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Complaint for Compensatory Damages and Injunctive and Declaratory Relief
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION
JAMES SPEEGLE
314 Shot Gun Lane
Tuscumbia, AL 35674,
Plaintiff,
v.
STONE & WEBSTER CONSTRUCTION CO., INC.,
4171 Essen Lane
Baton Rouge, LA 70809
Defendant.
COMPLAINT FOR COMPENSATORY DAMAGES AND INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION
1. This lawsuit brought pursuant to Section 211 of the Energy Reorganization Act, 42 U.S.C. §5851 ("ERA" or "the Act"), arises from the discharge of Plaintiff James Speegle in retaliation for raising nuclear safety complaints during employment at the Browns Ferry Nuclear Plant ("Browns Ferry" of "BWNP") near Athens, Alabama, in this judicial district. Defendant Stone & Webster Construction Co., Inc. ("S&W") unlawfully discharged Mr. Speegle on May 24, 2004, from his job as a painter foreman in retaliation for raising serious questions and concerns with his immediate supervisor, other managers of "S&W", and onsite inspectors of the Nuclear Regulatory Commission ("NRC") regarding practices that he reasonably believed would jeopardize the effectiveness of the plant's emergency core cooling system, with potentially catastrophic consequences in the event of an emergency shutdown. Mr. Speegle seeks an award of compensatory damages to make him whole for the economic and non-economic harm he has suffered as a consequence of his unlawful termination, a declaration that he was terminated in retaliation for protected activity, an injunction reinstating him to employment, and an award of his attorney's fees and costs.
JURISDICTION AND VENUE
2. Mr. Speegle made a timely administrative complaint regarding his discharge to the Secretary of Labor pursuant to 42 U.S.C. §5851(b)(1) on or around August 20, 2004. The Secretary of Labor did not make a final decision within the ensuing year, and has made no final decision to date. Jurisdiction of this matter is accordingly conferred by 42 U.S.C. §5851(b)(4).
3. Venue in this Court is appropriate pursuant to 28 U.S.C. §1391(b), the events giving rise to the suit having occurred in this judicial district.
PARTIES
4. Plaintiff James Speegle is a citizen of the United States and of the State of Alabama. In connection with his employment for S&W at Browns Ferry, Mr. Speegle was an employee covered by ERA's whistle-blower protections.
5. Defendant S&W is an employer covered by the ERA.
STATEMENT OF FACTS
Mr. Speegle's Employment as a Painter Foreman with S&W
6. S&W is a subcontractor of the Tennessee Valley Authority ("TVA"), which owns and operates the Browns Ferry Nuclear Plant ("Browns Ferry" or "BFNP") near Athens, Alabama. Beginning in September 2002, S&W began performing construction work on the restart of Unit 1 at the Browns Ferry plant, working under an $820 million contract with TVA. At that time, Unit 1 had lain idle for some twenty years due to safety concerns.
7. Mr. Speegle is a journeyman painter who has been engaged in industrial painting for over fifteen years. He first went to work as a painter for S&W at Browns Ferry in or around 1993, and, except for periods of lay-off, worked primarily for S&W at Browns Ferry until the termination of his employment in May 2004.
8. In or around May 2003, S&W hired Mr. Speegle to work as a painter on the Unit 1 restart project.
9. In late 2003, S&W's Super General Foreman, Sebourn Childers, asked for volunteers from among the painters to perform asbestos removal work in the plant as part of the Unit 1 restart project. Mr. Speegle volunteered and underwent asbestos removal training in Birmingham in late 2003.
10. Upon Mr. Speegle's return from training in January 2004, S&W promoted him to the position of foreman and placed him on the payroll of Shook & Fletcher Insulation Co. ("Shook & Fletcher"), a subcontractor hired by S&W to perform asbestos removal in Unit 1.
11. Although Mr. Speegle received his paychecks from Shook & Fletcher from January through May 2004, he did asbestos removal work for that company only some ten percent of the time. He continued to perform painting work in Unit 1 for S&W under Mr. Childers' supervision approximately 90% of the time. Mr. Speegle worked under this arrangement on the Unit 1 restart project until he was terminated on May 24, 2004.
12. As an S&W painter foreman, Mr. Speegle supervised work crews of six to ten workers, mostly apprentices, who performed bulk coatings removal and surface preparation work in an area of Unit 1 known as the "Torus." Mr. Speegle's crews removed old paint from steel surfaces, and prepared the surfaces for the reapplication of new paint, as part of an effort to repair failed coatings in the Torus. The apprentices who worked on these crews were qualified to perform this work, but were not qualified to perform the more skilled work of applying protective coatings in the Torus.
