                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-1713


WILLIAM SMITH,

            Petitioner,

     v.

DEPARTMENT OF LABOR; THOMAS E. PEREZ, Secretary,

            Respondents,

     and

DUKE ENERGY CAROLINAS, LLC; ATLANTIC GROUP, INC., d/b/a DZ
Atlantic,

            Respondents – Intervenors.

-----------------------------------

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION and
GOVERNMENT ACCOUNTABILITY PROJECT,

            Amici Supporting Petitioner,

NUCLEAR ENERGY INSTITUTE, INC.,

            Amicus Supporting Respondents/Respondents-Intervenors.



On Petition for Review of an Order of the United States
Department of Labor, Administrative Review Board. (14-027;
2009-ERA-007)


Argued:    October 26, 2016                 Decided:   January 9, 2017
Before KING, KEENAN, and DIAZ, Circuit Judges.


Petition for review denied by unpublished opinion. Judge Keenan
wrote the opinion, in which Judge King and Judge Diaz joined.


ARGUED: Jason Mark Zuckerman, ZUCKERMAN LAW, Washington, D.C.,
for Petitioner.    Ann Capps Webb, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondents.       Kiran H. Mehta,
TROUTMAN SANDERS LLP, Charlotte, North Carolina, for Intervenor.
ON BRIEF: R. Scott Oswald, Adam Augustine Carter, THE EMPLOYMENT
LAW GROUP, P.C., for Petitioner.    M. Patricia Smith, Solicitor
of Labor, Jennifer S. Brand, Associate Solicitor, Fair Labor
Standards   Division,   William  C.   Lesser,  Deputy   Associate
Solicitor, Rachel Goldberg, Acting Counsel for Whistleblower
Programs, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.    Molly McIntosh Jagannathan, TROUTMAN SANDERS
LLP, Charlotte, North Carolina, for Intervenor Duke Energy
Carolinas, LLC; Lewis M. Csedrik, Jane T. Accomando, MORGAN,
LEWIS & BOCKIUS, LLP, Washington, D.C., for Intervenor Atlantic
Group, Inc. Ellen C. Ginsberg, Jonathan M. Rund, NUCLEAR ENERGY
INSTITUTE, INC.; Donn C. Meindertsma, CONNER & WINTERS, LLP,
Washington, D.C., for Amicus Nuclear Energy Institute, Inc.
Richard R. Renner, KALIJARVI, CHUZI, NEWMAN & FITCH, P.C.,
Washington, D.C.; Tom Devine, GOVERNMENT ACCOUNTABILITY PROJECT,
Washington, D.C.; Erik D. Snyder, LAW OFFICES OF ERIK D. SNYDER,
Washington, D.C.; Alan R. Kabat, BERNABEI & WACHTEL, PLLC,
Washington, D.C., for Amici Metropolitan Washington Employment
Lawyers Association and Government Accountability Project.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

     In this appeal from a final decision of the Department of

Labor    (Department),      we   consider          whether   the   Department       acted

arbitrarily      or     capriciously          in    dismissing      a    whistleblower

complaint      filed    under    the    Energy       Reorganization      Act   of   1974

(ERA),    42   U.S.C.    § 5851.        Petitioner       William     Smith     filed   an

administrative complaint with the Department alleging that his

direct employer, Atlantic Group, Inc., d/b/a DZ Atlantic (DZ

Atlantic), and the operator of the nuclear facility at which he

worked, Duke Energy Carolinas, LLC (Duke), unlawfully terminated

his employment in retaliation for reporting a safety violation

at the nuclear facility.

     An administrative law judge (ALJ) concluded that although

Smith established that his protected activity was a contributing

factor in his termination, Duke and DZ Atlantic proved their

affirmative defense that they would have taken the same adverse

personnel actions even if Smith had not engaged in protected

whistleblowing conduct.            The Department’s Administrative Review

Board (the Board) affirmed the ALJ’s decision.

     Upon      our     review,     we        conclude    that      the    Department’s

adjudication of Smith’s administrative complaint satisfied the

correct     legal      standard,       and    that    the    Department’s       factual

findings are supported by substantial evidence.                          We therefore




                                              3
deny    Smith’s    petition          for   review      of     the    Department’s       final

decision.


                                             I.

                                             A.

