U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

PATRICIA BOOKER,

COMPLAINANT,

EXELON GENERATION CO., LLC,

ARB CASE NO. 2022-0049

ALJ CASE NO. 2016-ERA-00012

ALJ DREW A. SWANK

DATE: September 21, 2023

RESPONDENT.

Appearances:

For the Complainant:

Patricia Booker; pro se; Delta, Pennsylvania

For the Respondent:

Donn C. Meindertsma, Esq.; Conner & Winters, LLP; Washington,

District of Columbia

Before HARTHILL, Chief Administrative Appeals Judge, and PUST,

Administrative Appeals Judge

DECISION AND ORDER AFFIRMING IN PART AND

VACATING AND REMANDING IN PART

PUST, Administrative Appeals Judge:

This case arises under the whistleblower protections of the Energy

Reorganization Act (ERA) and its implementing regulations. 1 On June 21, 2022, a

United States Department of Labor (Department) Administrative Law Judge (ALJ)

issued a Decision and Order Denying Complainant’s Claims (D. & O.). The ALJ

determined that Patricia Booker’s (Complainant or Booker) whistleblower claim

failed because Complainant failed to establish by a preponderance of the evidence

42 U.S.C. § 5851; 29 C.F.R. Part 24 (2023).

that her protected activity contributed to removal of certain job duties and the

suspension of her Unaccompanied Access Authorization (UAA) which ultimately led

to the termination of her employment from Exelon Generation Company, LCC

(Respondent or Exelon). Specifically, the ALJ found that Respondent had legitimate

reasons for altering Complainant’s job duties and revoking her UAA, and her

protected activity did not contribute to Respondent’s decisions. The ALJ also found

that Complainant did not establish that she experienced intentional harassment

related to her protected activity, so her hostile work environment claim also failed.

Complainant timely filed a Petition for Review with the Administrative Review

Board (ARB or Board). We affirm, in part, and vacate and remand, in part.

BACKGROUND 2

1. Relationship Between the Parties

Exelon Generation Company, LCC owns and operates nuclear power plants

including, during the relevant timeframe, 3 the Peach Bottom Atomic Plant in Delta,

Pennsylvania (Peach Bottom plant). 4 Respondent operates its nuclear facilities as a

party to operating licenses issued by the National Regulatory Commission (NRC). 5

NRC regulations dictate the terms and processes by which individuals are granted

and maintain unescorted access to nuclear facilities. 6

Upon review of the evidentiary record, it is apparent that the ALJ’s Factual History

section omits many events that are pertinent to Complainant’s whistleblower claim. In

reciting these background facts noted in the evidentiary record, the Board makes no

findings of fact but recites record evidence that is relevant to the underlying arguments on

appeal.

Due to a corporate divestiture in 2022, the Peach Bottom plant is no longer owned

and operated by Exelon but instead by Constellation Energy Generation, LLC.

Respondent’s Brief (Resp. Br.) at 1 n.1.

D. & O. at 1.

Booker v. Exelon Generation Co., LLC, ALJ No. 2016-ERA-00012, slip op. at 2 (ALJ

Apr. 4, 2017) (Order Granting Motion for Summary Disposition).

See 10 C.F.R. § 37.23 (2015); see Miscellaneous Corrections, 80 Fed. Reg. 45841,

48543 (Aug. 3, 2015) (effective Sept. 2, 2015). Throughout this Decision and Order, the

Board cites to the NRC regulation that was in effect at the time relevant to Complainant’s

complaint. Since the time of Complainant’s complaint, the NRC has made revisions,

including technical revisions, to the relevant regulations. Thus, the Board cites to the

version of the regulation that was in effect at the time of Complainant’s complaint, which is

not always the same year.

Complainant began working for Respondent as a temporary clerical employee

in 1984, and at the time her UAA was revoked in 2014 she was a full-time

Administrative Coordinator in the Maintenance Planning unit. 7 Complainant’s

responsibilities included typical administrative support work and also included

processing work packages. 8 This work required her to obtain and review documents

related to assigned maintenance tasks to “make sure that everything was complete,

and to then . . . send it to final to be scanned, to be kept permanently for reference

and as needed.” 9 If Complainant identified discrepancies in the work package

documentation, such as missing or illegible dates or signatures, 10 she would return

the documents to the technicians for completion and re-return to her. 11

From 2009 to 2014, Tom Powell (Powell) was the Maintenance Planning

Manager for Respondent, and Complainant’s supervisor. 12 As part of Complainant’s

duties to help maintain his schedule and communications, beginning in 2009,

Powell granted Complainant access to his email inbox so she could update him

about issues that arose while he was in a meeting or otherwise busy. 13

When Powell was transferred to a different work unit at the Peach Bottom

plant, John Connelly (Connelly) became the Maintenance Planning Manager. On

April 7, 2014, Connelly took over Powell’s duties, including the supervision of

Complainant. 14

2. Complainant’s Protected Activity

In late 2013, Complainant raised a concern to Respondent’s Nuclear

Oversight group (NOS). 15 NOS is an internal, self-policing group made up of

independent auditors that examine issues related to regulatory compliance. 16

Order Granting Motion for Summary Disposition at 1; D. & O. at 1.

Order Granting Motion for Summary Disposition at 2 (citation omitted).

Hearing Testimony (Tr.) at 16.

Id. at 777.

Id. at 17.

D. & O. at 1.

Id.

Tr. at 514.

D. & O. at 1-2.

Id. at 2.

Employees reported issues to NOS by authoring a condition report, also known as

an incident report (IR). 17 Respondent’s employees were encouraged to report issues

to NOS, 18 and Complainant had been submitting IRs to NOS since 2007. 19

When Complainant contacted NOS in September of 2013, she reported that

technicians had been backdating safety-related procedure documents. 20 Specifically,

she reported that when she noted missing signatures upon processing work

packages after projects were completed, signatures would be added without any

notation in the final documentation that they were initially missing. 21 NOS advised

Complainant that backdating documents was a violation of required procedure. 22

When Complainant asked NOS to write an IR on the backdating issue, NOS issued

“AR 01587659 Report.” 23

On January 14, 2014, Complainant contacted NOS and asked for a status

update on her earlier report. 24 When NOS informed Complainant that her report

had been assigned to Powell and then closed without resolution, Complainant asked

NOS to reopen the report. 25 NOS reopened the report and reassigned it to Powell. 26

On January 16, 2014, Complainant reported her concerns to Charles Breidenbaugh

Id.

Order Granting Motion for Summary Disposition at 3 (citation omitted) (noting that

14,830 IRs were initiated at the Peach Bottom plant in 2013).

Id. (Complainant submitted 20 IRs in 2012, 12 in 2013, and 19 in 2014) (citations

omitted).

Id. (noting this was an undisputed fact) (citation omitted); D. & O. at 2.

D. & O. at 2.

Id.

Id.; Order Granting Motion for Summary Disposition at 3. The report stated that

workers were not initialing “Worker Verifications” on hard copies of work orders, and in

some instances were not initialing “Independent Verification” or “Quality Verification” after

the work order/procedure was completed. NOS noted in the report that this process was

contrary to Procedure Use and Adherence requirements. The report also described

instances of workers initialing and backdating work orders weeks after the work was

performed (using the date the work was performed) after the missing signatures were

identified. D. & O. at 2.

Tr. at 20-21.

Id. at 21. Powell maintained that he “inadvertently” closed out the assignment by

mistake. Id. at 790.

Id. at 21.

(Breidenbaugh), Respondent’s Maintenance Department head at the Peach Bottom

plant and Powell’s supervisor, and asked him why the IR was closed without

attention and why there had not been more attention to correcting the issue. 27 On

January 31, 2014, Complainant met with Respondent’s Regulatory Assurance

manager to discuss her backdating concerns. 28

On January 31, 2014, Powell implemented guidance encouraging accurate

recordkeeping and oversight of documentation. 29 The new guidance was provided in

writing and discussed with management. 30 Powell had developed the guidance as a

solution to the issues raised in the AR 01587659 Report, and he discussed the

solution with other employees, including Complainant. 31

3. Respondent’s Removal of Complainant’s Job Duties

On February 1, 2014, Powell revoked Complainant’s access to his email

inbox. 32 Later that day, Complainant emailed Rush in HR explaining that she no

longer had access to Powell’s email inbox although she had access the day before,

and asked Rush if “this [is] considered a ‘chilling’ environment.” 33

In early 2014, 34 Breidenbaugh decided to change Respondent’s procedure for

handling overtime approval, a process in which Complainant was involved, because

Id. at 22.

Id. at 22, 125.

D. & O. at 2; Tr. at 225; Complainant’s Hearing Exhibit (CX) 4 (Powell’s

Memorandum re: “Work Package Closure”) at 1.

D. & O. at 2.

Id.

The ALJ stated that Powell removed Complainant’s access in April of 2014, D. & O.

at 3, but the record indicates that Powell removed her access on February 1, 2014. CX 7

(email on February 1, 2014, from Complainant to Rush) at 1 (“I no longer have access to

Tom Powell’s Inbox. I had access yesterday. I checked it this morning after I received

[Breidenbaugh’s] email on the overtime tracking.”). Powell removed Complainant’s email

access because “things [] had transpired earlier in the week that made me recognize that

she might have been looking at other things besides what we had agreed upon when I gave

her access initially.” Tr. at 817.

CX 7 at 1.

Tr. at 622.

