Austin v. BNSF Railway Company (agency decision, March 11, 2019)

Plain-English summary

BNSF dispatcher Tracie Austin reported a restroom puddle, her resulting fall and injury, and her medical treatment. Days later, surveillance video showed her entering a coworker's workspace and taking a pill bottle from the coworker's purse without contemporaneous notice. The ALJ credited the decision-maker's good-faith belief that Austin engaged in theft and dishonesty, rejected her disparate-treatment comparisons, and found her testimony contradicted by the video and other evidence. The Board held that substantial evidence supported the finding that her protected safety and injury reports did not contribute to discharge, so it did not reach the alternative same-action defense. It also denied her widower's substitution motion because he did not identify himself as her personal representative or explain protection of her child's interest.

Decision snapshot

• Cited authorities: 49 U.S.C. § 20109; 29 C.F.R. § 1982.110; 5 U.S.C. § 557(b)
• Outcome: Substitution motion denied and dismissal of the FRSA complaint affirmed for lack of contributing-factor causation.
• Key point: The decision-maker's supported good-faith belief in theft and dishonesty, rather than protected injury reporting, explained the discharge.

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:


  TRACIE AUSTIN (deceased),                      ARB CASE NO.            2017-0024

                                                 ALJ CASE NO.            2016-FRS-00013

                  COMPLAINANT,                   DATE: March 11, 2019

         v.

  BNSF RAILWAY COMPANY,

                  RESPONDENT.


  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD

  Appearances:

  For the Complainant:
         Jerry Easley, Esq.; Rome, Arata & Baxley, L.L.C.; Pearland, Texas

  For the Respondent:
         Paul S. Balanon, Esq., and Jacob E. Godard, Esq.; BNSF Railway Co.; Fort Worth,
         Texas

  Before: William T. Barto, Chief Administrative Appeals Judge, James A. Haynes and Daniel
  T. Gresh, Administrative Appeals Judges

  PER CURIAM


                                  FINAL DECISION AND ORDER

          This case arises under the Federal Rail Safety Act of 1982 (FRSA). 1 Complainant Tracie
  Austin filed a complaint alleging that the Respondent, BNSF Railway Company, retaliated
  against her in violation of the FRSA’s whistleblower protection provisions because she reported

  1
          49 U.S.C. § 20109 (2008), as implemented by federal regulations at 29 C.F.R. Part 1982 (2018)
  and 29 C.F.R. Part 18, Subpart A (2018).



  a safety hazard, she reported an injury she sustained because of that hazard, and she sought
  medical treatment regarding her injury. 2 Complainant appeals from a Decision and Order (D. &
  O.) issued by a Department of Labor Administrative Law Judge (ALJ) on February 1, 2017,
  dismissing the complaint because Complainant failed to demonstrate that any protected activity
  was a contributing factor in Respondent’s decision to terminate her employment, or in the
  alternative, that Respondent proved by clear and convincing evidence that it would have taken
  the same action absent any protected activity.

         Unrelated to the substance of this complaint, Sean Lawson has moved to substitute
  himself as the Complainant, because Complainant (Tracie Austin), his wife, died after the ALJ
  issued his D. & O.


                                              BACKGROUND 3

          The Respondent hired Complainant on September 3, 2007. 4 She worked the night shift
  as a dispatcher for Respondent in Texas and her regular hours were from 10:30 p.m. to 6:30
  a.m. 5

  2
           While Complainant argues that the Administrative Law Judge (ALJ) did not make any finding of
  fact that she engaged in protected activity under 49 U.S.C. § 20109(c)(2), it is clear from the ALJ’s
  decision that he found that Complainant sought and received medical treatment at the hospital on the day
  she was injured. See Decision and Order (D. & O.) at 58-61 (in which the ALJ describes how
  Complainant sought and received medical treatment):

          (1) “Complainant was examined at First Choice ER, prescribed Norco, and was advised . . .” (Id.
              at 58),

          (2) when Complainant was at the hospital, “an x-ray of [her] lumbar spine was also
              administered,” (Id. at 59),

          (3) “when Complainant sought medical treatment or followed a treatment plan.” (Id. at 61).