       Duke    operates        the    Catawba      Nuclear        Station     (Catawba),    a

facility in South Carolina that generates nuclear power.                                   As

required by Duke’s operating license and the safety regulations

promulgated by the United States Nuclear Regulatory Commission

(the Commission), Duke has established a fire protection program

known    as    “NSD-316”       (the    program).         10    C.F.R.       § 50.48.      The

program       requires     that       hourly       inspections,        known     as     “fire

watches,” be conducted in certain areas of the Catawba plant to

ensure detection of early stages of fire, such as evidence of

smoke    or    smoldering.           The   personnel        who     perform    these    “fire

watches” are known in the industry as “fire watchers.”

       After each fire watch inspection, the fire watchers are

required to record in a written log the time they completed each

inspection,       and     to     certify       with     their       initials     that     the

information entered is accurate.                    In four areas of the Catawba

facility,      fire     watch    inspections          were    required      on   an    hourly

basis.    After each of these hourly inspections, the fire watcher




                                               4
conducting the “rounds” signed four separate log entries that

corresponded with the four different inspection areas. 1

        Petitioner William Smith was employed as a fire watcher at

Catawba, from May 2007 until his employment was terminated in

February      2008.     Smith     was    employed    directly    by    DZ   Atlantic,

which had entered into a contract with Duke to provide fire

watchers to Catawba.            These fire watchers were assigned to work

under the supervision of Duke employees.

     Smith and co-worker Cathy Reid generally worked the night

fire watch shift, while co-workers Christine Borders and Jeff

Pence       generally   worked     the    opposite    day    shift.         Throughout

Smith’s employment with DZ Atlantic, these four fire watchers at

Catawba      occasionally       “pre-signed”   the    fire     watch   logs     before

performing their inspections.

     In January 2008, Duke supervisor David Hord informed the

four fire watchers that the Commission had discovered problems

at another nuclear facility involving false entries made in that

facility’s      fire    watch    logs.      Hord    informed    the    Catawba   fire

watchers that he expected them to “follow procedures correctly.”

     About one month later, on February 12, 2008, Smith arrived

at the job site at 3:45 p.m.              He observed that Borders had “pre-

        1
       Around February 2008, management added a fifth fire watch
area, to be inspected hourly by the fire watchers, and a
corresponding fifth fire watch log sheet.



                                           5
signed” the fire watch logs for the 3:50 p.m. round, and already

had departed the facility.                At some time after 3:50 p.m., when

Smith       asked    Pence     about      the     apparent      discrepancy,      Pence

explained that he had performed the 3:50 p.m. fire watch.                         Smith

replied that Pence needed to correct the log sheets to reflect

that Pence had performed the 3:50 p.m. round, or Smith would

report the inaccurate entries.               Although Pence agreed to correct

the log entries, he failed to do so.                     Thus, when Smith’s shift

began at 5:00 p.m., the fire watch logs inaccurately reflected

that Borders had performed the fire watch round at 3:50 p.m.

       Smith worked his shift that night from 5:00 p.m. until 5:00

a.m.       During his shift, Smith signed his name directly below the

inaccurate fire watch entries, but did not mention them again to

Pence or report the discrepancies to any supervisor.

       The    next   day,    February      13,    2008,    near   the   beginning    of

Smith’s shift, Duke supervisor Tommy Withers asked Smith some

questions regarding Borders’ attendance at work on February 13,

2008. 2      Smith later told Pence about Withers’ inquiry.                    Several

days later, Borders stated to Reid that she was angry at Smith

for    informing     a   supervisor       about    the    “falsification     of    time

sheets.”       In that same conversation, Borders also said that she



       2
       The record            does   not    indicate       how   Smith   responded    to
Withers’ question.



                                            6
intended to retaliate against Smith by accusing him of sexual

harassment.

       Borders filed a sexual harassment complaint against Smith

five days after Smith had observed the inaccurate entries in the

fire watch log.           Management personnel from DZ Atlantic began an

investigation of Borders’ complaint, and interviewed Smith about

the sexual harassment allegations.                 During the interview, Smith

denied that he had engaged in any sexual harassment, and stated

that he thought that Borders had filed a false complaint against

him because he was aware that she had been submitting false time

sheets.       The DZ Atlantic investigators ultimately concluded that

there was insufficient evidence to prove or disprove Borders’

sexual harassment allegations. 3

       After       the   investigational        interview,   Smith     reported   the

fire       watch   log    discrepancies     to    Hord,   his   Duke    supervisor.

