No. 03-9570
IN THE UNITED
STATES COURT OF APPEALS
FOR THE TENTH
CIRCUIT
ADRIENNE
ANDERSON,
Petitioner,
v.
ELAINE L.
CHAO, SECRETARY OF LABOR,
UNITED STATES
DEPARTMENT OF LABOR,
and
METRO
WASTEWATER RECLAMATION DISTRICT,
Respondents.
On Petition
for Review of the Final Decision
and Order of
the Secretary of Labor
BRIEF FOR THE SECRETARY OF
LABOR
STATEMENT OF
SUBJECT MATTER AND APPELLATE
JURISDICTION
This case arises under the
employee protection provisions
of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. 9610; the Solid Waste Disposal
Act ("SWDA"), 42 U.S.C. 6971; the Federal Water Pollution Control
Act ("FWPCA"), 33 U.S.C. 1367; and the Energy Reorganization Act of
1974, as amended ("ERA"), 42 U.S.C. 5851, as well as the
implementing regulations at 29 C.F.R. Part 24. Congress authorized the
Secretary of Labor ("Secretary") to investigate whistleblower
complaints, conduct hearings, and order abatement of a violation
where one is found to have occurred. See 42 U.S.C.
9610(b), 42 U.S.C. 6971(b), 42 U.S.C. 5851(b), and 33 U.S.C.
1367(b). This Court has
jurisdiction to review the Secretary's final decision under 42
U.S.C. 6971(b), 42 U.S.C. 5851(c), and 33 U.S.C. 1367(b). On
May 29, 2003, the
Administrative Review Board ("ARB") issued its Final Decision and
Order on behalf of the Secretary disposing of all parties' claims. Adrienne Anderson filed a
timely Petition for Review with this Court on
July 24,
2003.
STATEMENT OF THE
ISSUE
Whether the ARB
correctly denied
Anderson's complaint on the ground
that, as a member of Metro's Board of Directors, Anderson was not an
"authorized representative of employees" entitled to protection
under the environmental whistleblower statutes.
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STATEMENT OF THE
CASE
A. Nature of the Case and
Course of Proceedings
The
whistleblower provisions of CERCLA, SWDA, and the FWPCA protect an
"authorized representative of employees" from being fired or
otherwise discriminated against for engaging in certain specified
protected activity.
See 42 U.S.C. 9610(a), 42 U.S.C. 6971(a), 33 U.S.C.
1367(a). On May 2,
1997, Adrienne Anderson, a member of the Board of Directors of the
Metro Wastewater Reclamation District ("Metro"), filed a complaint
with the Occupational Safety and Health Administration ("OSHA"),
United States Department of Labor (R. 1),
under the environmental whistleblower provisions of the CERCLA,
SWDA, FWPCA, ERA (which does not protect "authorized representatives
of employees," see infra), and three other statutes.
Anderson
alleged that Metro discriminated against her for raising health and
safety issues concerning Metro's treatment of purportedly
contaminated wastewater.
OSHA investigated the complaint and found that Metro had
discriminated against
Anderson under CERCLA, SWDA, and
FWPCA, but denied her claim under the ERA. (R. 3).
Both parties, Anderson and Metro,
requested a hearing before an Administrative Law Judge. (R. 6-7). On
November 26, 1997, Metro
filed a Motion for Summary Decision, arguing that
Anderson was
not an "authorized representative of employees" and, therefore, was
not covered by the whistleblower statutes. (R. 43, Respondent's Motion
for Summary Decision).
On
February 19, 1998, the Administrative Law Judge
issued a recommended order granting Metro's motion. (R. 48, Administrative Law
Judge's Recommended Order Granting Respondent's Motion for Summary
Decision).