The Critical Role of Protective Coatings in Nuclear Safety
13. The Unit 1 Torus is a large, donut-shaped vessel that surrounds the reactor core and remains half-full of water while the plant is in operation. The Torus plays a critical role in the plant's emergency core cooling system ("ECCS"). Its function is to flush millions of gallons of water in and out of the reactor core during a nuclear emergency, thereby cooling the reactor and containment area to allow for the safe shutdown of the reactor. As part of the Unit 1 restart project, S&W had the task of repairing the protective coatings that coated the interior surfaces of the Torus.
14. The Torus contains a complex array of piping, vent headers, down-comers, spargers and other steel structures. All of these surfaces are painted with protective coatings that are critical to nuclear safety. Unless correctly applied and maintained, the protective coatings may chip, flake or peel so as to clog the pumps that move water in and out of the Torus and reactor core in a nuclear emergency, thus impeding the safe shutdown of the plant.
15. The consequences of any failure correctly to apply and maintain the protective coatings of the diverse surfaces within the Torus are potentially disastrous. The Nuclear Regulatory Commission ("NRC") has emphasized the vital role of the protective coatings in the ECCS in ensuring the safe operation of nuclear power plants. NRC bulletins have highlighted incidents in which failed coatings in safety-related areas of nuclear plants created significant nuclear safety hazards.
16. The work of applying and maintaining protective coatings at Browns Ferry was governed by a TVA document entitled "General Engineering Spec. No. G-55: Technical and Programmatic Requirements for the Protective Coating Program for TVA Nuclear Plants," commonly referred to as the "G-55." TVA issued Revision No. 12 of the G-55 on February 17, 2004, a few months before Mr. Speegle's termination, and issued Revision 13 on July 22, 2004, two months after Mr. Speegle's termination. References to the G-55 herein are generally to the version in effect at the time of Mr. Speegle's termination.
17. The G-55 divides areas of a nuclear plant into different "Coating Service Levels" with different specifications for the application and maintenance of protective coatings. The G-55 defines a Service Level 1 area as an "area inside the reactor containment where coatings failure could adversely affect [by producing solid debris (as paint chips)] the operation of post-accident fluid systems and, thereby, impair safe shutdown." The G-55 treats the Browns Ferry Unit 1 Torus as a Service Level 1 area. Such areas must be painted with an "acceptable coating system" (or layers of paint), which the G-55 defines as a "safety-related coating system" for which "there is reasonable assurance that, when properly applied and maintained, the coating will not detach under normal or accident conditions."
18. The G-55's main purpose is to ensure that protective coatings are applied and maintained in a manner consistent with nuclear safety. Because of the G-55's comprehensive scope and the exactness of its procedures, S&W painters refer to it as "the Bible." The G-55 sets forth specifications and standards for all aspects of Service Level 1 coatings work in TVA nuclear plants, including the preparation of surfaces to be painted, the mixing and applications of coatings, quality control procedures, and the qualifications and certification of personnel who perform Service Level 1 coatings work. Because of the detailed nature of the prescribed specifications and standards and the severe consequences of deviations, the work of painters in Service Level 1 areas requires specialized knowledge and experience.
19. Mr. Speegle was an exacting and conscientious employee who had studied various publications regarding protective coatings and the potentially-severe consequences of coatings failure, including NRC Generic Letter 98-04. He was highly regarded by other S&W painters and foremen for his knowledge regarding the proper procedures for applying and maintaining protective coatings and the risks of failure to follow the proper procedures prescribed by the G-55. By the time of his termination, Mr. Speegle had reviewed the G-55 in its entirety some ten or fifteen times over the years. He consulted it from time to time on an ongoing basis to ensure that he and other painters were performing their work according to its specifications.
Mr. Speegle's Complaints to Management about Unsafe Coatings Practices
20. During 2004, Mr. Speegle observed S&W engaging in practices in connection with coatings work in Unit 1 that negatively impacted on nuclear safety.
21. Mr. Speegle became concerned about S&W's practice of making spot repairs of the Unit 1 Torus as opposed to a systemic, orderly restoration of all surfaces within the Torus. Mr. Childers frequently instructed Mr. Speegle to move his paint removal crew from bay to bay among the 16 bays in the Torus, leading Mr. Speegle to reasonably fear that his crew would miss spots in need of repair, and which, if missed, could jeopardize the operation of the plant. Mr. Childers would require the crews, once they had spent time getting their scaffolding and hoses and equipment set up, to break their set-up down and move it half-way around the Torus and set it up again regardless what they were leaving behind. Mr. Speegle saw this practice as a nuclear safety problem. He complained about it to Mr. Childers and asked why his crew was moving frequently. Mr. Childers appeared irritated and refused to provide an explanation. Mr. Childers typically responded with a phrase he commonly used to justify inefficient or unsafe practices: "confusion is money." Mr. Speegle understood Mr. Childers to mean that the greater the confusion, the more they would be paid and therefore that Mr. Speegle should not be concerned.