Respondent was over budget for overtime expenditures. 35 Breidenbaugh

streamlined the process by limiting the number of administrative assistants

involved and assigning them duties related to coordination of managers’ review. 36

On February 1, 2014, Breidenbaugh sent an email to the affected administrative

staff explaining the new procedure for handling overtime approval. 37 One minute

later Breidenbaugh forwarded that email to two administrative staff who had been

inadvertently left off the first email, one of which was Complainant, indicating that

he “should have cc’d you.” 38 Complainant responded to Breidenbaugh’s email at

10:46 a.m., copying Brian Zukauckas (Zukauckas), Respondent’s Human Resources

(HR) manager, 39 and Laura Rush (Rush), Respondent’s Senior HR Generalist. 40 In

her response, Complainant questioned why this responsibility was removed from

her after she had escalated an issue to NOS and asked HR to look into the matter

which she stated “feels like retaliation.” 41

Complainant contacted the NRC on February 7, 2014, reported that

Respondent had been backdating documentation, and filed a complaint with the

NRC against Respondent alleging retaliation for her attempts to address the

backdating issue. 42 Zukauckas informed Connelly of Complainant’s pending action

D. & O. at 2; Tr. at 621-22.

D. & O. at 2; Tr. at 621-22. The new overtime process involved requests being

coordinated by three administrative staff and then formally reviewed by managers to

ensure that the appropriate amount of overtime was approved. Id. at 621-22.

D. & O. at 2-3; Respondent’s Hearing Exhibit (RX) 42 (Breidenbaugh’s February 1,

2014, email chain re: “Department Budget Shortfalls - Overtime”) at 1-2.

RX 42 at 1.

Tr. at 188.

RX 67 (Declaration of Laura M. Rush) at 1.

RX 42 at 1. Complainant asked Breidenbaugh whether “there [is] some reason that

you have taken away my responsibilities? When you asked me to review a draft email on

this issue last week, I had not been removed from my duties. It seems odd that you are

giving my responsibilities to other admins after I have escalated an issue . . . Laura – can I

get HR determination on these questions. It doesn’t feel right. It feels like retaliation since I

told [Breidenbaugh] yesterday (1/31/14) that I had a meeting with Pat Navin on Monday

(2/3/14).” Id.

Tr. at 54, 195-96, 201; Booker v. Exelon Generation Co., ALJ No. 2016-ERA-00012,

slip op. at 2 (OALJ Jan. 21, 2021) (Order Denying Respondent’s Motion to Dismiss); Order

Granting Motion for Summary Disposition at 7.

with the NRC when Connelly came on board as her supervisor in April 2014. 43 On

July 31, 2014, the NRC conducted an alternative dispute resolution session with

Complainant regarding her retaliation claims. 44 When this did not resolve her

concerns, the NRC investigation continued. 45

4. Respondent’s Behavioral Observation Program (BOP)

Because Respondent owns and operates nuclear power plants, it must comply

with certain NRC regulations, including the NRC’s UAA requirements and its

related Behavioral Observation Program (BOP). 46 Consistent with NRC regulations,

Respondent’s UAA program requires employees to undergo an annual review

(“Annual BOP Supervisory Review”) of their behavior as part of the BOP. 47

Employees may be subject to suspension of or holds on their UAA if they are not

determined to be “trustworthy and reliable” 48 based on the results of their Annual

BOP Supervisory Review. 49 An employee’s UAA may also be temporarily withheld

while action is taken to complete or update an element of the UAA requirements. 50

Respondent required Complainant to have unaccompanied access under its UAA

program in order to perform her job duties. 51

While an employee’s UAA is suspended or on hold, they may remain on

disability leave for a period not to exceed 18 months if they qualify for such leave. 52

Tr. at 661.

Tr. at 87. Connelly knew that Complainant had a meeting with the NRC around this

time, but he did not know what the meeting was about. CX 38 (Connelly’s OSHA Witness

Statement) at 3 (“I was aware that [Complainant] had a meeting with the NRC around July

31, 2014 or August 6, 2014. I was aware that it was an all-day meeting. She never told me

and I never asked what the meeting was about. I was not aware of the reason for the

meeting. I was only aware that she spent all day meeting with the NRC.”).

Comp. Br. at 17.

D. & O. at 3.

Id.

10 C.F.R. § 37.23(a)(2) (individuals granted unescorted access authorization must be

“determined to be trustworthy and reliable”).

D. & O. at 3.

Id. Before the events in the current case, Complainant’s UAA had previously been

withdrawn and later reinstated after completing the required treatment. Id.

Id. at 3.

Id. at 5.

Respondent’s policy is to discharge employees who are unable to return to work

from disability leave after 18 months. 53

During the relevant timeframe, Kevin Concannon (Concannon) worked as

Respondent’s access authorization lead for the Peach Bottom plant, and other

plants. 54 As lead, Concannon would determine which employees obtained and

retained UAA based on safety rules and procedures. 55 He would routinely refer

abnormal behavior reported on Annual BOP Supervisory Review forms to

Respondent’s Medical Review Officer (MRO), Dr. Barbara Pohlman (Pohlman), for

review and further action. 56 Pohlman is a licensed physician in internal medicine

and provided services to Respondent through her business, Triangle Occupational

Medicine, P.A. 57

On September 2, 2014, Connelly was advised that he needed to complete the

Annual BOP Supervisory Review form for Complainant. 58 On September 8, 2014,

Connelly completed the form, noting that “Patricia goes out of her way to avoid

contact with certain individuals. She will change her route on purpose so she

doesn’t have to engage with the person,” and “Patricia has been talking to herself a

Id. at 5-6.

Id. at 3.

Id.

Id. As the Medical Review Officer, Pohlman’s duties were defined by NRC regulation

as follows:

The primary role of the MRO is to review and interpret

positive, adulterated, substituted, invalid, and at the licensee’s

or other entity’s discretion, dilute test results obtained through

the licensee’s or other entity’s testing program and to identify

any evidence of subversion of the testing process. The MRO is

also responsible for identifying any issues associated with

collecting and testing specimens, and for advising and assisting

FFD [Fitness for Duty] program management in planning and

overseeing the overall FFD program.

10 C.F.R. § 26.183(c) (2008); Fitness for Duty Programs, 73 Fed. Reg. 16966, 17108-09

(Mar. 31, 2008) (effective April 30, 2008).

RX 72 (Declaration of Barbara L. Pohlman) at 1; Tr. at 412.

D. & O. at 3; RX 46 (September 2, 2014 email to Connelly notifying him to complete

Annual BOP Supervisory Review form).

lot lately. She will sit at her desk talking out loud to no one.” 59 Connelly sent the

completed form to Concannon. 60 Concannon reviewed the form and determined that

Complainant’s behavior was abnormal. 61 Concannon informed Susan Techau

(Techau), Respondent’s “Reviewing Official,” 62 of Connelly’s report 63 and referred

the matter to MRO Pohlman. 64 After reviewing Connelly’s report, MRO Pohlman

signed “Attachment 2” to the “Access Authorization/Fitness for Duty Determination

of Fitness Review Form” on September 15, 2014 indicating that Complainant should

be required to complete a mandatory evaluation through Respondent’s Employee

Assistance Program (EAP) within ten days. 65

On September 16, 2014, the NRC interviewed Complainant as part of its

ongoing investigation of her filed complaint. 66 After Complainant’s meeting with the

NRC that day, Connelly and Rush met with Complainant to discuss the results of

her Annual BOP Supervisory Review and to inform her that she was being referred

D. & O. at 3-4; RX 50 (Connelly’s completed Annual BOP Supervisory Review form

for Complainant) at 2.

D. & O. at 3.

Id. at 4.

Under applicable NRC regulations, an entity licensed to own and operate a nuclear

plant must designate a “Reviewing Official” as the individual responsible to “determine

whether to grant, certify, deny, unfavorably terminate, maintain, or administratively

withdraw an individual’s unescorted access or unescorted access authorization status,

based on an evaluation of all of the information required by this section.” See 10 C.F.R.

§ 73.56(h)(1)(i) (2012); Technical Corrections, 77 Fed. Reg. 39899, 39909 (July 6, 2012)

(effective Aug. 6, 2012). The NRC’s Fitness for Duty (FFD) regulations define a “Reviewing

Official” as “an employee of a licensee or other entity specified in § 26.3(a) through (c), who

is designated by the licensee or other entity to be responsible for reviewing and evaluating

any potentially disqualifying FFD information about an individual, including, but not

limited to, the results of a determination of fitness, as defined in § 26.189, in order to

determine whether the individual may be granted or maintain authorization.” 10 C.F.R.

§ 26.5 (2008); Fitness for Duty Programs, 73 Fed. Reg. 16966, 17179-81 (Mar. 31, 2008)

(effective April 30, 2008)..

RX 69 (Declaration of Susan Techau) at 3-4.

D. & O. at 4.

RX 47 (Attachment 2 of the Access Authorization/Fitness for Duty Determination of

Fitness Review Form signed by Pohlman) at 1.

Tr. at 226-27, 521-22.

to EAP. 67 MRO Pohlman issued a written notification to Complainant regarding the

EAP referral a few days later. 68

Through EAP, Complainant was referred to counselor Mary Lou Kunkle

(Kunkle) with Pennsylvania Counseling Services, 69 who saw Complainant on

September 23, 2014. 70 On September 24, 2014, Kunkle recommended to EAP that

Complainant “attend six (6) counseling sessions to help her deal with intimidation,

ways to resolve issues and to improve interpersonal communication.” 71 Kunkle

determined Complainant was “trustworthy and reliable” to maintain her UAA while

she completed therapy. 72 MRO Pohlman did not recommend any action be taken

against Complainant’s UAA at that time, and Complainant remained in work status

on site at the Peach Bottom plant. 73

5. Ongoing Workplace Discord

On September 25, 2014, Complainant approached Connelly after a quarterly

review team meeting and accused another employee of being “inattentive,” which

Connelly understood as “a nuclear word for sleeping.” 74 Connelly investigated the

matter and, two hours later, told Complainant that no one else saw the employee

being inattentive at any point during the meeting. 75 After this conversation,

Complainant contacted HR and alleged that Connelly had been physically

aggressive and raised his voice at her during the meeting. 76 HR investigated the

incident, interviewed other employees, and concluded that Connelly was direct in

Id. at 522-23. The meeting was originally scheduled for the morning of September

16, but was rescheduled to the afternoon to accommodate Complainant’s meeting with the

NRC. Id. at 522. The decision to meet with Complainant was made before Connelly knew of

her meeting with the NRC. Id. at 523.