On
March 30,
2000, the ARB issued a Decision and Remand Order. (R. 54, ARB's Decision and
Remand Order). The ARB
ruled that a material issue of fact existed precluding summary
disposition, and remanded the case to the Administrative Law Judge
for a factual determination on the issue whether
Anderson was an
"authorized representative of employees." After examining the
statutory language and the legislative history,
the ARB provided the following guidance:
[A]nderson is an
"authorized representative" of Metro employees if a Metro employee
or group of Metro employees requested her to speak or act for the
employee or group of employees in matters within the coverage of
the SWDA, CERCLA, or FWCPA, or if a union representing Metro
employees (e.g., OCAW [the Oil Chemical and Atomic Workers
International Union]) requested her to speak or act for the union
(and by extension the employees) in matters within the purview of
these statutes.
(R. 54, p. 7-8). The ARB also instructed the
Administrative Law Judge to determine whether
Anderson was
covered by the ERA.
A hearing
was held on November 6-8 and 13-16, 2000. On
September 18, 2001, the
ALJ issued a Recommended Decision and Order. (R. 153, ALJ's Recommended
Decision and Order).
The ALJ concluded that
Anderson had established a prima
facie case of retaliation under the whistleblower provisions of the
CERCLA, SWDA, FWPCA, and ERA, and that Metro had failed to produce a
nondiscriminatory reason for its actions. Accordingly, the ALJ ordered
affirmative relief, including an award of $150,000 in compensatory
damages, $150,000 in exemplary or punitive damages, and $125,000 in
damages for emotional distress.
On
May 29,
2003, the ARB reversed the ruling of the ALJ and denied
Anderson's complaint. (R. 171, ARB's Final
Decision and Order).
Anderson then filed a Petition for
Review with this Court.
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B. Statement of
Facts
1. Metro is a local sewage
collection and treatment authority established under the laws of
Colorado, specifically under the Metropolitan Sewage Disposal
Districts Act, Colorado Revised Statues ("C.R.S.") § 32-4-501
et seq.
Metro covers the City of
Denver and a number of surrounding
counties and municipalities.
Within the covered area is the Lowry landfill, which is the
site of a former military weapons testing range. (R. 171, ARB's Final
Decision and Order, p. 2).
Metro serves about 1.3 million residents of
Denver and the
surrounding counties and municipalities. Specifically, the service
area includes
Denver,
Arvada,
Aurora,
Lakewood,
Thornton,
Westminster,
and parts of Jefferson, Adams, and Arapahoe counties. (Id.). Metro employs over 300
workers, including laboratory technicians. (Id.). The laboratory technicians
were represented by the Oil, Chemical and Atomic Workers
International Union, Local 2-477 ("OCAW").
2. Metro's Board of
Directors is composed of 59 directors representing more than 50
Denver-area municipalities.
(R. 171, ARB's Final Decision and Order, p. 2). The directors, who serve a
two-year term, are required to reside within this district and
within the particular municipality from which they are appointed,
and must be eligible to vote in the general election in the state;
the Board of Directors is reapportioned every two years. (Id., pp. 9,
11). The Board of
Directors includes individuals who are civil servants, elected
officials, attorneys, engineers, realtors, accountants, business
people, and teachers, among others. (Id., p. 2).
Members of
the Metro Board are appointed by the executive of each municipality,
with the approval of that municipality's governing body. (R. 171, ARB's Final
Decision and Order, p. 11).
The Mayor of the City of
Denver has the authority, under the
applicable statute, to appoint directors to the Metro Board to
represent the City and
County of
Denver, which has 20
representatives on the Board.
(Id., pp. 9, 11). The governing body of the
City and
County of
Denver, the Denver City
Council, has the power to approve or disapprove the proposed
appointees.
(Id., p. 11).
Only the Mayor has the discretion to remove a director whom
he has appointed from the Board. (Id., p. 9).