22. In repairing failed coating spots in the Torus, Mr. Childers instructed Mr. Speegle and his crew to repair only spots where the coatings had failed from within, and not coatings failure caused by external mechanical damage such as impact from scaffolding or other equipment. S&W management told Mr. Speegle that the mechanical spots would be repaired later. Both types of failure allowed the steel to rust through the paint, which posed a risk of coating failure once the plant was in operation. Mr. Speegle feared the crews would miss spots by not repairing both types of damage at the same time, thereby causing severe risks in connection with a future emergency shutdown. Mr. Childers dismissed Mr. Speegle's concern with the refrain, "confusion is money."
23. As a result of Mr. Speegle's repeated expression of concerns, Mr. Childers became increasingly antagonistic toward him during the winter and spring of 2004.
Mr. Speegle's Complaints regarding S&W's Plan to Use Unqualified Apprentices
24. During late April or early May 2004, Mr. Childers announced that S&W would begin certifying apprentice painters to perform coatings work in the Torus. Previously S&W had used journeyman painters to perform Service Level 1 work. The Company desired to use apprentices to do coatings work in the Torus because the scope of the Torus repair project had expanded threefold, and S&W management felt tremendous pressure to staff the work. The need for additional painters led S&W to begin certifying apprentices for Service Level 1 work despite the serious nuclear safety risk posed by the use of unqualified painters.
25. Although Mr. Speegle was unaware of it at the time, Ralph Thompson, a painter and lead foreman on a different shift, initiated a Problem Evaluation Report ("PER") on May 12, 2004, challenging S&W's planned use of apprentices in the Torus. A PER is a TVA corrective action mechanism by which nuclear plant employees can raise complaints about nuclear safety or other significant issues. Mr. Thompson wrote the PER because he believed the use of apprentices posed a safety problem. Mr. Thompson's PER echoed some of the same nuclear safety concerns Mr. Speegle was raising, in particular that S&W was certifying "[a]pprentices with limited skill and little knowledge" to do coatings work in the Torus in violation of the G-55. Mr. Speegle saw the PER hanging on a bulletin board some time after Mr. Thompson initiated it. Mr. Childers believed that Mr. Speegle had initiated the PER that was in fact initiated by Mr. Thompson, as did other S&W managers, including S&W Civil Superintendent Richard Gero, Assistant Civil Superintendent Hilary Albarado and Human Resources manager Fran Trest.
26. Mr. Speegle had a reasonable, good-faith belief that S&W's use of apprentices to perform coatings work in the Torus violated the provisions of the G-55 and posed a nuclear safety risk. Mr. Speegle's belief was based on several factors.
27. First, apprentice painters lacked the knowledge and experience that the G-55 required of painters who performed Service Level 1 coatings work. The G-55 mandated the use of painters who had "worked in the painting trade long enough to sufficiently master the use of all tools, techniques, and the materials to be applied." This experience requirement was reiterated in Appendix A to the G-55, which set rigorous guidelines for the certification of painters to perform Service Level 1 work. The apprentices that S&W employed included new painters who were unfamiliar with the purpose of the work in the Torus, painters who did not know the purpose of a mil gauge - a tool t hat measures paint film thickness - and thus could not possibly apply coatings correctly, and painters who did not know the difference between a latex and an oil-based brush, which any experienced painter would know even without experience in a nuclear plant.
28. Second, the G-55 expressly called for the use of "journeyman" painters, and not trainees or apprentices, in Service Level 1 areas of the plant. The manual defined a "coatings applicator" as a "journeyman painter," and set guidelines "for the qualification of journeyman painters responsible for the application of safety-related coatings. . . ."