Smith       related      to   Hord   that   Borders    had   entered     inaccurate

information in the fire watch logs for February 12, 2008, by

falsely signing that she had performed a particular inspection

round.       Hord was the first Duke employee to learn that the fire

watch logs may have been falsified.

       3
       Smith alleges that during the investigational interview,
he reported Borders’ falsification of fire watch log entries.
However, the management personnel from DZ Atlantic testified
that they understood Smith’s comments as relating only to
falsified time sheets.



                                            7
      Hord    reported      this     information        to   his     supervisor,       Danny

O’Brien.      O’Brien advised DZ Atlantic personnel that Duke had

begun investigating whether a DZ Atlantic employee had recorded

inaccurate information in the fire watch logs, and that all four

DZ Atlantic fire watchers had been relieved from duty during the

pendency     of     the    investigation.           A    comparison      of     Catawba’s

electronic access records with the fire watch logs revealed that

Borders    had     left    the    Catawba    facility        on    February     12,    2008,

about an hour before the 3:50 p.m. inspection for which she had

signed.

      Following this investigation, Duke released the four fire

watchers     from    their       duties     at    the   Catawba       facility.         Duke

released     Borders      for     failing    to   conduct      the    fire     watches    in

accord with her certification, Pence for failing to correct the

fire watch logs, and Smith for withholding his discovery of the

log   inaccuracies.              Reid,    who     was    not       implicated     in     any

wrongdoing, ultimately was released “favorably” from fire watch

duties at Catawba.

      After Duke’s release of the four fire watchers, DZ Atlantic

supervisor       Michael     Henline      interviewed        each     individually        to

determine     whether        to     terminate       their         employment     with     DZ

Atlantic.         Henline terminated Borders’ and Pence’s employment

after their respective interviews.                  Henline later confirmed that



                                             8
Reid was not aware of any log falsifications, and reassigned her

to a job at another Duke facility.

       During Smith’s interview, Henline was accompanied by Duke

managers O’Brien and Susan Kelley.                      Kelley asked Smith why he

had not immediately reported the false entries made in the fire

watch logs.         Smith responded both that he had not thought of

reporting the issue at the time, and that he had intended to

report the issue before the end of the month.                        At the conclusion

of Smith’s interview, Henline terminated Smith’s employment due

to    his   delay    in    reporting       the    false     log    entries.          Henline

characterized        Smith’s      delay    in    reporting        the    incident      as   a

matter demonstrating a lack of integrity and trustworthiness.

       As   a   result      of    the     personnel         action      terminating      his

employment,        Smith   was    ineligible          for   rehire      by   DZ    Atlantic.

Duke also entered into the Personnel Access Data System (PADS),

an industry–wide database serving the nuclear power industry,

information        that    Borders,       Pence,      and    Smith      no   longer    were

suitable     for    unescorted      access       to    nuclear     facilities.         As   a

result of this adverse database entry, Smith has been unable to

obtain employment in the nuclear power industry.

                                            B.

       Smith filed a complaint with the Department against Duke

and    DZ   Atlantic       (the    employers),         under      employee        protection

provisions of the Energy Reorganization Act of 1974 (ERA), 42

                                             9
U.S.C. § 5851.         Smith alleged that the employers took adverse

employment actions against him by terminating his employment and

by   placing   an    unfavorable    entry      in   PADS,   in   retaliation    for

Smith’s protected activity of reporting Borders’ false entries

in   the   fire     watch   log.    After      conducting    a   hearing   on    the

matter, the ALJ denied Smith’s complaint on the basis that his

protected activity was not a contributing factor in the adverse

employment actions taken by the employers.

      After considering Smith’s appeal, the Board held that the

ALJ erred in concluding that Smith’s protected conduct did not

contribute     to    his    termination    because    “the   only   reason      that

managers learned about the [fire watch log falsification] was

because Smith notified them.”             Accordingly, the Board held that

Smith’s protected disclosures were “‘inextricably intertwined’

with the investigation that led to his termination,” and, thus,

that Smith had met his burden of proving that his protected

conduct was a contributing factor in his firing.                       The Board

accordingly remanded the case to the ALJ to determine whether

the employers could prove by clear and convincing evidence that

they would have taken the same adverse employment actions absent

Smith’s protected activity.

