Hugh Kaufman v. Thomas Perez

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2013 Decided March 14, 2014

No. 12-1036

HUGH B. KAUFMAN,

PETITIONER

v.

THOMAS E. PEREZ, SECRETARY OF THE UNITED STATES

DEPARTMENT OF LABOR,

RESPONDENT

On Petition for Review of the Final Decision and Order of

the United States Department of Labor’s Administrative

Review Board

Regina M. Markey argued the cause and filed the briefs

for petitioner.

Dean A. Romhilt, Attorney, U.S. Department of Labor,

argued the cause for respondent. With him on the brief was

Megan E. Guenther, Attorney. Heather R. Phillips,

Attorney, U.S. Department of Labor, entered an appearance.

Before: HENDERSON and SRINIVASAN, Circuit Judges,

and SENTELLE, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

Opinion concurring in the judgment filed by Circuit

Judge SRINIVASAN.

SENTELLE, Senior Circuit Judge: Hugh Kaufman, an

employee of the Environmental Protection Agency (“EPA”),

brought several claims against his employer for allegedly

retaliating against him in violation of several environmental

whistleblowing provisions. An administrative law judge

(“ALJ”) denied his claims, and the Administrative Review

Board (“ARB”) affirmed the ALJ’s decision. Kaufman now

petitions this court for review of the dismissal of seven

claims. Because we conclude that the Board committed no

error in its conclusion that the claims were barred by the

relevant statutes of limitation, we deny Kaufman’s petition for

review.

I. BACKGROUND

A. Factual History

Kaufman is a program analyst at the headquarters of the

EPA in Washington, DC. He has been employed by the EPA

since its creation in 1971. At all times relevant to this

proceeding, he was employed in the Office of Solid Waste

and Emergency Response (“OSWER”). In 1999, Kaufman

was assigned to the OSWER Assistant Administrator’s

Office, his position description was changed from

Environmental Protection Specialist to Program Analyst, and

his job description was expanded to include responsibilities

assisting the OSWER Ombudsman, Robert Martin. The

Ombudsman investigated public complaints, mediated

disputes, and convened hearings regarding OSWER’s

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administration of the hazardous substance and solid waste

programs. Though Martin assigned Kaufman work, Michael

Shapiro was Kaufman’s immediate supervisor and Timothy

Fields served as his second-level supervisor. Fields, a

Presidential appointee, was the Acting Assistant

Administrator of OSWER at the time and Shapiro was the

Acting Deputy Assistant Administrator.

Kaufman’s conduct at OSWER hearings became a matter

of controversy early in his tenure with the Ombudsman. His

pattern of behavior culminated in an extraordinary incident at

a Town Hall meeting concerning a Superfund site in Tarpon

Springs, Florida, in June of 2000. The June meeting followed

two earlier Tarpon Springs sessions in which Kaufman had,

according to EPA officials, ridiculed personnel and failed to

conduct impartial and professional hearings. Kaufman

chaired the June 5, 2000 meeting. Two EPA representatives

appeared: Joanne Benante, Chief of the North Florida Section

of EPA’s Region IV, and Michelle Staes, Assistant Regional

Counsel and the Region IV attorney assigned to the site.

Kaufman conducted the hearing, not as an impartial

ombudsman proceeding, but in a confrontational fashion

belittling and demeaning the EPA representatives, especially

attorney Staes. He set the tone of his behavior from the

outset, reading Benante and Staes Miranda warnings as if they

were in-custody criminals. He went on to allege that the EPA

in the Region was stonewalling Congress and the Justice

Department. He further demeaned attorney Staes, lamenting

that “all these big shot men and big shot women [in the EPA]

who have been in it for 20, 30 years have to hide behind the

skirts of a little black girl just out of law school.”

As the ALJ noted, “[r]esponse to Kaufman’s performance

was swift.” Stephen Luftig, Director of the Office of

Emergency and Remedial Response, wrote a letter to the

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Ombudsman dated June 12, 2000 to express concern over

reports of the “abusive, bullying tactics and the lack of

impartiality” shown by Kaufman at the hearing one week

earlier. The letter also characterized the Miranda-rights

incident as part of a pattern of inappropriate behavior, and

requested an explanation. In response to Luftig’s letter,

Kaufman accelerated the confrontation. His written response,

among other things, demanded that Luftig either present

substantiating evidence or apologize, and suggested that

Luftig’s memorandum to him “was a knowingly reckless,

false, misleading, and inaccurate document intended to thwart

and obstruct an ongoing federal investigation, and a knowing

attempt to harm the federal officials performing the

investigation.” Shapiro issued an Official Reprimand dated

September 29, 2000, chastising Kaufman for his conduct at

the June 5, 2000 meeting.

Fields testified before the ALJ that these and other

incidents led him to conclude that Kaufman’s support of the

Ombudsman was not working. On December 14, 2000,

Fields met with Kaufman and informed him that he would no

longer be performing Ombudsman duties. Fields embodied

this message in a memo that set forth Kaufman’s behavior at

the Tarpon Springs hearing and other hearings, characterizing

that behavior as “inappropriate, unprofessional, and lacking in

impartiality.” The memo advised Kaufman that “examples of

your lack of impartiality and professionalism are numerous.”

In addition to the Miranda warnings and the demeaning

treatment of Staes set forth above, the memo recited other

examples of similar behavior by Kaufman, including other

occurrences at Tarpon Springs and hearings in Ohio and

Idaho.

