William Smith v. Department of Labor , 674 F. App'x 309 ( 2017 )

UNPUBLISHED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
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Petition for review denied by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal from a final decision of the Department of
Labor (Department), we consider whether the Department acted
arbitrarily or capriciously in dismissing a whistleblower
complaint filed under the Energy Reorganization Act of 1974
(ERA), 42 U.S.C. § 5851. Petitioner William Smith 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 factual
findings are supported by substantial evidence. We therefore
3
deny Smith’s petition for review of the Department’s final
decision.
I.
A.
Duke operates the Catawba Nuclear Station (Catawba), a
facility in South Carolina that generates nuclear power. 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 “NSD-316” (the program). 10 C.F.R. § 50.48. The
program requires that hourly inspections, known 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, fire watch inspections were required on an hourly
basis. After each of these hourly inspections, the fire watcher
4
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.
5
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 asked Pence about the 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 a supervisor about the “falsification of time
sheets.” In that same conversation, Borders also said that she
2
The record does not indicate how Smith responded to
Withers’ question.
6
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 the investigational interview, Smith reported the
fire watch log discrepancies to Hord, his Duke supervisor.
Smith related to Hord that Borders had entered 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
Hord reported this information to his supervisor, Danny
O’Brien. 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 duties at the Catawba facility. Duke
released Borders for failing to conduct the fire 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 Michael Henline interviewed each individually to
determine whether to terminate their employment with DZ
Atlantic. Henline terminated Borders’ and Pence’s employment
after their respective interviews. Henline later confirmed that
8
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 in reporting the false log entries. Henline
characterized Smith’s delay in reporting the incident as a
matter demonstrating a lack of integrity and trustworthiness.
As a result of the personnel action terminating his
employment, Smith was ineligible for rehire by DZ Atlantic.
Duke also entered into the Personnel Access Data System (PADS),
an industry–wide database serving the nuclear power industry,
information that Borders, Pence, and Smith no longer were
suitable for unescorted access to nuclear facilities. 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
U.S.C. § 5851. 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
10
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 employers’ conclusions that Smith was not
trustworthy or reliable, based on his seven-day delay in
reporting Borders’ false log entries. The ALJ also concluded
that the record lacked any probative evidence showing that
either of the employers acted with a retaliatory motive.
Finally, the ALJ determined that while Duke had not encountered
similar integrity concerns involving its employees, the
testimony of DZ Atlantic supervisor Henline showed that 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 issues rather than for
11
whistleblowing activity. 4 Smith later filed the present petition
for review in this Court.
II.
The Administrative Procedure Act (APA), 5 U.S.C. § 706,
provides the statutory standard under which we review the
Department’s decision. See 42 U.S.C. § 5851(c)(1). 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 Congress has charged the
Department with administering. 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 the regulatory scheme
governing ERA whistleblower cases. 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 ERA’s whistleblower protections may file a
complaint with the Secretary of Labor, who has established
4 In a dissenting opinion, Judge Royce concluded that
Smith’s protected activity impermissibly resulted in his
employment being terminated.
12
certain procedures for the adjudication of ERA whistleblower
complaints. Id. § 5851(b)(1); 29 C.F.R. §§ 24.100–24.115.
The Department adjudicates ERA whistleblower cases under a
“burden-shifting” framework. Tamosaitis v. URS Inc., 781 F.3d
468, 481 (9th Cir. 2014). Under the Department’s adjudication
procedures, the employee 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.
13
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 intentionally was designed to be
demanding in nature. 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. These factors are: (1) whether
the evidence is “clear” and “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. Id.With regard to the third Speegle factor, the ALJ must
consider the hypothetical premise that the employee never
engaged in the protected activity, and must disregard
14
“significant facts that would disappear in the absence of
protected activity.” Id. at *5, *7, *9 (internal quotation
marks omitted). The employer at that point must 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 case, the parties agree that Speegle
provides the framework for analyzing the affirmative defense
asserted by the employers. The parties 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
15
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 whether the employer is selectively
enforcing rules or selectively imposing extraordinarily harsh
discipline against whistleblowers as a pretext for unlawful
retaliation. 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 and purpose of the rule, and whether any other
evidence suggests a retaliatory motive for the adverse
employment action. See id. at *7–8. 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. See id. at *6.
We therefore decline Smith’s effective request that we
adopt in ERA cases an “inevitable discovery” rule requiring an
16
employer asserting a “same decision” affirmative defense to
prove that the employer independently would have discovered the
whistleblower's misconduct had the protected activity not
occurred. See Watson v. Dep’t of Justice, 64 F.3d 1524, 1528
(Fed. 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. See id. at 1527. As
the Federal Circuit has observed, that type of rule 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 it independently would have discovered the
whistleblower’s misconduct. Instead, the employer must
demonstrate by clear and convincing evidence that it would have
imposed the same type of discipline for the same infraction by a
17
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 the ALJ decided the present case, the ALJ instead
relied on the similar three-factor test of Carr v. Social
Security Administration, 185 F.3d 1318 (Fed. Cir. 1999). Under
the factors set forth in Carr, the ALJ considered: (1) the
strength of the evidence supporting the employer’s 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 action taken against similarly
situated non-whistleblowers. 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. Additionally,
the ALJ found that while Duke had not been confronted with
18
similar integrity issues 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 they independently would have
discovered Smith’s misconduct. 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
6We 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.
19
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] would
report the falsification if left uncorrected.” The ALJ also
concluded that Smith’s conduct fell far short of strict industry
standards, by his “deliberate[ly] withholding” information
regarding the log falsification. 7 Thus, the ALJ’s findings
demonstrate that he considered the substance of the first
Speegle factor, and identified overwhelming evidence in the
record demonstrating the independent significance of 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
whether the employer[s] would have taken the same adverse
actions” in the absence of the non-protected activity. Speegle,
2014 WL 1758321, at *7 (internal quotation marks omitted). The
ALJ compared the employers’ treatment of other 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
8Smith 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)
21
Under the third Speegle factor, the ALJ is required to
consider “the facts that would change in the absence of the
protected activity.” Id. at *7 (internal quotation marks
omitted). The fully developed record in the present case did
not reveal any facts regarding the fire watchers’ actions or
duties that would have changed in the absence of Smith’s
disclosure. 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.
22
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