Clem and Spencer v. Computer Sciences Corp. (agency decision, September 17, 2019)

Plain-English summary

Computer Sciences Corp. IT employees Kirtley Clem and Matthew Spencer raised concerns about staffing, errors, and worker-safety risks in medical-clearance software at the Hanford nuclear site. The Board affirmed findings that their complaints were protected under the Energy Reorganization Act, the company knew about them, and the employees suffered adverse actions. It vacated the liability and damages rulings because the ALJ used a reasonable-inference formulation instead of deciding contributing-factor causation by a preponderance of the evidence, and also misapplied the employer's clear-and-convincing same-action defense. The ALJ's abbreviated findings did not adequately resolve conflicting evidence about whether the suspensions resulted from suspected sharing of proprietary information with a competitor. The Board remanded for a fuller evidentiary analysis under the correct burdens of proof.

Decision snapshot

• Cited authorities: 42 U.S.C. § 5851; 29 C.F.R. §§ 24.109(b)(1) and 24.110(b); 5 U.S.C. § 557(c)
• Outcome: Protected activity, knowledge, and adverse-action findings affirmed; liability and damages vacated; case remanded for new causation and same-action findings.
• Key point: An ERA decision must separately apply preponderance review to contributing-factor causation and clear-and-convincing review to the employer's same-action defense.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  KIRTLEY CLEM and                                 ARB CASE NO. 2016-0096
  MATTHEW SPENCER,
                                                   ALJ CASE NOS. 2015-ERA-00003
                  COMPLAINANTS,                                  2015-ERA-00004

         v.                                        DATE: September 17, 2019

  COMPUTER SCIENCES CORP.,

                  RESPONDENT.


  Appearances:

  For the Complainants:
        Stephani L. Ayers, Esq.; Law Offices of S.L. Ayers, Medford Oregon;
        Nikolas F. Peterson, Esq.; Hanford Challenge, Seattle, Washington

  For the Respondent:
        Rachel Linzy, Esq., Joseph R. Ward, III, Esq., Stephen L. Scott, Esq.,
        The Kullman Firm, Birmingham, Alabama

  Before: William T. Barto, Chief Administrative Appeals Judge; Thomas H.
  Burrell and Heather C. Leslie, Administrative Appeals Judges.


                        DECISION AND REMAND ORDER

        THOMAS H. BURRELL, Administrative Appeals Judge: This case arises under
  the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (2005),
  as implemented by regulations codified at 29 C.F.R. Part 24 (2015). Kirtley Clem
  and Matthew Spencer (complainants) filed complaints alleging that Computer




  Sciences Corporation (CSC or Respondent) violated the whistleblower protection
  provisions of the ERA when it suspended them without pay, failed to pay them
  special pay, and failed to retain and rehire Clem. Consolidating the appeals, the
  Administrative Law Judge (ALJ) found for Clem and Spencer and awarded
  damages. We vacate and remand.

                                        BACKGROUND 1

        At the time in question, CSC operated the Department of Energy (DOE)’s
  Occupational Health Clinic (Clinic) at Hanford Nuclear Reservation Site (Hanford).
  CSC employed Kirtley Clem, Matthew Spencer, P.R., and M.J. as information-
  technology (IT) staff. Clem and Spencer were both Senior Programmer Analysts.
  Eric Elsethagen, Clem and Spencer’s supervisor, was CSC’s IT Chief. Elsethagen
  reported to Business Operations Director George Baxter, who was also the Principal
  Manager of Occupational Services. ALJ’s Decision and Order (D. & O.) at 2-3. Kim
  Conley was the Clinic’s Director and reported to Baxter. Baxter reported to Lisa
  Poulter, Public Health Sciences Manager, from CSC corporate staff. J.V., head of
  Performance Assurance, was employed by Hollie P. Mooers Corporation (HPM) but
  reported to Conley. Cleve Mooers was Hollie’s husband and an executive at HPM.
  K.M. was a CSC Employee Relations specialist.

         In its daily operations, the Clinic provided first aid and medical testing for
  employees working at Hanford. D. & O. at 2. The Clinic also tested workers for prior
  and current exposure and notified employees if they were cleared to work in certain
  areas.

         CSC was the prime contractor for the Clinic. During the time in question,
  HPM provided the Clinic’s IT work as a subcontractor of CSC. In mid-2012, CSC
  lost the prime contract to HPM. For the follow-on contract beginning on October 1,
  2012, HPM and CSC planned to switch positions with CSC providing HPM’s IT
  support as a subcontractor of HPM. D. & O. at 2. CSC and HPM workers worked
  side by side on the Clinic’s day-to-day operations. Many employees carried out their
  duties without any distinction between the two companies. D. & O. at 5. HPM
  began transition activities in the summer of 2012. As of the dates in question,
  Lockheed Martin Systems (LMSI) provided other IT services for Hanford outside of


  1      In reciting these background facts, we make no findings of fact.



  Clinic’s operations, including Hanford’s e-mail and server administration. D. & O.
  at 17 n.13.

     1. HPM Reduced CSC’s Staff for the Follow-On Contract

        On July 10, HPM announced that the IT segment for which Clem and
  Spencer worked would be reduced to 50% for the new contract. D. & O. at 4.
  Beginning on or about October 1, three of CSC’s six programmers would be laid off.
  Clem and Spencer began looking for new jobs and both applied to stay on with CSC.
  D. & O. at 4.

          On August 22, CSC notified Clem that it decided not to hire him for one of
  the remaining three slots available after the transition. CSC chose to retain
  Elsethagen, Spencer and M.J., a senior CSC IT person. D. & O. at 11. Both Spencer
  and Elsethagen initially accepted the job. Elsethagen declined CSC’s job offer on
  September 4. Spencer notified CSC on September 13 that he declined CSC’s IT job
  offer for a job with another entity. D. & O. at 13.

        With two spots remaining, Clem was still not selected for retention. Conley
  picked a more junior member to stay on. Clem’s employment was set to end on or
  about September 27, 2012, the date that employees not retained for the follow-on
  contract were laid off.