The memo stated that at the Idaho hearings Kaufman

“asked at least three different hearing participants the same

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inappropriate question: ‘Do you believe there was and/or is

evidence of a cover-up related to the [industrial excess

landfill] activities?’” Fields described this type questioning as

“aimed at inciting public angst, rather than objective fact-

finding” and as reflecting “[Kaufman’s] lack of impartiality in

the performance of [his] Ombudsman-related duties.”

The memo referred to Kaufman’s having “used language

and made statements which were inappropriate for an

objective federal official in Idaho.” By way of example, he

stated that the public had been “used as pawns” and that “the

Department of Justice has asked EPA to, basically, kill the

Ombudsman program.” The memo related Kaufman’s having

stated at the same hearing that he thought the EPA was

“raping” the people of the Idaho Valley.

After reciting the examples of Kaufman’s lack of

impartiality and professionalism, the Fields memorandum

informed Kaufman that he would no longer be performing

Ombudsman’s duties and that the reference to such duties

would be removed from his position description. Without

doubt, Kaufman understood the import of Fields’s

memorandum. In a January 8, 2001 Environment News

Service article, Kaufman claimed that he had been “ousted

from the Ombudsman’s Office because he exposed EPA

wrongdoing at a number of agency-managed hazardous waste

clean-up sites.” He further characterized his “ouster” as being

“‘political revenge’ for his office’s damning revelations about

failed Democratic presidential candidate Al Gore.”

On January 20, 2001, a new administration took office.

On January 29, 2001, Martin issued a memo stating he was

unable to perform substantial Ombudsman tasks, due in part

to Kaufman’s reassignment. On January 30, 2001, Christine

Todd Whitman was confirmed as the new EPA Administrator.

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The next day, Shapiro met with Kaufman to discuss

Kaufman’s job performance. Kaufman asked Shapiro if he

was withdrawing Fields’s memo—as a Presidential appointee,

Fields had exited with the previous administration. Shapiro

confirmed that he was not.

In early February, Martin requested Kaufman’s help with

Ombudsman tasks. Shapiro rejected his request. On

February 13 and 21, Shapiro addressed the matter again with

Martin, reaffirming that Kaufman would not be assigned

Ombudsman work. Nonetheless, on February 15, Kaufman

submitted a travel request to attend an Ombudsman hearing,

which Shapiro denied. On February 22, Shapiro issued a

memo to Martin summarizing his previous conversations and

again affirmed that Kaufman would not be available to

support the Ombudsman. Finally, on February 23, after

Shapiro again received reports of Kaufman’s participation in

Ombudsman functions, he orally informed Kaufman again

that Kaufman was prohibited from performing Ombudsman

duties. Kaufman asked Shapiro to put that prohibition in

writing.

Before Shapiro could do so, Kaufman sent him a memo

dated March 6, asserting, among other things, the “fact” that

his prohibition expired when Fields left the EPA.

Accordingly, he asked Shapiro to provide “unequivocal

clarification . . . as to whether [Shapiro was] going to take an

adverse action against” Kaufman. Around the same time,

Kaufman discovered what he perceived as a conflict of

interest on Administrator Whitman’s part at one of the

cleanup sites. He reported this possible conflict to the

Inspector General, and spoke to the press about it as well,

accusing Whitman of stopping the Ombudsman from giving

him assignments to reduce the chances that the site would be

forced to comply with environmental laws. The Inspector

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General investigated Kaufman’s allegations and found them

to be unsubstantiated.

On March 14, 2001, Shapiro responded to Kaufman’s

March 6 memo with one of his own in which he reiterated

Kaufman’s prohibition, expressed shock at the assertion that

Fields’s memo expired with the change of administration, and

attached a copy of the memo. Shapiro also attached a copy of

Kaufman’s position description with Ombudsman-related

duties removed. Kaufman responded by alleging that Shapiro

was making false statements, and intimating that Shapiro’s

memo was motivated by Kaufman’s recent whistleblowing

activity regarding Administrator Whitman. Kaufman also

threatened “to make a criminal referral of this matter to the

Department of Justice,” if Shapiro did not let him perform

Ombudsman duties. Shapiro responded on March 16, 2001,

again reiterating the prohibition, and again noting Kaufman’s

mischaracterization of the effects of the Fields memo.

On the same date, Shapiro sent a memorandum to Martin

advising him that Kaufman had apparently transmitted a

round of “interrogatories” and requests for production of

documents in connection with a Superfund site inquiry in

Colorado, requesting that responses be sent to Martin. In the

memorandum to Martin, Shapiro reiterated that Kaufman had

been officially and verbally terminated from all Ombudsman

functions. The memorandum further advised explicitly: “As

we have discussed previously, unless otherwise directed by

me, you should not involve Mr. Kaufman in any national

Ombudsman-related activities as part of his EPA

responsibilities.”

Around the same time, another EPA employee, Barry

Stolls, was detailed to assist the Ombudsman, and the EPA

exempted several new full-time Ombudsman staff positions

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from a hiring freeze then in effect. On April 6, Shapiro

encouraged Martin to actively recruit for those new vacant

staff positions. Martin continued to request that Kaufman be

reassigned Ombudsman duties, and Shapiro denied his

requests on April 16 and May 22.

