 1996 no instances of recurrent harassment were reported to
Pantex Management through the ECP or any other channels until the
plaintiffs filed their ERA complaints in November 1996. Id. at 60.
After reviewing the record and the detailed findings of the
ARB, it is clear to us that the decision of the ARB is supported by
substantial evidence. The plaintiffs failed to promptly notify
Pantex Management of the problems they were having in the W55
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program and, as seen above, Pantex Management immediately and
effectively responded to the problem when finally notified. We do
not see what else Pantex Management could have reasonably done to
prevent or remedy the situation short of permanently removing one
of the groups, an action that would surely have opened Pantex and
Mason to liability. For these reasons, the ARB did not err in
concluding that Mason is entitled to the Ellerth/Faragher
affirmative defense and in denying recovery to the plaintiffs on
their ERA hostile work environment claims.
IV.
Plaintiffs Williams and Sottile argue that the ARB erred in
denying their respective ERA claims of constructive discharge and
failure to promote. In order to prevail on these claims under the
ERA the plaintiffs must show that (1) they engaged in protected
conduct; (2) the employer was aware of this conduct; (3) they
suffered an adverse employment action; and (4) their protected
activity is likely the reason for the adverse action. Hasan, 298
F.3d at 916.
A.
As support for his constructive discharge claim, Williams
offers two incidents that took place on November 26 and 27, 1996.
The ARB found that on November 26 supervisor Harter became angry
when Williams joined with McQuay in reporting a safety issue
involving a crushed detonator cable. The ARB further found that on
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November 27 Williams was stopped and questioned about the crushed
cable by a DOE representative, which caused him to be late for a
meeting with Harter. Williams, ARB at 67-69. Upon learning
Williams had been talking to a DOE representative, Harter became
very angry and harassed Williams. Williams responded by quitting.
Id.
To demonstrate the adverse employment action element of a
constructive discharge claim under the ERA the “plaintiff must
establish that working conditions were so intolerable that a
reasonable employee would feel compelled to resign.” See generally
Hasan, 298 F.3d 916; and see Brown v. Kinney Shoe Corp., 237 F.3d
556, 566 (5th Cir. 2001). Establishing a constructive discharge
claim requires proof of a work environment that is more offensive
than that required for establishing a hostile work environment
claim. Brown, 237 F.3d at 566. Except in extraordinary
circumstances, employment discrimination should be addressed within
the existing employment relationship. Boze v. Bransetter, 912 F.2d
801, 805 (5th Cir. 1990).
Despite the contentiousness of the late November encounters
between Williams and Harter the ARB found that the evidence did not
support a finding that Williams’s working conditions were so
intolerable that he could have reasonably felt that he had no other
choice but to resign. Williams, ARB at 69. There is
uncontradicted evidence showing that Williams’s working conditions
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had improved markedly in the weeks preceding the November 27
incident and that almost no harassment had been directed at
Williams during October and November. Id. at 68. Moreover, there
is no indication that the situation with Harter was any more
egregious than those previously suffered by Williams, which did not
result in his resignation. Finally, after learning of Williams’s
resignation plant manager Weinreich wrote Williams asking him to
reconsider his decision and offering to meet with Williams and
address his grievances. Id. at 69.
In sum, we agree with the ARB that Williams could have
reasonably and effectively handled this incident in several ways
short of resignation. The ARB’s conclusion that Williams was not
constructively discharged is therefore supported by substantial
evidence.
B.
In support of his failure to promote claim, Sottile argues
that in the summer of 1996 he timely applied and was qualified for
an open position as an operations manager for production activity
at Pantex. He was scheduled to be interviewed by the section
supervisor, David Cole (“Cole”), but just before the interview he
was informed that the position had been filled. Sottile argues
that Cole’s action was motivated by retaliation because Cole had
been implicated in the instant hostile work environment claim.
Sottile avers that his years of high-level managerial experience as
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a Chief Petty Officer in the Navy made him much more qualified for
the position than the applicant who was selected, who had
significantly less supervisory experience.
To meet the adverse employment action element of an ERA
failure to promote claim the plaintiff must show (1) that he
applied and was qualified for a job for which the employer was
seeking applicants; (2) that he was rejected; and (3) that after
his rejection the position was filled by an applicant with similar
qualifications or remained open and the employer continued to seek
similarly qualified applicants. Hasan, 298 F.3d at 916-917.
It is undisputed that Sottile applied for the position, was
qualified, and was rejected. However, although Sottile’s
experience in the Navy may have made him qualified for the
position, this fact does not show the candidate selected had
qualifications equal to those of Sottile. Considering that the
position was filled by a supervisor from another division at the
Pantex plant with important managerial experience over a similar
program, the ARB was justified in finding that Sottile was rejected
in favor of a clearly better qualified candidate. Accordingly,
Sottile has not established that he suffered an adverse personnel
action as a result of his rejection and the ARB did not err in
rejecting Sottile’s failure to promote claim.
VI.
For the reasons stated above, the ARB erred in not using the
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Ellerth/Faragher standard in this hostile work environment claim
brought pursuant to 42 U.S.C. § 5851. Nevertheless, we conclude
that the judgment of the ARB denying recovery to the plaintiffs on
their hostile work environment claim is proper and should be
affirmed. We further conclude that the ARB did not err in denying
plaintiff Williams’s constructive discharge claim and plaintiff
Sottile’s failure to promote claim.
AFFIRMED
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