Duncan v. Office of Compliance

541 F.3d 1377, 22 OSHC (BNA) 1333, 2008 U.S. App. LEXIS 19571, 2008 WL 4207588
CourtCourt of Appeals for the Federal Circuit
DecidedSeptember 16, 2008
Docket2007-6001
StatusPublished
Cited by8 cases

This text of 541 F.3d 1377 (Duncan v. Office of Compliance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duncan v. Office of Compliance, 541 F.3d 1377, 22 OSHC (BNA) 1333, 2008 U.S. App. LEXIS 19571, 2008 WL 4207588 (Fed. Cir. 2008).

Opinions

Opinion for the court filed by Circuit Judge PROST. Dissenting opinion filed by Circuit Judge NEWMAN.

PROST, Circuit Judge.

Mr. Richard Duncan petitions for review of a decision of the Board of Directors of the Office of Compliance (“Board”) dismissing his complaint against his employer the Office of the Architect of the Capitol (“AOC”) for violation of section 207(a) of the Congressional Accountability Act of 1995 (“CAA”), codified at 2 U.S.C. §§ 1301-1438. Duncan v. Office of the Architect of the Capitol, No. 02-AC-59(RP) (Sept. 19, 2006). We affirm.

I. BACKGROUND

Mr. Duncan has been employed since 1986 as a mechanic in the Maintenance Division of the AOC. On September 5, 2002, Mr. Duncan, his immediate supervisor Robert Perry, and two other employees attempted to install a 550-pound fan motor in an air handling unit in the attic area of the East Wing of the U.S. Capitol. The record indicates that the space around the installation area was cramped, with some low ceilings, pipes, and duct work. Hard hat area signs were posted in the attic area, in accordance with the standards of the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. § 651 et seq. Mr. Duncan was the only employee wearing a hard hat during the fan motor installation.

As the four men attempted to lift the fan motor, Mr. Duncan’s hard hat hit Mr. Perry’s head. Mr. Duncan apologized. Mr. Perry asked him to remove the hard hat, but Mr. Duncan said nothing and did not remove the hard hat. During the second attempt to lift the fan motor, Mr. Duncan’s hard hat once again hit Mr. Perry’s head. Mr. Perry instantly responded with profanity, grabbing Mr. Duncan’s hard hat and throwing it to the floor. Later that day, the team successfully lifted the fan motor into place.

Mr. Duncan filed an informal and then a formal grievance, in accordance with the procedures established by the CAA. He requested transfer to another AOC work area, claiming that Mr. Perry’s act of forcibly removing the hard hat created a hostile work environment. The AOC denied the grievances and the requested transfer, and Mr. Duncan filed a complaint with the Office of Compliance under section 207(a) of the CAA, 2 U.S.C. § 1317(a), alleging retaliation. The hearing officer initially dismissed Mr. Duncan’s complaint on the ground that section 207(a) does not include OSHA-related retaliation claims. The Board reversed the dismissal, ruling that section 207(a) does include OSHA-related retaliation claims.

On remand, the hearing officer ruled in favor of the AOC, finding that Mr. Duncan failed to show that Mr. Perry’s removal of the hard hat was causally related to Mr. Duncan’s silent refusal to remove the hard hat. The Board affirmed that decision, stating that it need not decide whether Mr. Duncan had engaged in protected activity in refusing to remove his hard hat, or [1379]*1379whether Mr. Perry’s forceful action was reasonably likely to deter protected activity. The Board concluded that Mr. Duncan failed to show that there was a causal connection between Mr. Duncan’s silent refusal to remove the hard hat and Mr. Perry’s removal of the hat after the second head-bump. Mr. Duncan appeals.

We have jurisdiction over this appeal of a final decision of the Board pursuant to 2 U.S.C. § 1407.

II. DISCUSSION

A. Jurisdiction

The CAA provides legislative branch employees with the protection of various labor and employment statutes, and it prohibits reprisal against any covered employee who opposes any practice made unlawful by the Act. 2 U.S.C. § 1317(a). The Office of Compliance is an independent agency within the legislative branch charged with enforcing the CAA. 2 U.S.C. § 1381.

The AOC argues that the CAA does not extend anti-reprisal protection to OSHA-related claims and that, accordingly, the Board lacked subject matter jurisdiction over Mr. Duncan’s claim. We disagree. As argued by the Office of Compliance, the Board had subject matter jurisdiction over Mr. Duncan’s claim because the express, unambiguous language of the CAA accords legislative employees anti-reprisal protection for OSHA-related claims.

Section 215 of the CAA states that “[e]ach employing office and each covered employee shall comply with the provisions of section 5 of [OSHA].” 2 U.S.C. § 1341. Section 5 of OSHA states, inter alia, that the employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards” and it also requires that the employer “comply with occupational safety and health standards promulgated under [OSHA].” 29 U.S.C. § 654(a). Thus, the CAA extends OSHA’s workplace protections to legislative employees, making it unlawful for Congressional agencies to fail to comply with the substantive requirements of OSHA. Section 207(a) of the CAA states:

It shall be unlawful for an employing office to intimidate, take reprisal against, or otherwise discriminate against, any covered employee because the covered employee has opposed any practice made unlawful by this Act, or because the covered employee has initiated proceedings, made a charge, or testified, assisted, or participated in any mariner in a hearing or other proceeding under this Act.

2 U.S.C. 1317(a) (emphases added). Thus, the express language of the CAA accords legislative employees anti-reprisal protection for opposition to “any practice made unlawful by this Act,” which, as we have previously explained, extends to OSHA-related claims.

The AOC argues that section 207 applies only to issues invoking the laws that are expressly mentioned in Part A of the CAA, and that because OSHA is mentioned only in Part C the anti-reprisal protections of the CAA do not extend to OSHA-related claims. Accordingly, in the AOC’s view, there is no jurisdiction in the Board for OSHA-related retaliation claims. The AOC also argues that “Part A’s title enumerates the federal laws to which it applies” and that “Congress did not include the OSHA in this list.” The language used by Congress in section 207, however, clearly provides that it is applicable when a covered employee opposes any practice made unlawful “by this Act.” Like the Board, we refuse to construe the placement of section 207(a) in Part A to trump its express language.

[1380]*1380Additionally, the AOC argues that Congress did not waive its sovereign immunity regarding OSHA-related retaliation claims and that any ambiguity regarding the applicability of section 207 to OSHA-related retaliation claims must be construed in favor of sovereign immunity.

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Morris v. OFFICE OF COMPLIANCE
608 F.3d 1344 (Federal Circuit, 2010)
Duncan v. Office of Compliance
541 F.3d 1377 (Federal Circuit, 2008)

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Bluebook (online)
541 F.3d 1377, 22 OSHC (BNA) 1333, 2008 U.S. App. LEXIS 19571, 2008 WL 4207588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-office-of-compliance-cafc-2008.