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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

KIRTLEY CLEM and

MATTHEW SPENCER,

ARB CASE NO.

2020-0025

ALJ CASE NO.

2015-ERA-00003

2015-ERA-00004

COMPLAINANTS,

DATE: March 10, 2021

COMPUTER SCIENCES

CORPORATION,

RESPONDENT.

Appearances:

For the Complainants:

Stephani L. Ayers, Esq.; Law Offices of S.L. Ayers, Medford Oregon;

Nikolas F. Peterson, Esq.; Hanford Challenge, Seattle, Washington

For the Respondent:

Rachel Linzy, Esq., Joseph R. Ward, III, Esq., Stephen L. Scott, Esq.,

The Kullman Firm, Birmingham, Alabama

Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas

H. Burrell and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the Energy Reorganization Act of 1974

(ERA), as amended, 42 U.S.C. § 5851 (2005), as implemented by regulations codified

at 29 C.F.R. Part 24 (2020). Kirtley Clem and Matthew Spencer (Complainants)

filed complaints alleging that their former employer, Computer Sciences

Corporation (CSC), violated the whistleblower protection provisions of the ERA.

Consolidating the appeals, the Administrative Law Judge (ALJ) found for Clem and

Spencer and awarded damages. CSC appealed the ALJ’s decision, and the Board

vacated and remanded with instructions for the ALJ. On remand, the ALJ again

found for Complainants and awarded damages. We affirm.

BACKGROUND

We fully incorporate the background facts from the ALJ’s initial Decision and

Order,1 the Board’s Decision and Remand Order,2 and the ALJ’s Decision and Order

on Remand.3 We will give an overview of the parties and actions at issue that are

necessary for discussion, with an emphasis on the facts relied on by the parties for

their arguments.

CSC hired Complainants as Senior Programmer Analysts in the summer of

2011.4 At the time, CSC was a prime contractor for the Department of Energy

(DOE) to provide occupational medical services at DOE’s Hanford Site and National

Laboratory (Hanford) in eastern Washington.5 It subcontracted some of its

obligations to HPM Corporation (HPM).6 CSC’s main duty was to provide IT

services for the medical clinic at Hanford.7 The IT team, which was led by Eric

Elsethagen, consisted of Complainants, Michael Johnston, Polly Riley, and Ray

Matthews.8 Kim Conley directed the clinic and reported to George Baxter, the

principal manager of the clinic.9 Both reported to Lisa Poulter, CSC’s Public Health

Sciences Manager.10

In 2011, CSC began producing an electronic records management program

called Occupational Health Management (OHM), which integrated clearances and

Clem v. Comput. Scis. Corp., ALJ Nos. 2015-ERA-00003, -00004 (ALJ Sept. 12, 2016)

(D. & O.).

Clem v. Comput. Scis. Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004

(ARB Sept. 17, 2019) (ARB D. & O.).

Clem v. Comput. Scis. Corp., ALJ Nos. 2015-ERA-00003, -00004 (ALJ Jan. 9, 2020)

(D. & O. on Remand).

CX 9-10.

CX 2.

D. & O. on Remand at 3.

ARB D. & O. at 2.

Id.

medical records to manage worker assignments.11 Clem was responsible for

converting applications to operate with OHM.12 CSC’s IT employees worked with

HPM employees to implement the program, which was scheduled to go live on

August 20, 2012.13

In 2012, CSC’s contract with DOE expired, and HPM won the new prime

contract.14 The companies agreed for CSC to serve as subcontractor on the new

contract.15 In July 2012, Cleve Mooers, HPM’s transition manager, announced that

CSC needed to lay off three programmers by October 1.16 On August 7, Conley

offered the positions to Elsethagen, Johnston, and Spencer.17 Elsethagen and

Spencer, however, resigned from their positions before the new contract began.18 On

September 18, Conley offered the open spots to Riley, an off-site worker, and

Matthews, a junior developer.19

During the time leading up to the new contract, CSC and HPM employees

worked cooperatively on a daily basis. Spencer stated that employees from both

companies were indistinguishable unless they were asked who employed them.20

Joe Vela, the head of Performance Assurance for HPM, met with Complainants

about the transition.21

Complainants made ongoing complaints about the functionality of OHM and

were concerned that it would not perform reliably by the go-live date. In July 2012,

Complainants expressed their concerns to Elsethagen, who responded, “it’s our jobs

to fix issues like this . . . so, to me, it’s go out and do your job.”22 At some point, Lisa

Zaccaria, a Business Process Analyst for CSC, told Spencer to stop raising his

concerns at IT staff meetings.23

D. & O. on Remand at 3.

D. & O. at 4.

D. & O on Remand at 3.

Id. at 2.

Id.

D. & O on Remand at 3.

ARB D. & O. at 3.