29. Third, the G-55 required painters to qualify on a much harder test than the Company was in fact using for Service Level 1 work. S&W began qualifying apprentices on a "flat panel" test that was much easier to pass than the "complex test" required by the G-55. For Service Level 1 certification, the G-55 provided that the "test demonstration surface shall be reasonably similar to the actual work surface condition." The G-55 specifically referenced a standard issued by the American Society for Testing & Materials ("ASTM") entitled, "Standard Practice for Qualification of Journeyman Painters for Application of Coatings to Steel Surfaces of Safety-Related Areas in Nuclear Facilities." That ASTM standard required Service Level 1 painters to certify on a "complex panel" consisting of a steel plate with segments of an "I" beam, a "T" beam, a six-inch diameter pipe, and nuts and bolts attached and protruding from the surface. This test was intended to "simulate the types of difficult coating situations" the painters would encounter in the plant. This complex test, which required painters to apply coatings to the various surfaces to within a few thousandths of an inch in film thickness, approximated the surfaces to be coated in the Torus sufficiently so that anyone who passed would be qualified to apply coatings in the Torus.
30. S&W administered the complex test to only a few journeymen who worked in the Unit 1 Torus, and then certified other painters on a "flat panel" test that was much easier to pass than the complex test mandated by the ASTM standard. This easier test consisted of a steel plate, arranged on the level and waist-high, with a grid marked off with duct tape to designate the squares to which the candidates applied paint with a brush. When S&W began qualifying apprentice painters to work in the Torus, it did so using the flat panel which did not accurately represent the conditions or surfaces that the tested painters would encounter in the plant.
31. In addition to the inadequacies inherent in the flat panel test, Mr. Speegle and other painters observed Mr. Childers improperly coaching painters who took the test. Mr. Speegle watched Mr. Childers provide detailed instructions and coaching to one painter, a practice that further undermined the test's validity as a qualification procedure.
32. Because the flat panel test did not approximate the conditions and surfaces in the Torus, and because of the flawed testing procedures, S&W was qualifying painters, and beginning to qualify apprentices, on a test that was inadequate to measure their ability to apply coatings in the Torus in a manner that was consistent with nuclear safety. Mr. Speegle reasonably believed the use of the flat panel test to be a serious safety problem. S&W's use of the flat panel test failed to meet the specifications of the G-55 or the ASTM standard.
33. S&W's plan to certify apprentices to erform Service Level 1 work generated substantial opposition among the journeyman painters, a number of whom complained to management about the plan. Mr. Speegle was especially vocal in complaining about the Company's planned use of apprentices. From the time he learned of the plan in late April or early May 2004, Mr. Speegle repeatedly complained to S&W management, both informally and in safety meetings, that the use of apprentices violated the G-55 and posed a nuclear safety risk.
34. Mr. Childers responded that the Company was getting the G-55 changed to allow apprentices to qualify, and that it planned to go ahead and certify the apprentices. Mr. Childers refused to seriously address Mr. Speegle's concerns because S&W was under pressure to staff the Torus repair project, and was intent on using apprentices to perform the work despite the nuclear safety risk that the use of apprentices would create.
35. Mr. Speegle raised his nuclear safety concerns about the use of apprentices at three morning safety meetings in May 2004, but on each occasion Mr. Childers silenced him and refused to address his concerns. At the first of these meetings, on the morning of Thursday, May 20, 2004, Mr. Speegle spoke up after Mr. Childers announced that S&W was going to begin certifying apprentices. Mr. Speegle stated that apprentices lacked the knowledge to do the work in the Torus and that the G-55 clearly stated that an individual must be a journeyman painter to be able to do the work inside the Torus or in any other Level 1 area. Mr. Childers angrily cut him off, saying: "This is the way we're going to do it. We're getting the G-55 changed to certify apprentices and that's the end of it."
36. Mr. Speegle attempted to speak with Mr. Childers after the Thursday morning meeting, but Mr. Childers became very angry and warned Mr. Speegle to stop raising his nuclear safety-related complaints about the apprentices. Mr. Childers told Mr. Speegle to "shut your big mouth" on the subject of the apprentices.
37. Shortly thereafter, Mr. Speegle reported the same concerns to the NRC. Mr. Speegle visited the NRC's onsite resident inspectors Bill Bearden and Bob Holcomb and described his concerns about apprentices being certified to do Level 1 work in the Torus and the inadequacy of S&W's flat panel test.
38. The NRC report recalled Mr. Speegle's visit to the trailer (as a "CI" or "concerned individual") as follows:
CI dropped in the resident office and complained that TVA's program for qualification of painters working in Unit 1 Torus was not adequate. New apprentice with little or no experience are being qualified to perform painting when experienced painters are not being brought in to perform work. Conditions for performing painting in Torus is much more difficult than seen in the controlled conditions in Paint Shop where qualification exams are given (not representative). Torus work involves temperature and humidity changes and sometimes painting upside down. Use of lower cost poorly qualified painters is made to save money. CI believes that some of these painters have no experience and their resumes are not correct.According to the NRC report, Mr. Speegle told the agents that the use of apprentices was intended to "save money by using non-qualified painters when they should be using journeyman painters."
