William Smith v. Department of Labor

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2009-ERA-007,14-027 Copies to all parties and the district court/agency. [1000000078].. [15-1713]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1713

WILLIAM SMITH,
Petitioner,
v.
DEPARTMENT OF LABOR; THOMAS E. PEREZ, Secretary,
Respondents,
and
DUKE ENERGY CAROLINAS, LLC; ATLANTIC GROUP, INC., d/b/a DZ
Atlantic,
Respondents – Intervenors.
----------------------------------METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION and
GOVERNMENT ACCOUNTABILITY PROJECT,
Amici Supporting Petitioner,
NUCLEAR ENERGY INSTITUTE, INC.,
Amicus Supporting Respondents/Respondents-Intervenors.

On Petition for Review of an Order of the United States
Department of Labor, Administrative Review Board.
(14-027;
2009-ERA-007)

Argued:

October 26, 2016

Decided:

January 9, 2017

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Before KING, KEENAN, and DIAZ, Circuit Judges.

Petition for review denied by unpublished opinion. Judge Keenan
wrote the opinion, in which Judge King and Judge Diaz joined.

ARGUED: Jason Mark Zuckerman, ZUCKERMAN LAW, Washington, D.C.,
for Petitioner.
Ann Capps Webb, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondents.
Kiran H. Mehta,
TROUTMAN SANDERS LLP, Charlotte, North Carolina, for Intervenor.
ON BRIEF: R. Scott Oswald, Adam Augustine Carter, THE EMPLOYMENT
LAW GROUP, P.C., for Petitioner.
M. Patricia Smith, Solicitor
of Labor, Jennifer S. Brand, Associate Solicitor, Fair Labor
Standards
Division,
William
C.
Lesser,
Deputy
Associate
Solicitor, Rachel Goldberg, Acting Counsel for Whistleblower
Programs, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.
Molly McIntosh Jagannathan, TROUTMAN SANDERS
LLP, Charlotte, North Carolina, for Intervenor Duke Energy
Carolinas, LLC; Lewis M. Csedrik, Jane T. Accomando, MORGAN,
LEWIS & BOCKIUS, LLP, Washington, D.C., for Intervenor Atlantic
Group, Inc. Ellen C. Ginsberg, Jonathan M. Rund, NUCLEAR ENERGY
INSTITUTE, INC.; Donn C. Meindertsma, CONNER & WINTERS, LLP,
Washington, D.C., for Amicus Nuclear Energy Institute, Inc.
Richard R. Renner, KALIJARVI, CHUZI, NEWMAN & FITCH, P.C.,
Washington, D.C.; Tom Devine, GOVERNMENT ACCOUNTABILITY PROJECT,
Washington, D.C.; Erik D. Snyder, LAW OFFICES OF ERIK D. SNYDER,
Washington, D.C.; Alan R. Kabat, BERNABEI & WACHTEL, PLLC,
Washington, D.C., for Amici Metropolitan Washington Employment
Lawyers Association and Government Accountability Project.

Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:
In this appeal from a final decision of the Department of
Labor

(Department),

arbitrarily
complaint
(ERA),

or

consider

capriciously

filed

42

we

under

U.S.C.

the

whether

in

Department

dismissing

Energy

§ 5851.

the

a

Reorganization

Petitioner

William

acted

whistleblower
Act

Smith

of

1974

filed

an

administrative complaint with the Department alleging that his
direct employer, Atlantic Group, Inc., d/b/a DZ Atlantic (DZ
Atlantic), and the operator of the nuclear facility at which he
worked, Duke Energy Carolinas, LLC (Duke), unlawfully terminated
his employment in retaliation for reporting a safety violation
at the nuclear facility.
An administrative law judge (ALJ) concluded that although
Smith established that his protected activity was a contributing
factor in his termination, Duke and DZ Atlantic proved their
affirmative defense that they would have taken the same adverse
personnel actions even if Smith had not engaged in protected
whistleblowing conduct.

The Department’s Administrative Review

Board (the Board) affirmed the ALJ’s decision.
Upon

our

review,

we

conclude

that

the

Department’s

adjudication of Smith’s administrative complaint satisfied the
correct

legal

standard,

and

that

the

Department’s

findings are supported by substantial evidence.