Id.

D. & O. 24-25; Hearing Transcript (Tr.) 193.

D. & O. 5; Tr. 496-97.

D. & O. 5.

Tr. 986-87.

ARB D. & O. at 4.

Clem asked Vela for his opinion on the issue, who encouraged Complainants

to bring their complaints to DOE.24 On August 10, 2012, Complainants

anonymously emailed a complaint to the DOE employee-concerns program.25 The

DOE met with Complainants that day and later performed an inquiry at the site on

August 15.26

Clem also sent an anonymous email to Riley on August 10, informing her of

the complaint and asking if she would discuss the issue with DOE.27 Riley

forwarded Clem’s email to Elsethagen soon after.28 Clem subsequently identified to

Riley that he and Spencer were the employees who complained to DOE.29 Riley

replied that she was “shocked, saddened and disappointed” about the email and

lamented their “secretive enrollment of co-conspirators to derail the project.”30

Riley subsequently forwarded Clem’s message and her response to

Elsethagen, noting her disdain for Complainants’ “corporate backstabbing.”31 On

the same day, CSC sent out an email stating that CSC staff should not be

supporting HPM-identified transition work unless directed by Baxter or Conley, and

if an employee had a question as to whether work was CSC transition or HPM

transition, to talk to Conley or Baxter.32

Johnston had expressed concern to Conley about Spencer discussing OHM

with HPM and Lockheed Martin Services, Inc. (LM), the IT contractor for Hanford’s

operations outside of the clinic.33 On September 6, Spencer met with Conley about

Johnston’s concerns. Conley advised Spencer not to speak with Vela about OHM.34

On September 14, Johnston emailed Conley to express concerns about

Complainants spending a lot of time “behind closed doors.”35

Id.

Id.; D. & O. on Remand at 4.

ARB D. & O. at 4.

CX 31.

D. & O. at 10.

CX 37.

Id.

CX 29; ARB D. & O. at 5.

ARB D. & O. at 2-3, 5-6.

D. & O. on Remand at 5.

Id.

Because OHM was not ready by August 20, CSC delayed its go-live date until

September 17.36 After OHM went live, Spencer notified Elsethagen that he received

213,000 error messages from the new system, which had crashed three times in the

first two days.37

On September 18, at HPM’s request, Complainants met with Mooers and

Vela at an off-site restaurant.38 Mooers and Vela requested IT information, and

Complainants discussed their concerns with OHM, including issues that HPM

might need to be aware of during the transition, such as the crashes and the

staffing issues.39 Mooers offered to pay Clem for a transition write-up on staffing

and risk assessment.40 Clem also inquired about a rumor that LM was bidding on

the IT scope for the clinic, which Mooers confirmed.41 All attendees of the meeting

denied that they discussed any CSC proprietary information.42

On September 19, Baxter, Poulter, and Conley received an email chain

between HPM and DOE revealing HPM’s effort to switch from a fixed-price to costreimbursable contract.43 Mooers testified that the switch would replace CSC with

LM for the clinic’s IT work.44

On September 20, Complainants initiated a meeting with Conley to discuss

their ongoing concerns with OHM.45 Conley described the meeting in a statement to

CSC’s Employee Relations office (ER).46 The meeting began with Complainants

voicing their concerns with OHM.47 They also informed Conley that they had met

with Mooers and Vela and discussed CSC’s IT systems and staffing, that LM was

bidding on the IT component, and that HPM had requested Clem to provide

Id.

Tr. 546-47; D. & O. at 15.

ARB D. & O. at 7.

D. & O. on Remand at 5.

ARB D. & O. at 7.

D. & O. at 17.

D. & O. on Remand at 12.

ARB D. & O. at 7.

Mooers Dep. 19-20.

D. & O. on Remand at 6; CX 66.

Id.

consulting on OHM and staffing for HPM’s transition.48 Conley then asked how long

and how often they met with HPM, the information they shared, why HPM met

with them instead of management, and why they thought the meeting was

acceptable.49 Conley also asked Clem whether LM had offered him a job, which he

denied.50 Spencer admitted that “he had talked with a number of LM employees at

all levels.”51

Conley stated that Complainants believed that OHM would suffer

catastrophic failures in the upcoming weeks because no “key staff” would be

retained after the transition.52 Complainants believed the meeting was acceptable

because HPM would become the new prime contractor in October.53

In his statement to ER, Clem said that the purpose of the meeting with

Conley was to make sure she knew the risks from the IT staff being cut.54 He

explained that Elsethagen had told the IT group in July 2012 that they could assist

an HPM employee that had questions regarding the IT systems for transition

purposes “unless it was going to take more than an hour or so.”55

After the meeting, Conley informed Baxter of the meeting and called Poulter

to discuss.56 Conley reported the meeting and that Complainants had provided

information to aid LM in their bidding, knowing that the risk assessment HPM

requested was for LM to take over the subcontract.57

Later in the day, Conley suspended Complainants without pay.58 Conley later

claimed that Poulter had directed her to suspend Complainants to prevent them

from sabotaging the system, but Poulter stated that ER decided to suspend them. 59

Id.