3. The relevant
Colorado statutory provision states that "[i]t is declared that the
organization of metropolitan sewage disposal districts having the
purposes and powers provided in this article will serve a public use
and will promote the public health, safety, and general
welfare." C.R.S. §
32-4-501 ("Legislative declaration"); (R. 171, ARB's Final Decision
and Order, p. 11). The
Bylaws of the Metro Wastewater Reclamation District state that the
oath of office taken by the new directors of the Metro Board
requires them to support the constitutions of the
United
States and
Colorado, and
to perform faithfully the duties of a director. (R. 171, ARB's Final
Decision and Order, p. 11; RX 72). The Bylaws further state
that the directors shall, "as fiduciaries of the Metro district,
exercise all official duties for the benefit of the District," and
shall "abide by the Colorado Ethics in Government Act." (Id.). They further state that the
directors shall "follow Metro District policies and procedures,
including these Bylaws, in the governance of Board business," and
"conduct themselves in a manner respectful of the office of Director
and the Metro District."
(Id.). Finally, the Bylaws state
that directors shall, "when finding it necessary to make a written
or oral public statement, make a disclaimer statement, being clear
that the Director is not speaking on behalf of the Metro Wastewater
Reclamation District, and the views expressed are the Director's own
personal opinions and not those of the Metro District." (Id.). Directors also shall
"acknowledge that all matters discussed in executive session are
privileged and confidential in nature and no such information,
written or verbal, shall be made available to the public by a
Director." (Id.)
(internal quotation marks omitted).
4. Adrienne Anderson is
an environmental activist in the
Denver area and is a part-time
instructor at the
University of
Colorado with a specialty in
environmental ethics issues.
(R. 171, ARB's Final Decision and Order, p. 2).
Anderson had a
consulting contract with OCAW during 1994-1995; she held the title
of "special projects coordinator." She resigned her position
with OCAW in early 1995.
(Id., p. 13).
5. On
December 12,
1995, Patricia B. Farmer, chief negotiator for Local
2-477 of OCAW, wrote to Donna Good in the Office of the Mayor of
Denver, suggesting that the Mayor consider
Anderson to
fill an open position on the Metro Board. (R. 171, ARB's Final
Decision and Order, p. 14; CX 4). Farmer stated in that letter
that "[t]he 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 the city." (Id.).
On
February 22,
1996, Denver Mayor Wellington Webb sent
Anderson a
letter appointing her to the Metro Board of Directors to fill a
vacated position, and for an additional two-year term ending on
June 30,
1998. (R.
171, ARB's Final Decision and Order, pp. 2, 12; CX 5). The letter concluded,
"Please accept my deep appreciation for your willingness to serve
the citizens of the City and
County of
Denver in this important
role." (CX 5). On
June 10, 1996, after two
hearings, the Public Works Committee of the Denver City Council
confirmed Anderson's appointment. On July 8, 1996, Mayor Webb
signed the official document appointing 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." (RX 30).
Anderson was
sworn in as a director on
July 16, 1996 and served until July 1998. (R. 171, p. 2).
6. In June 1996, the
Metro Board approved a proposed settlement of pending litigation
concerning a plan to accept wastewater for treatment from the Lowry
landfill, a designated Superfund site. (R. 171, ARB's Final
Decision and Order, p. 2).
After becoming a director,
Anderson expressed disagreement
with the Board's approval of the settlement agreement. She raised health and safety
concerns regarding Metro's treatment plan for the Lowry landfill,
asserting that the site was contaminated with radioactive waste
which could affect the workers and the public. (Id., pp. 2-3).
On
April 2,
1997,
Anderson spoke at a public hearing
sponsored by the Environmental Protection Agency concerning the
wastewater treatment option.
Anderson identified herself as a
Metro Board member who disagreed with the Board's policy concerning
the Lowry landfill. (R.
171, ARB's Final Decision and Order, p. 3). Metro Board Chairman Richard
J. Plastino sent a letter to
Anderson, dated
April 16, 1997, advising
her to make a disclaimer when she spoke in public for purposes of
clarifying that she was not speaking on behalf of Metro, and warning
her that failure to do so could result in censure by the Board. (Id.;
RX 6). Plastino sent a
second letter to
Anderson on
May 20, 1997, reiterating
the importance of making such a disclaimer and suggesting express
language that she could use.