3

factual

We therefore

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deny

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Smith’s

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petition

for

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review

of

the

Department’s

final

decision.
I.
A.
Duke

operates

the

Catawba

Nuclear

Station

(Catawba),

facility in South Carolina that generates nuclear power.

a
As

required by Duke’s operating license and the safety regulations
promulgated by the United States Nuclear Regulatory Commission
(the Commission), Duke has established a fire protection program
known

as

program

“NSD-316”
requires

(the
that

program).
hourly

10

C.F.R.

inspections,

§ 50.48.

known

The

as

“fire

watches,” be conducted in certain areas of the Catawba plant to
ensure detection of early stages of fire, such as evidence of
smoke

or

smoldering.

The

personnel

who

perform

these

“fire

watches” are known in the industry as “fire watchers.”
After each fire watch inspection, the fire watchers are
required to record in a written log the time they completed each
inspection,

and

to

certify

with

their

initials

that

the

information entered is accurate.

In four areas of the Catawba

facility,

were

basis.

fire

watch

inspections

required

on

an

hourly

After each of these hourly inspections, the fire watcher

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conducting the “rounds” signed four separate log entries that
corresponded with the four different inspection areas. 1
Petitioner William Smith was employed as a fire watcher at
Catawba, from May 2007 until his employment was terminated in
February

2008.

Smith

was

employed

directly

by

DZ

Atlantic,

which had entered into a contract with Duke to provide fire
watchers to Catawba.

These fire watchers were assigned to work

under the supervision of Duke employees.
Smith and co-worker Cathy Reid generally worked the night
fire watch shift, while co-workers Christine Borders and Jeff
Pence

generally

worked

the

opposite

day

shift.

Throughout

Smith’s employment with DZ Atlantic, these four fire watchers at
Catawba

occasionally

“pre-signed”

the

fire

watch

logs

before

performing their inspections.
In January 2008, Duke supervisor David Hord informed the
four fire watchers that the Commission had discovered problems
at another nuclear facility involving false entries made in that
facility’s

fire

watch

logs.

Hord

informed

the

Catawba

fire

watchers that he expected them to “follow procedures correctly.”
About one month later, on February 12, 2008, Smith arrived
at the job site at 3:45 p.m.

He observed that Borders had “pre-

1

Around February 2008, management added a fifth fire watch
area, to be inspected hourly by the fire watchers, and a
corresponding fifth fire watch log sheet.

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signed” the fire watch logs for the 3:50 p.m. round, and already
had departed the facility.

At some time after 3:50 p.m., when

Smith

the

asked

Pence

about

apparent

discrepancy,

Pence

explained that he had performed the 3:50 p.m. fire watch.

Smith

replied that Pence needed to correct the log sheets to reflect
that Pence had performed the 3:50 p.m. round, or Smith would
report the inaccurate entries.

Although Pence agreed to correct

the log entries, he failed to do so.

Thus, when Smith’s shift

began at 5:00 p.m., the fire watch logs inaccurately reflected
that Borders had performed the fire watch round at 3:50 p.m.
Smith worked his shift that night from 5:00 p.m. until 5:00
a.m.

During his shift, Smith signed his name directly below the

inaccurate fire watch entries, but did not mention them again to
Pence or report the discrepancies to any supervisor.
The

next

day,

February

13,

2008,

near

the

beginning

of

Smith’s shift, Duke supervisor Tommy Withers asked Smith some
questions regarding Borders’ attendance at work on February 13,
2008. 2

Smith later told Pence about Withers’ inquiry.

Several

days later, Borders stated to Reid that she was angry at Smith
for

informing

sheets.”

2

a

supervisor

about

the

“falsification

of

time

In that same conversation, Borders also said that she

The record
Withers’ question.

does

not

indicate

6

how

Smith

responded

to

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intended to retaliate against Smith by accusing him of sexual
harassment.
Borders filed a sexual harassment complaint against Smith
five days after Smith had observed the inaccurate entries in the
fire watch log.

Management personnel from DZ Atlantic began an

investigation of Borders’ complaint, and interviewed Smith about
the sexual harassment allegations.

During the interview, Smith

denied that he had engaged in any sexual harassment, and stated
that he thought that Borders had filed a false complaint against
him because he was aware that she had been submitting false time
sheets.