      On remand, the ALJ determined that the employers had met

their burden of presenting “clear and convincing” evidence that

they would have taken the same adverse employment action against

                                          10
Smith absent the protected conduct.                       Applying the factors listed

in Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999), the ALJ determined that the evidence strongly

supported          the        employers’     conclusions         that       Smith   was      not

trustworthy            or     reliable,     based    on    his       seven-day      delay    in

reporting Borders’ false log entries.                           The ALJ also concluded

that    the       record       lacked     any   probative       evidence      showing       that

either       of     the       employers     acted    with       a    retaliatory      motive.

Finally, the ALJ determined that while Duke had not encountered

similar       integrity           concerns      involving           its     employees,       the

testimony         of     DZ    Atlantic     supervisor      Henline       showed    that     his

company had fired employees who had manifested such integrity

problems.

       The Board affirmed the ALJ’s second decision.                                The Board

held that although an intervening Board decision, Speegle v.

Stone    &    Webster          Construction,     Inc.,     ARB      No.   13-074,    ALJ     No.

2005-ERA-006, 2014 WL 1758321 (ARB Apr. 25, 2014), governed the

Board’s consideration of Smith’s appeal, “the analysis set out

in Speegle is not unlike that set out in Carr.”                                Accordingly,

the Board held that “the ALJ’s ruling . . . is correct even

applying          the       Speegle   analysis.”          The       Board    reasoned       that

“[p]rotected activity will not shield an under-performing worker

from discipline,” and that the ALJ reasonably concluded that

Smith    was       terminated         for   integrity       issues        rather    than     for

                                                11
whistleblowing activity. 4           Smith later filed the present petition

for review in this Court.


                                          II.

     The    Administrative          Procedure    Act   (APA),     5    U.S.C.    § 706,

provides    the     statutory       standard     under    which       we    review   the

Department’s decision.            See 42 U.S.C. § 5851(c)(1).                Under this

standard, we will uphold the ALJ’s findings of fact if supported

by “substantial evidence.”            See 5 U.S.C. § 706(2)(E).               We review

questions of law de novo, but give deference to the Board’s

interpretation       of      statutes     that    Congress       has       charged   the

Department with administering.                  Welch v. Chao, 536 F.3d 269,

275–76 (4th Cir. 2008) (citing Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).

     We     begin     with     an    overview     of     the   regulatory        scheme

governing ERA whistleblower cases.                  The ERA forbids employer

retaliation against employees who report violations of nuclear

safety regulations.          42 U.S.C. § 5851(a)(1)(A).               An employee who

believes that he has been subject to unlawful discrimination in

violation    of     the   ERA’s     whistleblower      protections         may   file   a

complaint    with     the     Secretary    of    Labor,    who    has       established



     4  In a dissenting opinion, Judge Royce concluded that
Smith’s   protected  activity impermissibly resulted in his
employment being terminated.



                                          12
certain   procedures   for   the    adjudication   of   ERA    whistleblower

complaints.   Id. § 5851(b)(1); 29 C.F.R. §§ 24.100–24.115.

     The Department adjudicates ERA whistleblower cases under a

“burden-shifting” framework.         Tamosaitis v. URS Inc., 781 F.3d

468, 481 (9th Cir. 2014).          Under the Department’s adjudication

procedures,   the   employee   complainant    first     must    establish   a

prima facie showing that:

     (i) The employee engaged in a protected activity;

     (ii) The employer knew . . . that the employee engaged
     in the protected activity;

     (iii) The employee suffered an adverse action; and

     (iv) The circumstances were sufficient to raise the
     inference   that   the   protected   activity was a
     contributing factor in the adverse action. 5

29 C.F.R. § 24.104(f)(2).          If the employee establishes such a

prima facie case, the burden shifts to the employer respondent

to establish by clear and convincing evidence that the employer

“would have taken the same unfavorable personnel action in the

absence of [the complainant’s protected] behavior.”               42 U.S.C.

§ 5851(b)(3)(D); see also 29 C.F.R. § 24.104(f)(4).




     5 The parties to this appeal do not dispute the Board’s
determination that Smith met his burden of establishing a prima
facie case.   Instead, their dispute involves the next step in
the analysis, namely, whether the employers established by clear
and convincing evidence that they would have taken the same
adverse action in the absence of the protected activity.