  The ALJ also considered Complainant’s request for treatment as a protected activity in his analysis. D. &
  O. at 81, 82 (“The evidence demonstrably shows Complainant’s reporting of a work-related injury or
  requesting medical treatment on October 11, 2012, did not set in motion the chain of events eventually
  resulting in the allegation of rules violation . . ..” Id. at 82).
  3
           The Board has taken the background information from sections of the ALJ’s D. & O. titled
  “Summary of the Evidence,” “Credibility,” and “Elements of FRSA Violations and Burdens of Proof.”
  While we were able to discern the ALJ’s findings of fact to a great extent from these sections, a more
  tightly focused findings of fact section would have aided us in our review of whether the ALJ findings of
  fact are supported by substantial evidence in the record. We further note that a summary of the record is
  not necessary as we assume that the ALJ has reviewed and considered the entire record in making his or
  her decision.
  4
          D. & O. at 7.




          On October 11, 2012, Complainant slipped and fell on a puddle in the women’s restroom
  at around 2:00 a.m. and injured her tailbone. 6 She reported both the puddle hazard and her fall
  and injury to a chief dispatcher for Respondent. Joshua Stout, the chief dispatcher at the time,
  offered Complainant transportation by ambulance to the nearest hospital, but she refused. After
  informing the Respondent’s supervisors, including Robert McConaughey, that she planned to
  seek medical care on her own, Complainant went to an urgent care facility across the street from
  her workplace for medical treatment. The medical providers told Complainant to stay out of
  work for two days and she did so, returning to work on October 13, 2012. So McConaughey, a
  general superintendent for transportation with Respondent and one of Complainant’s supervisors,
  was notified about Complainant’s fall and injury within twenty-four hours of its occurrence.

          At the hearing, Complainant testified that Stout told her that the only way she could leave
  work was by ambulance. But in her deposition testimony Complainant acknowledged that he
  offered her medical attention but she declined because she thought it would be “ridiculous.” 7
  Erin Elledge, Complainant’s co-worker and friend, testified that after Complainant’s fall,
  Complainant told her that she was okay and only had a headache.

           On October 21, 2012, Elledge discovered after getting home from work that an Advil pill
  bottle, which contained miscellaneous medications including prescription Fiorinal, was missing
  from her purse. 8 Elledge called the Respondent’s police to report the Advil bottle missing, and
  the police reported the theft to John Davidson, the Respondent’s Assistant General
  Superintendent on Duty. Davidson asked June Fife, the Respondent’s Manager of Dispatcher
  Practice and Rules, to watch surveillance video taken of the area around Elledge’s work space.
  After doing so, Fife identified Complainant taking the pill bottle from Elledge’s purse. The
  police contacted Stout to tell him Complainant was identified taking the pill bottle.When
  Complainant arrived at work the next day, Stout asked her to go to the conference room for an
  interview about personal property missing from a dispatcher’s desk area. 9 During that interview,
  Complainant asked if Elledge’s property was missing and the interviewers confirmed that it was.
  Complainant explained that she had a headache the day before, so she took Elledge’s pill bottle
  and forgot to return it because she was very busy. She further explained that she had borrowed
  Advil from Elledge before. While Complainant admitted she did not tell Elledge that she took
  the pill bottle during their shift, she indicated that she tried to let Elledge know after work via a
  Facebook message the next day. Complainant called Elledge after the interview at around 10:30
  p.m. to inform her that she took the pill bottle, apologize, and explain the situation.

  5
         Id. at 7.
  6
         The references in this paragraph are to D. & O. at 7, 48, 57-59, 65, and 71.
  7
         The references in this paragraph are to D. & O. at 48.
  8
         The references in this paragraph are to D. & O. at 3, 17, 26, and 29.
  9
         The references in this paragraph are to D. & O. at 6, 9, and 10.




          Thereafter, Respondent’s representatives interviewed Elledge about the missing
  medication incident. 10 Elledge stated in her interview that as far as she was concerned it was a
  non-issue because Complainant had permission to use her medications. And Elledge said that
  she did not want to pursue the matter. McConaughey was present at Elledge’s interview and
  remembered Elledge saying that while she had given Complainant permission in the past to take
  her medications, she had not given Complainant permission to do so on the night of the
  incident. 11

           Elledge testified that she had told Complainant that she could use her (Elledge’s) Advil or
  Aleve “anytime.” 12 Elledge further testified that if she had known Complainant had taken the
  bottle, she would have handled the situation differently. However, she confirmed that she had
  never consented or allowed anyone to go in her purse or to take her Fiorinal medication. 13 After
  viewing the video, Elledge testified she was not sure why Complainant hid the bottle after taking
  it.