The DZ Atlantic investigators ultimately concluded that

there was insufficient evidence to prove or disprove Borders’
sexual harassment allegations. 3
After
fire

watch

Smith

the
log

related

investigational
discrepancies
to

Hord

that

interview,
to

Hord,

Borders

Smith

his

had

reported

Duke

entered

the

supervisor.
inaccurate

information in the fire watch logs for February 12, 2008, by
falsely signing that she had performed a particular inspection
round.

Hord was the first Duke employee to learn that the fire

watch logs may have been falsified.
3

Smith alleges that during the investigational interview,
he reported Borders’ falsification of fire watch log entries.
However, the management personnel from DZ Atlantic testified
that they understood Smith’s comments as relating only to
falsified time sheets.

7

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Hord

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reported

O’Brien.

this

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information

to

his

supervisor,

Danny

O’Brien advised DZ Atlantic personnel that Duke had

begun investigating whether a DZ Atlantic employee had recorded
inaccurate information in the fire watch logs, and that all four
DZ Atlantic fire watchers had been relieved from duty during the
pendency

of

the

investigation.

A

comparison

of

Catawba’s

electronic access records with the fire watch logs revealed that
Borders

had

left

the

Catawba

facility

on

February

12,

2008,

about an hour before the 3:50 p.m. inspection for which she had
signed.
Following this investigation, Duke released the four fire
watchers

from

their

released

Borders

duties

for

at

failing

to

the

Catawba

conduct

the

facility.
fire

Duke

watches

in

accord with her certification, Pence for failing to correct the
fire watch logs, and Smith for withholding his discovery of the
log

inaccuracies.

Reid,

who

was

not

implicated

in

any

wrongdoing, ultimately was released “favorably” from fire watch
duties at Catawba.
After Duke’s release of the four fire watchers, DZ Atlantic
supervisor
determine
Atlantic.

Michael
whether

Henline
to

interviewed

terminate

their

each

individually

employment

with

to
DZ

Henline terminated Borders’ and Pence’s employment

after their respective interviews.

8

Henline later confirmed that

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Reid was not aware of any log falsifications, and reassigned her
to a job at another Duke facility.
During Smith’s interview, Henline was accompanied by Duke
managers O’Brien and Susan Kelley.

Kelley asked Smith why he

had not immediately reported the false entries made in the fire
watch logs.

Smith responded both that he had not thought of

reporting the issue at the time, and that he had intended to
report the issue before the end of the month.

At the conclusion

of Smith’s interview, Henline terminated Smith’s employment due
to

his

delay

characterized

in

reporting

Smith’s

delay

the

false

in

log

reporting

entries.
the

Henline

incident

as

a

matter demonstrating a lack of integrity and trustworthiness.
As

a

result

of

Smith

was

employment,

the

personnel

ineligible

for

action

terminating

rehire

by

DZ

his

Atlantic.

Duke also entered into the Personnel Access Data System (PADS),
an industry–wide database serving the nuclear power industry,
information
suitable

for

that

Borders,

unescorted

Pence,

access

to

and

Smith

nuclear

no

longer

facilities.

were
As

a

result of this adverse database entry, Smith has been unable to
obtain employment in the nuclear power industry.
B.
Smith filed a complaint with the Department against Duke
and

DZ

Atlantic

(the

employers),

under

employee

protection

provisions of the Energy Reorganization Act of 1974 (ERA), 42
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U.S.C. § 5851.

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Smith alleged that the employers took adverse

employment actions against him by terminating his employment and
by

placing

an

unfavorable

entry

in

PADS,

in

retaliation

for

Smith’s protected activity of reporting Borders’ false entries
in

the

fire

watch

log.

After

conducting

a

hearing

on

the

matter, the ALJ denied Smith’s complaint on the basis that his
protected activity was not a contributing factor in the adverse
employment actions taken by the employers.
After considering Smith’s appeal, the Board held that the
ALJ erred in concluding that Smith’s protected conduct did not
contribute

to

his

termination

because

“the

only

reason

that

managers learned about the [fire watch log falsification] was
because Smith notified them.”

Accordingly, the Board held that

Smith’s protected disclosures were “‘inextricably intertwined’
with the investigation that led to his termination,” and, thus,
that Smith had met his burden of proving that his protected
conduct was a contributing factor in his firing.