                                     13
      The “same action” or “same decision” affirmative defense

requires the employer to prove that it “would have,” not simply

that it “could have,” made the same adverse employment decision

absent the protected activity.                Speegle, 2014 WL 1758321, at *7;

see also Bobreski v. J. Givoo Consultants, Inc., ARB No. 13-001,

ALJ No. 2008-ERA-003, 2014 WL 4389968, at *10 (ARB Aug. 29,

2014) (describing the affirmative defense as “the same decision

defense”).         This    standard      intentionally         was    designed       to   be

demanding in nature.            See Stone & Webster Eng’g Corp. v. Herman,

115 F.3d 1568, 1572 (11th Cir. 1997) (“For employers, this is a

tough standard, and not by accident.”), superseded in part on

other grounds by regulation, 29 C.F.R. § 24.110.

      In     evaluating         a     “same        action”    or      “same     decision”

affirmative defense, an ALJ must consider three non-dispositive

factors, which may be applied flexibly in each individual case.

Speegle, 2014 WL 1758321, at *7.                   These factors are: (1) whether

the   evidence       is        “clear”    and        “convincing”       regarding         the

independent significance of the non-protected activity; (2) the

extent of the evidence showing whether the employer would have

made the same adverse decision; and (3) any facts that would

have changed had the protected activity not occurred.                          Id.

      With    regard      to    the   third        Speegle    factor,    the    ALJ   must

consider     the    hypothetical         premise       that     the     employee      never

engaged      in    the     protected          activity,       and      must     disregard

                                              14
“significant       facts    that    would          disappear      in   the    absence    of

protected    activity.”          Id.     at   *5,     *7,    *9   (internal      quotation

marks   omitted).          The   employer       at    that     point   must    show     that

factors extrinsic to the protected activity nevertheless would

have led the employer to make the same decision.                          DeFrancesco v.

Union R.R. Co., ARB No. 13-057, ALJ No. 2009-FRS-009, 2015 WL

5781070,    at     *6    (ARB    Sept.    30,       2015)    (applying       the    Speegle

factors to a “same decision” affirmative defense in a Federal

Rail Safety Act case).

     In     the     present      case,    the        parties      agree   that      Speegle

provides    the     framework      for    analyzing         the   affirmative       defense

asserted    by     the    employers.          The     parties      disagree,       however,

regarding how the Speegle factors should be applied when the

whistleblower’s protected disclosure reveals the whistleblower’s

own misconduct.          Smith argues that in such cases, the ALJ cannot

consider the “forbidden fruits” of the protected activity, such

as the facts discovered by the employers as a result of the

employee’s protected disclosure.                   Smith contends that such facts

are “logically related” and intextricably intertwined with the

employee’s        protected      activity,         and   would     disappear       in    the

absence of the protected activity.

     In response, the Department and the employers argue that

the ALJ should evaluate the hypothetical circumstance that the

employers had learned of identical misconduct in the absence of

                                              15
the protected disclosure, and need not consider the probability

that the employers would have learned of the misconduct without

the protected disclosure.               According to this view, the ALJ would

need only to disregard the potentially prejudicial nature of the

protected disclosure itself, rather than the entirety of the

facts learned as a result of the protected disclosure.                                We agree

with the Department and the employers.

      When      an     employee’s         protected          activity          triggers         an

investigation that reveals the employee’s own misconduct, the

pertinent      question      is    whether          the    employer       is     selectively

enforcing    rules     or    selectively            imposing      extraordinarily          harsh

discipline      against      whistleblowers           as     a    pretext      for    unlawful

retaliation.         See DeFrancesco, 2015 WL 5781070, at *6.                          The ALJ

therefore must examine whether the rule being enforced against

the whistleblower also is enforced against non-whistleblowers,

the   nature    and    purpose      of    the        rule,       and   whether       any   other

evidence     suggests        a     retaliatory            motive       for     the     adverse

employment action.          See id. at *7–8.               And, notably, there is no

basis in statute or regulation for the additional requirement

urged   by     Smith    that      the    ALJ    disregard          all   “fruits”          of   an

investigation ultimately developed as a result of the employee’s

protected conduct.          See id. at *6.