D. & O. at 4.

Tr. at 289-90; RX 30 (Kunkle’s September 24, 2014 letter to EAP) at 1.

RX 30 at 1.

Id.

D. & O. at 4.; RX 30 at 2.

Tr. at 419.

Id. at 560-61.

Id. at 560-62.

D. & O. at 11; Tr. at 46-47.

nature but did not raise his voice or act aggressively toward Complainant during

the conversation. 77

On October 1 and 2, 2014, Complainant spoke to Respondent’s Employee

Concerns Program (ECP) regarding Connelly. 78 Complainant reported that

Connelly was mishandling documents by keeping a work order document unsecured

in his office. 79 Complainant also identified this issue to the NRC. 80

On October 2, 2014, Connelly documented a “Performance Management

Intervention – Verbal Coaching” entry for Complainant in Respondent’s electronic

program for inputting employee observations, 81 indicating that she refused to meet

with him to go over her midyear review. 82

On October 3, 2014, Connelly went into Complainant’s cubicle and asked her

to inform him if a foreign exchange student that his family was hosting attempted

to contact him while he was in a meeting. 83 After Connelly left her cubicle,

Complainant contacted HR to ask them to have Connelly remain outside of her

D. & O. at 11. The ALJ states that Zukauckas conducted the fact-finding

investigations into both incidents, id., but Zukauckas testified that he believed it was Rush

who conducted the September 25 investigation. Tr. at 670.

CX 15 (email chain on September 30, 2014 and October 1, 2014, between

Complainant and A. Kirk Pedersen, Respondent’s Employee Concerns Investigator) at 1-2

(Complainant stated that “[m]y issue is with my Manager who held on to a quality

document in a way that did not protect it and for 2 months after it exceeded the timeframe

for closure by 3 times.”).

Id. Complainant reported that Connelly was keeping quality documents in his office

although “[t]hey have to be handled per procedure in a specific way and preserved to make

sure that they weren’t damaged. He had it under his desk, on top of his recycle pile, so that

I couldn’t get it.” Tr. at 60.

CX 15 at 2.

Tr. at 559.

RX 39 (Respondent’s electronic recordkeeping system entries for Complainant

between February 12, 2013, and October 2, 2014) at 1 (“Insubordination - Printed out a

copy of Trish’s mid-year review and gave it to her. I told her that we would be meeting at

14:30 and that Laura Rush from HR would be in attendance. She told me she did not want

to meet today. I told her it was important that we meet and complete this review. She told

me she was dealing with corporate and that she would go to Mike Massaro if she had to. I

asked again ‘Trish, are you refusing to meet with me today at 14:30’? She replied ‘Yes.’”).

D. & O. at 11.

cubicle. 84 Zukauckas investigated the incident and determined that Connelly stood

in Complainant’s cubicle entrance with his arm resting on the top of the cubicle, but

determined that Connelly had not engaged in intimidating or threatening

behavior. 85

6. Respondent’s Decision to Revoke Complainant’s UAA and Complainant’s

Subsequent Termination

Following these instances, Zukauckas initiated a conference call with an

interdisciplinary group internal to Respondent 86 because he was concerned about

Complainant’s “escalating” behaviors. 87 On October 7, 2014, several managers,

including Barbara Stevens (Stevens), Respondent’s Director of Occupational Health

and Regulatory Medical Services, 88 Reviewing Official Techau, Zukauckas, and

Connelly discussed Complainant’s behavior via conference call. 89 During the call,

Stevens shared her medical opinion that Complainant’s behaviors were aberrant

and that Complainant sounded “delusional” in that “[i]t’s not normal for an

employee to talk to herself in a professional work environment or to hum” or cry in

the workplace, all of which were signs to Stevens that Complainant had “an

escalating mental health problem.” 90 Based on the information shared on the call,

Techau authorized the decision to place Complainant’s UAA on an administrative

hold pending further evaluation. 91 That same day, Zukauckas informed

Id.

Id. Complainant later relied on this instance, in addition to the September 25th

incident, as the basis for her claim of intentional harassment. Id.

This group, known as the Employee Issues Advisory Council (EIAC), was made up of

representatives from Respondent’s Occupational Health Services department, HR, and its

legal department, and reviewed employee concerns, discussed investigations, and provided

insight on next steps. Tr. at 676-78; RX 69 at 4.

Tr. at 676-77.

Tr. at 481.

Resp. Post-Hearing Br. at 8.

Tr. at 486-87.

D. & O. at 4-5; RX 69 at 5; see 10 C.F.R. § 73.56(f)(3) (“If the reviewing official has a

reason to believe that the reported individual’s trustworthiness or reliability is

questionable, the reviewing official shall either administratively withdraw or terminate the

individual’s unescorted access or unescorted access authorization while completing the reevaluation or investigation.”) (emphasis added).

Complainant of this decision. 92 Two weeks later, on October 21, 2014, Respondent

changed the status of Complainant’s UAA from administrative hold to temporary

hold. 93

On October 8, 2014, Connelly emailed himself a document, titled “Viper,” that

described his interactions and observations of Complainant. 94 Connelly initially

created the document after he noted “a change in [Complainant]” following the

September 16, 2014 meeting in which Complainant was told to report to EAP.

Connelly used the document to keep a record of his interactions with Complainant

in order to protect himself and his reputation given that Complainant had accused

him of retaliation for her having made a report to the NRC. 95

On December 1, 2014, Kunkle recommended that Complainant be allowed to

return to work beginning December 9, 2014, with the following conditions for three

months:

Ms. Booker has been reporting to two bosses. I am

recommending a temporary change in the primary boss she

reports to for her to be able to report to Elizabeth Haupin

who she works well with. Also, that she be able to move her

desk to an open space in the same office nearer that boss. 96

Techau interpreted Kunkle’s recommended conditions to include that Complainant

be reassigned “to report to a female manager [] and to move to a cubicle location

closer to the female manager.” 97 Pohlman interpreted Kunkle’s recommended

conditions to be “a huge red flag” which suggested that Complainant “is not at all

D. & O. at 5.

RX 69 at 5. Under Respondent’s interpretation of NRC regulations, a temporary hold

on a UAA can last “from one day to ten years” or more and no appeal rights are associated

with that action. Tr. at 376.

See RX 53 (Connelly’s October 8, 2014 email with the subject line “Viper” and

attachment named “Viper.docx”) at 1-10. Connelly testified that he named the document

“Viper” because he had a Dodge Viper at the time, his dream car, and he wanted to name

the document something easy to remember knowing he “would have to go back to this

document multiple times[.]” Tr. at 555.

Tr. at 540.

RX 30 at 9.

RX 69 at 5.

stable [] that she has to require a specific boss and a specific desk location.” 98 On

December 2, 2014, Pohlman rejected Kunkle’s recommendations, finding

Complainant “[n]eeds full/complete [release-to-work] with NO restrictions.” 99

Techau agreed with Pohlman, and so kept the temporary hold of Complainant’s

UAA badge in place until she received a full clearance to return to work without

restrictions. 100

On February 27, 2015, upon Techau’s request 101 Pohlman sent Respondent a

letter stating that Complainant appeared “unable to achieve her prior level of

functioning,” and that the restrictions Kunkle recommended (a change in the

primary boss she reported to and a move of her office space) were “not acceptable in

a secure nuclear environment.” 102 Pohlman recommended that Complainant’s UAA

not be reinstated. 103 Without a UAA, Complainant remained on both short-term and

long-term disability leave. 104 After 18 months on disability leave, Complainant’s

employment was terminated. 105

7. Procedural History and ALJ Decision

On June 25, 2014, Complainant filed ERA whistleblower and hostile work

environment complaints with the Department’s Occupational Safety and Health

Administration (OSHA). 106 Complainant later filed a second complaint with OSHA

alleging continued retaliation. 107 OSHA dismissed both of Complainant’s complaints

on July 10, 2016, determining that the evidence did not support a finding that her

D. & O. at 5; Tr. at 423.

D. & O. at 5; RX 55 (Pohlman’s December 2, 2014, Access Authorization/Fitness for

Duty Determination of Fitness Review Form) at 2.

100

RX 69 at 6.

101

Id.

RX 58 (Pohlman’s February 27, 2015 letter to Techau at 1 (“When her condition has

stabilized such that she no longer requires a specific female manager to supervise her work

and be physically nearby, her suitability for access authorization can be re-evaluated.”).

102

103

D. & O. at 5.

104

Id.

105

Id. at 6.

106

Id.