39. Mr. Speegle further explained to the NRC inspectors that S&W's use of inexperienced painters could lead to a coatings failure and a malfunction in the emergency core cooling system. The NRC noted the significance of these complaints as a matter of nuclear safety: "Use of unqualified coatings could result in lack of proper adhesion and paint peeling which would block ECCS suction strainers during design accident." Additionally, Mr. Speegle told the NRC inspectors of his fear that Mr. Childers would retaliate against him for raising nuclear safety concerns and that he would lose his job.
40. Mr. Speegle again raised his concerns with Mr. Childers about S&W's planned use of unqualified apprentices to perform Service Level 1 work in the Torus at the morning safety meeting the following day, Friday, May 21, 2004. As occurred the previous day, a heated debate ensued. Mr. Speegle remained concerned that Mr. Childers would retaliate against him for persisting in speaking out about nuclear safety issues, but believed that continuing to do so was his responsibility. He again asked Mr. Childers why the Company was using the flat panel test, which he said did not approximate conditions in the Torus.
41. As he had the day before, Mr. Childers provided no answer. He responded angrily and indicated he was increasingly fed up with Mr. Speegle's insistence on discussing the nuclear safety implications of S&W's plan to use apprentices in the Torus. Mr. Childers stated that it was a "dead issue" and that he was "not discussing it anymore, and that's the end of it."
42. Contrary to Mr. Childers' decree that Mr. Speegle was raising a "dead issue," Mr. Speegle did not view the issue as "dead." The G-55 had not been changed to remove the word "journeyman," to lessen the experience required of painters, or to authorize an easier test.
43. Mr. Childers' angry dismissal of Mr. Speegle's nuclear safety concerns at the Friday morning safety meeting added to Mr. Speegle' fear about losing his job. Nevertheless Mr. Speegle was determined to continue to press questions until he received an answer.
44. The Company's use of apprentices to perform Service Level 1 work came up again at the morning safety meeting on Saturday, May 22, 2004. By this time, the members of S&W management were fed up with the painters' opposition to the plan, and were determined to move forward despite the requirements of the G-55 and nuclear safety. At the Saturday morning meeting, Mr. Childers instructed Patrick Ferrell, an experienced painter and by then a qualifying agent who administered the certification tests, to read a document to the assembled painters. Without identifying the document, Mr. Ferrell read language stating that the word "journeyman" was being replaced in the G-55 by the word "coating applicator." Mr. Childers then explained that this change would allow anyone who passed a test to be certified to do coatings work in the Torus.
45. The document Mr. Ferrell read was a one-page memorandum, called an "EWR," that announced a pending revision in the language of the G-55. It stated in relevant part, "The term Journeyman should be changed to coating applicator throughout the specification . . . ." (Emphasis added) Mr. Ferrell's reading of the EWR to the painters on May 22 was the first time S&W formally announced this proposed change in terminology.
46. Several of the painters at the safety meeting stated dissatisfaction with the reading of the EWR. Mr. Speegle spoke up more vocally than others, objecting that the plan was flawed and that, in any event, the G-55 itself had not yet been changed. TVA in fact did issue a new version of the G-55 on July 22, 2004, some two months after Mr. Speegle's termination. Mr. Speegle reasonably and correctly believed that at the time of the May 22, 2004 safety meeting, the G-55 requirement that Level 1 work be performed by "journeymen" had not been changed.
47. Even if the EWR had actually effected an immediate revision in the wording of the G-55 from "journeyman" to "coating applicator" - which it did not - S&W's plan to certify apprentices would still not have complied with the G-55 or with accepted standards of nuclear safety. The change in language did not remove the G-55's requirement that coating applicators have sufficient experience to have mastered the tools and materials of their trade, or the requirement that the certifying test approximate the conditions and surfaces that the qualifying painters would encounter in their work. Mr. Speegle had good reason to remain concerned about nuclear safety, regardless of the pending change in the wording of the G-55 contemplated by the EWR.
48. In response to the painters' questions and objections, Mr. Childers again stated that the matter was a dead issue, and said that S&W planned to go ahead and certify the apprentices. In fact, S&W had already begun testing the apprentices with the flat panel test. The Company was more determined than ever to begin using apprentices regardless of the risk to nuclear safety.