The Board

accordingly remanded the case to the ALJ to determine whether
the employers could prove by clear and convincing evidence that
they would have taken the same adverse employment actions absent
Smith’s protected activity.
On remand, the ALJ determined that the employers had met
their burden of presenting “clear and convincing” evidence that
they would have taken the same adverse employment action against
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Smith absent the protected conduct.

Applying the factors listed

in Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999), the ALJ determined that the evidence strongly
supported

the

trustworthy

employers’

or

reliable,

conclusions
based

on

his

reporting Borders’ false log entries.
that

the

either

record

of

lacked

the

any

employers

Smith

was
delay

in

seven-day

not

The ALJ also concluded

probative

acted

that

with

evidence
a

showing

retaliatory

that

motive.

Finally, the ALJ determined that while Duke had not encountered
similar

integrity

testimony

of

DZ

concerns

Atlantic

involving

supervisor

its

Henline

employees,
showed

that

the
his

company had fired employees who had manifested such integrity
problems.
The Board affirmed the ALJ’s second decision.

The Board

held that although an intervening Board decision, Speegle v.
Stone

&

Webster

Construction,

Inc.,

ARB

No.

13-074,

ALJ

No.

2005-ERA-006, 2014 WL 1758321 (ARB Apr. 25, 2014), governed the
Board’s consideration of Smith’s appeal, “the analysis set out
in Speegle is not unlike that set out in Carr.”

Accordingly,

the Board held that “the ALJ’s ruling . . . is correct even
applying

the

Speegle

analysis.”

The

Board

reasoned

that

“[p]rotected activity will not shield an under-performing worker
from discipline,” and that the ALJ reasonably concluded that
Smith

was

terminated

for

integrity
11

issues

rather

than

for

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whistleblowing activity. 4

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Smith later filed the present petition

for review in this Court.
II.
The
provides

Administrative
the

Procedure

statutory

Department’s decision.

standard

Act

(APA),

under

5

which

U.S.C.
we

§ 706,

review

See 42 U.S.C. § 5851(c)(1).

the

Under this

standard, we will uphold the ALJ’s findings of fact if supported
by “substantial evidence.”

See 5 U.S.C. § 706(2)(E).

We review

questions of law de novo, but give deference to the Board’s
interpretation

of

statutes

that

Department with administering.

Congress

has

charged

the

Welch v. Chao, 536 F.3d 269,

275–76 (4th Cir. 2008) (citing Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).
We

begin

with

an

overview

of

governing ERA whistleblower cases.

the

regulatory

scheme

The ERA forbids employer

retaliation against employees who report violations of nuclear
safety regulations.

42 U.S.C. § 5851(a)(1)(A).

An employee who

believes that he has been subject to unlawful discrimination in
violation

of

the

complaint

with

ERA’s

the

whistleblower

Secretary

of

4

protections

Labor,

who

has

may

file

a

established

In a dissenting opinion, Judge Royce concluded that
Smith’s
protected
activity
impermissibly
resulted
in
his
employment being terminated.

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certain

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procedures

complaints.

for

the

Pg: 13 of 23

adjudication

of

ERA

whistleblower

Id. § 5851(b)(1); 29 C.F.R. §§ 24.100–24.115.

The Department adjudicates ERA whistleblower cases under a
“burden-shifting” framework.
468, 481 (9th Cir. 2014).
procedures,

the

employee

Tamosaitis v. URS Inc., 781 F.3d
Under the Department’s adjudication

complainant

first

must

establish

a

prima facie showing that:
(i) The employee engaged in a protected activity;
(ii) The employer knew . . . that the employee engaged
in the protected activity;
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the
inference
that
the
protected
activity
was
a
contributing factor in the adverse action. 5
29 C.F.R. § 24.104(f)(2).

If the employee establishes such a

prima facie case, the burden shifts to the employer respondent
to establish by clear and convincing evidence that the employer
“would have taken the same unfavorable personnel action in the
absence of [the complainant’s protected] behavior.”

42 U.S.C.

§ 5851(b)(3)(D); see also 29 C.F.R. § 24.104(f)(4).

5

The parties to this appeal do not dispute the Board’s
determination that Smith met his burden of establishing a prima
facie case.
Instead, their dispute involves the next step in
the analysis, namely, whether the employers established by clear
and convincing evidence that they would have taken the same
adverse action in the absence of the protected activity.