107

Id.

protected activity was a contributing factor in any adverse employment action. 108

On July 16, 2016, Complainant filed her objection to OSHA’s dismissal and

requested a formal hearing before the Department’s Office of Administrative Law

Judges (OALJ). 109 The case was assigned to ALJ Thomas M. Burke. 110

On February 9, 2017, Respondent filed a Motion for Summary Decision,

which ALJ Burke granted in his Order Granting Motion for Summary Disposition

on April 4, 2017. 111 ALJ Burke held that Complainant did not establish that her

protected activity contributed to the loss of certain job duties and her UAA, or the

refusal to reinstate her UAA which ultimately led to her termination, 112 and that

the harassment she experienced was not sufficiently detrimental to affect a

reasonable person to constitute a hostile work environment. 113 Complainant

appealed ALJ Burke’s order to the Board. 114

On July 31, 2019, the Board vacated ALJ Burke’s decision and remanded the

matter for the ALJ to proceed with an evidentiary hearing on the merits. 115 The

Board concluded that the ALJ “improperly weighed the evidence and made findings

of fact as if he was resolving the case on its merits based on the record before him in

the absence of a hearing.” 116 The Board found significant that Complainant

submitted evidence that supported her allegations of harassment as well as

evidence that Connelly started the process of withdrawing her UAA with retaliatory

intent because of her protected activity. 117 Thus, the Board concluded that

Complainant submitted sufficient evidence that there remained questions of

material fact as to whether Respondent harassed Complainant and whether

Id.; Booker v. Exelon Generation Co., LCC, ALJ No. 2016-ERA-00012, slip op. at 1

(ALJ June 25, 2021) (Order Denying Complainant’s Motion to Compel).

108

109

D. & O. at 6; Order Denying Complainant’s Motion to Compel at 1.

110

D. & O. at 6.

111

Order Granting Motion for Summary Disposition at 6, 15.

112

Id. at 15.

113

Id. at 7.

114

D. & O. at 6.

Booker v. Exelon Generation Co., LLC, ARB No. 2017-0038, ALJ No. 2016-ERA00012 (ARB July 31, 2019) (Decision and Order of Remand).

115

116

Id. at 7.

117

Id. at 8-10.

Respondent revoked her UAA status in retaliation for engaging in protected

activity. 118

On remand, the case was reassigned to ALJ Drew A. Swank. 119 On May 14,

2020, Respondent filed a Motion for Summary Decision arguing that the ALJ lacked

legal authority to review Respondent’s actions, which ALJ Swank denied on

January 21, 2021. 120 The ALJ held a formal hearing which started on September 14,

2021, and continued on seven days over several months until its completion on

February 22, 2022. 121

On June 21, 2022, ALJ Swank issued a D. & O. in which he found that

Complainant engaged in protected activity when she filed complaints with her

superiors and the NRC regarding backdated safety documents, and that she

suffered adverse actions in the revocation of her UAA, which ultimately led to her

termination, and the reassignment of various of her work duties. 122 But the ALJ

found that Complainant failed to establish that her protected activity contributed to

the Respondent’s adverse actions against her. 123 As support for this determination,

ALJ Swank found that Complainant’s evidence in support of the contributing factor

element of her claim merely amounted to temporal proximity, which was

insufficient to establish contributing factor in this case. 124 Regarding her hostile

work environment claim, the ALJ found that Complainant failed to show that

intentional harassment occurred at all, thus she failed to establish that any

intentional harassment occurred because of her protected activity. 125

On June 27, 2022, Complainant appealed ALJ Swank’s decision to the Board.

Both parties timely filed briefs.

118

Id. at 10-11.

119

D. & O. at 6.

120

Id.

121

Id. at 7.

122

Id. at 8-9.

123

Id. at 10.

124

Id.

125

Id. at 12.

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. 126 The

Secretary of Labor has delegated authority to the Board to review ALJ decisions

under ERA. 127 The Board will affirm the ALJ’s factual findings if supported by

substantial evidence but reviews all conclusions of law de novo. 128

DISCUSSION

To prevail on an ERA whistleblower complaint, a complainant must prove by

a preponderance of the evidence that she engaged in protected activity, suffered an

adverse personnel action, and that her protected activity was a contributing factor

in the adverse personnel action taken against her. 129 If a complainant demonstrates

that her protected activity was a contributing factor in the adverse action, the

employer may avoid liability only if it “demonstrates by clear and convincing

evidence that it would have taken the same adverse action in the absence of any

protected activity.” 130

To prevail on a hostile work environment complaint, a complainant must

establish that she engaged in protected activity, that she suffered intentional

harassment related to that activity, that the harassment was sufficiently severe or

pervasive so as to alter the conditions of employment and to create an abusive

working environment, and that the harassment would have detrimentally affected a

reasonable person and did detrimentally affect the complainant. 131

At the hearing below, Complainant asserted that her protected activity

contributed to Respondent’s decision to alter certain of her job duties and revoke her

126

42 U.S.C. § 5851.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

127

29 C.F.R. § 24.110(b); Tran v. S. Cal. Edison Co., ARB No. 2018-0024, ALJ No. 2017ERA-00008, slip op. at 2 (ARB Oct. 24, 2019).

128

129

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

130

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

Williams v. Mason & Hanger Corp., ARB No. 1998-0030, ALJ Nos. 1997-ERA-00014,

-00018, -00019, -00020, -00021, -00022, slip op. at 11-12 (ARB Nov. 13, 2002), aff’d, 376

F.3d 471 (5th Cir. 2004).

131

UAA, which ultimately led to the termination of her employment, and that she

suffered intentional harassment related to her protected activity. On appeal,

Complainant asserts that the ALJ’s D. & O. did not consider all the evidence in the

record or her arguments as they related to her claims, and instead solely relied on

Respondent’s evidence in making his decisions. 132

Respondent did not file a cross-appeal of the ALJ’s decision. Nevertheless, in

its response brief Respondent raises an issue for review by arguing that the Board

does not have jurisdiction over Complainant’s claims. Respondent asserts that the

Department is precluded from reviewing decisions denying unescorted access to

nuclear power workers as these decisions relate to national security clearances. 133

After considering the parties’ arguments, we conclude that the Board has

jurisdiction to examine Respondent’s decision to revoke Complainant’s UAA in the

context of her claims. Having reviewed the evidentiary record, we conclude that the

ALJ failed to fully analyze and weigh all of the evidence in the record on the issue of

contributing factor as to Complainant’s whistleblower claim. We affirm the ALJ’s

finding that Complainant failed to meet her burden of demonstrating that she

experienced intentional harassment related to her protected activity; thus, her

hostile work environment claim fails.

1. The Board has Jurisdiction to Review this Matter

Without properly raising this issue for consideration, 134 Respondent asserts

that the Board lacks jurisdiction to review Respondent’s decision to revoke and

132

Comp. Br. at 13.

133

Resp. Br. at 10-13.

Respondent did not move for reconsideration of the ALJ’s denial of its motion to

dismiss but instead simply included a footnote in its post-hearing brief insisting that “the

DOL lacks jurisdiction to reconsider an NRC licensee’s compliance with UAA regulations.”

Resp. Post-Hearing Br. at 17 n.13. Respondent cited not to Egan but to three district court

cases, none of which arose within the applicable circuit court for appeal of this matter

pursuant to 29 C.F.R. § 24.112(a)) and all of which are factually and legally distinguishable.

Id. (citing Patel v. Dep’t of the Army, No. 1:20-cv-1016, 2021 WL 1656845 (E.D. Va. 2021)

(addressing a government contractor’s alleged due process violations); Reed v. Tenn. Valley

Auth., No. 1:17-cv-00232, 2018 WL 1440829 (E.D. Tenn. 2018) (addressing claims for

common law interference with employment and statutory interference with employment

under a state statute); and Coppett v. Tenn. Valley Auth., 987 F. Supp. 2d 1264 (N.D.

Ala.2013) (addressing alleged Rehabilitation Act violations). Respondent also did not file a

petition for review before the Board raising this issue as required by 29 C.F.R. § 24.110(a),

134

refuse to reinstate Complainant’s UAA, citing Department of the Navy v. Egan. 135

According to Respondent, “Egan mandates that . . . the reviewing official and the

MRO, and not an ALJ, the Board, or the courts, make decisions about who roams

unfettered in nuclear power plants.” 136 According to applicable law, Egan’s reach

extends nowhere near as far as Respondent claims.

In Egan, the U.S. Supreme Court addressed the “narrow question” of whether

an administrative agency could review “the substance of [the Navy’s] underlying

decision to deny or revoke a security clearance in the course of reviewing an adverse

action” in a case involving an employee who maintained nuclear-armed

submarines. 137 The Court found that review was not allowed in that case in light of

the Executive Branch’s constitutionally delegated authority to “classify and control

access to information bearing on national security” and to determine who should be

granted “access to such information[.]” 138 In Egan, the Court “emphasized that the

decision to grant or deny security clearance requires a ‘[p]redictive judgment’ that

‘must be made by those with the necessary expertise in protecting classified

information[,]’ 139 and that “[i]t is this expert, predictive judgment made by

‘appropriately trained’ personnel [about access to classified information] that Egan

insulates from judicial review.” 140 Under Egan and its progeny, it is clear that

but simply addressed the issue in its brief filed in response to Complainant’s petition. The

Board historically adheres to the principle that “’[a] party who neglects to file a crossappeal may not use his opponent’s appeal as a vehicle for attacking a final judgment in an

effort to diminish the appealing party’s rights thereunder.’” Batyrbekov v. Barclays Cap.,

ARB No. 2013-0013, ALJ No. 2011-LCA-00025, slip op. at 8 (ARB July 16, 2014) (quoting

Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227, 232 (1st Cir. 2007) (citation

omitted)). However, in light of the legal question raised regarding Egan’s applicability, the

Board has proceeded to address the issue. See Avlon v. Am. Express Co., ARB No. 20090089, ALJ No. 2008-SOX-00051, slip op. at 5 (ARB Sept. 14, 2011) (Order Denying

Reconsideration) (“While issues . . . may be considered waived, courts can exercise

discretion to ‘consider waived arguments’ when it is ‘necessary . . . or where the argument

presents a question of law . . . .’”) (citations omitted).