49. Frustrated by the Company's efforts to circumvent the G-55, Mr. Speegle rose when the meeting ended and, standing some twenty feet from Mr. Childers and facing the lockers along the wall, stated in a conversational tone and to no one in particular: "If they're not going to go by the G-55 they need to take that paper and stick [it] up their ass because now we have nothing to work by." Mr. Speegle made the comment in a moment of extreme frustration because he believed - reasonably and correctly - that S&W was undermining the G-55 and creating a nuclear safety risk, while also leaving him and the other Brown Ferry painters with conflicting guidance as to how to do their work consistent with considerations of nuclear safety. He then left the trailer and proceeded to the Torus, where he began his work assignment for the day.
50. While S&W has maintained that Mr. Speegle raised his complaints about the planned use of apprentices as an issue of job protection, Mr. Speegle viewed the issue primarily as a nuclear safety issue, and raised his complaints as such. Mr. Speegle's focus on nuclear safety is further demonstrated by the fact that he took his concerns not only to S&W management but to the NRC, which he knew to be responsible for nuclear safety, and not for union-related issues. The NRC itself assigned safety significance to Mr. Speegle's complaints, noting his complaint that the "unqualified coatings could result in lack of proper adhesion and paint peeling which would block ECCS suction strainers during design accident."
51. Mr. Childers and other members of S&W management - including Civil Superintendent Richard Gero, Assistant Civil Superintendent Hilary Albarado, and Human Resources manager Fran Trest - were well aware of Mr. Speegle's complaints regarding the Company's planned use of apprentices to perform Service Level 1 work. They moreover recognized that the issues raised by Mr. Speegle and other painters were concerns of nuclear safety. Mr. Childers himself has acknowledged that Mr. Speegle was raising complaints that the certification of apprentices would violate the G-55, a manual which Mr. Childers understood to be concerned primarily with nuclear safety.
52. Company officials were nevertheless repeatedly unresponsive, and hostile, to the complaints that Mr. Speegle and other painters raised about the nuclear safety implications of the company's planned use of apprentices to apply coatings in the Torus. S&W managers overlooked the nuclear safety implications of their plan, responded curtly to the painters that they were changing the G-55, and refused to answer any questions about the nature of or the reasons for the change. Mr. Childers' unreceptive and hostile attitude towards Mr. Speegle's nuclear safety concerns was consistent with his approach to other types of safety concerns raised by other painters.
S&W's Suspension and Discharge of Mr. Speegle
53. Shortly after Mr. Speegle went to work in the Torus following the safety meeting on May 22, Mr. Childers summoned him and Mr. Frazier, the union steward, to an S&W trailer where he informed Mr. Speegle that he was suspended, and instructed him to leave the plant. When Mr. Speegle asked Mr. Childers why he was suspending him, Mr. Childers replied, "Nobody's going to tell me to take the G-55 and stick it up my hind-end." Mr. Childers provided Mr. Speegle with no other reason, and gave him no paperwork stating the grounds for this disciplinary action. Mr. Childers did not accuse Mr. Speegle of refusing to follow Company rules or procedures or of threatening to do so.
54. On Monday, May 24, 2004, Mr. Speegle met with S&W Human Resources Manager Trest to obtain her help in getting back to work. He told her that Mr. Childers had suspended him following a meeting at which he had raised complaints about S&W's change to the G-55. Later that day, Ms. Trest informed Mr. Speegle that S&W was terminating him for "insubordination."
55. S&W terminated Mr. Speegle's employment, and had authority to terminate Mr. Speegle's employment, even though Mr. Speegle was on the payroll of S&W's subcontractor, Shook & Fletcher.
56. S&W subsequently claimed that it discharged Mr. Speegle because his comment was a declaration that he would not follow procedures. However, Mr. Speegle never said - in the May 22 safety meeting or otherwise - that he intended not to follow the G-55 or any other procedure. He had always followed procedures, and had never developed or expressed any intention not to do so. Mr. Speegle enjoyed an exemplary work record with S&W for over ten years. Except for one minor reprimand for wearing his dosimeter outside a radiation control area (breaking a rule that had been changed since he had last worked in the plant), Mr. Speegle's suspension on May 22, 2004, was the first discipline of any sort he had ever received.
57. S&W subjected Mr. Speegle to harsher discipline than it imposed on similarly-situated employees who had not raised nuclear safety concerns. Prior to Mr. Speegle's termination, the Company had consistently refrained from terminating employees for first offenses involving conduct very similar to the conduct that the Company maintained (albeit falsely) was the basis for Mr. Speegle's termination. This included incidents in which employees allegedly lashed out at their supervisors, used profanity, brazenly disobeyed work directives, and were dishonest, including in front of other employees.