     2. CSC’s Occupational Health Management Software

         In 2011, CSC had begun working on an electronic records management
  program called Occupational Health Management (OHM), which combines many
  different medical databases together. OHM electronically incorporated clearances
  and medical records to manage appropriate worker assignments. The programs
  were able to indicate whether it was appropriate for an employee to be in a
  particular location at a particular time. D. & O. at 3. For example, an employee
  would need to have a medical clearance and training clearance checked off to be in a
  specific area. Clem’s job duties included supporting older database systems and
  converting applications to operate with the OHM database. D. & O. at 2-3. The
  OHM software was initially scheduled to go live on August 20, 2012.





     3. Clem and Spencer Complain to CSC and DOE about OHM

         According to Clem and Spencer, the reduction of staff from six to three was
  not supported by CSC personnel. D. & O. at 4. Clem and Spencer complained about
  OHM’s progress and insufficient staffing in a July 2012 meeting. Clem complained
  to Elsethagen that he was having difficulties getting OHM to operate on time due to
  other distractions. D. & O. at 4. Spencer also testified that he was having difficulty
  making the August 20 “go live” deadline. Employees were working weekends and
  many overtime hours. D. & O. at 4. Clem and Spencer complained to Elsethagen
  that data feeds in the old databases did not migrate well into OHM’s databases. D.
  & O. at 6-7. Elsethagen responded that CSC would not release OHM if it placed
  Hanford employees at risk. D. & O. at 7. At some point, Lisa Zaccaria, Business
  Process Analyst, told Spencer to stop raising his concerns at IT staff meetings. D. &
  O. at 8. As the August 20 go-live date approached, Spencer complained that OHM
  was sending out numerous error messages. D. & O. at 8.

          Clem solicited J.V.’s views on the subject. D. & O. at 8. J.V. thought that
  Elsethagen’s responses to OHM’s problems were vague and encouraged Clem and
  Spencer to go to DOE. D. & O. at 8. On August 10, Clem filed an anonymous
  complaint with DOE’s Employee Concerns about OHM’s intended implementation
  on August 20. Clem’s e-mail indicates that “[t]he issue is not one of safety or death.
  It is one of PHI [personal health information] and PII [personal identification
  information] and site wide information systems.” D. & O. at 8. DOE met with Clem
  and Spencer that day.

         As part of his efforts, Clem solicited support from others. On August 10, Clem
  sent an anonymous e-mail to P.R., an IT co-worker, informing her that he and
  another worker had contacted DOE regarding the “readiness of OHM.” Clem asked
  P.R. if she would be willing to discuss it with DOE. P.R. responded that if she were
  asked, she would report that OHM was on schedule.

        On that same day, August 10, Elsethagen sent out an e-mail to the IT
  department concerning OHM. D. & O. at 9; Complainant’s Exhibit (CX)-30.
  Elsethagen acknowledged staff’s concerns that OHM’s bugs might allow an
  employee to work in an area where the employee is not supposed to be because of a
  clearance problem or other medical condition. Id. Elsethagen commented that CSC



  is working on the problem and reinforced CSC’s commitment to safety. Id.
  Elsethagen explained that the data in the OHM system was not yet complete and
  was still being entered. Thirty minutes after this e-mail, P.R. forwarded to
  Elsethagen the anonymous e-mail that she received from Clem and Spencer. D. &
  O. at 10.

         Later on August 10, Clem revealed himself and Spencer to P.R. as the source
  of the anonymous e-mail. P.R. replied to the e-mail indicating that she was
  “shocked, saddened, and disappointed” that Clem and Spencer were elevating “gripe
  sessions” to “secretive enrollment of co-conspirators to derail the project.” P.R.
  forwarded the second e-mail to Elsethagen with a response that she was upset
  about the “corporate backstabbing.” D. & O. at 10; CX-37.

         On August 17, Baxter postponed OHM’s implementation to August 23 for
  additional training, mock-patient exercises, and additional quality assessment,
  specifically mentioning the goal that “no worker [be] placed at risk.” Respondent’s
  Exhibits (RX)-20; D. & O. at 10. On August 22, Baxter e-mailed Poulter to indicate
  that while the implementation is “90-95%,” he delayed OHM’s go-live date to
  September 17 because of an employee’s concern, “which ha[d] been investigated by
  DOE and closed as unsubstantiated.” D. & O. at 11. Baxter wanted “to ensure we
  are as close to perfection as possible when we do our release.” CX-46. Clem met with
  DOE again on September 13. He was still concerned that OHM was not ready. D. &
  O. at 13; Transcript (Tr.) 110.

     4. CSC Warned its Employees Not to Work on HPM Transition Tasks
        without CSC Approval

         During the August-September time frame, CSC claims that it had difficulty
  segregating CSC staff from HPM transition efforts. On August 10, 2012, CSC sent
  out an e-mail that CSC staff should not be working to support HPM-identified
  transition work unless directed to do so by George Baxter or Kim Conley. CX-29; Tr.
  325-26.

        M.J., a senior CSC IT person, expressed frustration that Clem and Spencer
  were talking with J.V. and LMSI and that J.V. was coordinating with LMSI. Tr.
  1433. M.J. counseled Spencer to keep material “within our department.” Tr. 1434,
  1436; RX-34, 100. M.J. considered LMSI “a direct competitor” of CSC who was




  surveying CSC operations to learn Clinic operations. Tr. 1434-35, 1441. M.J. spoke
  with Conley about his frustrations. Tr. 1435.

        On September 6, Conley met with Spencer after receiving complaints from
  M.J. about Clem and Spencer’s suspicious activity. D. & O. at 11; Tr. 741-42, 760-
  63. On September 6, Conley warned Spencer not to discuss OHM with J.V. or HPM.
  CX-26 p.13; Tr. 741-42; D. & O. at 11-12.

          During the week of September 17-25, J.V. brought a database technician and
  senior expert from LMSI into the Clinic to learn the Clinic’s IT. Tr. 828. Conley
  testified that they objected to these individuals being in CSC office space for a
  “knowledge transfer” because CSC’s information was proprietary. Tr.1582-84; see
  also Tr. 828. Conley asked the individuals from LMSI to leave the area. Tr. 1582-84.

