The Department of Labor’s Administrative Review Board (ARB) has issued a decision reversing a recommended decision of an Administrative Law Judge (ALJ). The decision finds that nuclear whistleblower James Speegle is entitled to statutory remedies for Stone & Webster’s 2004 decision to fire him. The attorneys representing Speegle include David Marshall and Daniel Edelman of Katz, Marshall & Banks in Washington, DC, and Frank Potts of Florence, Alabama.
Marshall notes that this is a rare victory for whistleblowers before the ARB. James Speegle was a painter foreman at the Tennessee Valley Authority’s Browns Ferry Nuclear Plant near Florence, Alabama. Speegle had been outspoken in raising safety concerns about serious problems with the protective coatings being used in the plant’s cooling systems.
The plant’s Unit 1 was shut down in 1985 for safety reasons. Stone & Webster had a $800 million contract with TVA to restart Unit 1. Speegle claims that Stone & Webster was in a hurry and was applying substandard coatings in critical areas of the cooling system. Speegle also complained about using personnel who did not have the proper training. The company fired him two days after he reported this to the Nuclear Regulatory Commission.
An administrative law judge ruled in 2005 that Stone & Webster had fired Speegle for insubordination and not for protected activity after he made an inflammatory comment ("ass") in a meeting addressing the safety issues that were the subject of his reports to the NRC. The ARB reversed the ALJ’s ruling as unsupported by the evidence, and found that the company had in fact fired Speegle in retaliation for raising his safety concerns. The ARB accepted the ALJ’s finding that Speegle had not presented direct evidence of retaliatory animus — e.g., the boss saying angrily in an earlier discussion of Speegle’s concerns, "you open your big fat mouth too much!" However, the ARB found that the shifting and inconsistent reasons the company gave for its actions, along with the fact that the company had consistently treated other workers more leniently for similar, alleged insubordination, demonstrated that Speegle’s protected activity was a contributing factor in his termination. The ARB also found that Stone & Webster could not have avoided liability by showing by clear and convincing evidence that it would have fired Speegle anyway.
The ARB remanded to the ALJ with instructions to award Speegle the relief to which a successful litigant is entitled under the ERA, which includes reinstatement, back pay, compensatory damages and attorneys’ fees.
The decision contains a guide to the language the ARB can use when it decides to reject an ALJ’s factual findings. The ARB decision collects a number of its holdings that can help helpful to other whistleblowers in the DOL process. After the ALJ issued the recommended decision, the Nuclear Regulatory Commission (NRC) issued findings that supported Speegle’s concerns. Speegle’s attorneys filed supplemental briefs to inform the ARB of these new findings.
The ARB issued its decision on September 24, 2009. This is a departure from the ARB’s normal practice of issuing its decisions on the last business day of each month. Congratulations to James Speegle and to his attorneys, David Marhsall and Daniel Edelman.