58. The S&W officials involved in the decision to terminate Mr. Speegle have themselves acknowledged that his history of raising nuclear safety complaints, and doing so amid a storm of controversy over the planned use of apprentices in the Torus, influenced their decision to terminate him. Mr. Childers has specifically acknowledged that his view of Mr. Speegle's "ass" comment, including the accusation that Mr. Speegle was "insubordinate," was influenced by Mr. Speegle's history of making complaints related to nuclear safety.
59. Mr. Speegle's protected activity in raising nuclear safety concerns was a contributing factor to his termination. S&W would not have fired Mr. Speegle absent his protected activity.
60. S&W has presented shifting justifications for Mr. Speegle's termination. S&W initially maintained that Speegle was terminated for insubordination as reflected by his use of profanity. Only later, when faced with evidence that it previously tolerated similar behavior outside the context of safety complaints, and had never previously terminated an employee for a first offense of profanity, did S&W state a new explanation. Suddenly disclaiming the profanity justification, S&W claimed Speegle was terminated for insubordination based on his supposed refusal to follow company rules and procedures, and not because of his use of profanity.
Events Subsequent to Mr. Speegle's Termination
61. Following Mr. Speegle's termination and his filing of a complaint with OSHA challenging his termination, Mr. Childers and S&W attempted to intimidate witnesses who they believed might support Mr. Speegle's claims against the company. Mr. Childers told Jeff Cook and other painters that he intended to find out who was helping Mr. Speegle and to "get rid of them." Mr. Cook, who had provided a statement to Mr. Speegle for use in the DOL proceedings, was in fact laid off a month or two after the incident, ahead of other painters on his shift and contrary to S&W's normal lay-off procedures. As he walked Mr. Cook out of the plant following his lay-off, Mr. Childers told Mr. Cook, "You're just too negative." S&W's termination of Mr. Speegle and its lay-off of Mr. Cook have had a continuing chilling effect on the willingness of other S&W painters to raise nuclear-safety concerns.
62. S&W also demonstrated an animus toward the exercise of protected rights in an incident involving Mr. Speegle following his termination. In late March or early April 2005 during Mr. Speegle's brief return to work at Browns Ferry during an outage, he became concerned about the proximity of a smoking area to a flammable materials storage area. He intended to initiate a PER (his first ever) to correct what he perceived to be a dangerous condition. On the advice of the NRC, he sought out a PER coordinator who was in the S&W office trailer. When Mr. Speegle entered the S&W trailer to speak with the PER coordinator, Gary Gentz (then S&W's Civil Superintendent) emerged from his office, looked at Mr. Speegle's name on his hardhat, and told him he "needed to go." Mr. Gentz's reflexive expulsion of Mr. Speegle from a Company trailer where he had legitimate business is explainable only by his hostility towards a worker he knew to have filed a whistleblower complaint against S&W.
63. Following Mr. Speegle's termination, TVA removed S&W from the Unit 1 Torus repair project and hired, or had S&W hire, a company called Williams Power to completely redo the job, sandblasting away all of the work S&W had done and repainting the Torus in its entirety. Williams Power used S&W painters to complete the job but relieved Mr. Childers of all responsibility for work in the Torus. TVA decided to remove S&W from work on the Torus within days of Mr. Speegle's termination because, as site manager Brownie Harrison explained in a meeting with the painters a week or so after Mr. Speegle's termination, "TVA decided that SWCI did not have a good handle on what was expected or required."
64. Also following Mr. Speegle's termination, TVA changed the certification process for painters qualifying to perform Service Level 1 work by disapproving further use of the "flat panel" test and mandating use of the complex test that was required by the G-55 and the ASTM standards. In explaining this action, TVA echoed the concerns that Mr. Speegle had raised about S&W's use of the "flat panel" test, noting that the flat panel did not accurately represent plant surfaces, and that inexperienced painters were being coached during the testing process. TVA explained that its corrective action would ensure that the test accurately represented actual plant surfaces as required by the G-55 and ASTM D 4228, and would ensure that painters were tested individually and without coaching. Mr. Childers has acknowledged that TVA made this change to bring the test into compliance with the ASTM standards and the G-55.
65. Like TVA, the NRC later substantiated Mr. Speegle's allegation of improper coaching, finding in an Allegation Evaluation Report that "some painters did receive coaching and verbal assistance during a certification test," and noting that the licensee (TVA) had taken corrective action.
