Stone & Webster Constr., Inc. v. U.S. Dep't of Labor

• Decision Date: 19 June 2012
• Docket Number: No. 11–11885.,11–11885.
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: STONE & WEBSTER CONSTRUCTION, INC., Petitioner, v. U.S. DEPARTMENT OF LABOR, Secretary of the U.S. Department of Labor, Respondents, James Speegle, Intervenor.

684 F.3d 1127

33 IER Cases 1812

23 Fla. L. Weekly Fed. C 1189

STONE & WEBSTER CONSTRUCTION, INC., Petitioner,

v. U.S. DEPARTMENT OF LABOR, Secretary of the U.S. Department of Labor, Respondents,James Speegle, Intervenor.

No. 11–11885.

United States Court of Appeals, Eleventh Circuit.

June 19, 2012.

Jason C. Schwartz, Eugene Scalia, Porter Noell Wilkinson, Gibson, Dunn & Crutcher, LLP, Washington, DC, for Petitioner.

Lisa J. Banks, David J. Marshall, Washington, DC, for Intervenor.

Melissa Ann Murphy, Rachel Goldberg, U.S. Dept. of Labor, Hilda Solis, USDOL Office of the Sol., Washington, DC, for Respondent.

Petition for Review of a Decision of the Department of Labor.

Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and GOLDBERG, ^* Judge.

DUBINA, Chief Judge:

Petitioner Stone & Webster Construction, Inc. (“S&W”) seeks this court's review of Respondent Secretary of Labor's decision in favor of S&W's former employee, James Speegle, who intervened in this case. In contradiction to the findings of an administrative law judge (“the ALJ”), the Secretary's Administrative Review Board (“the ARB”) found that S&W gave pretextual, shifting explanations for terminating Speegle and found that Speegle suffered disparate treatment in comparison to other similarly situated employees. Consequently, the ARB found that Speegle proved S&W fired him for engaging in conduct protected by the Energy Reorganization Act (“ERA”). After reviewing the ALJ and the ARB's decisions on liability, reading the parties' briefs, and after having the benefit of oral argument, we grant S&W's petition for review and remand this case to the ARB.

I.

A. Facts

From 1993 until 2004, James Speegle worked as a journeyman painter for S&W and other contractors at the Tennessee Valley Authority's (“TVA”) Browns Ferry Nuclear Plant. In 2003 and 2004, Speegle worked for S&W on the Unit 1 Restart Project inside of the Torus, a large, circular vessel that surrounds the plant's reactor core and flushes water to the core in the event of a nuclear meltdown. The project included identifying failed paint coatings in the Torus, stripping paint, and repainting. From January 2004 until his termination, Speegle served as a foreman of a crew of apprentice painters.

Until May 2004, S&W used only journeyman painters like Speegle for painting the inside of the Torus because the G–55, a TVA manual that set out protective painting requirements, specifically called for “journeyman” painters who were certified to paint in a “Service Level 1” area. However, in early May 2004, S&W announced that it would certify “apprentice” painters to work in the Torus. Speegle believed that the G–55 only permitted the use of journeyman painters and that less experienced painters would jeopardize plant safety. The quality of the paint job mattered, as chipped paint or other debris could potentially clog pump motors and hinder the cooling process in the event of a meltdown. Speegle voiced his safety concerns to his supervisor, S&W's Super General Foreman, Sebourn Childers (“Childers”), who informed Speegle that the TVA regulations were being formally modified to call for “coating applicators” rather than journeyman painters. S&W's Lead Civil Superintendent, Rick Gero (“Gero”), consulted with site engineers, learned that it was acceptable to designate his painters as coating applicators rather than journeyman painters, pursued proper procedures to revise the G–55's language, and began certifying experienced apprentice painters who could pass requisite TVA tests. Several times, Speegle and other journeyman painters voiced their concerns about allowing apprentices to do their work. While some journeyman painters felt that their jobs were being threatened by apprentice painters, Speegle objected because of nuclear safety. In spite of S&W's successful effort to legitimately revise the G–55 and the finality of the company's decision, Speegle and other journeyman painters refused to accept S&W's decision, and continued to complain to Childers and Gero. Speegle raised the issue to Childers at daily safety meetings. Each time, Childers indicated that the matter had been decided and would not be discussed.

