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ARB Affirms Dismissal of Standard-Setting Case

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Although the Department of Labor’s Administrative Review Board affirmed the dismissal of James Speegle’s whistleblower retaliation complaint, his case cemented a new standard for employees to meet when they invoke the “same decision” defense. In previous posts on May 15, 2014, September 3, 2014, and January 13, 2015, we discussed the Speegle standard and the burden it places on employers. Under Speegle, when an employer uses the “same decision” defense (arguing that it would have taken the same adverse action against an employee in the absence of his protected activity), the administrative judge must examine the defense by excising both the protected activity and the entangled facts from consideration.

In Speegle, the complainant and other supervisors had expressed concerns about Stone & Webster’s use of apprentices to apply paint coatings in a nuclear plant. Stone & Webster fired Speegle, ostensibly for insubordination after his obscene outburst at a meeting. The case then moved back and forth between DOL’s Office of Administrative Law Judges (the ALJ), the ARB, and the Eleventh Circuit, eventually establishing the present standard.

The ARB affirmed the ALJ’s dismissal of Speegle’s claim in December 2014. The ALJ noted that in the absence of Speegle’s outburst and complaints, and the complaints of other supervisors, tension between management and these supervisors would still have been present, making it highly probable that the company would have taken the same action. The ALJ also focused on the temporal proximity between Speegle’s outburst and his termination, noting that the company had not terminated Speegle in response to previous complaints. The ALJ highlighted the fact that the outburst raised no safety concerns but was instead limited to an obscene comment to management. The ARB, in affirming the ALJ, stated that while this case was “not the strongest case for clear and convincing evidence,” the ALJ had provided a sufficient rationale under the Speegle standard to dismiss Speegle’s own claim.

In the end, James Speegle’s claim did not pass the very standard established by his long-running claim. But despite this outcome, the case will have an important impact on future whistleblower complaints. Employers are required to construct a highly persuasive rationale for their actions that excises all facts intertwined with the complainant’s protected activity. This standard presents a difficult burden for employers to meet in defeating whistleblowers’ claims, providing whistleblowers the chance to be heard on their claims of unlawful retaliation.

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