On November 27, 2001, Administrator Whitman

announced her decision to move the Ombudsman function to

the Office of the Inspector General (“OIG”) in response to

concerns voiced by Congress and the General Accounting

Office. The Ombudsman was ultimately moved to OIG on

April 13, 2002.

B. Procedural History

Kaufman first complained to the Department of Labor on

April 3, 2001, alleging violations of the employee protection

provisions in various environmental statutes. The

Occupational Safety and Health Administration determined

that the EPA had unlawfully retaliated against Kaufman for

doing his job “too effective[ly].” The EPA appealed the

ruling, and after years of discovery disputes an ALJ

conducted a 14-day hearing on Kaufman’s claims.

Kaufman’s amended complaint before the ALJ requested

relief under the whistleblower provisions of seven

environmental protection statutes: the Clean Air Act, 42

U.S.C. § 7622; the Safe Drinking Water Act, 42 U.S.C.

§ 300j-9; the Solid Waste Disposal Act, 42 U.S.C. § 6971; the

Federal Water Pollution Control Act, 33 U.S.C. § 1367; the

Comprehensive Environmental Response, Compensation and

Liability Act, 42 U.S.C. § 9610; the Toxic Substances Control

Act, 15 U.S.C. § 2622; and the Energy Reorganization Act,

42 U.S.C. § 5851.

9

Kaufman’s complaint set out nine claims relating to the

following events:

 Claim 1: The December 14, 2000 removal of

Kaufman’s Ombudsman duties;

 Claim 2: The March 5, 2001 decision to assign

Stolls to the Ombudsman;

 Claim 3: The refusal to assign Ombudsman duties

to Kaufman after the removal of the hiring freeze

in March 2001;

 Claim 4: The issuance of the March 16, 2001

memo stating Kaufman was prohibited from

performing Ombudsman work;

 Claim 5: The issuance of the April 6, 2001 memo

to Martin inquiring about recruitment actions;

 Claim 6: The issuance of the April 16, 2001 and

May 22 memos to Martin denying his request to

assign Kaufman Ombudsman duties;

 Claim 7: The November 27, 2001 announcement

to transfer the EPA Ombudsman to the OIG;

 Claim 8: The April 12, 2002 transfer of the

Ombudsman to the OIG;

 Claim 9: The creation of a hostile work

environment for Kaufman from June 2000 to April

2002.

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The ALJ dismissed all of Kaufman’s claims. First, the

ALJ dismissed Kaufman’s claims under the Toxic Substances

Control Act and the Energy Reorganization Act for lack of

jurisdiction. Second, the ALJ found Claim 1 untimely; the

statutes of limitations in the whistleblower provisions of the

remaining environmental protection statutes require a

petitioner to file a complaint within thirty days after a

“violation occurs.” Kaufman complained on April 3, 2001.

Thus any allegedly unlawful activity must have occurred on

or after March 5 to be timely. Third, the ALJ dismissed

Kaufman’s hostile work environment claim (Claim 9).

Finally, as to Claims 2–8, the ALJ rejected Kaufman’s

argument that they represented discrete retaliatory acts,

finding that they were “not adverse acts [to Kaufman] but

rather the consequences of Fields’[s] December memo . . . .”

After December 14, 2000, Kaufman “was in no position to be

considered for assignment of Ombudsman functions,” and the

ALJ found nothing in the record to support Kaufman’s claim

that a change in administration would nullify the memo.

Specifically, the ALJ concluded that

Kaufman could not have any uncertainty about the

Fields memo. The memo is unambiguous, and Fields

met with him personally to deliver the memo and to

explain that he was no longer to do Ombudsman-

related work. Both Fields and Kaufman testified that

Kaufman understood the decision, and both testified

that Kaufman responded that he would stop doing

Ombudsman work.

Ultimately, the ALJ found that “Kaufman’s argument

that he was . . . uncertain about whether he could perform

Ombudsman related duties strain[ed] credibility.” Because

Kaufman was permanently prohibited from assisting the

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Ombudsman, the EPA’s actions in staffing the Ombudsman

office—and its repeated affirmations of Kaufman’s

prohibition from Ombudsman-related duties—had no effect

on him. Moreover, the ALJ reasoned, allowing these actions

to restart the filing clock would make “mincemeat out of the

requirement to timely file,” because “[a]ll employer adverse

actions would be subject to reopening merely by continuing to

request reinstatement, and then counting the time to file from

each denial.”

As to the decisions to transfer the Ombudsman to the

OIG (Claims 7–8), the ALJ found them non-adverse to

Kaufman as well. Kaufman had not shown that any of his

Ombudsman duties would have been reinstated after a transfer

in light of the December 14 memo: “[t]hus, the transfer of the

Ombudsman had no effect on the future employment of

Kaufman.”

On November 30, 2011, the ARB affirmed the ALJ’s

decision. It found that substantial evidence supported the

ALJ’s determination that the EPA expressly removed

Kaufman’s Ombudsman-related duties pursuant to Fields’s

memo. It also affirmed the ALJ’s legal determination that

Fields’s memo—as the final, definitive, and unequivocal

notice of the EPA’s adverse action—marked the moment the

limitations period began to run, and not the later

consequences embodied in Claims 2–8. Thus, Kaufman’s

claims were untimely.

In his appeal to this Court, Kaufman challenges the

portion of the ARB’s decision finding Claims 2–8 untimely.