     5. CSC Implements OHM on September 17

         Debugging and quality assurance testing for OHM continued in August and
  September 2012. On September 14, Elsethagen e-mailed IT staff and others before
  the final release of OHM asking for anyone to e-mail him if there were any
  remaining “show stoppers” or IT problems before the final release. RX-35. As of the
  e-mail, management and quality assurance had approved final release. Clem
  responded to Elsethagen’s e-mail with a few issues. Elsethagen responded, asking if
  he and P.R. can work those out. RX-35; Tr. 411-16. Clem testified that he believed
  that they could work them out. Tr. 412.

         CSC implemented OHM on September 17, 2012. After going live, Spencer
  notified Elsethagen and Zaccaria that there were 213,000 error messages and that
  the system had crashed on two occasions where users could not input data. D. & O.
  at 14-16. In an e-mail chain spanning September 17-20, Spencer and Elsethagen
  discussed the error messages. CX-59; Tr. 700-01. Elsethagen was upset that
  Spencer had not notified him before of his concerns as Elsethagen thought it was
  Spencer’s obligation to bring up the complaint before the release. Spencer responded
  that he has brought these complaints to Elsethagen and Zaccaria but they were not
  considered to be an issue. D. & O. at 14-15.





     6. CSC Suspends Clem and Spencer on September 20

        On September 18, at HPM’s request, Clem and Spencer met with J.V. and
  Cleve Mooers at Bob’s Burgers and Brew to discuss the IT system, OHM staffing,
  HPM’s transition, and LMSI’s bidding for the IT component. D. & O. at 16; Tr. 114-
  16. HPM confirmed the rumor that LMSI was bidding on the IT component in place
  of CSC. D. & O. at 17. Cleve Mooers of HPM offered to pay Clem for a transition
  write-up on staffing and risk assessment.

          On September 19, Baxter, Poulter, and Conley received an e-mail chain
  between HPM and DOE showing HPM’s effort to switch from fixed-firm costs to
  cost-reimbursable. CX-57. Mooers testified that the switch would bring LMSI in for
  the clinic’s IT work in place of CSC. See Mooers’s Dep. at 19-21, 56-58. Mooers
  testified that he was working to get LMSI placed on the IT subcontract as early as
  September 16. Id.; see also Tr. 1193 (DOE officer’s testimony as to HPM’s effort to
  substitute LMSI in place of CSC).

         On September 20, Clem and Spencer initiated a meeting with Conley. Clem
  and Spencer testified that the meeting was to seek continued employment in the
  follow-on contract as they believed that there was only one person staffed after
  October 1. Tr. 558-59, 1554.

         In the first meeting on the morning of September 20, Clem and Spencer
  informed Conley of their staffing and OHM data-quality concerns since September
  17. Tr. 1145-50. Conley testified that Clem and Spencer informed her that they had
  met with and discussed CSC’s IT systems and staffing with HPM, that LSMI was
  bidding on the IT component, and that HPM had requested Clem to provide
  consulting on OHM and staffing for HPM’s transition. Tr. 1153-57.

         In response to the IT concerns, Conley asked why Clem and Spencer did not
  bring this up before, specifically noting Elsethagen’s request for last-minute IT
  concerns before going live. Conley explained that Clem and Spencer believed that
  OHM would suffer catastrophic failures in the upcoming weeks because of the
  change in staffing as no “key staff” would be retained after the transition. Tr. 1145-
  50, 1572-73; CX-66 (Conley’s 9-24 statement to Employee Relations).





          As to Clem and Spencer’s meeting with HPM, Conley asked how long they
  had been communicating with HPM and what information they had shared and
  whether LMSI had offered Clem a job, which he denied. Tr. 430-32; 1155. Conley
  testified that Spencer admitted that he spoke with individuals at LMSI at all levels.
  D. & O. at 18-19; Tr. 1155-57.

         Following the meeting, Conley met with Baxter and then Baxter and Conley
  phoned Poulter of CSC Corporate that same day. Conley reported to Poulter that
  Clem and Spencer had provided information to aid LMSI in their bidding, including
  information on systems, projects, and operations to develop their pricing proposal
  for their subcontracting bid. Tr. 1153; D. & O. at 19-20. Conley also informed
  Poulter about the meetings Clem and Spencer had with HPM, including off-site
  meetings, and the information they shared. Tr. 1153-55. Conley informed Poulter of
  the risk assessment that HPM asked Clem to provide for them and “they were both
  aware that this was for a bid for Lockheed Martin to take over the IT scope.” Tr.
  1155. Conley states that Poulter directed Conley to suspend Clem and Spencer
  immediately for fear that they may sabotage OHM. Tr. 1147-50, 1557-58, 1572-73.

         Poulter testified that HPM was not honoring its agreement because it was
  trying to remove CSC from the follow-on contract. “CSC’s business interests were at
  risk based on HPM’s performance or behavior, and certainly that was not helped by
  Mr. Clem and Mr. Spencer going and talking to HPM clandestinely, if that’s the
  word.” Poulter Dep. 49-50, 53-54. Poulter testified that Clem and Spencer should
  not have been “colluding” with HPM or sharing proprietary information “outside of
  the normal management chain.” Poulter Dep. at 58. Poulter testified that she did
  not have authority to terminate employees at CSC as CSC has a rigorous policy of
  ensuring employee’s rights are protected. No one terminates an employee “in a
  vacuum.” Documentation is required, notification is required, and justifications
  must be in place. Poulter Dep. at 27-28. Poulter testified: “I didn’t decide to suspend
  them. Employee relations decided to suspend them.” D. & O. at 20; Poulter Dep. at
  68. Poulter testified that Conley and Baxter approached Employee Relations, and it
  was Employee Relations’ job to investigate the allegations of wrongdoing. Poulter
  Dep. at 43-44.

        Conley testified that she spoke with Employee Relations about the events
  and received instruction as to what to do. Tr. 1166-67, 1558-59. Conley testified that
  CSC pulled Clem and Spencer’s e-mails and the content was given to legal to
  determine if they had shared information. Conley did not know whether a finding



  was reached. Tr. 1159-61. In the second meeting in the afternoon, Conley informed
  Clem and Spencer that they were suspended “for aiding and supplying confidential
  business sensitive information to a competitor.” D. & O. at 20; Tr. 137, 560.