           The ALJ viewed the video and relied upon it in his decision. 14 He wrote that the video
  first shows Complainant looking into Elledge’s desk area while Elledge is at her desk. A short
  while later, Elledge leaves and Complainant again looks into Elledge’s desk area. Next,
  Complainant leaves her desk area, stands outside of Elledge’s desk area, looks around in several
  directions, and hesitates before going into Elledges’s desk area. Complainant then looks around
  several times and goes into Elledge’s purse and takes a bottle. She then leaves Elledge’s desk
  area, walks away from the area, and then later returns to her own desk area. Less than two
  minutes later, Elledge returns to her desk area. Approximately ten minutes later the two women
  have a conversation in front of Complainant’s desk and then sit down at their respective desks.



  10
          The references in this paragraph are to D. & O. at 4 and 36-37.
  11
           D. & O. at 36-37 (citing Hearing Transcript (“Tr.”) at 520). The ALJ also cited Complainant’s
  Exhibit (CX) 55, McConaughey’s deposition, but this exhibit was not admitted at the hearing and is not in
  the record. See D. & O. at 2 (“the exhibits admitted into evidence on behalf of Complainant were exhibits
  1-8, 9-19, 21-26, 29-32, 37, 39-47, 49-50, and 54.”). We conclude that it was harmless error when the
  ALJ cited CX 55 as it was duplicative of McConaughey’s hearing testimony for the ALJ’s purposes. See,
  e.g., Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir. 2001) (quoting U.S. Steel
  Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (observing that the court will not reverse an agency
  action due to a mistake where that mistake “clearly had no bearing on the procedure used or the substance
  of decision reached.”)).
  12
          The references in this paragraph are to D. & O. at 3-6.
  13
          Id. at 5-6 (Tr. at 45).
  14
         The references in this paragraph are to the ALJ’s D. & O. at 49-50; see also Respondent’s Exhibit
  (RX) 7K.




          On October 23, 2012, the Respondent issued a Notice of Investigation. 15 After several
  postponements, the formal investigation or hearing was conducted on November 16, 2012. The
  Respondent’s official Dennis Mead presided over the formal investigation. Complainant was
  called as the first witness at the formal investigation. 16

           At the formal investigation, Complainant testified that she would have to stand on her
  desk in order to see over into Elledge’s work space, but the surveillance video showed that that
  this was not the case. 17 The video showed that about ten minutes after Complainant took the pill
  bottle, she and Elledge met briefly outside of their desk spaces before they each sat down. 18
  Complainant testified that she did not take any medication from the pill bottle for thirty minutes
  after she took the bottle from Elledge’s purse. 19

         At the hearing, Complainant explained that she decided to get the pills from Elledge’s
  purse because she had “a really bad headache,” but then explained that she did not take the
  medication for a half hour “because her headache was ‘not bad enough.’” 20 The ALJ found the
  following:

          (1) Complainant waited for Elledge to leave to take the pills, 21

          (2) Complainant was not as she stated, “too busy” to report that she took the bottle to
              Elledge, 22

          (3) Complainant was untruthful when she stated she did not have time to go to the
              “community drawer” to get medicine from it, 23 and

  15
          The references in this paragraph are to D. & O. at 10 and 74.
  16
           D. & O. at 74. Kevin Porter, Complainant’s union representative at the formal investigation,
  stated that this was the first formal investigation he participated in where the charged employee initially
  testified. Id. However, Derek Cargill, the Respondent’s Director of Employee Performance and Labor
  Relations, testified that it was not unusual for a charged employee to testify first. Moreover, the
  collective bargaining agreement between the Respondent and the union representing Complainant, the
  American Train Dispatchers Association (ATDA), does not contain a provision requiring that witnesses
  testify in a particular order. Id.
  17
          Id. at 13; RX 7K.
  18
          D. & O. at 13, 38.
  19
          Id. at 13.
  20
          Id. at 49.
  21
          Id. at 50.
  22
          Id. at 51.