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II. ANALYSIS

A. Jurisdiction

Four of the environmental statutes upon which Kaufman

relies provide for judicial review in the circuit court in which

either the complainant resides or transacts business or the

environmental violation occurred. See 42 U.S.C.

§ 7622(c)(1); 33 U.S.C. § 1367(b); 42 U.S.C. § 300j-

9(i)(3)(A); 42 U.S.C. § 6971(b), 6976(b). The fifth,

CERCLA, designates district courts as the forum for

reviewing Board decisions. See 42 U.S.C. §§ 9610(b),

9613(b). However, courts of appeal may, for “judicial

economy and consistency,” assume jurisdiction over a

CERCLA retaliation claim as long as there is also jurisdiction

under other environmental statutes. 29 C.F.R. 24.112(d),

24.100(a). Kaufman is employed by the EPA in the District

of Columbia, and his CERCLA retaliation claim stems from

the same factual and legal background as his claims under the

other statutes. Accordingly, we have jurisdiction over

Kaufman’s appeal.

B. Standard of Review

The Secretary rendered the decision under review

pursuant to the employee protection provisions of the

environmental statutes. We review such decisions in

accordance with the Administrative Procedure Act (“APA”),

5 U.S.C. § 706. See 42 U.S.C. § 7622(c)(1); 42 U.S.C.

§ 300j-9(i)(3)(A); 42 U.S.C. § 6976(b); see also Carus Chem.

Co. v. U.S. Envtl Prot. Agency, 395 F.3d 434, 441 (D.C. Cir.

2005) (applying the APA to CERCLA claim in the absence of

a specified standard of review). We overturn the Agency’s

decision if it is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C.

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§ 706(2)(A). We set aside the ARB’s factual findings “only if

unsupported by substantial evidence on the record as a

whole.” Chippewa Dialysis Servs. v. Leavitt, 511 F.3d 172,

176 (D.C. Cir. 2007). It is an open question in this Circuit

whether we afford Chevron deference to agency

interpretations of statutes of limitations. See AKM LLC v.

Sec’y of Labor, 675 F.3d 752, 754 (D.C. Cir. 2012). We need

not resolve that question here. Substantial evidence supports

the ARB’s factual findings, and given its factual findings, its

legal conclusions follow under any standard.

C. Disposition

To make out a prima facie case of retaliation under the

whistleblower statutes, Kaufman was required to prove: (1)

that he engaged in protected activity; (2) that he suffered an

adverse action; and (3) that the protected activity was a

motivating factor in the adverse action. See, e.g., McGrath v.

Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012); 29 C.F.R.

§ 24.109. Critically, given that the ALJ and the Board

dismissed the claims as being outside the statute of

limitations, Kaufman was required to show that at least one of

Claims 2–8 evidenced all the elements of a prima facie case

on or after March 5, 2001. As the ALJ concluded, and we

agree, none of the acts raised in Claims 2–8 alleged any

adverse action suffered by Kaufman after that critical date.

The original adverse action argued by Kaufman is the

removal of his Ombudsman-related duties in Fields’s letter of

December 14, 2000. We note at the outset that it is not crystal

clear that the change of duties constitutes an adverse

employment action within the meaning of whistleblower and

other employment discrimination statutes. Cf. Brown v.

Brody, 199 F.3d 446, 455 (D.C. Cir. 1999) (even when there

is a “significant change in duties or responsibilities . . . there

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must still be some kind of injury for a federal employee to

state a claim”). Nonetheless, assuming for purposes of this

decision that Kaufman’s allegation of the original charge

raises such an adverse action, the ALJ, and the Board in

affirming the ALJ, correctly determined that Kaufman

suffered no adverse action by any of the subsequent responses

from the EPA to his pleas for restoration of the duties.

Kaufman couches his challenges to the ARB’s decision

as two issues: first, that the Board did not analyze whether

Claims 2–8 were motivated by independent retaliatory intent,

and second, that the ARB applied the wrong standard for

determining whether there was an adverse action. Logically,

however, one determination governs both. If there was no

adverse action evidenced in Claims 2–8, then the ALJ

correctly dismissed those claims and the Board correctly

affirmed. Substantial evidence supports the decision to

dismiss those claims.

The ARB concluded that Claims 2–8 set forth no adverse

action on the finding that the EPA unequivocally barred

Kaufman from performing Ombudsman duties on December

14, 2000, and that neither Kaufman nor Martin was confused

about the effect of that action. Substantial evidence supports

this conclusion. On December 14, 2000, Fields met with

Kaufman, and told Kaufman he would no longer be

performing Ombudsman duties. He issued Kaufman a memo

which could not have been clearer about its effect: “you will

no longer perform any Ombdusman-related duties, effective

immediately.” Shortly after this meeting, Kaufman spoke to

the press about his removal, describing his “ouster” as

“‘political revenge’ for his office’s damning revelations about

failed Democratic presidential candidate Al Gore.”

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If that were not enough, Shapiro reiterated time and again

the finality of the EPA’s actions to both Kaufman and Martin.

On January 31, 2001—after the change of administration—

Kaufman asked Shapiro if he would be withdrawing Fields’s

memo. Shapiro confirmed he would not. In early February,

Martin requested Kaufman’s help to assist him with

Ombudsman duties. Shapiro rejected his request and

readdressed the matter twice more on February 13 and

February 21, reaffirming that Kaufman would not be assigned

Ombudsman work. Finally, on February 23, 2001, Shapiro

again reminded Kaufman that he was prohibited from

performing Ombudsman duties.

