STONE & WEBSTER CONSTRUCTION, INC., Petitioner, versus 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
Agency No. 11-029-ARB
Petition for Review of a Decision of the Department of Labor
(June 19, 2012)
Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and GOLDBERG,* 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
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
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
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
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
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
III.
A. The scope of substantial evidence review
The ERA prohibits employers from taking adverse action against employees who report nuclear safety concerns. See
We have previously held that where the Secretary disagrees with the ALJ, we review the Secretary‘s decision “more critically,” but ultimately, “the decision
Pursuant to the Secretary of Labor‘s regulation, the ARB should have reviewed the ALJ‘s factual findings for substantial evidence.
1. Evidence of shifting explanations
The ARB disagreed with the ALJ‘s findings on whether S&W provided shifting explanations for terminating Speegle‘s employment. S&W documented its reason for Speegle‘s termination as “insubordination.” [R. 94, Complainant‘s Ex. 25.] In July 2004, S&W responded to OSHA that Speegle was fired for his “insubordinate attitude and foul language” exhibited toward Childers at the May 22, 2004, meeting. [R. 88 at 833.] The ARB contrasted these explanations with Childers’ and Gero‘s later testimony that Speegle was fired for his intent to disobey procedures, particularly the G-55, and that his use of profanity was not the cause of his termination. Furthermore, the ARB was unsatisfied that the ALJ did not support its findings with evidence in the record explaining what Speegle‘s “shove it” comment meant, or what procedures Speegle was unwilling to follow. Considering the record anew, the ARB found that there was substantial evidence
In the RDO, the ALJ explained that it did not find it inconsistent that S&W reported “insubordination and foul language” to OSHA, but later said that foul language had nothing to do with Speegle‘s termination because profanity was simply part of Speegle‘s insubordinate comment. Next, while it is true the ALJ‘s RDO does not specifically address what Speegle‘s comment meant or how it proved his contempt for company procedures, the ALJ most likely saw no need to explain how Speegle‘s comment (“You and management can take that G-55 and you can shove it up your ass“) demonstrated insubordination and contempt for the revised procedures. Further, there is very little difference between S&W‘s initial description of Speegle‘s comment as “insubordination” and later description as
2. Evidence of disparate treatment
The ARB also challenged the ALJ‘s conclusions on disparate treatment, finding that Jones and Chiodo were comparators because they also lashed out at superiors. The ARB gave no weight to the fact that Jones and Chiodo had different supervisors. It further rejected the ALJ‘s conclusion that Speegle‘s conduct was distinguishable from Jones‘s and Chiodo‘s conduct in that Speegle‘s comment showed his intent to disobey procedures. Lastly, the ARB criticized the ALJ‘s finding that Speegle‘s insubordination was more serious because he made
Again, the ARB did not show deference to the ALJ‘s findings that neither Jones nor Chiodo were adequate comparators. Testimony and evidence showed that Speegle differed from Jones and Chiodo in several ways. First, Speegle manifested a different level of insubordination insofar as he not only disrespected authority, but also showed contempt for company procedures. Moreover, Speegle possessed a different level of influence on co-workers who witnessed the insubordinate conduct. Speegle was insubordinate in front of a crew of subordinate co-workers who were also expected to submit to S&W‘s revised procedures. Finally, neither Jones nor Chiodo answered to Childers or Gero as a supervisor. Thus, the ALJ substantiated its conclusion with testimony and evidence from the record. Therefore, we conclude that the ARB erred, see
B. Application of Eleventh Circuit Title VII law
Even if the ARB correctly found that the ALJ‘s findings were not supported
1. The “nearly identical” standard for comparator misconduct