During the safety meeting on Saturday, May 22, 2004, at which time Childers presented the official revision of the G–55 that accommodated apprentice painters, Speegle told Childers, in a loud voice and in front of several other subordinate employees, “You and management can take that G–55 and you can shove it up your ass.” [R. 88 at 606.] Childers then stopped the meeting to defuse the situation. Another supervisor who heard the comment, Joe Albarado (“Albarado”), agreed with Childers that the disrespectful comment warranted disciplinary action. The same day, Childers and Albarado discussed the incident with Gero by phone. Gero recommended suspension until further investigation. Two days later, after taking and comparing Childers' and Albarado's written statements, Gero decided to terminate Speegle for insubordination.

While two other S&W employees, James Jones and Santo Chiodo, were also fired for insubordination after making similar, disrespectful remarks to supervisors, each first received a warning before his termination. Jones, an engineer, called a plant official a moron; he also wrote several baseless letters criticizing S&W managers and co-workers, calling them names. S&W warned him to stop or action would be taken. After Jones screamed profanities at his supervisor in front of three or four other employees, S&W terminated him for insubordination. Chiodo lashed out at his foreman in front of co-workers and used vulgar language. He was warned that his conduct would not be tolerated. After another outburst, S&W likewise terminated Chiodo for insubordination.

B. Procedural History

Pursuant to the ERA's provisions, see 42 U.S.C. § 5851, Speegle filed a whistleblower complaint with the Secretary of Labor's Occupational Safety and Health Administration (“OSHA”), alleging that S&W violated the ERA by firing him for making nuclear safety complaints. S&W formally responded that it terminated Speegle for his insubordinate attitude and foul language exhibited toward Childers at the May 22, 2004, meeting. OSHA investigated and dismissed the complaint. Speegle then appealed and sought a hearing. After receiving testimony and evidence, ALJ Richard D. Mills issued a thorough recommended decision and order (“the RDO”), recommending that Speegle's complaint be dismissed because the record lacked evidence suggesting that his termination was related to his statutorily protected activity. The ALJ found that Speegle engaged in protected activity when he complained about apprentice painters working in the Torus because he reasonably believed that S&W was violating the G–55 and that the apprentice painters were unqualified for the work. The ALJ further found that S&W knew about the protected activity and took adverse action against Speegle by terminating him. However, the ALJ determined that Speegle did not prove by a preponderance of the evidence that his suspension and later termination were related to his protected activity.

The ARB reversed the ALJ's RDO in its final decision and order (“the FDO”), concluding that Speegle's safety complaints contributed to S&W's decision to fire him. Specifically, the ARB found that substantial evidence in the record supported Speegle's argument that S&W's reasons for terminating him were pretextual and that Speegle was treated more harshly than similarly situated, insubordinate employees, namely Jones and Chiodo. Consequently, the ARB remanded the matter to the ALJ for findings on Speegle's damages.¹ A different ALJ, Patrick M. Rosenow, entered an amended decision and order on stipulated damages awarding Speegle back pay, two years front pay in lieu of reinstatement, a purged employment file without reference to Speegle's protected activity and discharge, compensatory damages, and damages for future psychiatric counseling. S&W appealed to the ARB, objecting to the ARB's liability determination on the grounds that the ARB had exceeded the scope of substantial evidence review and that substantial evidence did not support the ARB's conclusion that Speegle's protected activity caused S&W to suspend and terminate Speegle. The ARB summarily affirmed the ALJ's order on damages as well as the ARB's earlier FDO on liability. Pursuant to 42 U.S.C. § 5851(c), S&W timely filed this petition for review with our court, seeking review of the ARB's decision on liability only. Speegle filed a motion to intervene, which we granted.

II.

We must review the ARB's decision pursuant to the standard of review outlined in the Administrative Procedure Act. Fields v. U.S. Dep't of Labor Admin. Review Bd., 173 F.3d 811, 813 (11th Cir.1999) (per curiam). We will overturn the ARB's findings if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or if the findings were made “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (D). We conduct de novo review of the Secretary of Labor's legal conclusions, but we test the Secretary's factual findings for substantial evidence. Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571 (11th Cir.1997).

III.

A. The scope of substantial evidence review

The ERA prohibits employers from taking adverse action against employees who report nuclear safety concerns. See 42 U.S.C. § 5851(a). An ERA whistleblower complainant must prove, inter alia, that his ERA-protected activity was a factor in his employer's decision to take the adverse action against him. Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933–34 (11th Cir.1995). The complainant's burden of proof is a preponderance of the evidence. See Dysert v. U.S. Sec'y of Labor, 105 F.3d 607, 610 (11th Cir.1997). The Secretary's ARB found, in contradiction to the ALJ's findings, that Speegle proved an inference of causation between his...