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UNPUBLISHED AUTHORED OPINION filed.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UNPUBLISHED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Petition for review denied by unpublished opinion.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.
2
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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
9
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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.
12
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certain
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procedures
complaints.
for
the
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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
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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.
20
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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
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