135

484 U.S. 518 (1988).

136

Resp. Br. at 12.

137

Egan, 484 U.S. at 520.

138

Id. at 527.

Rattigan v. Holder, 689 F.3d 764, 767 (D.C. Cir. 2012) (Rattigan II) (quoting Egan,

484 U.S. at 529) (emphasis added)).

139

Id. (citing Rattigan v. Holder, 643 F.3d 975, 983 (D.C. Cir. 2011) (Rattigan I)

(alterations added).

140

neither federal courts nor administrative agencies may review the merits of the

government’s 141 decision to grant or deny a security clearance. 142

Egan’s jurisdictional bar arose from and remains focused on decisions made

by experts trained to make the required predictive judgments related to granting or

denying security clearances. 143 Decisions related to granting, suspending, denying

Only one of the four decisions Respondent relies upon in its post-hearing brief

applied Egan to bar a claim involving a private employer, and that case did so without

addressing the private nature of the employment. See Goforth v. Tennessee Valley Auth.,

No. 1:20-CV-254, 2022 WL 1198213, at *1 (E.D. Tenn. 2022) (one of the two defendants was

the TVA, which “is an executive-branch corporate agency of the United States”); compare

Delgado v. Gonzales, 428 F.3d 916 (10th Cir. 2005) (defendants were the U.S. Attorney

General and the Director of the FBI), and Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990)

(defendants included the head of the Directorate for Industrial Security Clearance Review

for the Defense Legal Services Agency within the Department of Defense, the Secretary of

Defense, and the United States), with Hall v. U.S. Army Dugway Proving Ground, ARB

Nos. 2002-0108, 2003-0013, ALJ No. 1997-SDW-00005 (ARB Dec. 30, 2004), aff’d, 476 F.3d

847 (10th Cir. 2007), cert. denied, 552 U.S. 993 (2007) (sole defendant was the U. S. Army

Dugway Proving Ground of America). In its motion to dismiss before the ALJ, Respondent

did cite to the one Circuit Court case that applied Egan to a private employer, Beattie v.

Boeing Co., 43 F.3d 559 (10th Cir. 1994), cert. denied, 514 U.S. 1127 (1995), but it did not do

so in its filings with the Board. Given that our decision is reached on other grounds, we do

not reach this issue in the present case.

141

Makky v. Chertoff, 541 F.3d 205, 212 (3d Cir. 2008) (finding under Egan that “there

is no judicial review of the merits of a security clearance decision”); Zeinali v. Raytheon Co.,

636 F.3d 544, 549 (9th Cir. 2011) (noting that Egan bars “review of the merits of the

security clearance decision.”); Van Winkle v. Blue Grass Chem. Activity/Blue Grass Army

Depot (Van Winkle), ARB No 2009-0035, ALJ No. 2006-ERA-00024, slip op. at 9 (ARB Feb.

17, 2011) (“Egan’s limitation [is the] court’s authority to review a denial, revocation or

suspension of a security clearance”) (citations omitted); Hall v. U.S. Dep’t of Labor, Admin

Rev. Bd., 476 F.3d 847, 852 (10th Cir. 2007) cert. denied, 552 U.S. 993 (2007) (affirming

Board’s determination that employee’s claim of retaliatory revocation of his security

clearance is unreviewable under Egan).

142

Even recent Circuit Court cases that have pushed against the analytical boundaries

identified in Egan have done so within factual scenarios involving a security clearance

related decision. See e.g., Mowery v. Nat’l Geospatial-Intel. Agency, 42 F.4th 428, 435 (4th

Cir. 2022), cert. denied, 143 S. Ct. 783 (2023) (applying Egan to bar review of application for

agency’s Human Reliability Program certification, which required same predictive

judgment as a security clearance given that applicants “‘must already possess or obtain . . .

the Department of Energy’s highest level of security clearance [‘Top Secret security

clearance with Sensitive Compartmented Access approval’] . . . .”) (citing Foote v. Moniz,

143

and/or reinstating unescorted access to a nuclear facility are not equivalent. 144

Therefore, Respondent’s decision to revoke and refuse to reinstate Complainant’s

UAA is not unreviewable under Egan.

The ALJ properly found as such, relying principally on Summerland v.

Exelon Generation Co. 145 In Summerland I, because the employee’s position

required only badge access to a nuclear facility and not “a government-issued

security clearance” the court held that Egan did not prohibit review:

[A]s the Fifth Circuit correctly explained, “[s]ecurity

clearances are different from building access.” The review,

grant, and revocation of security clearances are subject to

procedures, imposed by Executive Order, that address who

may access classified information—not who may enter and

access buildings. The review, grant, and revocation of

751 F.3d 656, 658-59 (D.C. Cir. 2014) (same Human Reliability Program parameters)); see

also Sanchez v. U.S. Dep’t of Energy, 870 F.3d 1185 (10th Cir. 2017) (same).

Toy v. Holder, 714 F.3d 881, 885-86 (5th Cir. 2013), cert. denied, 571 U.S. 1025

(2013) (noting that “security clearances are different from building access”) (citations

omitted)); see also Mowery, 42 F.4th at 436 (citing with approval the Fifth Circuit’s refusal

in Toy to expand Egan to apply to “mere revocation of building access” and the Sixth

Circuit’s determination in Hale v. Johnson, 845 F.3d 224, 231 (6th Cir. 2016), that Egan

does not apply to “‘an agency’s determination regarding an employee’s physical capacity’ to

perform their duties at a nuclear plant.”).

144

455 F. Supp. 3d 646 (N.D. Ill. 2020) (Summerland I). The Summerland case involved

an administrative employee at a nuclear plant who suffered from mental health conditions

but “responsibly manage[d] her treatment” and so maintained a “discipline-free work

record.” Summerland I, 455 F. Supp. 3d at 653. After unilaterally revoking the employee’s

UAA, Pohlman, functioning as Exelon’s MRO, placed the employee on “‘a last chance

agreement'” and warned her that if she continued to request leave for mental health

reasons her UAA would be permanently revoked, admonishing her that “she ‘did not work

at Walmart.’” Summerland v. Exelon Generation Co., 510 F. Supp. 3d 619, 625 (N.D. Ill.

2020) (Summerland II) (citations omitted). Unconvinced by Exelon’s claim that its actions

involved matters of national security, the court found that “[n]o law or regulation provides

for such [a last chance] agreement; rather, Pohlman invented it to punish Summerland for

having requested an ADA accommodation and FMLA leave,” and so allowed various claims

to proceed, including against Pohlman. Summerland II, 510 F. Supp. at 625-33. Although

Respondent was a named party and therefore aware of the case which involved a claim of

mental health-related discrimination related to the actions of the same MRO (Pohlman)

involved in the present case, Respondent did not reference Summerland in its motion to

dismiss before the ALJ.

145

unescorted building access to nuclear power plants, by

contrast, are governed by a wholly distinct set of

regulations. Given the significant distinctions in the legal

regimes governing security clearances and building access,

Defendants fail to show that unescorted access to a nuclear

power plant is the practical or legal equivalent to a security

clearance for Egan purposes. 146

The Summerland I court likewise was not persuaded that Egan applied to

employment decisions related to “sensitive positions,” 147 noting that the record did

not establish that Summerland held a position classified by the federal government

as “sensitive” as opposed to “nonsensitive.” 148

In denying Respondent’s motion to dismiss in the present case, the ALJ held

that Respondent had failed to establish that granting unescorted access to a nuclear

plant is the legal equivalent to granting a security clearance. 149 Relying on

Summerland, the ALJ determined that “Egan and its progeny do not prohibit a

proper determination as to whether the revocation of Complainant’s UAA was a

pretext for discrimination.” 150

At hearing following the motion’s denial, Respondent did not factually

establish that Complainant’s claims involved a security clearance or that she

Summerland I, 455 F. Supp. 3d at 646 (emphasis in original). The Summerland

court noted that Egan did not preclude its ability to review the merits of the employee’s

claims as nothing in the pleadings established that her position at or access to Exelon’s

facility required a security clearance. Id. (citing Hale, 845 F.3d at 231 (for its “holding that

Egan d[oes] not apply where ‘physical fitness’ requirements, not security clearance

determinations, [a]re at issue”); Toy, 714 F.3d at 885 (declining to extend Egan beyond

security clearances to building access decisions); Rattigan II, 689 F.3d at 768 (declining to

apply Egan to security clearance-related decisions made by “‘FBI employees who merely

report security concerns’” and lacked training or specialized expertise)).

146

Summerland I, 455 F. Supp. 3d at 657 (acknowledging Seventh Circuit’s decision in

Whitney v. Carter, 628 F. App’x 446, 456-57 (7th Cir. 2016), extending Egan to decisions

involving “sensitive positions” in recognition of the parallelism between those positions and

holding a security clearance).

147

Id. (quoting Egan, 484 U.S. at 528 (“[T]he [federal] [g]overnment classif[ies] jobs in

three categories: critical sensitive, noncritical sensitive, and nonsensitive.”) (alterations in

original)).

148

149

Order Denying Respondent’s Motion to Dismiss at 6.

150

Id.

occupied a position classified as “sensitive.” According to Complainant, she

performed typical secretarial duties and her position was not classified as

sensitive. 151 Having reviewed the record below, we find that the ALJ properly

determined that Egan’s national security exception does not apply to bar review of

an employer’s actions related to the granting, denial or refusal to reinstate an

employee’s UAA. 152

Respondent’s decision to revoke Complainant’s access badge and to terminate

her employment was based on the routine judgments of its non-governmental

medical and human relations staff. Such judgments are a world apart from the kind

of expert, non-reviewable judgments rendered by governmental national security

specialists and insulated from review under Egan. For the reasons stated above,

and on the factual record established at hearing and now closed, we find that the

ALJ correctly determined that there was no jurisdictional bar to his review of this

matter. Likewise, there is no bar to ours.