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The “same action” or “same decision” affirmative defense
requires the employer to prove that it “would have,” not simply
that it “could have,” made the same adverse employment decision
absent the protected activity.

Speegle, 2014 WL 1758321, at *7;

see also Bobreski v. J. Givoo Consultants, Inc., ARB No. 13-001,
ALJ No. 2008-ERA-003, 2014 WL 4389968, at *10 (ARB Aug. 29,
2014) (describing the affirmative defense as “the same decision
defense”).

This

standard

demanding in nature.

intentionally

was

designed

to

be

See Stone & Webster Eng’g Corp. v. Herman,

115 F.3d 1568, 1572 (11th Cir. 1997) (“For employers, this is a
tough standard, and not by accident.”), superseded in part on
other grounds by regulation, 29 C.F.R. § 24.110.
In

evaluating

a

“same

action”

or

“same

decision”

affirmative defense, an ALJ must consider three non-dispositive
factors, which may be applied flexibly in each individual case.
Speegle, 2014 WL 1758321, at *7.
the

evidence

is

“clear”

and

These factors are: (1) whether
“convincing”

regarding

the

independent significance of the non-protected activity; (2) the
extent of the evidence showing whether the employer would have
made the same adverse decision; and (3) any facts that would
have changed had the protected activity not occurred.
With

regard

consider

the

engaged

in

to

the

third

hypothetical
the

protected

Speegle

premise

that

activity,
14

factor,
the
and

the

Id.
ALJ

employee
must

must
never

disregard

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“significant
protected
marks

Filed: 01/09/2017

facts

that

activity.”

omitted).

would

Id.

The

Pg: 15 of 23

at

disappear
*5,

employer

at

*7,

*9

that

in

the

absence

(internal

point

must

of

quotation
show

that

factors extrinsic to the protected activity nevertheless would
have led the employer to make the same decision.

DeFrancesco v.

Union R.R. Co., ARB No. 13-057, ALJ No. 2009-FRS-009, 2015 WL
5781070,

at

*6

(ARB

Sept.

30,

2015)

(applying

the

Speegle

factors to a “same decision” affirmative defense in a Federal
Rail Safety Act case).
In

the

present

provides

the

asserted

by

case,

framework
the

for

the

parties

analyzing

employers.

The

the

parties

agree

that

Speegle

affirmative

defense

disagree,

however,

regarding how the Speegle factors should be applied when the
whistleblower’s protected disclosure reveals the whistleblower’s
own misconduct.

Smith argues that in such cases, the ALJ cannot

consider the “forbidden fruits” of the protected activity, such
as the facts discovered by the employers as a result of the
employee’s protected disclosure.

Smith contends that such facts

are “logically related” and intextricably intertwined with the
employee’s

protected

activity,

and

would

disappear

in

the

absence of the protected activity.
In response, the Department and the employers argue that
the ALJ should evaluate the hypothetical circumstance that the
employers had learned of identical misconduct in the absence of
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the protected disclosure, and need not consider the probability
that the employers would have learned of the misconduct without
the protected disclosure.

According to this view, the ALJ would

need only to disregard the potentially prejudicial nature of the
protected disclosure itself, rather than the entirety of the
facts learned as a result of the protected disclosure.

We agree

with the Department and the employers.
When

an

employee’s

protected

activity

triggers

an

investigation that reveals the employee’s own misconduct, the
pertinent

question

is

enforcing

rules

selectively

discipline

or

against

retaliation.

whether

the

employer

imposing

whistleblowers

as

a

is

selectively

extraordinarily
pretext

harsh

for

unlawful

See DeFrancesco, 2015 WL 5781070, at *6.

The ALJ

therefore must examine whether the rule being enforced against
the whistleblower also is enforced against non-whistleblowers,
the

nature

evidence

and

purpose

suggests

employment action.

a

of

the

rule,

retaliatory

See id. at *7–8.

and

whether

motive

for

any

the

other

adverse

And, notably, there is no

basis in statute or regulation for the additional requirement
urged

by

Smith

that

the

ALJ

disregard

all

“fruits”

of

an

investigation ultimately developed as a result of the employee’s
protected conduct.
We

therefore

See id. at *6.
decline

Smith’s

effective

request

that

we

adopt in ERA cases an “inevitable discovery” rule requiring an
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employer

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asserting

a

“same

Pg: 17 of 23

decision”

affirmative

defense

to

prove that the employer independently would have discovered the
whistleblower's
occurred.
(Fed.

misconduct

had

the

protected

activity

not

See Watson v. Dep’t of Justice, 64 F.3d 1524, 1528

Cir.