Plastino again warned her that she could face censure if she
did not comply. (R.
171, ARB's Final Decision and Order, p. 3; RX 10). Plastino and four other
members of the Board of Directors viewed
Anderson as a
fellow director, who expressed a minority view on the Board. (R. 171, ARB's Final
Decision and Order, p. 3; TR. 1028, 1276, 1362, 1457). Mayor Webb did not reappoint
Anderson to the Metro Board when
her term expired.
7. Anderson alleged
that she faced retaliation from Metro for her opposition to the
wastewater treatment option approved by the Board of
Directors. This retaliation took the form, according to
Anderson, of a memorandum dated April 9, 1997, circulated to the
Board, which made derogatory comments about her; secret sessions of
two committees of the Board held without her knowledge; intimidation
at Metro Board meetings; and interference with her academic career
at the University of Colorado. In the words of the Board, "As
a result of Metro's actions, Anderson asserted that her professional
reputation was damaged, her future income from teaching and
consulting work had been reduced, and she suffered emotional
distress and mental anguish." (R. 171, ARB's Final Decision
and Order, p. 3).
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C. Decisions
Below
1. Decision of the ALJ on
Remand
In its
Recommended Decision and Order on remand, dated
September 18, 2001, the
ALJ, in relevant part, concluded that
Anderson was an "authorized
representative" under CERCLA, SWDA, and the FWPCA, and was a "person
acting pursuant to [employees'] request" under the ERA. (R. 153, ALJ's Recommended
Decision and Order, p. 60).
In reaching his conclusion that
Anderson was
an "authorized representative," the ALJ relied on
Anderson's
consulting contract with OCAW prior to her tenure as a director on
the Metro Board and her subsequent appointment to the Board, as well
as on the testimony of several witnesses, including
Anderson. (Id., pp.
12-17). The ALJ
concluded that
Anderson was an "authorized
representative" because she was "clearly someone who was empowered
and directed to act on behalf of a class of persons," specifically
the Metro employees.
(Id., pp. 12, 19).
The ALJ
proceeded to find that
Anderson engaged in protected
activity by speaking out in public regarding her environmental
concerns, and by researching the Lowry treatment plan and
participating in governmental investigations; the ALJ found that
Anderson had a reasonable belief
that Metro was violating the applicable environmental statutes. (R. 153, ALJ's Recommended
Decision and Order, pp. 22-29). He found that Metro had
engaged in adverse actions against
Anderson, which included sending
her a censure-warning letter, demeaning her at Board meetings, and
ensuring that she was not reappointed to the Board. (Id., pp.
29-39). The ALJ stated
that Metro's treatment of
Anderson "shocks the
conscience."
(Id., p. 73).
The ALJ also found that
Anderson's supplemental complaints
were timely, and that they constituted continuing retaliation
against Anderson for her protected
activities.
(Id., p. 76).
The ALJ, as
noted above, ordered $150,000 in compensatory damages, $150,000 in
exemplary or punitive damages, and $125,000 for emotional
distress. He also
ordered Metro to "cease and desist from retaliating against the
Complainant and its other employees because of their protected
activity." (R. 153,
ALJ's Recommended Decision and Order, p. 77).
2. ARB's Final Decision and
Order
The
ARB, in its Final Decision and Order dated May 29, 2003, exercised
de novo review and concluded that Anderson had failed to prove by a
preponderance of the evidence that she was an "authorized
representative of employees" during the period from 1996-1998 when
she was a Metro Board director. The ARB, therefore, denied
Anderson's complaint, concluding
that she had failed to establish an essential element of a prima
facie case under the relevant whistleblower statutes -- CERCLA,
SWDA, and FWPCA. The
ARB also determined that
Anderson was not entitled to relief
under the employee protection provisions of the ERA. Disagreeing with the ALJ on
whether Anderson was an "authorized
representative of employees," the ARB concluded:
First,
Anderson could
not represent OCAW or Metro employees as a Metro director because
the [Colorado] statute authorizes the
directors to represent the citizens of the City and
County of
Denver, not a
particular interest group.