The ARB looked to Eleventh Circuit case law to support the proposition that Speegle could prove pretext by showing that comparator employees “who engaged in similar conduct, but who did not engage in protected activity, were not similarly treated.” [R. 119 at 13 (citing Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 (11th Cir. 1987)).] The ARB held that to identify a comparator employee, “[t]he plaintiff need not prove that the [comparator‘s] conduct was the same or nearly identical, but only that it was similar.” [R. 119 at 13 (citing Anderson v. WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001)).] The ARB acknowledged that Anderson, however, contradicts Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (holding that a “comparator‘s misconduct must be nearly identical to the plaintiff‘s” (emphasis added)). We resolved this conflict in favor of the “nearly identical” standard. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 n.2 (11th Cir. 2006) (per curiam) (reasoning that we are bound to follow the earliest panel decision on the issue, Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)). Thus, the ARB relied
On appeal, the Secretary and Speegle both argue that this court‘s Title VII case law is only persuasive authority for the Department of Labor, and therefore, it does not matter that the ARB cited Anderson. However, the Secretary‘s ARB has said that in “inferential cases” like Speegle‘s where the parties contest the issue of causation (i.e., whether the employee‘s protected activity contributed to the adverse action), “[the ARB] and reviewing courts routinely apply the framework of burdens developed for pretext analysis under Title VII of the Civil Rights Act of 1964 and other employment discrimination laws.” Overall v. TVA, ARB Case Nos. 98-111 and 98-128, ALJ No. 97-ERA-53, slip op. at *10 (Dep‘t of Labor Admin. Rev. Bd. Apr. 30, 2001) (emphasis added) (internal quotation marks omitted). Our Title VII case law may not be binding, but the Secretary does not deny that her agency “routinely” follows it. Furthermore, the Secretary and Speegle do not explain what agency law we ought to apply instead of our own. Neither do they explain how the ARB intended to depart from our precedent while expressly citing our precedent. The Secretary only responds that we should afford deference to the ARB‘s FDO because Congress has given the Secretary the authority to enforce the ERA by formal adjudication. See
When evaluating an allegation of disparate treatment, we require that a comparator be “similarly situated to the plaintiff in all relevant respects.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir. 2008) (internal quotation marks and alterations omitted). The “quantity and quality of the comparator‘s misconduct must be nearly identical.” Burke-Fowler, 447 F.3d at 1323. “The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed.” Maniccia, 171 F.3d at 1368 (internal quotation marks omitted). We ask whether the comparator is involved in the same or similar conduct as the plaintiff yet disciplined in a different way. Burke-Fowler, 447 F.3d at 1323.
Although the ARB described Speegle‘s, Jones‘s, and Chiodo‘s insubordinate misconduct as “identical,” [R. 119 at 14], the ARB settled for merely similar conduct under Anderson. The record distinguished Speegle‘s offense from Jones‘s and Chiodo‘s offenses. Speegle was himself a leader
2. The import of an employer‘s honestly held belief about an employee‘s misconduct
In deciding that S&W provided shifting explanations for Speegle‘s termination, the ARB discredited Gero‘s testimony that he interpreted Speegle‘s comment to mean that Speegle would not follow the G-55. S&W argues that the ARB erred in failing to consider what Gero and other supervisors honestly believed that Speegle‘s comment meant. Where an employee argues that he did not actually engage in misconduct, we have held that an employer may rebut this allegation by showing its good faith, honest belief that the employee violated a rule. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)
C. The propriety of remand to the agency
As a final matter, S&W asks this court to reinstate the ALJ‘s RDO rather than remanding this case to the ARB for further proceedings. S&W contends that remand would be futile and nothing more than a formality. The Secretary and Speegle ask that we remand the case to the ARB for two reasons: first, to afford it the opportunity to review the RDO in light of our decision; and second, to allow
It is an established principle of administrative law that an appellate court should not “intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per curiam) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S. Ct. 454, 459 (1943)). Thus, “the proper course, except in rare circumstances, is to
IV.
In summary, we conclude that the ARB erred by reviewing the ALJ‘s decision de novo rather than observing the Secretary‘s regulation requiring substantial evidence review. We also conclude that the ARB failed to follow Eleventh Circuit precedent when analyzing its contrary factual findings.
PETITION GRANTED AND REMANDED.