1995)

(declining

to

require,

as

part

of

a

“same

decision” affirmative defense in a Whistleblower Protection Act
case,

that

a

defendant

prove

that

it

would

have

inevitably

discovered the whistleblower’s misconduct in the absence of the
whistleblower’s protected conduct).

Such a rule would permit

wrongdoers to shield their own misconduct by providing negative
information about their own activities.
the

Federal

Circuit

has

observed,

that

See id. at 1527.
type

of

rule

As

would

increase the evidentiary burden placed on an employer, contrary
to the present burden assigned by statute.

Id. at 1530.

We thus agree with the Board’s decision in this case that
“[p]rotected activity will not shield an under-performing worker
from

discipline.”

Accordingly,

we

hold

that

in

ERA

whistleblower cases in which the protected disclosures reveal
the whistleblower’s own misconduct, the employer is not required
to

prove

that

whistleblower’s

it

independently

have

Instead,

misconduct.

would

the

discovered
employer

the
must

demonstrate by clear and convincing evidence that it would have
imposed the same type of discipline for the same infraction by a

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non-whistleblowing employee, regardless of the manner in which
the employer discovered the misconduct.
III.
Because the Board had not issued its decision in Speegle at
the

time

relied

the
the

decided

present

strength

of

the

in

evidence

Carr,

the

ALJ

supporting

of

ALJ

Carr

instead

Under

forth

test

the

Security Administration, 185 F.3d 1318 (Fed. Cir. 1999).
set

three-factor

case,

Social

factors

similar

the

v.

the

on

ALJ

considered:

the

(1)

employer’s

the

stated

reasons for taking an adverse personnel action; (2) the strength
of evidence showing a retaliatory motive of the employer; and
(3)

the

evidence

of

similar

situated non-whistleblowers.

action

taken

against

similarly

See Carr, 185 F.3d at 1323.

The ALJ held that the record provided “exceptionally strong
evidence”

to

support

the

determination

that

Smith

was

not

trustworthy or reliable because he reported Borders’ misconduct
only when confronted with an allegation of his own misconduct.
The ALJ also determined that the credible testimony of O’Brien
and

Henline

provided

“very

probative

evidence”

that

the

employers took the adverse actions against Smith based on his
seven-day delay in reporting the false log entries, rather than
because of any retaliatory motive or animosity.
the

ALJ

found

that

while

Duke

18

had

not

been

Additionally,
confronted

with

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similar

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integrity

issues

Pg: 19 of 23

involving

non-whistleblowers,

the

record was clear that DZ Atlantic had terminated the employment
of non-whistleblowers who had manifested integrity issues.
The

decision

in

Speegle

did

not

require

the

ALJ

to

disregard any “fruits” of the employers’ investigations, or for
the

employers

to

prove

that

discovered Smith’s misconduct.

they

independently

would

have

And, as the Board observed, the

ALJ’s factual findings under the Carr factors readily support
the same conclusions under the Speegle factors. 6
The first Speegle factor requires considering whether the
evidence was “clear” and “convincing” regarding “the independent
significance of the non-protected activity.”

Speegle, 2014 WL

1758321, at *7 (internal quotation marks omitted).

The well-

developed record on this issue shows that the ALJ focused on
evidence showing “the magnitude and seriousness of Mr. Smith’s
seven day delay in reporting the fire watch log falsification.”
The ALJ observed from the testimony that fire watchers in the
nuclear power industry are required to meet high standards of
trustworthiness

and

reliability.

The

ALJ

emphasized

that

“falsification of a fire watch log was a serious violation of

6

We therefore disagree with Smith’s alternative argument
that because the ALJ did not have the benefit of the Speegle
decision, we should remand this case for the ALJ to apply the
Speegle factors.

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Duke Energy’s licensing requirements, and Duke Energy clearly
had an interest in being promptly informed of that licensing
breach.”