Second,
Anderson's evidence did not
establish by a preponderance that Metro employees or OCAW authorized
her to be their representative during 1996-1998.
(R. 171, ARB's Final Decision and
Order, p. 10).
The
ARB stated that "Anderson was not able to be a
representative of OCAW or Metro employees while serving as a Metro
director simply because the
Colorado statutes regarding the
appointment of directors to the Metro board provide that the
appointment may be for no purpose other than representing the
citizens of the appointing municipality." (R. 171, ARB's Final
Decision and Order, p. 11).
In the words of the ARB, "The statute does not create ex
officio positions or designate any director as the
representative of a particular segment of society, such as commerce,
academia, or labor."
(Id.). Furthermore, "the bylaws
indicate strongly that a director may not serve two masters - in
this case, the interests of the citizens the director was appointed
to represent and the interests of OCAW and Metro employees."(Id., p. 12). The ARB concluded that,
while the Mayor of Denver knew that
Anderson was sympathetic to labor,
he did not appoint her to represent OCAW or Metro employees. (Id.). "[S]uch political
decision-making does not confer legal authority on
Anderson to
serve as an authorized representative of employees under the
whistleblower statutes."
(Id.) The ARB emphasized that
neither the Mayor, the union, nor any group of employees had the
power to appoint
Anderson as the authorized
representative of employees in her capacity as a Metro Board
member. "The statute
clearly relates that directors are to represent the various
geographical areas from which they are appointed - the directors are
not appointed to represent various segments of he body
politic." (Id.,
pp. 12-13).
The
ARB also concluded that "Anderson produced no . . . written or
testimonial evidence that OCAW or the Metro employees had 'selected'
or authorized her to act on their behalf during her tenure as a
director on the Metro Board."
(R. 171, ARB's Final Decision and Order, p. 13). While acknowledging that
there was evidence in the hearing record that OCAW considered
Anderson its advocate and that other Metro directors were aware of
her union sympathies and her particular opposition to Metro's Lowry
landfill policy, the ARB stated that "the union's wishes and public
perceptions did not confer 'authorized representative' status, 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., p. 18). Specifically, "[t]here are
no letters or other documentary evidence from the union appointing
Anderson as an authorized
representative."
(Id.).
The ARB
thus concluded: "In sum, the environmental whistleblower statutes
did not extend 'authorized representative' protection to Anderson,
who as a political appointee was required to serve the public
interest and all the citizens of the area she represented. While the union sought
Anderson's appointment as a Metro
director and generally agreed with her views, she failed to prove
that it had authorized her to act for OCAW and its Metro employees
while she was Metro director."
(R. 171, ARB's Final Decision and Order, p. 19). Having determined that
Anderson was not an "authorized
representative" entitled to the protection of the relevant
whistleblower statutes, the ARB did not reach the questions of
whether Anderson engaged in protected
activity, whether Metro took adverse action against her, whether her
supplemental claims were timely filed, or damages.
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SUMMARY OF ARGUMENT
Congress
protected an "authorized representative of employees" from
retaliation under the relevant environmental whistleblower statutes,
but did not expressly define that term. Thus, the ARB's
interpretation of who may be considered an "authorized
representative" under those statutes is entitled to controlling
deference if reasonable.