         On September 20, K.M., CSC’s Employee Relations specialist, responded that
  she will be the specialist working on the ticket that Conley opened that day. CX-66.
  K.M. testified that if an employee was sharing information with a competitor of
  CSC that would be considered a serious offense under CSC policy. K.M. Dep. at 41.
  K.M. stated that she did not make a determination in this case. K.M. Dep. at 39.
  K.M. recalled that one of the two employees [Spencer] resigned due to another job
  offer and this affected her management of the case. K.M. Dep. at 35-36. Both Clem
  and Spencer’s job employment ended one week later, and K.M.’s investigation was
  never completed. K.M. Dep. at 42-43. After the layoff date, K.M. was directed by her
  supervisor to close the investigation.

         After the September 20 meeting, Poulter exchanged e-mails with Mooers
  about CSC employees working on HPM transition work and Clem and Spencer’s
  suspension. Poulter wrote to Mooers that “CSC remains committed to supporting
  HPMC in a smooth transition. Should you need assistance of any CSC staffer,
  please contact Kim and she will be happy to coordinate with you. Please use Kim as
  the face-off for all such activities in order to ensure the best support for HPMC.”
  CX-60. Mooers asked Poulter if she suspended employees for talking to HPM and
  “aiding the competition,” which Poulter denied. D. & O. at 24; CX-61. On September
  20, Baxter sent out an e-mail to all CSC staff indicating that CSC was committed to
  the transition and that “[i]n order to make that happen, all direction and requests
  for support must come from your CSC manager. No CSC employee should provide
  any work effort without the express permission of CSC management. Should you be
  asked to provide such assistance from anyone other than CSC management, please
  contact your supervisor or Kim Conley immediately so the response can be
  coordinated appropriately.” CX-62.

         After the suspension decision, CSC did not retain Clem for employment in
  the follow-on contract, and CSC did not pay Clem and Spencer special pay for
  additional or overtime hours worked during OHM’s implementation. D. & O. at 24-
  26. Clem applied for a job with CSC in December 2012 and October 2013 but was
  not selected for employment. D. & O. at 25.





         Both Clem and Spencer filed complaints with the Occupational Safety and
  Health Administration (OSHA). On November 18, 2014, OSHA found for
  complainants. CSC filed objections with the Office of Administrative Law Judges.
  The claims were consolidated before the ALJ. The ALJ held hearing for six days and
  thereafter ruled for complainants. The ALJ found that Clem and Spencer engaged
  in protected activity, that CSC was aware of that protected activity, and that Clem
  and Spencer suffered adverse actions. The ALJ further found that a totality of
  factors supported a reasonable inference that protected activity contributed to
  complainants’ suspension. The ALJ also found that circumstances support a
  reasonable inference that protected activity contributed to CSC’s decision not to
  retain or re-hire Clem for employment and to CSC’s failure to pay complainants
  special pay for additional hours worked. For each of the adverse actions, the ALJ
  found that CSC’s evidence is not clear and convincing and that CSC could not prove
  that it would have taken the same action. The ALJ awarded damages to both Clem
  and Spencer. 2

                         JURISDICTION AND STANDARD OF REVIEW

        Congress authorized the Secretary of Labor to issue final agency decisions
  with respect to claims of discrimination and retaliation filed under the ERA. 42
  U.S.C. § 5851. The Secretary has delegated that authority to the Administrative
  Review Board. Secretary’s Order No. 01-2019 (Delegation of Authority and
  Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg.
  13,072 (Apr. 3, 2019); see 29 C.F.R. Part 24.110. The ARB will affirm an ALJ’s
  findings of fact when supported by substantial evidence. See 29 C.F.R. 24.110(b)
  (“The ARB will review the factual findings of the ALJ under the substantial
  evidence standard.”). As the United States Supreme Court has recently noted, “[t]he
  threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S.
  Ct. 1148, 1154 (2019). Substantial evidence is “‘more than a mere scintilla.’ It
  means—and means only—‘such relevant evidence as a reasonable mind might
  accept as adequate to support a conclusion.’” Id. (citing and quoting Consolidated
  Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ARB reviews an ALJ’s legal
  conclusions de novo. Saporito v. Progress Energy Serv. Co., ARB No. 11-040, ALJ
  No. 2011-ERA-006 (ARB Nov. 17, 2011).


  2       We do not address the propriety of this award as any issues are not yet ripe in light
  of our disposition of this matter.



                                         DISCUSSION

         To prevail on an ERA whistleblower complaint, a complainant must prove by
  a preponderance of the evidence that he engaged in protected activity, suffered an
  unfavorable or adverse personnel action, and that his protected activity was a
  contributing factor in the unfavorable personnel action taken against him. 3 If the
  complainant’s protected activity was a contributing factor in the adverse action, the
  employer may avoid liability and damages only if it demonstrates “by clear and
  convincing evidence that it would have taken the same unfavorable personnel
  action” in the absence of the protected activity. 4

      1. Clem and Spencer Engaged in Protected Activity

         The ALJ found that Clem and Spencer’s contacting the DOE is protected
  activity under the ERA. D. & O. at 22. The ALJ found that Clem and Spencer’s
  complaints concerning OHM communicated to CSC before and after contacting DOE
  are protected activities. D. & O. at 22. The ALJ also found that problems with the
  OHM software could jeopardize worker safety because one of its functions was to
  memorialize whether it was safe for a worker to be in a particular area. D. & O. at
  22.

         On appeal, CSC claims that Clem and Spencer’s assertions of protected
  activity concern insufficient time and staff to implement the OHM software and not
  nuclear safety. CSC emphasizes that Clem and Spencer state in their initial
  communication with DOE that their complaint does not involve safety or health.
  CSC claims that the ALJ’s findings were not based on the reasonable construction
  of what Clem and Spencer reported to anyone but on the after-thought that in a
  chain of events, the failure of staffing needs could result in personnel deficiencies
  that could affect worker safety.


