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ARB Makes It Harder to Justify Firing Nuclear Whistleblower

The U.S. Department of Labor’s Administrative Review Board (ARB) once again extended a long-running whistleblower case, clarifying the high standard an employer must meet to avoid liability for firing an employee who expressed safety concerns in a nuclear plant.

In Speegle v. Stone & Webster Construction, Inc., a case that has ping-ponged for six years between administrative law judges (ALJs), the ARB, and the U.S. Court of Appeals for the Eleventh Circuit, the ARB again vacated a dismissal of James Speegle’s claim of unlawful retaliation and told the presiding ALJ that Mr. Speegle’s former employer must show by clear and convincing evidence that it would have fired the whistleblower even without his protected complaints — not simply that it could have fired him.

To reach this conclusion validly, the ARB said last month, the ALJ must “excise” from consideration not just Speegle’s protected activity but also “the facts logically connected to the protected activity,” including any passions and animosity related to the safety concerns.

Mr. Speegle, a former construction contractor with Stone & Webster, was fired for insubordination in 2004 after an obscene outburst at a company meeting; he had previously expressed concerns about the firm’s decision to use apprentices to apply protective paint coatings in a nuclear plant.

Mr. Speegle claims that his firing was unlawful retaliation under the Energy Reorganization Act’s whistleblower provision. His complaint was originally dismissed by an ALJ, who found that Mr. Speegle failed to show a causal link between his concerns and his firing. Since then the case as risen as high as the Eleventh Circuit before returning to bounce between an ALJ (who consistently finds no cause-and-effect) and the ARB (which consistently reverses the ALJ).

In its latest remand to the ALJ, the ARB made it harder for the judge to find for Stone & Webster: The company now must construct a persuasive scenario where Mr. Speegle would have been fired not just without the paint-related concerns but also without all the “entangled” related facts. Since the outburst that triggered Mr. Speegle’s firing for insubordination was related to those concerns, that’s a tough sell.

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