      We   therefore        decline      Smith’s       effective         request      that      we

adopt in ERA cases an “inevitable discovery” rule requiring an

                                               16
employer       asserting      a   “same     decision”            affirmative      defense     to

prove that the employer independently would have discovered the

whistleblower's         misconduct         had        the    protected       activity        not

occurred.       See Watson v. Dep’t of Justice, 64 F.3d 1524, 1528

(Fed.    Cir.    1995)     (declining       to       require,      as     part    of   a    “same

decision” affirmative defense in a Whistleblower Protection Act

case,    that    a     defendant        prove    that       it    would    have    inevitably

discovered the whistleblower’s misconduct in the absence of the

whistleblower’s protected conduct).                         Such a rule would permit

wrongdoers to shield their own misconduct by providing negative

information about their own activities.                            See id. at 1527.            As

the    Federal       Circuit      has    observed,          that    type    of    rule      would

increase the evidentiary burden placed on an employer, contrary

to the present burden assigned by statute.                         Id. at 1530.

       We thus agree with the Board’s decision in this case that

“[p]rotected activity will not shield an under-performing worker

from     discipline.”              Accordingly,             we     hold     that       in    ERA

whistleblower cases in which the protected disclosures reveal

the whistleblower’s own misconduct, the employer is not required

to     prove    that     it    independently           would       have    discovered        the

whistleblower’s          misconduct.                 Instead,       the     employer        must

demonstrate by clear and convincing evidence that it would have

imposed the same type of discipline for the same infraction by a



                                                17
non-whistleblowing employee, regardless of the manner in which

the employer discovered the misconduct.


                                               III.

      Because the Board had not issued its decision in Speegle at

the   time       the    ALJ    decided      the    present     case,       the    ALJ    instead

relied      on    the       similar    three-factor          test     of   Carr     v.    Social

Security Administration, 185 F.3d 1318 (Fed. Cir. 1999).                                   Under

the   factors         set    forth    in    Carr,      the   ALJ    considered:          (1)   the

strength         of    the    evidence       supporting        the     employer’s         stated

reasons for taking an adverse personnel action; (2) the strength

of evidence showing a retaliatory motive of the employer; and

(3)   the    evidence         of     similar      action      taken    against       similarly

situated non-whistleblowers.                 See Carr, 185 F.3d at 1323.

      The ALJ held that the record provided “exceptionally strong

evidence”        to     support       the   determination           that    Smith       was    not

trustworthy or reliable because he reported Borders’ misconduct

only when confronted with an allegation of his own misconduct.

The ALJ also determined that the credible testimony of O’Brien

and   Henline           provided       “very       probative        evidence”       that       the

employers took the adverse actions against Smith based on his

seven-day delay in reporting the false log entries, rather than

because of any retaliatory motive or animosity.                                  Additionally,

the   ALJ    found       that      while    Duke       had   not    been   confronted          with


                                                  18
similar     integrity    issues     involving       non-whistleblowers,        the

record was clear that DZ Atlantic had terminated the employment

of non-whistleblowers who had manifested integrity issues.

      The   decision     in     Speegle    did    not   require   the   ALJ     to

disregard any “fruits” of the employers’ investigations, or for

the   employers   to    prove     that     they   independently    would      have

discovered Smith’s misconduct.             And, as the Board observed, the

ALJ’s factual findings under the Carr factors readily support

the same conclusions under the Speegle factors. 6

      The first Speegle factor requires considering whether the

evidence was “clear” and “convincing” regarding “the independent

significance of the non-protected activity.”                  Speegle, 2014 WL

1758321, at *7 (internal quotation marks omitted).                   The well-

developed record on this issue shows that the ALJ focused on

evidence showing “the magnitude and seriousness of Mr. Smith’s

seven day delay in reporting the fire watch log falsification.”

The ALJ observed from the testimony that fire watchers in the

nuclear power industry are required to meet high standards of

trustworthiness    and        reliability.        The   ALJ   emphasized      that

“falsification of a fire watch log was a serious violation of



      6We therefore disagree with Smith’s alternative argument
that because the ALJ did not have the benefit of the Speegle
decision, we should remand this case for the ALJ to apply the
Speegle factors.