  3      42 U.S.C. § 5851(b)(3)(C) (“The Secretary may determine that a violation of
  subsection (a) of this section has occurred only if the complainant has demonstrated that
  any behavior described in subparagraphs (A) through (F) of subsection (a)(1) of this section
  was a contributing factor in the unfavorable personnel action alleged in the complaint.”); 29
  C.F.R. § 24.109(b)(1).
  4     42 U.S.C. § 5851(b)(3)(D) (“Relief may not be ordered under paragraph (2) if the
  employer demonstrates by clear and convincing evidence that it would have taken the same
  unfavorable personnel action in the absence of such behavior.”); 29 C.F.R. § 24.109(b)(1).



         ERA’s employee protection provision does not provide much guidance as to
  what constitutes protected activity. The ERA protects five categories of activity,
  including notifying one’s employer of an alleged violation of the ERA or the Atomic
  Energy Act (AEA), refusing to engage in activities prohibited under either the ERA
  or AEA provided the employee has identified the alleged illegality to his or her
  employer, testifying before Congress or at any Federal or State proceeding
  regarding any provision of the ERA or the AEA, commencing or causing to be
  commenced a proceeding under or the enforcement of the ERA or AEA, or testifying
  (or about to testify) in any such proceeding. 5 Subsection 5851(a)(1)(F) includes a
  catchall provision that prohibits discrimination against an employee who “assisted
  or participated or is about to assist or participate . . . in any other manner in such a
  proceeding or in any other action to carry out the purposes of this Act or the Atomic

  5      The ERA’s whistleblower provision specifically provides the following:


         (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.);
         (B) refused to engage in any practice made unlawful by this chapter or
         the Atomic Energy Act of 1954, if the employee has identified the alleged
         illegality to the employer;
         (C) testified before Congress or at any Federal or State proceeding
         regarding any provision (or proposed provision) of this chapter or the
         Atomic Energy Act of 1954;
         (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;
         (E) testified or is about to testify in any such proceeding or;
         (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.
  42 U.S.C. § 5851(a).





  Energy Act of 1954, as amended.” Id. The ERA does not define the phrase “any
  other action to carry out the purposes of this chapter” as set forth in subsection (F),
  but the ARB has held that an employee engages in protected activity under (F)
  when the acts implicate nuclear safety. Hoffman v. Nextera Energy, Inc., ARB 12-
  062, ALJ No. 2010-ERA-011 (ARB Dec. 17, 2013). Courts have held that ERA’s
  whistleblower provision serves a “broad, remedial purpose of protecting workers
  from retaliation based on their concerns for safety and quality.” Sanders v. Energy
  Northwest, 812 F.3d 1193, 1197 (9th Cir. 2016). In Indiana Michigan Power Co. v.
  U.S. Dept. of Labor, 278 Fed. Appx. 597 (6th Cir. 2008), the Court of Appeals for the
  Sixth Circuit held that an employee engaged in protected activity when he
  complained about overtime hours because the employer had violated the Nuclear
  Regulatory Commission’s guidance letter which limits the amount of overtime that
  staff members performing safety-related functions may work. Id.; see Tipton v.
  Indiana Michigan Power Co., ARB No. 04-147, ALJ No. 2002-ERA-030 (ARB Sept.
  29, 2006).

         In this matter, the ALJ did not cite a particular ERA subsection under which
  Clem and Spencer’s complaints about OHM staffing and error messages fall.
  Instead, the ALJ found Clem and Spencer’s complaints related to worker safety. D.
  & O. at 22. Nevertheless, under the cited authority related to subsection (F), the
  ALJ’s conclusion that Clem and Spencer had engaged in protected activity is
  supported by substantial evidence. Clem and Spencer contacted the DOE with
  concerns about CSC’s ability to safely implement OHM in the intended time frame.
  CSC delayed implementation of OHM on two occasions with reference to worker
  safety. D. & O. at 9-11; see also Tr. 976-78 (complainants complained about errors in
  data feeds and indicated that doctors’ lab results could be off with the wrong IT
  feeds). Clem and Spencer also raised complaints concerning OHM’s inadequate
  staffing, error messages, and the possibility of catastrophic failure with supervisors
  and with Conley in the September 20 meeting. Tr. 131, 558, 1145-46, 1572.

     2. CSC Knew of Clem and Spencer’s Protected Activity

        The ALJ found that CSC, in particular Elsethagen, knew of Clem and
  Spencer’s reporting. D. & O. at 22-23. CSC claims that there is no evidence that
  Conley knew of Clem and Spencer’s complaints to the DOE when she suspended
  them on September 20.





         The ALJ’s finding that CSC knew of complainants’ protected activity is
  supported by substantial evidence. Clem and Spencer revealed their identity as the
  source of the DOE complaint to a colleague who informed Elsethagen. D. & O. at 10;
  CX-37. Complainants complained to co-workers and to Elsethagen about OHM
  problems before and after the DOE complaint. D. & O. at 4, 14-15. Although Clem
  and Spencer’s identity as the individuals who reported to the DOE may not have
  been known throughout CSC, CSC, including Conley, Baxter, and Poulter, knew of
  complainants’ staffing and OHM error complaints as they included those complaints
  in the September 20 meeting with Conley. Conley explained in her statement to
  Employee Relations that Clem and Spencer believed OHM would suffer
  catastrophic failures in the upcoming weeks because of the change in staffing as no
  “key staff” would be retained after the transition. CX-66 (Conley’s 9-24 statement to
  Employee Relations); Tr. 1147-53, 1571-74.

     3. Clem and Spencer Suffered an Adverse Action

         The ERA provides that “[n]o employer may discharge any employee or
  otherwise discriminate against any employee with respect to his compensation,
  terms, conditions, or privileges of employment” because of the employee’s protected
  activity. 42 U.S.C. § 5851(a). The ALJ found that CSC suspended Clem and Spencer
  without pay on September 20, 2012. CSC also failed to pay Clem and Spencer
  special pay for extra hours worked, and CSC failed to retain Clem for the follow-on
  contract. CSC did not re-hire Clem in December 2012 or in October 2013. CSC does
  not appeal the ALJ’s finding that Clem and Spencer suffered an adverse action, and
  we affirm the ALJ’s findings on this issue.