The
ARB, in the instant case, reasonably concluded that Anderson was not
an "authorized representative" of OCAW or the Metro employees as a
matter of law, because under the Colorado statute establishing the
Metro Board (as supported by the Board's Bylaws), directors are
appointed by their respective municipalities to represent the
interests of that municipality's citizens, not to represent the
interests of any particular group. The Mayor of Denver who
appointed Anderson could not have been more
clear in this regard. In his letter informing
Anderson of her appointment as a
director to the Metro Board, the Mayor stated: "Please accept my
deep appreciation for your willingness to serve the citizens of the
City and
County of
Denver in this important
role." Although the
record leaves no doubt that Anderson was appointed in large part
because of her ties to organized labor and her experience as an
environmental activist, this in no way affected her legal
obligation to represent the citizens of the City and County of
Denver as a whole.
Moreover,
even if Anderson could legally be the
"authorized representative" of OCAW or the Metro employees,
substantial evidence supports the conclusion that she was never
actually authorized to represent either. The union recommended to the
Mayor of Denver that
Anderson be appointed to the Metro
Board, and expected that, after her appointment, she would serve as
a "voice" of its interests.
There is even some indication that
Anderson was
perceived, and indeed perceived herself, as just such a voice. This does not, however, mean
that Anderson was formally authorized to
represent OCAW or the Metro employees by those entities. They could not, and did not,
make such an authorization.
As the ARB stated, "While the union sought
Anderson's
appointment as a Metro director and generally agreed with her views,
she failed to prove that it had authorized her to act for OCAW and
its Metro employees while she was a Metro director."
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ARGUMENT
THE ARB CORRECTLY DENIED
ANDERSON'S WHISTLEBLOWER COMPLAINT
ON THE GROUND THAT SHE FAILED TO ESTABLISH THAT SHE WAS AN
"AUTHORIZED REPRESENTATIVE OF EMPLOYEES" ENTITLED TO PROTECTION
UNDER THE WHISTLEBLOWER PROVISIONS OF THE ENVIRONMENTAL
STATUTES
A. Standard of
Review
1. The Secretary's decision is
reviewed under the standard
established by the Administrative Procedure Act ("APA"). See, e.g., 42
U.S.C. 9613(j)(2); 33 U.S.C. 1367(b). Under the APA, the reviewing
court will set aside agency action only if it is "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C.
706(2)(A). A court's
review of the Secretary's factual findings is deferential; the
Secretary's factual determinations will be upheld unless they are
"unsupported by substantial evidence." 5 U.S.C. 706(2)(E). See Trimmer v.
United States Department of Labor, 174 F.3d 1098, 1102 (10th
Cir. 1999). Substantial
evidence is such evidence that is "'enough to justify, if the trial
were to a jury, a refusal to direct a verdict when the conclusion to
be drawn is one of fact.'"
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,
1580 (10th Cir. 1994) (quoting Illinois Central R.R. v. Norfolk
& Western Ry., 385
U.S. 57, 66 (1966)). Under the APA,
"'[s]ubstantial evidence' is more than a mere scintilla; it must be
such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion."
Olenhouse, 42 F.3d at 1581 (citing Frey v.
Bowen, 816 F.2d 508, 512, (10th Cir. 1987), in turn citing
Richardson v. Perales, 402
U.S.
389, 401 (1971)).
Ultimately, this standard of review is narrow; the court may
not substitute its judgment for that of the agency. See Universal
Camera Co. v. NLRB, 340
U.S. 474, 488 (1951);
see also Trimmer, 174 F.3d at 1102.
2. Legal issues are reviewed de
novo with due deference to the Secretary's reasonable construction
of a statute that Congress has committed to the agency's
administration and enforcement. See
Chevron,
U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467
U.S.
837, 843 (1984); Trimmer, 174 F.3d at 1102. In accordance with the
Supreme Court's direction, this Court has held that "an agency's
interpretation of a statute entrusted to that agency for
administration should be accepted if it is a reasonable one, even if
another interpretation may exist that is equally reasonable." Thunder Basin Coal Co. v.