This review demonstrates the more than substantial

evidence the ALJ had at hand to conclude that after the

December 14 memo Kaufman “was in no position to be

considered for assignment of Ombudsman functions.”

Fields’s memo was clear and Shapiro never wavered in his

commitment to its effect.

Because Kaufman was barred from performing

Ombudsman duties as of December 14, he could not have

suffered adverse action through the EPA’s direct and indirect

failure to subsequently assign him such work. The EPA’s

decision to assign Stolls to the Ombudsman, its inquiries

about recruiting efforts, its continuing refusal to assign

Ombudsman work to Kaufman, and its memos to this effect

(Claims 2–6) were not adverse to Kaufman. Thus the

motivation behind these actions is immaterial.

Moreover, the ARB correctly identified these subsequent

actions as “delayed, but inevitable, consequence[s]” of the

decision embodied in the Fields memo, and thus not

themselves actionable. See Del. State Coll. v. Ricks, 449 U.S.

250, 257–58 (1980). The ALJ likened Kaufman’s case to

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Ricks in which the Supreme Court held that the allegedly

discriminatory denial of tenure triggered the limitations

period, not the eventual end of a professor’s employment as a

result. Id. In Ricks, “the only alleged discrimination

occurred—and the filing limitations periods therefore

commenced—at the time the tenure decision was made and

communicated to Ricks.” Id. at 258. This was so “even

though one of the effects of the denial of tenure—the eventual

loss of a teaching position—did not occur until later.” Id.

(emphasis in original).

As the ALJ noted, the “proper focus is upon the time of

the discriminatory acts, not upon the time at which the

consequences of the acts became most painful.” Id. at 258

(emphasis in original, quotations omitted). Because the EPA

actions underlying Claims 2–6 were no more than

consequences of the December 14 memo, they were not

themselves actionable. See also Jarmon v. Powell, 208 F.

Supp. 2d 21, 30 (D.D.C. 2002) (employee’s claim that he was

denied a promotion to a GS-15 position—for which he was

ineligible due to an earlier allegedly discriminatory promotion

denial—was “not an actionable violation in its own right”

because the employee’s “subsequent ineligibility for the GS-

15 promotion . . . [was] just ‘a delayed, but inevitable

consequence’ of the non-promotion to GS-14”) (quoting

Ricks, 449 U.S. at 257–58).

Kaufman’s Claims 7–8 fare no better. These two claims

do not concern any employment action taken toward Kaufman

at all. Kaufman bases these claims on the policy decision of

the agency to transfer the EPA Ombudsman to the Office of

the Inspector General, which Kaufman breaks into two parts:

Claim 7, referring to the announcement to transfer the

Ombudsman, and Claim 8, the eventual transfer. Again,

assuming that such a reorganization could ever constitute an

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employment action for purposes of a whistleblower claim,

Kaufman has not established such a case here. Kaufman has

not shown that any of his Ombudsman duties would have

been reinstated after a transfer in light of the December 14

memo. Even Kaufman concedes that he was prohibited from

performing Ombudsman duties as of Shapiro’s March 16,

2001 memorandum to him. Thus there is no way the

reorganization could have been adverse action toward him.

Perhaps a failure to reinstate might in some

circumstances constitute an independent discriminatory act,

but Kaufman’s case does not present such a scenario. True,

courts have found failures to reinstate actionable in the face of

uncertainty regarding the initial adverse action. Cf. Rich v.

Associated Brands, Inc., 379 F. App’x 78, 82 (2d Cir. 2010)

(suggesting failure to rehire can be independently actionable

if employee does not receive “definite notice” that original

termination foreclosed employment for foreseeable future).

Similarly, courts have found failures to reinstate actionable

given an intermediate change in the substantive policy that

produced the initial firing. See, e.g., Inda v. United Air Lines,

Inc., 565 F.2d 554, 557–58 (9th Cir. 1977). Finally, courts

have found failures to reinstate actionable where a

complainant can show disparate treatment or bias in the

reinstatement process. See E.E.O.C. v. City of Norfolk Police

Dep’t, 45 F.3d 80, 84 (4th Cir. 1995) (“[Plaintiff] asserts that

. . . while similarly suspended white officers were

immediately reinstated after criminal charges against them

were dismissed, because of his race, Black, he was denied

immediate reinstatement after the criminal charges against

him were dismissed.”) (alterations and quotations omitted);

Samuels v. Raytheon Corp., 934 F.2d 388, 391 (1st Cir. 1991)

(“Were Samuels able to establish the existence of unlawful

bias in . . . hearing process or . . . decision, . . . refusal to

reinstate . . . might provide a separate, actionable event under

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title VII.”); E.E.O.C. v. Hall’s Motor Transit Co., 789 F.2d

1011, 1015 (3d Cir. 1986) (“Sharpe contended not that he had

been denied an appeal nor that his appeal was not processed

through the usual procedure, but that it was resolved on less

favorable terms than those of younger employees.”).

All of those cases evince features absent in Kaufman’s.