      4. The ALJ Erred to the Material Prejudice of Respondent in his
         Contributing-Factor and Same-Action-Defense Analyses 6

      A. The ALJ did not Apply the Correct Contributing-Factor Causal Standard

        Under the ERA, the employee must prove by a preponderance of the evidence
  that his protected activity contributed to the adverse action. The ERA’s
  implementing regulations state the following:

                  In cases arising under the ERA, a determination that a
                  violation has occurred may only be made if the
                  complainant has demonstrated by a preponderance of the
                  evidence that the protected activity was a contributing
                  factor in the adverse action alleged in the complaint.

  29 C.F.R. § 24.109(b)(1); 42 U.S.C. § 5851(b)(3)(C).

         The ALJ failed to properly apply this standard. The ALJ’s heading for this
  section states the following: “[t]he Circumstances Support a Reasonable Inference
  That the Protected Activity Was a Contributing Factor To Some Adverse Actions[.]”
  D. & O. at 23. By using the term “reasonable inference” without any other clarifying
  language or explanation, we are left to conclude that the ALJ did not apply the
  correct burden of proof by preponderance of evidence. Our conclusion is confirmed
  by the ALJ’s application of the facts to the standard in which the ALJ wrote the
  following: “[t]he circumstances support a reasonable inference that the protected
  activity was a contributing factor to CSC’s suspension of Messrs. Clem and Spencer
  without pay.” D. & O. at 23; see id. at 24, 25 (committing same error for retention,
  re-hire, and special pay analyses). In his closing, the ALJ found that “equity
  appears on the Complainants’ side here.” D. & O. at 25. We are unable to ascertain

  6      We note that CSC did not raise the ALJ’s erroneous contributing-factor and same-
  action standards on appeal. CSC did appeal the ALJ’s application of these elements. We
  review the ALJ’s construction of governing law de novo and remand for plain error. Kamen
  v. Kemper Financial Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly
  before the court, the court is not limited to the particular legal theories advanced by the
  parties, but rather retains the independent power to identify and apply the proper
  construction of governing law.”).



  how this finding fits into the statutory and regulatory framework and the parties’
  respective burdens.

     B. The ALJ did not Apply the Correct Same-Action-Defense Standard

       The ALJ also erred in his analysis of CSC’s same-action defense. The ERA’s
  implementing regulations state the following:

                  If the complainant has demonstrated by a preponderance
                  of the evidence that the protected activity was a
                  contributing factor in the adverse action alleged in the
                  complaint, relief may not be ordered if the respondent
                  demonstrates by clear and convincing evidence that it
                  would have taken the same adverse action in the absence
                  of any protected activity.

  29 C.F.R. § 24.109(b)(1); 42 U.S.C. § 5851(b)(3)(D).

         In his heading for the same-action-defense section, the ALJ wrote, CSC’s
  “Evidence of Justification Is Not Clear and Convincing.” D. & O. at 26. In his closing
  findings for the retention decision, the ALJ wrote “I conclude Respondent has not
  produced clear and convincing evidence to show that the protected activity did not
  contribute to Ms. Conley’s choice of R.M. over Mr. Clem, after Messrs. Elsethagen
  and Spencer resigned.” D. & O. at 27.

         The ALJ erred in his analysis. The same-action defense requires the fact-
  finder to analyze whether the employer has proven by clear and convincing evidence
  that it would have imposed the same adverse action if the employee had not
  engaged in protected activity. The same-action defense is applied after a fact-finder
  has already found that protected activity contributed to the employer’s action. Here,
  the ALJ shifted the focus of his analysis to whether CSC has proven by clear and
  convincing evidence that CSC was justified in taking its actions. D. & O. at 26, 28.
  Further, the ALJ’s finding on same-action defense double credits his finding of
  contribution and fails to give the employer the benefit of the same-action defense—
  that it would have taken the same action had Clem and Spencer not engaged in
  protected activity. D. & O. at 27. In whistleblower law in particular, the same-action
  defense, in addition to being a statutory requirement, is an important component of
  the mixed-motives analysis. Stallard v. Norfolk Southern Ry, Co., ARB 16-028, ALJ



  No. 2014-FRS-149 (ARB Sept. 29, 2017) (remanding for the ALJ to, among other
  things, correct the erroneous merger of the “contributing factor” and same-action-
  defense standards).

      5. The ALJ’s Findings of Fact do not Demonstrate that the ALJ Weighed
         the Evidence and Reached Findings by the Appropriate Burden of
         Proof

         The ALJ’s legal errors in the description of the applicable standards are
  magnified by his cursory analysis. 7 After laying out a fact-intensive statement of
  the case, the ALJ’s main contributing-factor analysis spans roughly one page in the
  form of seven bullet-point sentences. The ALJ makes additional findings of fact for
  the accompanying adverse actions of failure to retain and re-hire Clem and denying
  Clem and Spencer special pay for additional hours worked. The ALJ incorporates
  findings of fact in an abbreviated analysis of CSC’s same-action defense on the
  suspension and accompanying adverse actions.

         As previously noted, the ARB will uphold an ALJ’s factual finding where
  supported by substantial evidence “even if there is also substantial evidence for the
  other party, and even if we would justifiably have made a different choice had the
  matter been before us de novo.” Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No.
  2004-SOX-051, slip op. at 8 (ARB June 29, 2006) (citing Universal Camera Corp. v.
  NLRB, 340 U.S. 474, 488 (1951)). A finding of fact lacks contextual strength and
  substantial evidence if the fact-finder ignores, or fails to resolve, a conflict created
  by countervailing evidence or “if it is overwhelmed by other evidence or if it really
  constitutes mere conclusion.” Dalton v. U.S. Dept. of Labor, 58 Fed. Appx. 442, No.
  01-9535, 2003 WL 356780, at *445 (10th Cir. Feb. 19, 2003); see Carter v. Marten
  Transp., Ltd., ARB Nos. 06-101, -159; ALJ No. 2005-STA-063, slip op. at 7-8 (ARB
  June 30, 2008) (citations omitted).