66. Subsequent to Mr. Speegle's termination, the NRC also found that Mr. Childers had engaged in deliberate misconduct in his supervision of the Unit 1 torus work. In a report dated August 3, 2006, the NRC determined that, shortly before the events that gave rise to this suit, Mr. Childers engaged in deliberate misconduct in violation of 10 CFR §50.5 when he directed painters to perform prohibited vacuum blasting inside the Unit 1 Torus. The NRC report's summary noted that Childers ordered the painters "to do what they needed to do to get the job done in response to being told by the painters that paint removal in some areas . . . could not be accomplished using the authorized methods. . . . ." (Emphasis supplied) The summary also recited evidence of "a hesitancy among painters to raise concerns to [S&W] and/or licensee management regarding blasting activities, including activities that were prohibited by procedures."
Mr. Speegle's Damages
67. S&W's termination of Mr. Speegle's employment has caused him to suffer significant financial losses, as well as pain, suffering and anxiety. Notwithstanding his persistent and continuing efforts, Mr. Speegle has been able to secure work only intermittently since his termination, and his prospects for finding comparable long-term employment are very slim. S&W's termination of Mr. Speegle's employment has in addition caused him to suffer significant emotional distress, embarrassment, and humiliation.
LEGAL CLAIMS
COUNT I
Retaliation in Violation of the Energy Reorganization Act, 42 U.S.C. §5851
68. The foregoing paragraphs 1 through 67 are realleged and incorporated herein by reference.
69. The employee protection provision of Section 211 of the Energy Reorganization Act ("ERA"), 42 U.S.C. 5851(a), provides, in relevant part, that:
(a) Discrimination against employee:42 U.S.C. § 5851(a) (emphasis added).
(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) -
(A) notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
...
(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;
...
(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.
70. S&W is an employer covered by Section 211 of the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851.
71. Mr. Speegle is an employee covered by Section 211 of the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851.
72. Mr. Speegle engaged in protected activity under the ERA when he complained to Mr. Childers about directives to move from bay to bay in the Torus and to repair only failed coatings spots and not mechanical-damage spots in the Torus; when he complained to Mr. Childers and in three morning safety meetings that the Company's planned use of apprentices to apply coatings in the Torus violated the G-55, that the apprentices were unqualified to perform Service Level 1 coatings work, and that the "flat panel" test S&W was using to qualify the apprentices did not approximate surfaces or conditions in the Torus and should not be used; when he asked Mr. Childers why S&W was certifying apprentices when the G-55 required the use of journeyman painters, and when he asked why the Company was using a flat panel test to qualify apprentices when the G-55 required the use of a complex test; and when he complained to the NRC that TVA's program for qualification of painters working in Unit 1 Torus was inadequate, that S&W was qualifying apprentices with little or not experience toe perform Service Level 1 work, and that the flat panel test S&W was using to qualify apprentices did not simulate the surfaces or conditions of the Torus.
73. S&W was aware of the protected activity under the ERA that Mr. Speegle engaged in as described in paragraph 72 above.
74. S&W subjected Mr. Speegle to adverse action under the ERA when it suspended him from duty on May 22, 2004, and terminated his employment on May 24, 2004.
75. Mr. Speegle's protected activity under the ERA was a contributing factor to S&W's suspension and termination of his employment, and S&W would not have taken those actions but for Mr. Speegle's protected activity under the ERA.
76. As a proximate result of S&W's suspension and termination of his employment, Mr. Speegle has suffered significant financial losses, as well as pain, suffering and anxiety.
REQUESTED RELIEF
WHEREFORE, plaintiff prays this Court for the following relief:
1. Judgment in Plaintiff's favor and against S&W for retaliation in violation of the Energy Reorganization Act, 42 U.S.C. §5851;
2. An injunction reinstating Plaintiff to employment and prohibiting further retaliation against him and other employees similarly situated;
3. An award to Plaintiff of compensatory damages in an amount to be proven at trial, but in any event not less than $1,000,000;
4. An award to Plaintiff of backpay in an amount to be proven at trial;
5. An award to Plaintiff of frontpay in an amount to be proven at trial;
6. An award of reasonable attorneys' fees and costs; and
7. All other relief the court deems just.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION
JAMES SPEEGLE
Plaintiff,
v.
STONE & WEBSTER CONSTRUCTION CO., INC.,
Defendant.
JURY DEMAND
Plaintiff demands a jury trial on all claims so triable.
Respectfully submitted,
___________________________
David J. Marshall
Debra S. Katz
Daniel B. Edelman
KATZ, MARSHALL & BANKS, LLP
1718 Connecticut Avenue, N.W.
Floor 6
Washington, D.C. 20009
(202) 299-1140
(202) 299-1148 (fax)
___________________________
Frank B. Potts, Jr.
POTTS & YOUNG ATTORNEYS, LLP
107 East College Street
Florence, AL 35630
(256) 764-7142
Attorneys for Plaintiff James Speegle
Dated: September 7, 2007