         (4) Complainant was inconsistent in giving her reason for needing the medication, at one
             point saying she had a headache and at another saying that her back hurt. 24

          The Respondent terminated Complainant on December 4, 2012. 25 McConaughey was the
  ultimate decision-maker in Complainant’s termination. The ALJ found that McConaughey
  reasonably believed that the video of Complainant taking Elledge’s pill bottle was determinative
  “because it did not depict a person who was given consent to take a co-worker’s personal
  property.” 26 McConaughey also relied heavily on the fact that Complainant never answered
  three questions he asked her repeatedly: “(1) if she needed Advil, why take the entire bottle; (2)
  why did she conceal her actions; and (3) why did she not tell Elledge that she took the Advil
  bottle[?]”27 In asking Complainant these questions, he was seeking any circumstances that
  would explain her actions, but he never got any explanation or answers. In deciding to terminate
  Complainant, McConaughey believed that Complainant took Elledge’s personal property without
  her consent and, therefore, violated Rule 1.6 of the Respondent’s General Code of Operating
  Rules (GCOR) against dishonesty and theft.

          Complainant presented evidence that she was treated differently than other workers who
  had violated Rule 1.6. 28 Her first example was a worker, D. L., who took water bottles from the
  Respondent’s grain department and gave them to other dispatchers. No adverse action was taken
  against him. The second example was an employee, S.K., who secretly eavesdropped on his ex-
  fiancée’s radio conversations at work. S.K. admitted to the eavesdropping and was fired two
  weeks later but was later rehired into a different job that was considered a demotion.

          Finally, Complainant presented an alternative argument, contending that in finding that
  she also violated Rule 40.23 of the train dispatchers operations manual, which prohibits
  dispatchers from entering unoccupied work areas not pertinent to their work duties, Respondent
  treated her differently than other workers because no other worker had ever been charged with
  violating Rule 40.23. 29 Evidence showed it was, in fact, common at the Respondent’s office for
  dispatchers to frequently enter other work areas. Robert Newlun, a senior manager, testified that
  the rule against entering unoccupied areas was adopted because of complaints that office


  23
         Id.
  24
         Id. at 53.
  25
         The references in this paragraph are to D. & O. at 66, 71-73, and 80.
  26
         Id. at 72.
  27
         Id. at 73.
  28
         The references in this paragraph are to D. & O. at 75-77.
  29
         The references in this paragraph are to D. & O. at 75.




  equipment, like staplers, tape, and scissors, were missing from employee’s desks and that
  Complainant was informed of the rule in her initial training.


                               JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the Administrative Review Board authority to
  review decisions by ALJs arising under the FRSA and issue final agency decisions. 30 The Board
  reviews the ALJ’s factual determinations under the substantial evidence standard. 31 The Board
  reviews an ALJ’s conclusions of law de novo. 32


                                                 DISCUSSION

  1. Motion to Substitute Complainant

          Between the date of the hearing in this matter and the date that Complainant’s petition for
  review was filed, Complainant died on February 1, 2017, the same day that the ALJ’s D. & O.
  was issued. Subsequent to the filing of the petition for review, Complainant’s counsel filed a
  notice of suggestion of death and ninety days after the filing of that notice, filed a motion to
  substitute Complainant Tracie Austin’s putative widower, Sean Lawson, as the Complainant in
  this case.

         The Federal Rules of Appellate Procedure allow for substitution of a party when a party
  dies during the pendency of an appeal. 33 Rule 43(a)(2) states that “[i]f a party entitled to appeal

  30
         Secretary’s Order No. 2-2012 (Delegation of Authority and Assignment of Responsibility to the
  Administrative Review Board), 77 Fed. Reg. 69378 (Nov. 16, 2012); see 29 C.F.R. § 1982.110(a).
  31
           29 C.F.R. § 1982.110(b). Substantial evidence is that which is “more than a mere scintilla. It
  means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
  Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). An ALJ’s factual finding will be upheld
  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, 340 U.S. at 488)).
  32
          Hamilton v. CSX Transp., Inc., ARB No. 2012-0022, ALJ No. 2010-AIR-00025, slip op. at 2
  (ARB Apr. 30, 2013) (citations omitted). Specifically, the Administrative Procedure Act provides, at 5
  U.S.C. § 557(b) (1976), that “[o]n appeal from or review of the initial decision, the agency has all the
  powers which it would have in making the initial decision . . . .”
  33
          In the absence of its own rule, the Board has customarily used principles employed by federal
  courts under the Federal Rules of Appellate Procedure. See OFCCP v. Florida Hosp. of Orlando, ARB
  No. 11-011, ALJ No. 2009-OFC-002, slip op. at 4 (ARB July 22, 2013) (Order Granting Motion for
  Reconsideration and Vacating Final Decision and Order Issued October 19, 2012).