Federal Mine Safety and Health Review Comm'n, 56 F.3d 1275, 1277
(10th Cir. 1995) (citing Utah Power & Light Co. v.
Sec'y of Labor, 897 F.2d 447, 449-50 (10th Cir.
1990)). As the Supreme
Court has stated, "It is fair to assume generally that Congress
contemplates administrative action with the effect of law when it
provides for a relatively formal administrative procedure tending to
foster the fairness and deliberation that should underlie a
pronouncement of such force.
Thus, the overwhelming number of our cases applying
Chevron deference have reviewed the fruits of
notice-and-comment rulemaking or formal
adjudication."
United States v. Mead Corp., 533
U.S.
218, 230 (2001) (footnotes and citation omitted) (emphasis
added). See
also McCloy v. U.S. Dep't of Agriculture, 351 F.3d
447, 450 (10th Cir. 2003) (deference to reasonable agency
construction of a statute in the course of agency adjudication).
3. In the instant case, as set
forth below, the ARB's final decision reasonably interpreted the
term "authorized representative of employees" not to apply to
Anderson, i.e., to someone who was, pursuant to state law, appointed
by an elected official to serve as a director on a public board for
the express purpose of representing all the citizens of a
municipality. This
ultimate legal conclusion, based on statutory interpretation, is
entitled to Chevron deference. Moreover, substantial
evidence supports the ARB's conclusion that, even if
Anderson could
have been the "authorized representative" of OCAW or Metro
employees, she was not in fact authorized by them to be such a
representative.
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B. Statutory Background and
Burden of Proof
Congress
authorized the Secretary of Labor to enforce and administer the
whistleblower provisions of the environmental statutes, including
the three laws at issue here.
The CERCLA, FWPCA, and the SWDA protect employees and
"authorized representatives of employees" from discrimination
because of their protected activity. Using identical language,
the statutes provide in relevant part:
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 has [engaged in protected activity].
42 U.S.C. 6971(a); 42 U.S.C.
9610(a); 33 U.S.C. 1367(a).
To prevail
under the whistleblower statutes, Anderson was required to establish
a prima facie case by showing that she was covered by the applicable
statutes, i.e., that she was either an employee or an authorized
representative of employees; that she engaged in protected activity;
and that the employer took adverse action against her because of her
protected activity.
See Trimmer, 174 F.3d at 1101; Bechtel
Construction Co. v. Secretary of
Labor, 50 F.3d 926, 933-34 (11th Cir. 1995). It is only the first
requirement that is at issue here, specifically, whether
Anderson has
established by a preponderance of the evidence that she was an
"authorized representative of employees."
Congress
has not defined the term "authorized representative" in any of the
whistleblower statutes.
Furthermore, the legislative history of the three statutes
does not provide a definition of the term. The Secretary also has not
promulgated any regulation defining the term "authorized
representative." In the
context of this absence of legislative or regulatory guidance, and
"[w]ithin the parameters set by the previous ARB panel," the ARB
reasonably concluded that Anderson could not, by operation of
Colorado law, be the representative of anyone other than the
citizens of the municipality whom she was appointed by the Mayor of
Denver to represent as a member of the Metro Board of
Directors. The ARB also
concluded that, in any event,
Anderson had not proven that she
was authorized by OCAW or by any group of Metro employees to
represent them during her tenure as a Metro Board director. (R. 171, ARB's Final
Decision and Order, p. 10).
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C.
The ARB correctly
concluded as a matter of law that, as an appointed member of the
Metro Board of Directors,
Anderson could not have been the
"authorized representative" of either OCAW or Metro employees.
1. The language of the
Colorado statute and the Metro
Bylaws unequivocally supports the ARB's conclusion that
Anderson did
not have the legal authority to represent OCAW or Metro employees in
her capacity as a Metro Board director. As the ARB explained,
"Anderson could not represent OCAW
or Metro employees as a Metro director because the statute
authorizes the directors to represent the citizens of the City and