Initial or subsequent uncertainty, or a defect in the

reinstatement process, rendered the failure to reinstate

independently adverse to the claimant. All of the employees

in those cases could claim that, but for the later retaliatory

action, they may have resumed the employment that was

earlier terminated. Kaufman has failed to demonstrate any

uncertainty about his prohibition. Since there was never in

this case a termination, there was no reinstatement process,

nor indeed any other process, let alone a defective process.

Because his prohibition was clear from the beginning, and

that clarity never abated, Kaufman has failed to demonstrate

that any later actions were adverse. The ARB did not err in

ending its analysis with this conclusion.

Kaufman’s arguments that the acts complained of in

Claims 2–8 commence the rerunning of the statute of

limitations would effectively write the statutes of limitations

out of the law. Congress cannot have intended in setting

periods of limitation that claimants could begin the clock

running anew simply by demanding the undoing of a time-

barred employment action. Under Kaufman’s interpretation,

the statute would never run. A terminated employee, whether

or not he had a valid claim in his termination, cannot come

back later and revive a barred claim simply by asking, “Am I

still fired?” Neither can Kaufman recommence his period of

limitations by declaring that the employing administration

should reinvest him with his divested duties.

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CONCLUSION

For the foregoing reasons, the petition for review is

denied.

So ordered.

1

SRINIVASAN, Circuit Judge, concurring in the judgment: I

concur in the court’s decision to deny Kaufman’s petition for

review. I respectfully disagree, however, with the majority’s

reasons for rejecting Kaufman’s claims. I write separately to

clarify the circumstances in which, as I see it, an employer’s

refusal to reinstate an employee to his former position might be

independently actionable.

To state a claim under federal antiretaliation laws, an

employee must show that he suffered a materially adverse action

by his employer that was causally linked to his statutorily

protected activity. Ante, at 13; accord Howard R.L. Cook &

Tommy Shaw Found. for Black Emps. of the Library of Cong.,

Inc. v. Billington, 737 F.3d 767, 772 (D.C. Cir. 2013); see also

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2532-33

(2013). If the employer articulates a “legitimate nonretaliatory

reason” for the adverse action, the employee must establish that

the employer’s proffered reason for the action is “pretext.”

Holcomb v. Powell, 433 F.3d 889, 901 (D.C. Cir. 2006). The

requirements for a retaliation claim largely track the

requirements for a discrimination claim, although in the

discrimination context, the employee must show that the adverse

action was connected to his membership in a statutorily

protected class rather than to his statutorily protected activity.

See Gilbert v. Napolitano, 670 F.3d 258, 261-62 (D.C. Cir.

2012).

The majority assumes that EPA’s original decision to

prohibit Kaufman from performing Ombudsman-related duties

was “adverse” to Kaufman. Ante, at 14.* The majority then goes

* The majority suggests that it is “not crystal clear” that EPA’s

original decision to bar Kaufman from performing Ombudsman-

related work would constitute an “adverse” action under federal

antiretaliation laws. Ante, at 13. But the case that the majority cites

2

on to conclude that EPA’s later actions denying reinstatement of

Kaufman’s Ombudsman duties failed to constitute adverse

actions and that any claims arising from those subsequent

actions were therefore untimely. Although I agree that

Kaufman’s claims concerning those subsequent actions are

deficient and that the ARB’s rejection of those claims should be

affirmed, I part ways with the majority on the rationale by which

to reach that conclusion.

This case began when Kaufman initially filed his

whistleblower complaint on April 3, 2001. The limitations

for this claim, Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999),

appears to have been superseded on that point by a later Supreme

Court decision. See Burlington N. & Santa Fe Ry. v. White, 548 U.S.

53, 68 (2006) (action is “adverse” under Title VII antiretaliation

provision if “it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination”) (internal quotation

marks omitted); see also Steele v. Schafer, 535 F.3d 689, 695-96 (D.C.

Cir. 2008) (district court erred by relying on Brody standard rather

than Burlington Northern standard). The Secretary of Labor, the

respondent in this case, acknowledges that “Kaufman suffered an

actionable harm when the EPA barred him from performing

Ombudsman duties.” Resp’t Br. 43. The Secretary’s recognition is

unsurprising, as EPA’s decision to prohibit Kaufman from performing

Ombudsman-related work falls squarely within the now-settled

understanding of an “adverse action” in the retaliation context. See

generally Baird v. Gotbaum, 662 F.3d 1246, 1248-50 (D.C. Cir.

2011). And while transfer to a materially less favorable set of

responsibilities would itself suffice to constitute an adverse action,

Kaufman also contends that EPA’s decision to bar him from

performing Ombudsman work had the effect of preventing his

promotion from a GS-14 salary level to a GS-15 level. A forced

transfer resulting in denial of a salary increase readily qualifies as

“adverse” under any definition. See Burlington Northern, 548 U.S. at

68; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).

3

period under federal antidiscrimination and antiretaliation laws

starts to run when the challenged action is made and the

employee is notified. Del. State Coll. v. Ricks, 449 U.S. 250,

259 (1980). Here, Kaufman had been informed on December

14, 2000, in the Fields memorandum, that he could no longer

perform Ombudsman work. The 30-day limitations period for

any claim based on the original decision to remove Kaufman’s

Ombudsman duties thus expired on January 13, 2001, well

before Kaufman filed his complaint. Kaufman nevertheless

initially asserted such a claim, but the ARB found it untimely,

and Kaufman does not appeal that determination.