  dies before filing a notice of appeal,” “the decedent’s attorney of record” “may file a notice of
  appeal,” and after that point, pursuant to Rule 43(a)(1), “the decedent’s personal representative
  may be substituted as a party on motion filed with the circuit clerk by the representative or by
  any party.” Fed. R. App. P. 43(a)(1)-(2). Sean Lawson and Complainant’s attorney assert that
  Lawson and Complainant (Tracie Austin’s) minor child are Complainant’s only successors and
  requested that Lawson be substituted as the Complainant in this case. But Lawson’s motion
  does not identify him as Complainant (Tracie Austin’s) personal representative, nor does it
  identify the “minor child” or explain how the child’s interest would be protected if Lawson were
  named as the substitute Complainant. 34 Thus, Lawson’s motion is denied.

  2. Contributing factor causation

         The ALJ concluded that Complainant failed to demonstrate by a preponderance of the
  evidence that protected activity was a contributing factor in the adverse action alleged in the
  complaint. 35 On appeal, Complainant does not argue that the ALJ’s decision is not supported by
  substantial evidence. Instead, Complainant asserts that substantial evidence supports that
  Respondent treated Complainant differently than various other employees. The reasoning
  underlying this argument is that because the Respondent treated Complainant differently, it must
  have been discriminating against Complainant for reporting an injury at work, medical treatment,
  and a work hazard. But this argument misconstrues our standard of review.

          The ARB reviews an ALJ’s decision on the merits to determine whether substantial
  evidence in the record supports any factual findings. Even if there is also substantial evidence for
  the other party and even if we as the trier of fact might have made a different choice, the standard
  of review is unchanged. See Henrich, ARB No. 05-030, slip op. at 8. On the issue of causation,
  the ALJ found, after lengthy examination of the evidence and analysis, that the Respondent fired
  Complainant for “dishonesty and theft.” 36 While the ALJ acknowledged that the Respondent
  had knowledge of Complainant’s protected activity and while there is a degree of temporal
  proximity between the protected activity and the adverse action, the ALJ did not find these two
  facts determinative because of other significant facts. 37 The ALJ was persuaded in large part by

  34
           Under intestate succession law in Texas, if a married person dies without a will, the spouse of the
  decedent receives one-half of the couple’s community property and one-third of the decedent’s personal
  property, while the decedent’s child who is not the child of the decedent’s spouse inherits everything else.
  See Tex. Est. Code §§ 2001.002(b), 2001.003(c) (2014). While the Board has chosen to include a
  reference to Texas law by way of illustration, we do not intend to impose upon the Board or upon
  Administrative Law Judges any obligation to research, construe, or apply State law in this or similar
  matters. The preferred practice is clear that interested persons should open an estate for a deceased party
  and that the executor or personal representative should proceed in the interest of the estate. In this way
  legally sufficient documentation can be provided to the ALJ or the Board as necessary.
  35
          D. & O. at 80-81.
  36
          Id. at 81.
  37
          Id. at 70, 80-81. We are cognizant of the low standard of proof commonly deemed to be sufficient
  to meet Complainant’s burden of proof concerning the causal relationship between her protected activity



  the testimony of McConoughy, the video, and the demeanor of Complainant as a witness, which
  we discuss later in this opinion.

           The ALJ relied heavily upon McConaughey’s testimony, whom he found credible. He
  found that “McConaughey had a good faith belief that Complainant had taken Elledge’s personal
  property without consent, and thus, he genuinely believed Complainant violated GCOR Rule
  1.6.” 38 McConaughey’s belief that Complainant engaged in theft was supported by the
  surveillance video and Elledge’s testimony that Complainant did not have consent to enter her
  purse while she was not present. 39 The ALJ correctly stated that even if Complainant had
  sincerely believed she was not stealing, it would not change the effect of McConaughey’s belief
  that Complainant was stealing in making his decision to terminate her employment. 40 The ALJ
  found that there was no pretext in the Respondent’s reasons for making its decision to fire
  Complainant. 41

         The ALJ thoroughly analyzed Complainant’s counter-arguments regarding disparate
  treatment to find the following:

          1) that Complainant was not ambushed when the Respondent called her as the first
             witness at the internal hearing because it is not an uncommon practice for
             impeachment purposes, 42

          2) that he was not persuaded by Complainant’s argument of disparate treatment due to
             her being the only dispatcher ever charged with violating Rule 40.23 prohibiting entry
             into unoccupied work areas not pertinent to duties because the purpose of the rule was


  and the adverse action: a contributing factor is “any factor, which alone or in combination with other
  factors, tends to affect in any way the outcome of the decision.” Allen v. Admin. Review Bd., 514 F.3d
  468, 476 n.3 (5th Cir. 2008). That being noted, the evidence Complainant proffered on this point is not
  viewed in isolation – the trier of fact and this Board can consider all relevant evidence in determining
  whether there was a causal relationship between Complainant’s protected activity and the adverse
  employment action alleged. Powers v. Union Pacific R.R. Co., ARB No. 13-034, ALJ No. 2010-FRS-
  030, slip op. at 21 (ARB Jan. 6, 2017), aff’d, Powers v. U.S. Dep’t of Labor, No. 17-70676, 723 Fed.
  Appx. 522, 2018 IER Cases 180, 768 (9th Cir. May 22, 2018) (unpub.). Under the facts of this case and
  the totality of the relevant evidence, there is more than substantial evidence to support the ALJ’s
  conclusion that Complainant’s protected activity did not affect in any way the decision to terminate
  Complainant.
  38
          D. & O. at 72-73.
  39
          Id.
  40
          Id. at 73.
  41
          Id. at 80-81.
  42
          Id. at 74-75.




                to prevent the same type of taking of personal property that Complainant engaged
                in, 43 and

          3) that the examples of other employees misconduct that Complainant cited were not
             similar to her case because the other employees were not accused of stealing another
             employee’s personal property and lying about it. 44

           Significantly, the ALJ found Complainant’s testimony to be at times, “evasive,
  contradictory, inconsistent, and unpersuasive concerning the most significant factual issues” in
  this case. 45 He found that inconsistences and contradictions in her testimony, as compared to
  that of other witness testimony, the documentary evidence, and the surveillance video, all
  detracted from her overall credibility and called into question her version of significant events.
  The ALJ detailed several of the most significant discrepancies at D. & O. at 48 to 55, to conclude
  that Complainant’s statements “were largely incredulous and unpersuasive, and her demeanor
  suspicious, which significantly call[ed] into question the veracity of much of her testimony
  surrounding the most crucial factual issues.” 46 He found that factual omissions by Complainant
  and her body language on the video all demonstrated that it “was unnatural, unreasonable, and
  improbable that Austin had Elledge’s consent” to go into her purse and take her pill bottle from
  it. 47 As a result, and because of discrepancies between Complainant’s version of events and that
  of her witness and work-friend, Elledge, the ALJ found that Complainant’s testimony had little
  probative value. 48 On matters of witness credibility, especially with regard to demeanor, the
  ARB affords great deference to the ALJ. 49

          We affirm, therefore, the ALJ’s conclusion that Complainant failed to prove that
  protected activity was a contributing factor in any adverse action taken against her as supported
  by substantial evidence in the record. Thus, we need not discuss the ALJ’s alternate holding that
  the Respondent proved by clear and convincing evidence that it would have taken the same
  action absent any protected activity or make any assignments of error in regard to that issue.



  43
          Id. at 75.
  44
          Id. at 75-79.
  45
          Id. at 47.
  46
          Id. at 54.
  47
          Id.
  48
          Id.
  49
            Folger v. Simplexgrinnell, LLC, ARB No. 2015-0021, ALJ No. 2013-SOX-00042, slip op. at 4
  (ARB Feb. 18, 2016) (“Making credibility determinations of this sort is exactly why ALJs hold elaborate,
  trial-like hearings (in this case, two days long with eight testifying witnesses and over fifty exhibits) and
  exactly why we afford great deference to an ALJ’s credibility determinations.”) (citations omitted).



                                           CONCLUSION

          The ALJ’s conclusion that the Complainant failed to prove by a preponderance of the
  evidence that any protected activity was a contributing factor to the Respondent’s decision to
  take action against her is supported by substantial evidence in the record and is legally correct.
  Accordingly, this complaint is DISMISSED.

  SO ORDERED.