151

Tr. at 77.

In this case, we affirm the ALJ’s determination that Egan does not bar review

because Complainant’s claim did not involve a security clearance but merely the revocation

and non-reinstatement of her UAA. Even when Egan does apply, however, it does not bar

review of “whether a security clearance was denied, whether the security clearance was a

requirement of the [employee’s] position, [or] whether the procedures set forth in [the

applicable statute] were followed[.]” Zeinali, 636 F.3d at 550 n.5 (last alteration in original)

(quoting Romero v. Dep’t of Def., 527 F.3d 1324, 1328 (Fed. Cir. 2008) (quoting Hesse v.

Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000), cert. denied, 531 U.S. 1154 (2001)).

Focusing on claims of procedural impropriety, courts have long recognized “the ‘distinction

between challenging the merits of a clearance revocation and challenging the revocation

process,’ noting [courts’] authority over the latter but not the former.” Kristof v. Dep’t of the

Air Force, No. 2021-2033, 2023 WL 2182281, at *3 (Fed. Cir. Feb. 23, 2023) (quoting

Romero, 527 F.3d at 1329 (declining to interpret Egan as having precluded “an employee[’s .

. . ] challenge [to] an agency’s failure to comply with the agency’s own regulations with

respect to a security clearance decision.”); see also El-Ganayni v. U.S. Dep’t of Energy, 591

F.3d 176, 183 (3d Cir. 2010) (noting that there is a distinction between reviewing the merits

of a security clearance revocation decision and reviewing the merits of constitutional claims

arising from a security clearance revocation process) (citations omitted); Duane v. U.S.

Dep’t of Def., 275 F.3d 988, 993 (10th Cir. 2002) (noting that it was not “precluded from

reviewing a claim that an agency violated its own procedural regulations when revoking or

denying a security clearance . . . ”); Jamil v. Sec’y, Dep’t of Defense, 910 F.2d 1203, 1208 (4th

Cir. 1990) (noting that court “possesses the authority to require an agency . . . to follow its

own regulations in making a security clearance determination and in dismissing an

employee.”).

152

2. The ALJ’s Contributing Factor Analysis does not Demonstrate that the

ALJ Considered or Weighed All the Evidence in the Record

Under the ERA, the ALJ must determine whether a preponderance of the

evidence establishes that Complainant engaged in protected activity, that she

suffered an adverse personnel action, and that her protected activity was a

contributing factor in the adverse personnel action taken against her, 153 and if all

those elements are met Respondent may still avoid liability if it “demonstrates by

clear and convincing evidence that it would have taken the same adverse action in

the absence of any protected activity.” 154 Not being barred by Egan from any

component of our typical review, the ALJ was fully authorized to consider all facts

in the record to determine whether any non-compliance by Respondent with

required procedures was evidence relevant to any of the required components of the

ERA claim, including pretext for retaliatory actions, 155 not to determine whether

such non-compliance was “unreasonable or erroneous for other reasons” giving rise

to other causes of action. 156

On review, the Board has the same authority and obligation. The Board

reviews the ALJ’s factual findings under the substantial evidence standard. 157 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.” 158 “The

ARB’s appellate review requires that the ALJ conduct an appropriate analysis of

153

29 C.F.R. § 24.109(b)(1).

154

Id.

Palmer v. Canadian Nat’l Ry./Illinois Cent. R.R. Co., ARB No. 2016-0035, ALJ No.

2014-FRS-00154, slip op. at 53-54 (ARB Sept. 30, 2016) (reissued Jan. 4, 2017) (“Showing

that an employer’s reasons are pretext can of course be enough for the employee to show

protected activity was a ‘contributing factor’ in the adverse personnel action.”) (citing

Bechtel v. Competitive Techs., Inc., ARB No. 2009-0052, ALJ No. 2005-SOX-00033, slip op.

at 13 (“[I]f a complainant shows that an employer’s reasons for its action are pretext, 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.”).

155

156

Van Winkle, ARB No. 2009-0035, slip op. at 11.

157

29 C.F.R. § 24.110(b).

Dalton v. U.S. Dep’t of Lab., 58 F. App’x 442, 445 (10th Cir. 2003) (citations omitted);

Carter v. Marten Transp., Ltd., ARB Nos. 2006-0101, -0159; ALJ No. 2005-STA-00063, slip

op. at 8 (ARB June 30, 2008).

158

the evidence to support his findings.” 159 It is essential that the ALJ “adequately

explain why he credited certain evidence and discredited other evidence.” 160

Although an ALJ “need not address every aspect of [a party’s claim] at length and in

detail,” the findings “must provide enough information to ensure the Court that he

properly considered the relevant evidence underlying [the party’s] request.” 161 A

reviewing court must be able to “discern ‘what the ALJ did and why he did it.’” 162

Although he applied the correct legal standard for the contributing factor

element of the claim, the ALJ did not adequately analyze the evidentiary record or

Complainant’s arguments in the related analysis. A review of the evidentiary record

shows that the ALJ did not mention, discuss, or evaluate the following evidence in

the D. & O.:

•

159

Other Peach Bottom plant employees with UAA holds eventually returned

to work between 2013 and 2014. 163

January 2014 – The effect, if any, of Powell’s reportedly “inadvertent”

closure of AR 01587659 without resolution and Complainant’s subsequent

request to NOS to reopen the issue. 164

January 31, 2014 – Complainant met with Respondent’s Regulatory

Assurance Manager to discuss her backdating concerns. 165

February 7, 2014 – Complainant contacted the NRC to report the

backdating of documentation and filed a claim of retaliation by

Respondent in response to her addressing the backdating issue after

Respondent’s alteration of her job duties on February 1, 2014. 166

April 2014 – At the time Connelly becomes Complainant’s new supervisor

Clem v. Comput. Scis. Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003,

-00004, slip op. at 17 (ARB Sept. 17, 2019).

160

Sea “B” Mining Co. v. Addison, 831 F.3d 244, 253 (4th Cir. 2016) (citations omitted).

161

Mori v. Dep’t of the Navy, 917 F. Supp. 2d 60, 65 (D.D.C. 2013).

Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999) (citation

omitted).

162

CX 44 (chart of Peach Bottom employees with UAA Holds, 2013-2014) at 1-5.

Concannon testified that the MRO allowed another Peach Bottom employee in the past to

return to work despite still being in treatment. Tr at. 390-391.

163

164

Tr. at 21-22.

165

Id. at 22, 125.

166

Id. at 195-96; Order Denying Respondent’s Motion to Dismiss at 2.

•

he is told about her NRC pending issue(s). 167

September 8, 2014 – New supervisor Connelly reports on BOP form that

Complainant avoids old supervisor and talks out loud to herself at her

desk, which leads Respondent to determine that Complainant’s behavior

is “escalating.” 168

September 16, 2014 – After a meeting with the NRC, Complainant met

with Connelly and Rush on the same day to discuss the results of her

Annual BOP Supervisory Review when she was informed that she was

being referred to EAP (after Connelly’s submission of the BOP supervisory

form and Concannon’s forwarding the form to Pohlman).

October 1, and 2, 2014 – Complainant reported to the NRC and ECP her

allegation that Connelly mishandled a document in his office. 169

October 2, 2014 – Connelly made a “Performance Management

Intervention – Verbal Coaching” entry in Respondent’s electronic HR

database regarding Complainant.

October 7, 2014 – Conflicting evidence about whether Connelly provided

any input during the October 7, 2014 meeting, during which the decision

was made to put Complainant’s UAA on hold pending further

evaluation. 170

Connelly’s October 8, 2014 email and word document titled “Viper”

describing his interactions and observations of Complainant. 171

October 21, 2014 – In its submissions to the NRC, Respondent indicated

that on October 21, 2014, Complainant was notified that she was required

to participate in a psychological assessment but she declined the required

testing to return to work, and that she did not make herself available to

participate in the testing. 172 Complainant contends that she never

167

Tr. at 661.

168

Id. at 677 (testimony of Zukauckas), 487 (testimony of Stevens).

169

CX 15 at 1-2; Tr. at 60.

Connelly testified that he “did not, repeat, did not give any input on that call,” Tr. at

587, but Connelly’s OSHA Witness Statement states that he attended the meeting and

“[b]ased on input from myself and HR and the interactions HR had had [stet] with

Complainant, it was decided at [the] end of [the] meeting that her access would be put on

hold and that she would be told to leave the site and not return until she was contacted by

Exelon. I had no role in the decision to put her access on hold. I provided input.” CX 38 at 9.

170

171

RX 53.

CX 33 (Respondent’s documentation for the NRC, or “Evaluation Report,” for

Complainant) at 1 (documenting that Kunkle, after Complainant’s third counseling session

172

•

declined testing but instead Respondent refused to schedule her for the

required testing until she was cleared to return to work without

restrictions. 173 Complainant would not be able to return to work until

after that testing was completed. 174

The role of Techau, if any, in the actions that gave rise to the claim.

Pohlman’s authority, if any, to recommend that a full clearance, free of

conditions, was required for reinstatement of UAA. 175

Complainant’s allegations concerning Respondent’s failures to comply

with regulatory directives, which she asserts as evidence of pretext. 176

on October 16, 2014, recommended counseling for three weeks and then she would reassess

Complainant’s return to work, and that on October 21, 2014, “Access Authorization

subsequently notified Ms. Booker that she was required to participate in a psychological

assessment with the Access Authorization Clinical Psychologist . . . but she declined at the

time, stating that she was ‘not ready.’ Ms. Booker has yet to make herself available to

participate in the psychological assessment.”); CX 43 (NRC’s August 10, 2016

correspondence to Complainant) at 3 (NRC advised Complainant that after her third

counseling session, “[t]he [Access Authorization] group subsequently notified you that they

wanted you to participate in a psychological assessment with the AA Clinical Psychologist

but you declined, stating that you were not ready.”).