His appeal instead concerns seven claims (Claims 2-8)

arising from later actions by EPA that, as Kaufman sees it,

manifest EPA’s subsequent refusal to reinstate him to his

Ombudsman responsibilities. Ante, at 9. Two of the claims

(Claims 7 and 8) pertain to EPA’s decision to transfer

Ombudsman functions to the Office of Inspector General. The

ALJ found that “the transfer of the Ombudsman had no effect on

the future employment of Kaufman,” ALJ’s Decision & Order

at 43, and I see no reason to reject that factual determination.

The remaining claims (Claims 2-6) concern actions taken by

EPA in March, April, and May 2001, declining to reinstate

Kaufman’s Ombudsman duties and assigning those

responsibilities elsewhere. Kaufman alleges that, in refusing to

reinstate him to his former role, EPA retaliated against him for

his protected whistleblower activities.

The majority allows that “[p]erhaps a failure to reinstate

might in some circumstances constitute an independent

discriminatory act.” Ante, at 17. That is undoubtedly the case.

See Josephs v. Pac. Bell, 443 F.3d 1050, 1060 (9th Cir. 2006)

(“[W]e join the First, Third, Fourth, Tenth, and Eleventh

Circuits and expressly recognize discriminatory failure to

reinstate as a separately actionable claim.” (collecting cases)).

4

Even if an employer’s original decision to transfer or terminate

an employee is entirely legitimate or, as here, is immune from

challenge because of the running of the limitations period the

employer’s subsequent refusal to reinstate the employee to his

former position or responsibilities, if itself motivated by

discriminatory or retaliatory animus, is actionable in its own

right. The employer’s invulnerability for its original adverse

action affords no free pass to engage in discrimination or

retaliation when asked to reverse that action. The majority thus

correctly includes, in its nonexhaustive list of situations in which

a failure to reinstate might be independently actionable,

circumstances “where a complainant can show disparate

treatment or bias in the reinstatement” decision. Ante, at 17.

Kaufman’s allegations fit in that category because they

allege retaliatory bias in the EPA’s denial of reinstatement.

Those claims fail, but, respectfully, not for the reasons cited by

the majority. In the course of explaining its rejection of

Kaufman’s claims, the majority observes that, “[s]ince there was

never in this case a termination, there was no reinstatement

process, nor indeed any other process, let alone a defective

process.” Id. at 18. But the majority ultimately does not and

could not rest on the absence of a “termination.” While

Kaufman was never fired from his position, he was divested of

his Ombudsman-related duties. And the Supreme Court draws

no distinction for discrimination or retaliation purposes between

“termination” and other adverse actions such as “failure to

promote” or “denial of transfer.” See Morgan, 536 U.S. at 114.

Nor does or could the majority ultimately hinge its decision

on the absence of any formal “reinstatement process.” The

denial of reinstatement can give rise to a claim if grounded in

discriminatory or retaliatory bias, regardless of whether any

formal process attends the denial. Indeed, one of the cases cited

by the majority in setting out when reinstatement claims might

be made, EEOC v. City of Norfolk Police Department, 45 F.3d

5

80 (4th Cir. 1995) (cited ante, at 17), establishes that refusal of

reinstatement through informal means can be actionable. See

Norfolk Police, 45 F.3d at 84-85 (holding that where white

police officers were customarily reinstated immediately after

criminal charges against them were dropped, while an African-

American officer was required to complete a formal

administrative appeal process, EEOC can pursue a

discrimination claim against the police department for failing to

reinstate the African-American officer through informal

procedures).

The majority ultimately rests its decision on the conclusion

that EPA’s actions denying reinstatement to Kaufman do not

constitute adverse actions, and that the “motivation behind these

actions” is thus “immaterial.” Ante, at 15. I fail to see how that

could be the case. Indeed, the majority correctly assumes

that EPA’s original removal of Kaufman’s Ombudsman

functions qualifies as an adverse action. Id. at 14. If so, the later

refusal to reinstate precisely the same functions should equally

count as an adverse action, no less than a refusal to rehire a

previously terminated employee surely constitutes an adverse

action. The question, then, is whether the adverse action was

undertaken for an illicit reason. The motivation behind the

EPA’s denial of reinstatement here, consequently, is very much

material. Considering the question of motivation to be

“immaterial,” in my respectful view, unduly complicates the

resolution of reinstatement cases and deflects attention away

from what should be the central issue: whether the denial of

reinstatement was motivated by discriminatory or retaliatory

bias.

I believe Kaufman’s claims run aground on that issue. In

certain cases, an employer’s refusal to reinstate an employee to

his former role may be motivated by the employer’s adherence

to its prior decision. And an employer’s policy of declining to

6

revisit previous personnel decisions could constitute a

legitimate, nonretaliatory, and non-pretextual reason for refusing

to reinstate the employee. See, e.g., Collins v. Henderson, 180

F.3d 988, 989-90 (8th Cir. 1999) (where plant manager said that,

“‘[i]n the interest of fairness and consistent treatment of all

employees,’” the plant “‘does not entertain reinstatements or

transfers of personnel who have previously been released,’” the

plant manager’s explanation qualified as a “legitimate

nondiscriminatory reason” for his decision). Moreover, an

employer’s refusal to reinstate an employee “cannot resurrect the

old discriminatory act.” Burnam v. Amoco Container Co., 755

F.2d 893, 894 (11th Cir. 1985). For the failure to reinstate to be

actionable in its own right, there must be “a new and discrete act

of discrimination in the refusal to [reinstate] itself.” Id.; see also

Poolaw v. City of Anadarko, 660 F.2d 459, 465 (10th Cir. 1981)

(employee’s “allegation that his post-termination treatment was

discriminatory is a claim separate and distinct from his

allegation of discriminatory discharge”).