        The Administrative Procedure Act requires that the adjudicator support any
  findings of fact:



  7       We do not hold that bullet-point findings or abbreviated analysis in itself constitutes
  error, but here we are left with unresolved issues. In re Weeks Marine, Inc., ARB Nos 12-
  093, -095, ALJ No. 2009-DBA-006 (ARB Apr. 29, 2015) (criticizing the ALJ’s seventeen
  pages of transcript summary but only one and a half pages of bullet-point findings of fact).



                  The record shall show the ruling on each finding, conclusion, or
                  exception presented. All decisions, including initial, recommended, and
                  tentative decisions, are a part of the record and shall include a
                  statement of—

                  (A) findings and conclusions, and the reasons or basis therefor, on all
                  the material issues of fact, law, or discretion presented on the record;
                  and

                  (B) the appropriate rule, order, sanction, relief, or denial thereof.

  5 U.S.C. § 557(c).

        On this record comprised of six days of hearing, hundreds of exhibits, and
  sharply diverging accounts as to the reasons for the suspension and other adverse
  actions, the ALJ’s findings concerning contribution and same-action defense are
  superficial and fail to engage adequately the parties’ arguments and the evidentiary
  record. The ARB’s appellate review requires that the ALJ conduct an appropriate
  analysis of the evidence to support his findings. It is essential that the ALJ
  “adequately explain why he credited certain evidence and discredited other
  evidence.” See Sea “B” Mining Co. v. Addison, 831 F.3d 244, 253 (4th Cir. 2016).

         We are unable to ascertain how the ALJ reached his ultimate findings
  concerning contribution and the affirmative defense in light of the record taken as a
  whole. Although an ALJ “need not address every aspect of [a party’s claims] at
  length and in detail,” the findings “must provide enough information to ensure the
  Court that [he or she] properly considered the relevant evidence underlying [a]
  plaintiff's request[.]” Mori v. Dept. of the Navy, 917 F.Supp.2d 60, 65 (D.D.C. 2013).
  A reviewing court must be able to “discern what the ALJ did and why he did it.”
  Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999).





      6. On Remand, the ALJ Must Expressly Analyze the Parties’ Arguments
         and the Evidence Supporting or Undermining those Arguments

         Because we conclude that the ALJ’s findings are insufficient to show that the
  ALJ weighed evidence by the appropriate burden of proof, we remand this matter to
  the ALJ to fully analyze the record, weigh evidence, and make revised findings of
  fact on the issues of contributing factor and same-action defense. Cf. BNSF Ry. Co.
  v. U.S. Dept. of Labor, Admin. Rev. Bd., 867 F.3d 942, 947 (8th Cir. 2017) (vacating
  and remanding the order because “findings” were either non-existent or insufficient
  to support contributing factor and same-action defense rulings). To prove a fact by a
  preponderance of the evidence “means to show that that fact is more likely than not;
  and to determine whether a party has proven a fact by a preponderance necessarily
  means to consider all the relevant, admissible evidence and, on that basis,
  determine whether the party with the burden has proven that the fact is more likely
  than not.” Palmer v. Canadian Nat’l Ry, IL Cent. R.R. Co., ARB 16-035, ALJ No.
  2014-FRS-154, slip op at 18 (ARB Jan. 4, 2017) (reissued with dissent).

         For the same-action defense, the fact-finder must assess whether the
  respondent has demonstrated by clear and convincing evidence that it would have
  taken the action even if the employee had not engaged in protected activity. We
  have said that the employer satisfies this burden when it shows that it is “highly
  probable” that it would have taken the action in the absence of protected activity.
  Palmer, ARB 16-035, slip op. at 52. 8 The ALJ’s findings of fact should show
  deliberation upon the facts in favor of a particular finding and consideration of the
  facts that take away from that finding. Carter v. Marten Transp., ARB 09-117, ALJ

  8       We are aware that at least one panel of the Board has, in the past, asserted that the
  ERA “requires” that certain factors “must be considered in applying the ‘clear and
  convincing’ defense.” Speegle v. Stone & Webster Constr., Inc., ARB No. 13-074, ALJ No.
  2005-ERA-006, slip op. at 12 (ARB Apr. 25, 2014). The factors identified by the panel were
  “(1) how ‘clear’ and ‘convincing’ the independent significance is of the non-protected activity;
  (2) the evidence that proves or disproves whether the employer “would have” taken the
  same adverse actions; and (3) the facts that would change in the “absence of” the protected
  activity.” Id. As these factors are not expressly prescribed in the statutory text and such a
  rule was not necessary to resolve the matter at issue, we consider the announced
  “requirement” to be merely precatory dicta. A fact-finder must holistically consider any and
  all relevant, admissible evidence when determining whether an employer would have taken
  the same adverse action against an employee in the absence of any protected activity. See
  29 C.F.R. § 24.109(b)(1).



  No. 2009-STA-031 (ARB July 21, 2011) (“two conclusory statements related to
  USIS’s liability . . . are insufficient to allow us to review the ALJ’s reasons for his
  conclusions.”); Stallard, ARB 16-028 (finding one-sentence conclusions to be
  conclusory and remanding for analysis).

            A. CSC Argues that it Suspended Clem and Spencer under the Belief that
               Clem and Spencer Colluded and Shared Proprietary Information with
               HPM

         The ALJ found that there was temporal proximity between CSC’s adverse
  action and Clem and Spencer’s protected activity. Temporal proximity may
  constitute circumstantial evidence of causation. Clemmons v. Ameristar Airways,
  Inc., ARB No. 08-067, ALJ No. 2004-AIR-011 (ARB May 26, 2010). The
  circumstantial value of temporal proximity, as CSC argues, is greatly reduced when
  there is an intervening event to account for. Feldman v. Law Enforcement Assoc.
  Corp., 752 F.3d 339, 348 (4th Cir. 2014). CSC claims that Clem and Spencer’s
  collusion and sharing proprietary information with HPM’s senior management,
  revealed just hours before their suspension, constitutes such an intervening event.