                                          19
Duke Energy’s licensing requirements, and Duke Energy clearly

had an interest in being promptly informed of that licensing

breach.”         The    ALJ    also     observed    from    the    evidence        that   the

Commission took action against workers, and licensees such as

Duke,     “who    deliberately          create     an    incomplete      or   inaccurate

record.”

     With regard to Smith’s awareness of the seriousness of the

issue, the ALJ found that Smith was cognizant at all times that

Borders’ false log entries presented a significant issue, as

evidenced    by        his    “threatening       Mr.     Pence    that   [Smith]      would

report the falsification if left uncorrected.”                            The ALJ also

concluded that Smith’s conduct fell far short of strict industry

standards,       by      his      “deliberate[ly]         withholding”        information

regarding    the       log     falsification. 7          Thus,    the    ALJ’s     findings

demonstrate       that       he   considered       the    substance      of   the     first

Speegle    factor,       and      identified      overwhelming       evidence       in    the

record    demonstrating           the   independent        significance       of    Smith’s

non-protected activity.

     The ALJ also made findings relevant to the second Speegle

factor by considering “the evidence that proves or disproves

     7 We find no merit in Smith’s argument that his misconduct
was not nearly as serious as the actions of Borders and Pence.
The fact that other employees may have engaged in more egregious
conduct does not exempt Smith’s conduct from being found
untrustworthy and dishonest.



                                             20
whether      the     employer[s]   would    have   taken    the    same    adverse

actions” in the absence of the non-protected activity.                    Speegle,

2014 WL 1758321, at *7 (internal quotation marks omitted).                      The

ALJ       compared     the    employers’      treatment      of     other     non-

whistleblowing employees for integrity violations and determined

that Smith had not been treated any more harshly than similarly

situated      non-whistleblowers,      like    Borders,      Pence,   or     other

employees previously terminated by DZ Atlantic.

      The ALJ’s findings also undercut Smith’s present contention

that he was not similarly situated to Borders or Pence because

his conduct only amounted to “unintentional delay” in reporting

Borders’     misconduct.       The   ALJ    explicitly     found   that     Smith’s

delay in reporting was “deliberate” based on Smith’s signing

“just a quarter inch” below Borders’ false certifications, and

that Smith had decided to report Borders’ false certification

only after she charged him with engaging in sexual harassment.

We will not disrupt these factual findings, and conclude that

substantial evidence supports the ALJ’s determination that Smith

was treated comparably to the “similarly situated” Borders and

Pence. 8


      8Smith also argues that he was subject to a more severe
punishment than Pence, because Henline later decided that Pence
was eligible for rehire and attempted to help him find other
employment.  However, the ALJ credited Henline’s testimony that
he treated Pence differently because Pence had acknowledged his
(Continued)
                                       21
       Under   the     third   Speegle    factor,       the   ALJ   is    required     to

consider “the facts that would change in the absence of the

protected      activity.”          Id.   at    *7     (internal     quotation     marks

omitted).      The fully developed record in the present case did

not reveal any facts regarding the fire watchers’ actions or

duties    that    would     have    changed      in    the    absence     of    Smith’s

disclosure.       Also, consistent with this third Speegle factor, as

discussed above, the ALJ analyzed whether the employers “would

have   taken     the    same   adverse        personnel      actions     if    they   had

discovered by other means . . . Mr. Smith’s failure to promptly

report the falsification of the February 12, 2008 fire watch

logs.”    The ALJ concluded from the testimony that DZ Atlantic

discharged non-whistleblowing employees in response to evidence

of their integrity failures, and that Duke had not taken similar

action only because it had not confronted such a situation in

the past.        Thus, the record shows that the ALJ considered the

substance of the third Speegle factor, and that his findings

relevant to that factor are supported by substantial evidence.

       Accordingly, upon our consideration of the record within

the framework of the Speegle factors, we hold that substantial




wrongdoing, while Smith had not.  Substantial evidence supports
the ALJ’s factual determination, and Smith’s argument therefore
fails.



                                          22
evidence in the record supports the ALJ’s conclusion that there

was clear and convincing evidence that the employers “would have

taken the same unfavorable personnel actions” against Smith in

the   absence   of   the   protected   behavior.    See   42   U.S.C.

§ 5851(b)(3)(D).


                                 IV.

      For these reasons, we deny Smith’s petition for review of

the Board’s decision dismissing his administrative complaint.



                                          PETITION FOR REVIEW DENIED




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