CX 27 (transcript of November 3, 2014 voicemail message of Bob Pilkey,

Respondent’s site healthcare professional at Peach Bottom and case manager for

Complainant) at 1 (“[W]e are not going to do the PAI or the interview until after you are

cleared by EAP. . . .[W]hen you are done and ready to come back to work . . . I need to get

clearance from EAP, then we can start setting you up for that interview and the PAI.””); Tr.

at 458-59. At the hearing, Complainant argued that this voice message “show[s] that

Exelon told the NRC that I denied the required testing as required under NRC regulations

for the testing, and that was a false statement. [T]he answering machine messages

specifically . . . show that I did not deny, that I was not eligible to do the testing when I

received my first call.” Tr. at 70.

173

Pilkey did not schedule the meeting or interview, Respondent’s standard protocol

process once an employee’s medical conditions are cleared and a clearance is made to return

to work, “because [Complainant] had not been cleared to return to work full duty. We were

waiting for that clearance and then an assessment would’ve been set up.” Tr. at 468, 472.

174

See 10 C.F.R. § 73.56(e)(6) (During psychological reassessments, if the licensed

psychologist or psychiatrist identifies or discovers any information . . . .”) (emphasis added).

175

The factual record appears to reveal the following with respect to Respondent’s

compliance with NRC regulatory requirements. The regulations clearly allow the Reviewing

Official—Techau in this case; not Pohlman—to place an administratively hold on

Complainant’s UAA “while completing [a] re-evaluation”, 10 C.F.R. § 73.56(f)(3), a process

defined to include review of a criminal history update, a credit re-evaluation, and a

176

The ALJ also did not make any credibility findings or credit or discredit any

testimony after seven days of hearings. Despite the extensive record, the ALJ’s

contributing factor analysis spans roughly two pages, and contains a factual

error. 177 “The ARB’s appellate review requires that the ALJ conduct an appropriate

analysis of the evidence to support his findings,” 178 and a review of the evidentiary

record demonstrates that the ALJ failed to do so in this case and his analysis

consists of mere conclusions. 179

Without a thorough analysis, the Board is unable to ascertain how the ALJ

reached his ultimate findings concerning whether Complainant’s protected activity

was or was not a contributing factor in the Respondent’s adverse action in light of

psychological assessment, if necessary to determine the employee’s continued fitness for

duty. 10 C.F.R. § 73.56(i)(1)(vi). A psychological assessment, if required, must be completed

by a licensed psychologist or psychiatrist. 10 C.F.R. § 73.56(e)(1). Pohlman was neither.

Respondent refused to refer Complainant for a psychological assessment with its longstanding contracted psychologist because her EAP counselor had recommended that she

return to work not “without restrictions” but with the recommended accommodation that

she be allowed to report to one, not both, of her two supervising managers and that her

desk be moved. Tr. at 374-75; CX 27 at 1. During the same timeframe, Respondent allowed

other employees, including one with mental health issues, and another one in ongoing

treatment for substance abuse, to return to work. Tr. 390-92; CX 44 at 1-2. Without the

psychological assessment, Complainant could not be determined fit, or unfit, to return to

work. CX 27 at 1; Tr. at 468, 472. Respondent maintained the “Temporary Hold” on

Complainant’s UAA, which it understood it could do “for up to 10 years” or more without

providing any appeal procedures. Tr. at 374-378. Meanwhile, 10 C.F.R. § 73.56(l) provides

that every NRC licensee must adhere to a process that includes “provisions for the

review . . . of a denial or unfavorable termination of unescorted access . . . [must] allow . . .

an opportunity . . . for an impartial and independent internal management review.”

Although the ALJ correctly noted in his factual history section that it was

Concannon who reviewed Connelly’s completed Annual BOP Supervisory Review form for

Complainant and forwarded it to Pohlman, the ALJ states in his contributing factor

analysis section that it was “Zukauckas [who] determined that Complainant’s BOP form

contained abnormal behavior.” D. & O. at 9.

177

178

Clem, ARB No. 2016-0096, slip op. at 17.

The ALJ concluded that “Complainant’s arguments merely amount to a temporal

proximity between her protected activity and unfavorable personnel actions. Showing that

one occurred after the other is insufficient,” D. & O. at 10, but the ALJ reached this

conclusion regarding temporal proximity without considering a majority of the events

presented by Complainant’s evidence in the record.

179

the record taken as whole. 180 For example, the ALJ’s analysis does not mention

Connelly, or otherwise discuss any of his actions. The ALJ did not credit or discredit

any of Connelly’s testimony. The ALJ also failed to analyze and weigh evidence that

could establish Complainant’s protected activity was a factor in Connelly’s actions

towards Complainant, including Complainant’s October 2, 2014 report to ECP

concerning Connelly, Connelly’s October 2, 2014 electronic database entry for

insubordination, and Connelly’s “Viper” document describing his interactions and

observations of Complainant. Consequently, the ALJ ignored Complainant’s “cat

paw’s theory” argument that she presented in her post-hearing brief and the

evidence in support of her argument that her protected activity was a factor in

Connelly’s decisions that affected the outcome of the October 7th meeting. 181 It may

be that the ALJ found that Complainant’s protected activity was not a factor in any

of Connelly’s actions towards Complainant at any point of the relevant timeline, but

without any specific findings or analysis to that effect the Board cannot reasonably

discern the ALJ’s decision-making process in this case.

Although an ALJ does not need to address every aspect of a complainant’s

claim at length or in detail, the ALJ in this case failed to even mention relevant

factual history or arguments, and his contributing factor analysis did not

adequately weigh the evidence or explain how he credited or discredited certain

evidence in support of his findings. Because we conclude that the ALJ’s finding as to

contributing factor is insufficient to show that he considered or weighed evidence by

the appropriate burden of proof, we remand this matter to the ALJ to fully analyze

the record and make revised findings on the issue of contributing factor in such a

way that explains how the ALJ credited and discredited the parties’ arguments and

the supporting or undermining evidence.

3. The ALJ’s Hostile Work Environment Analysis does not Demonstrate

that the ALJ Considered or Weighed All the Evidence in the Record

The ERA “protects employees who raise nuclear safety-related concerns from

retaliation . . . [and this] protection has been construed to prohibit retaliatory

180

See Clem, ARB No. 2016-0096, slip op. at 16-17.

In her post-hearing brief submitted before the ALJ, Complainant argued that

“Connelly and Zukauckas who knew of my pending NRC actions provided false information

that was used to revoke my badge, invoking the Cat’s Paw Theory.” Comp. Post-Hearing Br.

at 8. An employer can be liable on the cat’s-paw theory if a non-decisionmaker’s act

proximately caused the adverse action. Crosbie v. Highmark Inc., 47 F.4th 140, 144-45 (3d

Cir. 2022).

181

harassment that creates a [hostile work environment].” 182 To prevail on her hostile

work environment claim, Complainant was required to establish, by a

preponderance of the evidence, that:

(1) [s]he engaged in protected activity;

(2) [s]he suffered intentional harassment related to that

activity;

(3) the harassment was sufficiently severe or pervasive so

as to alter the conditions of employment and to create an

abusive working environment; and

(4) the harassment would have detrimentally affected a

reasonable person and did detrimentally affect

[C]omplainant. 183

“Hostile work environment claims involve repeated conduct or conditions that

occur ‘over a series of days or perhaps years and, in direct contrast to discrete acts,

a single act of harassment may not be actionable on its own.’” 184 “Proving a hostile

work environment claim is a high bar.” 185 The conduct complained of must be

“sufficiently severe or pervasive to alter the conditions of the [complainant’s]

employment and create an abusive working environment.” 186 Discourtesy or

rudeness is not harassment, “nor are the ordinary tribulations of the workplace,

such as the sporadic use of abusive language, joking about protected status or

activity, and occasional teasing . . .” 187 Circumstances relevant to the assessment of

whether conduct amounts to a hostile work environment include “the frequency of

the discriminatory conduct; its severity, whether it is physically threatening or

humiliating, or a mere offensive utterance, and whether it unreasonably interferes

182

Mason & Hanger Corp., ARB No. 1998-0030, slip op. at 11.

183

Id. at 11-12 (citations omitted).

Lewis v. U.S. Env’t Prot. Agency, ARB No. 2004-0117, ALJ Nos. 2003-CAA-00005, 00006, slip op. at 5 (ARB June 30, 2008), aff’d, 368 F. App’x 20 (11th Cir. 2010) (citing Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)).

184

Forrand v. FedEx Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016, slip op. at

6 (ARB Jan. 4, 2021).

185

Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062,

slip op. 13 (ARB June 17, 2019) (citing Williams v. Nat’l R.R. Passenger Corp., ARB No.

2012-0068, ALJ No. 2012-FRS-00016, slip op. at 6-7 (ARB Dec. 19, 2013) (other citation

omitted)).

186

Brune v. Horizon Air Indus., Inc., ARB No. 2004-0037, ALJ No. 2002-AIR-00008, slip

op. at 10 (ARB Jan. 31, 2006) (citations omitted).

