Moreover, an employer may terminate an employee who behaves
inappropriately, even if that behavior relates to a legitimate safety concern. Dunham v.
Brock , 794 F.2d 1037, 1041 (5th Cir. 1986). In Dunham , the employee
filed a safety report with the Nuclear Regulatory Commission. The employer suspected as
much but also thought, legitimately, that the employee often acted in a disruptive and dominant
manner. Id . at 1039. To address this problem, the employer held a counseling
session with the employee. The employee swore at his employer and refused to change his
behavior. He dared the employer to fire him. Holding for the employer, the court noted that
an "otherwise protected provoked employee' is not automatically absolved from abusing
his status and overstepping the defensible bounds of conduct." Id . at 1041.
The employee's cavalier attitude, abusive language, and defiant conduct justified his discharge.
Id . at 1040-41. See also Lockert v. United States Dep't of Labor , 867
F.2d 513, 519 (9th Cir. 1989) (employee's disobedience justified discharge, especially where
he failed to establish disparate treatment or that he had made an unusually large or serious
number of complaints).
Here, this court first must consider whether the ERA protects Sprague's
conduct. A negative answer ends the analysis, because generally "an employer may fire
an employee for any reason at all, so long as the reason does not violate a Congressional
statute." Kahn v. United States Secretary of Labor , 64 F.3d 271, 280 (7th
Cir. 1995). ANR argues that Sprague's acts never amounted to an internal safety complaint,
and that therefore Sprague's conduct should receive no protection. ANR asserts that the ERA
protects only acts that allege a violation of nuclear regulatory laws. The government, on the
other hand, argues that Sprague's questions about the RPs expressed a "particular safety
concern" about the body count that was "tantamount to a complaint that the correct
safety procedure was not being observed, and thus constituted protected activity." The
Secretary of Labor, relying on Bechtel , found that Sprague's questions
"constituted protected internal activities, since the RPs were responsible for Sprague's
radiological safety as an ANR employee."
Sprague's conduct falls outside the scope of ERA protection. His
conduct lacks a sufficient nexus to safety concerns. Sprague did the following things that
possibly implicate safety: he complained about "the stupid RP's not knowing what they
were doing" after they waited too long to spray; he grew angry at the RPs while they
administered his full body count test; and, after the test, he asked the RPs for a copy of the
body count, even though he received a more understandable exposure report.
Sprague, however, never alleged that ANR was violating nuclear laws or
regulations. He never alleged that ANR was ignoring safety procedures or assuming
unacceptable risks. He simply asked for a document, one that he had no right to receive and
one that contained little useful information. The government contends that Sprague's general
complaints about the RPs had larger safety implications, but the record refutes that position.
While Sprague's complaints resulted in one set of additional body counts on the RPs, those
tests ultimately revealed no safety problem or health hazard. Sprague's conduct never led
anyone to change, probe, or even question ANR's safety procedures.
In cases where courts protected the employee's acts, the employee
typically alleged a safety concern that was both concrete and continuing. For example, in
Stone & Webster , the employee held weekly meetings about fire safety; in
Bechtel , the employee complained about the procedures for handling radioactive
tools; and in Pogue , the employee had prepared seven internal reports identifying
specific safety problems. In contrast, Sprague complained about an isolated incident involving
a wall spraying, not a procedural hazard. A single act or inquiry may, of course, fall under
the ERA's scope, but that act must bear a closer nexus to safety than Sprague's conduct.
Finally, even if the ERA does protect Sprague's conduct, ANR did not
fire Sprague because he complained about safety. Emanuel testified that she fired Sprague
because of his interpersonal problems. Sprague complained primarily about the RPs'
incompetence, but the RPs did not work for ANR. No one could attribute the RPs' errors to
ANR. Therefore, Sprague's complaints alleged no safety breach by ANR. Nothing in the
record indicates how Sprague's conduct could force ANR to change its procedures or incur
extra costs. An employer would hardly retaliate over such an insignificant sleight.5
REVERSED.
[ENDNOTES]
F*F*F*F*F**F*F*F*TF*hF*eF* F*HF*oF*nF*oF*rF*aF*bF*lF*eF* F*JF*oF*hF*nF* F*RF*.F* F*GF*iF*bF*sF*oF*nF*,F*
F*
Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by
designation.
1 After work that day, Sprague
contacted the Nuclear Regulatory Commission (NRC) and requested a copy of the his full body
count. In the litigation below, the parties disputed the timing of Emanuel's decision to
terminate Sprague, but on appeal the government concedes that Emanuel decided to terminate
Sprague before he contacted the NRC.
2 ANR's Petition for Review
named only the Department of Labor as respondent. Parties to an agency proceeding such as
Sprague are not proper respondents, although they may move to intervene. Oil, Chemical
& Atomic Workers, Local Union No. 6-418 v. N.L.R.B. , 694 F.2d 1289, 1298 (D.C.
Cir. 1982). Here, Sprague filed a responsive brief, but he never moved to intervene.
Accordingly, this court ignores Sprague's brief.
3 42 U.S.C. § 5851,
amended by Pub. L. No. 102-486, 106 Stat. 2776. Because Sprague filed his
complaint before the amendments took effect, the pre-1992 version of the ERA governs here.
Pub. L. No. 102-486 § 2902(i). Unless otherwise noted, this opinion cites to the current
version of the statute.
4 See also Kansas Gas &
Elec. Co. v. Brock , 780 F.2d 1505, 1506 (10th Cir. 1985) (protecting an employee, a
quality control inspector, who filed reports of continuous safety problems);
Mackowiak , 735 F.2d at 1162 (protecting an employee who filed internal complaints and
reported safety problems to NRC).
5 ANR also complains that the
Secretary of Labor denied it due process and that the Secretary failed to comply with a
timeliness requirement. Because we reverse, we need not address those issues.