Applying those principles to Kaufman’s case, I believe

Kaufman would be able to assert a viable retaliation claim based

on EPA’s denial of reinstatement if he could establish that the

refusal was itself motivated by retaliatory intent. For instance,

if Kaufman could show that the new EPA Administrator had

reversed other personnel decisions made under her predecessor,

and if Kaufman could further show that the Administrator

refused to reinstate Kaufman because of his whistleblowing

activities, Kaufman’s retaliation claim might well succeed. By

contrast, if EPA declined to reconsider the merits of the

December 2000 Fields memorandum because it adhered to prior

personnel decisions as a matter of policy, the refusal to reinstate

Kaufman in the spring of 2001 presumably would not be a

discrete retaliatory act. As I see it, this case therefore comes

down to whether the Department of Labor, as the agency that

adjudicated Kaufman’s claims, afforded adequate consideration

7

to Kaufman’s argument that EPA refused to reinstate him for

retaliatory reasons.

In the proceedings before the ALJ, Kaufman alleged that

EPA did reconsider the merits of the December 2000 decision

and that its refusal to reinstate him was retaliatory in its own

right. EPA, for its part, argued that it “simply reiterated” the

December 2000 decision without ever revisiting it. Resp’t Post-

Hr’g Br. 3. The ALJ considered these arguments and credited

EPA’s version of events. See ALJ’s Decision & Order at 43

(finding that EPA’s actions with respect to Kaufman in March

2001 and thereafter were “the consequences of Fields’ December

memo precluding Kaufman from performing the Ombudsman

duties”). The ALJ’s conclusion is supported by substantial

evidence and provides a sufficient basis for upholding the

Department of Labor’s decision.

At times, however, the ALJ suggested that EPA’s refusal to

reinstate Kaufman in the spring of 2001 was not “adverse” to

him, and the ARB affirmed the ALJ with little independent

analysis. While those references, for the reasons explained,

introduced unnecessary confusion into the case, “we will uphold

a decision of less than ideal clarity if the agency’s path may

reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-

Best Freight Sys., Inc., 419 U.S. 281, 286 (1974); accord Wis.

Pub. Power, Inc. v. FERC, 493 F.3d 239, 273 (D.C. Cir. 2007)

(per curiam) (“Although FERC’s wording may have been less

than precise on this point, the agency’s path may reasonably be

discerned . . . .”) (internal quotation marks omitted); Nat’l

Treasury Emps. Union v. FLRA, 835 F.2d 1446, 1450 n.4 (D.C.

Cir. 1987) (denying petition for review where “the substantive

thrust of our reasoning accords with that of the [agency]”).

Accordingly, my own view is that, with respect to the claims

concerning EPA’s refusal to reinstate Kaufman in the spring of

2001, the petition for review should be denied because Kaufman

8

has failed to show that EPA’s proffered reason for its

refusal adherence to the prior personnel decision was pretext

for retaliatory animus. I would not hold, however, that Kaufman

“failed to demonstrate that [the refusals to reinstate him] were

adverse.” Ante, at 18.

Nor, finally, would I hold that Claims 2 through 6,

concerning EPA’s challenged March-May 2001 actions, “were

barred by the relevant statutes of limitation.” Id. at 2. There is

no contention that Kaufman filed (or amended) his complaint

more than 30 days after the allegedly retaliatory actions about

which he complains. Claims 2 through 6 all refer to events on

or after March 5, 2001, and Kaufman filed his first complaint on

April 3. As a matter of straightforward arithmetic, Kaufman’s

claims face no limitations bar. His claims may be

unmeritorious, but they are not untimely. And those two

questions should be kept distinct in light of the particular interest

in maintaining a straightforward approach when addressing

statutes-of-limitations questions at the threshold. See, e.g.,

Gonzalez v. Thaler, 132 S. Ct. 641, 655 (2012); Wilson v.

Garcia, 471 U.S. 261, 275 (1985).

The majority states that, if a refusal to reinstate can

“commence the rerunning of the statute of limitations” in the

circumstances of this case, that “would effectively write the

statutes of limitations out of the law.” Ante, at 18. I respectfully

disagree. Many circuits recognize that the denial of

reinstatement is independently actionable if motivated by

discriminatory or retaliatory bias, see Josephs, 443 F.3d at 1060,

and there is no indication that courts in those circuits have been

deluged with claims concerning long-ago events. It is true that

a terminated employee cannot “revive a barred claim simply by

asking, ‘Am I still fired?’” Ante, at 18. An employee could not

get past the limitations bar by attempting to “revive a barred

claim,” but instead would need to raise a new claim alleging new

9

discrimination connected to a new action (that of denying

reinstatement). An employee who can do so should be permitted

to proceed. If his employer refused to reinstate him for reasons

proscribed by Congress, the fact that he had already suffered an

adverse action at some previous point should pose no limitations

bar against his bringing a new claim based on the new

discriminatory or retaliatory act. That is what Kaufman attempts

to do here. His claims fail on the merits for the reasons

explained, but not for failure to bring them on time.