187

with an employee’s work performance.” 188 A claim of hostile work environment can

be based on the aggregate or cumulative effect of separate acts, which together

establish sufficiently “severe and pervasive” intentional harassment to create an

abusive working environment. 189

The ALJ determined that Complainant failed to meet her burden of

demonstrating she experienced intentional harassment related to her ERAprotected activity: reporting the back-dating of safety-related procedure

documents. 190 In reaching this conclusion, the ALJ considered the following limited

itemization of Complainant’s allegations: (1) that Connelly “hollered” at her and

was physically aggressive on September 25; (2) that Connelly acted in a physically

188

Id. at 11 (citations omitted).

See Stucke v. City of Philadelphia, 685 F. App’x 150, 153-54 (3d Cir. 2017) (rejecting

district court’s reliance upon the “‘bright-line distinction between discrete acts,’ on the one

hand, and the aggregate of non-actionable individual acts that could form the basis of a

hostile work environment claim on the other,” finding this rationale inapposite when

timeliness is not at issue and concluding that the court “should have considered all of the

acts alleged, regardless of whether they were individually actionable.”); Greb v. Potter, 176

F. App’x 260, 263-64 (3d Cir. 2006) (Title VII sex discrimination) (“[W]e analyze the

aggregate effect of all evidence and reasonable inferences therefrom, including those

concerning incidents of facially neutral mistreatment, in evaluating a hostile work

environment claim.”); Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 279

(3d Cir. 2001) (Title VII discrimination and state law discrimination) (“No one event alone

stands out from the rest, but all of the events could be found to aggregate to create an

environment hostile to a person of [the employee’s] religion.”); Onysko v. Utah Dep’t of Env’t

Quality, ARB No. 2019-0042, ALJ Nos. 2017-SDW-00002, 2018-SDW-00003, slip op. at 2

n.3. (ARB Dec. 16, 2020) (Decision and Order), aff’d sub nom. Onysko v. Walsh, Admin. Rev.

Bd., U.S. Dep’t of Lab., Nos. 21-9529, 21-9530, 2022 WL 1251071 (10th Cir. 2022) (affirming

the ALJ “because even viewing the listed alleged adverse actions in the aggregate, there is

no hostile work environment claim” in that “‘the workplace [was not] permeated with

‘discriminatory intimidation, ridicule, and insult,’ that was ‘sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create an abusive working

environment[.].’”) (citations omitted); Jenkins v. U.S. Env’t Protect. Agency, ARB No. 19980146, ALJ No. 1988-SWD-00002, slip op. at 43-44 (ARB Feb. 28, 2003) (“[T]he other 11

personnel actions involving the ‘satisfactory’ evaluations and reduction in work

assignments . . . were not in the aggregate ‘sufficiently severe or pervasive . . . to create an

abusive working environment’ and ‘detrimentally affect’” the complainant’s work.”)

(citations omitted); see also Noviello v. City of Boston, 398 F.3d 76, 93 (1st Cir. 2005) (Title

VII discrimination and state antidiscrimination statute) (“The only question is whether the

bad acts, taken in the aggregate, are sufficiently severe or pervasive to constitute

actionable harassment.”).

189

190

D. & O. at 11-12.

threatening manner while in her cubicle during the October 3 incident; (3) the

“rocky relationship” which Complainant had “over the years” with “supervisors and

colleagues,” described as comparatively “like husband and wife”; and (4)

Complainant’s allegation that she “did not get along” with another named

employee. 191 With respect to the two dated incidents involving Connelly, the ALJ

relied on the separate fact-finding investigations conducted by HR, both of which

concluded that Complainant’s allegations were not substantiated. 192 With respect to

the remaining allegations, the ALJ relied on the hearing testimony of various

witnesses, including Complainant describing her “less than ideal work

relationships” with her co-workers, and determined that Complainant had failed to

show that these difficulties arose after her protected conduct occurred or that they

constituted intentional harassment that developed before her protected activity

occurred. 193

On appeal, Complainant argues in support of her hostile work environment

claim that the ALJ ignored Kunkle’s December 1, 2014 report stating that

Complainant’s “diagnosis was changed to Post-Traumatic Stress Disorder [] after a

few sessions. She has been dealing with work stress and some prior abuse

issues.” 194 She also argues that the ALJ ignored other smaller incidents that, when

considered collectively, demonstrated intentional harassment, including the

removal of her job duties, allegations of HR mishandling its investigations into the

September 25 and October 3 incidents, and Respondent’s failure to treat her as

similarly situated employees were treated when their UAAs were revoked due to

mental health and/or substance abuse treatment but later reinstated even as

treatment continued. 195

Our review of the ALJ’s determinations relevant to Complainant’s hostile

environment claim reveals a lack of consideration of not only the matters identified

on appeal by Complainant, but also a lack of consideration of the discrete, and

aggregated, issues identified in Section 2 above. In the absence of credibility

determinations and lacking the ALJ’s specific evaluation of all of the Complainant’s

191

Id. at 11.

192

Id.

193

Id. at 11-12.

194

RX 30 at 9.

Comp. Br. at 31-32. See Smith v. Dep’t of Lab., 674 F. App’x 309, 315-16 (4th Cir.

2017) (ERA whistleblower claim) (noting the propriety of considering whether an “employer

is selectively enforcing rules or selectively imposing extraordinarily harsh discipline against

whistleblowers as a pretext for unlawful retaliation”).

195

allegations in light of the admitted evidence, the Board is unable to determine

whether the ALJ correctly determined that Complainant’s evidence failed to meet

the “high bar” required to establish a hostile environment claim. It may well not. 196

Even so, the Board can, and does, conclude that the ALJ erred by failing to consider

all of the evidence in the record with respect to this claim, and by failing to identify

and address his consideration of such in the D. & O. Either way, on this record the

Board is unable to ascertain how the ALJ reached his ultimate findings concerning

whether Complainant’s protected activity was or was not related to these

occurrences, and whether the occurrences, discretely or in the aggregate, constitute

intentional harassment that is sufficiently severe or pervasive such that a

See, e.g., Overall v. Tennessee Valley Auth., ARB No. 2004-0073, ALJ No. 1999-ERA00025, slip op. at 17 (ARB June 29, 2007) (reissued July 16, 2007) (affirming finding of

intentional harassment as to 12 incidents related to protected activity, including

anonymous telephone calls and voice messages which the caller blows a whistle, anonymous

notes left at his home and on his truck and at work in his office and on the wall of the men’s

bathroom (“Go home all whistleblowers now”), a fake bomb left in the back of his truck

while parked at a shopping center, and a comment made by his second line supervisor to

him that engineers were “not to make up problems but to find them and correct them”);

Mason & Hanger Corp., ARB No. 1998-0030, slip op. at 44-45 (ERA-complainants

established intentional harassment related to their protected activity by showing multiple

incidents involving “contentious [and mocking] remarks made by co-workers and

supervisory personnel in response to the Complainants’ safety-related concerns” and “four

incidents involving express or implied threats of violence” as these “harassing incidents

were severe, frequent and pervasive”); Smith v. Esicorp, Inc., Case No. 1993-ERA-00016,

slip op. at 12-13 (Sec’y Mar. 13, 1996) (holding that multiple (at least four or five) sarcastic

and derogatory cartoons, which depicted the complainant as a NRC whistleblower and

displayed in a common workplace area on a drawing board for two-and-a-half months,

constituted pervasive and intentional harassment); cf. Onysko v. State of Utah, Dep’t of

Env’t Quality, ARB No. 2019-0042, ALJ Nos. 2017-SDW-00002, 2018-SDW-00003, slip op.

at 2-3 & 2-3 n.3 (ARB Feb. 4, 2021) (Order Denying Reconsideration), aff’d sub nom. Onysko

v. Walsh, Admin. Rev. Bd., U.S. Dep’t of Lab., Nos. 21-9529, 21-9530, 2022 WL 1251071

(10th Cir. 2022) (finding that the eighty-seven enumerated incidents (including namecalling, such as “troublemaker,” being accused of not being cooperative and of poor customer

service, being ordered to attend a meeting, not being allowed to speak during a meeting,

having grievances denied, and having complaints and counter complaints filed against him

citing his behavior) lacked “severe or pervasive conduct” to “create a hostile work

environment claim”); Reed v. Am. Airlines, Inc., ARB No. 2021-0044, ALJ No. 2020-AIR00001, slip op. at 21 (ARB Dec. 16, 2021) (being subjected to a fact-finding investigation

during which the employee was out of service, name-calling, denial of access to pay and

benefits monitoring program, and frequent work assignments that deviated from normal

business practices, when considered together, were “not ‘extremely serious or serious and

pervasive’ enough to meet the high bar of proving a hostile work environment’”) (citing

Brune, ARB No. 2004-0037, slip op. at 10).

196

reasonable person would have been detrimentally affected by them, as Complainant

claims to have been. As such, we remand this matter for more complete findings

and analysis on the hostile work environment claim. 197

CONCLUSION

The Board AFFIRMS the ALJ’s determination that the agency retained

jurisdiction to consider the claim. Concluding that the ALJ failed to fully analyze

and weigh the evidence on the issue of contributing factor, the Board VACATES

the ALJ’s determination that Complainant failed to establish by the preponderance

of the evidence that her protected activity was a contributing factor to the removal

of certain job duties and her UAA, which led to termination of her employment, and

hereby REMANDS, directing the ALJ to fully analyze the record and reexamine

the issue of contributing factor. Likewise, the Board VACATES the ALJ’s

determination that Complainant failed to establish her hostile work environment

claim and REMANDS, directing the ALJ to fully address the allegations of

intentional harassment in light of applicable law.

SO ORDERED. 198

____________________________________

TAMMY L. PUST

Administrative Appeals Judge

____________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

197

See Clem, ARB No. 2016-0096, slip op. at 16-17.

In any appeal of this Decision and Order, the appropriately named party is the

Secretary, Department of Labor, not the Administrative Review Board.

198

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.