         As part of the ALJ’s findings on contributing factor and same-action defense,
  the ALJ must more fully evaluate CSC’s stated reason for the adverse actions. 9 The
  ALJ focused on CSC’s inability to precisely identify the type of proprietary
  information that Clem and Spencer allegedly shared with HPM and CSC’s failure to
  prove that they actually shared that information. D. & O. at 18-19 n.17. The ALJ
  also discussed uncertainties as to whether CSC had a policy that prevented CSC
  employees from working with HPM on transition content. D. & O. at 13 n.11, 26.

         CSC correctly argues on appeal that CSC is not required to prove that Clem
  and Spencer shared proprietary information. This is, after all, a nuclear safety and
  retaliation matter, not simply a wrongful suspension case. And neither the ALJ nor
  the ARB is a super-personnel department, evaluating the merits of the employer’s
  decisions beyond the necessary parameters of the whistleblower retaliation

  9      Under the contributing factor standard, a complainant may prevail by showing that
  the respondent’s “reason, while true, is only one of the reasons for its conduct, and another
  [contributing] factor is the complainant’s protected” activity. Walker v. Am. Airlines, Inc.,
  ARB No. 05-028, ALJ No. 2003-AIR-017, slip op. at 18 (ARB Mar. 30, 2007).





  complaint before it. Gale v. Ocean Imaging & Ocean Res., Inc., ARB No. 98-143, ALJ
  No. 1997-ERA-038, slip op. at 13 (ARB July 31, 2002); Jones v. U.S. Enrichment
  Corp., ARB Nos 02-093, 03-010, ALJ No. 2001-ERA-021 (ARB Apr. 30, 2004) (“It is
  not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff’s
  explanation of intentional discrimination.”) (case citations omitted). It is not a
  question of whether Clem and Spencer actually shared proprietary information or
  whether CSC had an applicable policy prohibiting employees from colluding with
  competitors. Rather, the issue to be decided by the ALJ, on CSC’s affirmative
  defense in particular, is whether CSC genuinely believed that complainants
  colluded and shared proprietary information and suspended Clem and Spencer for
  this reason and not for activity protected under the ERA. Stone & Webster, Constr.,
  Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012).

         With the correct legal standard in place as to the distinction between CSC’s
  good-faith belief of wrongdoing and actual proof of wrongdoing or violation of
  company policy, the ALJ must re-analyze the record and address CSC’s argument
  and supporting evidence that CSC was concerned with HPM’s senior management
  attempting to substitute LMSI for CSC and suspended Clem and Spencer under the
  belief that they were colluding with HPM in furtherance of HPM’s interests. The
  ALJ’s findings of fact should also re-evaluate CSC’s arguments and supporting
  evidence that CSC warned employees not to work with HPM on HPM transition-
  related activities without permission. With the correct legal standard in place, the
  ALJ’s fact-finding on contributing factor and same-action defense should assess the
  testimony of Conley, Baxter, and Poulter concerning the meetings and decision-
  making that took place on September 20. If the ALJ disbelieves testimony proffered
  by CSC, he should explain why.

            B. If the ALJ Finds that CSC’s Stated Reasons for the Suspension and
               Other Actions are Pretext for ERA-Protected Retaliation, the ALJ Must
               Explain Why

         If a complainant shows that an employer’s reasons for its action are
  pretextual, he or she may, through the inferences drawn from such pretext, meet
  the evidentiary standard of proving by a preponderance of the evidence that
  protected activity was a contributing factor in the adverse action and that an
  employer cannot carry its burden to prove its same-action defense by clear and
  convincing evidence. Bechtel v. Competitive Tech. Inc., ARB 09-052, ALJ No. 2005-
  SOX-033 (ARB Sept. 30, 2011).



         The ALJ’s findings of fact appear to implicitly support a finding that CSC’s
  stated reason for the adverse actions were pretextual. The ALJ found that neither
  Conley, Baxter, nor Poulter squarely accepted responsibility for the suspension
  decision. The ALJ found that CSC shifted its reason from working with competitors
  to sabotaging OHM. The ALJ found that Conley did not provide Clem and Spencer
  with a written memorandum per CSC’s policy. The ALJ also cited as a factor the
  fact that Conley and Poulter did not consult with Elsethagen, Clem and Spencer’s
  direct supervisor, before suspending Clem and Spencer. The ALJ did not, however,
  explain how these findings of fact support his ultimate finding of contributing factor
  causation or lack of a same-action defense.

         On remand, if the ALJ finds that CSC’s stated reasons are pretextual, he
  must explain why and show how those findings of fact support his ultimate findings
  of contributing-factor causation by a preponderance of the evidence and the
  employer’s inability to prove its same-action defense by clear and convincing
  evidence. The ALJ’s analysis of contribution and same-action defense must analyze,
  for example, the evidence concerning the role that Employee Relations played in the
  investigation and CSC’s disciplinary process.

         Finally, the ALJ cited as a factor supporting his analysis that Mooers asked
  Poulter if she suspended employees for talking to HPM and “aiding the
  competition,” which Poulter denied. D. & O. at 24; CX-61. The ALJ fails to discuss
  the other e-mails accompanying this discussion. CX-60. If the ALJ is relying upon
  Poulter’s response as evidence that she did not claim responsibility for decision-
  making or that she admitted that CSC did not suspend them for aiding the
  competition, the ALJ must weigh this evidence with the remainder of the e-mail
  conversation and the record in general, in particular Poulter’s deposition, Conley’s
  testimony, and Employee Relations’ role in CSC’s disciplinary process.

         In light of the above discussion, we remand for the ALJ to apply the correct
  law to the facts in a manner that allows the ARB to evaluate how the ALJ credited
  and discredited parties’ arguments and the supporting or undermining evidence.

                                      CONCLUSION

        We AFFIRM the ALJ’s findings of fact that Clem and Spencer engaged in
  protected activity, CSC was aware of that protected activity, and Clem and Spencer



  suffered adverse actions as supported by substantial evidence and based upon
  correct legal conclusions. The ALJ erred in his analysis of the evidence relating to
  causation and same-action defense. Accordingly, we VACATE the ALJ’s finding of
  liability and order of damages and REMAND for further findings consistent with
  this order.

         SO ORDERED.