The

ALJ

also

observed

from

the

evidence

that

the

Commission took action against workers, and licensees such as
Duke,

“who

deliberately

create

an

incomplete

or

inaccurate

record.”
With regard to Smith’s awareness of the seriousness of the
issue, the ALJ found that Smith was cognizant at all times that
Borders’ false log entries presented a significant issue, as
evidenced

by

his

“threatening

Mr.

Pence

that

[Smith]

report the falsification if left uncorrected.”

would

The ALJ also

concluded that Smith’s conduct fell far short of strict industry
standards,
regarding

by
the

demonstrate
Speegle
record

his
log

that

factor,

“deliberate[ly]
falsification. 7

he

considered

and

identified

demonstrating

the

the

withholding”
Thus,

the

substance

overwhelming

independent

information

ALJ’s
of

the

evidence

significance

findings

of

first
in

the

Smith’s

non-protected activity.
The ALJ also made findings relevant to the second Speegle
factor by considering “the evidence that proves or disproves
7

We find no merit in Smith’s argument that his misconduct
was not nearly as serious as the actions of Borders and Pence.
The fact that other employees may have engaged in more egregious
conduct does not exempt Smith’s conduct from being found
untrustworthy and dishonest.

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whether

the

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employer[s]

would

Pg: 21 of 23

have

taken

the

same

actions” in the absence of the non-protected activity.

adverse
Speegle,

2014 WL 1758321, at *7 (internal quotation marks omitted).
ALJ

compared

the

employers’

treatment

of

other

The
non-

whistleblowing employees for integrity violations and determined
that Smith had not been treated any more harshly than similarly
situated

non-whistleblowers,

like

Borders,

Pence,

or

other

employees previously terminated by DZ Atlantic.
The ALJ’s findings also undercut Smith’s present contention
that he was not similarly situated to Borders or Pence because
his conduct only amounted to “unintentional delay” in reporting
Borders’

misconduct.

The

ALJ

explicitly

found

that

Smith’s

delay in reporting was “deliberate” based on Smith’s signing
“just a quarter inch” below Borders’ false certifications, and
that Smith had decided to report Borders’ false certification
only after she charged him with engaging in sexual harassment.
We will not disrupt these factual findings, and conclude that
substantial evidence supports the ALJ’s determination that Smith
was treated comparably to the “similarly situated” Borders and
Pence. 8

8

Smith also argues that he was subject to a more severe
punishment than Pence, because Henline later decided that Pence
was eligible for rehire and attempted to help him find other
employment.
However, the ALJ credited Henline’s testimony that
he treated Pence differently because Pence had acknowledged his
(Continued)
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Under

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the

third

Speegle

Pg: 22 of 23

factor,

the

ALJ

is

required

to

consider “the facts that would change in the absence of the
protected
omitted).

activity.”

Id.

at

*7

(internal

quotation

marks

The fully developed record in the present case did

not reveal any facts regarding the fire watchers’ actions or
duties

that

disclosure.

would

have

changed

in

the

absence

of

Smith’s

Also, consistent with this third Speegle factor, as

discussed above, the ALJ analyzed whether the employers “would
have

taken

the

same

adverse

personnel

actions

if

they

had

discovered by other means . . . Mr. Smith’s failure to promptly
report the falsification of the February 12, 2008 fire watch
logs.”

The ALJ concluded from the testimony that DZ Atlantic

discharged non-whistleblowing employees in response to evidence
of their integrity failures, and that Duke had not taken similar
action only because it had not confronted such a situation in
the past.

Thus, the record shows that the ALJ considered the

substance of the third Speegle factor, and that his findings
relevant to that factor are supported by substantial evidence.
Accordingly, upon our consideration of the record within
the framework of the Speegle factors, we hold that substantial

wrongdoing, while Smith had not.
Substantial evidence supports
the ALJ’s factual determination, and Smith’s argument therefore
fails.

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evidence in the record supports the ALJ’s conclusion that there
was clear and convincing evidence that the employers “would have
taken the same unfavorable personnel actions” against Smith in
the

absence

of

the

protected

behavior.

See

42

U.S.C.

§ 5851(b)(3)(D).
IV.
For these reasons, we deny Smith’s petition for review of
the Board’s decision dismissing his administrative complaint.

PETITION FOR REVIEW DENIED

23