Tr. 430-32.

CX 66.

ARB D. & O. at 7. Most of CSC’s staff, including Conley, believed the reduction in

staff was an unwise decision. Tr. 322-23, 1146.

CX 66.

D. & O. on Remand at 6.

CX 66.

ARB D. & O. at 8.

Id.

D. & O. on Remand at 6.

Id.

Baxter did not recall the details of the suspension and only remembers that he had

not made the decision.60 In her summary of the incident, Kobra Martinez, the ER

employee assigned to the case, detailed that “Conley stated that she will not

terminate the employees because they were already schedule[d] for termination but

wanted them immediately removed from the work site.”61 Clem recalls that Conley

told them they were suspended for “for aiding the competition and supplying

confidential business sensitive information to a competitor.”62

On the same day, Poulter informed Mooers in an email that HPM should

contact Conley to coordinate if HPM needed assistance from a CSC worker.63

Mooers replied asking if CSC had fired IT professions for “aiding the competition,”

to which Poulter responded “no.”64 Later that day, Mooers responded that he was

“told that [Poulter] prohibited any of [her] IT professionals from talking with

HPMC,” and asked her that “if discussing IT with the current IT folks is

troublesome to [her, to] please let [him] know.”65

In a call between Martinez, her supervisor, and CSC’s legal counsel regarding

the incident, counsel said that “only but so much information could have been

shared with HPM” and because “HPM already has access to the meetings, CSC

employees and the client, it’s not unusual for employees to talk among themselves

about work related subjects.”66 ER never reached a conclusion as to wrongdoing.67

After the suspension decision, CSC did not retain Clem for employment in

the follow-on contract, and CSC did not pay Clem and Spencer special pay promised

D. & O. at 20; Tr. 139-41.

CX 66.

Tr. 137.

D. & O. on Remand at 7; CX 60.

CX 60. Poulter, however, testified that she believed Complainants had improperly

shared information with HPM. When asked if she believed that they aided the competition,

Poulter responded that Complainants “certainly undermined CSC’s competitive position in

the course of negotiating the subcontract with the prime.” Poulter Dep. 81. Poulter stated

that HPM was not honoring its agreement for the follow-on contract because it was trying

to remove CSC from the follow-on contract: “CSC’s business interests were at risk based on

HPM’s performance or behavior, and certainly that was not helped by Mr. Clem and Mr.

Spencer going and talking to HPM clandestinely, if that’s the word.” Dep. 49-50, 53-54.

Poulter testified that Clem and Spencer should not have been “colluding” with HPM and

sharing proprietary information “outside of the normal management chain.” Dep. 58.

CX 60.

CX 66. Martinez documented the call in her summary of the incident. D. & O. at 7.

Martinez Dep. 42.

to CSC staff for additional or overtime hours worked during OHM’s

implementation.68 Clem applied for a job with CSC in December 2012 and October

2013 but was not selected for employment.69 Spencer, who was offered a position on

the next contract on August 7 but resigned from the position, took a job at another

company.70

Complainants filed complaints with the Occupational Safety and Health

Administration (OSHA), alleging that CSC unlawfully retaliated against them

under the ERA.71 On November 18, 2014, OSHA found for Complainants.72 CSC

filed objections with the Office of Administrative Law Judges. The ALJ held a

hearing for six days and thereafter ruled for Complainants.73

In his D. & O., the ALJ found that Complainants engaged in protected

activity, that CSC was aware of that protected activity, and that Complainants

suffered adverse actions.74 The ALJ further found that a totality of factors

supported a reasonable inference that the protected activity contributed to their

suspension, CSC’s failure to pay them special pay for overtime work, and CSC’s

decision not to retain or rehire Clem for employment.75 For each of the adverse

actions, the ALJ found that CSC could not prove by clear and convincing evidence

that it was justified in taking its actions.76

The ALJ awarded damages to Complainants. Both were awarded their

salaries for the period of suspension, compensatory damages for their suffering, and

40 hours of “special pay” CSC did not provide.77 The ALJ further awarded Clem for

his lost wages and employer contributions to his 401(k).78

CSC petitioned for review of the ALJ’s decision. The Board affirmed the

ALJ’s findings that Complainants engaged in protected activity, that CSC was

aware of the protected activity, and that CSC took adverse employment actions

ARB D. & O. at 9.

Id.

Tr. 487-88.

D. & O. at 21.

ARB D. & O. at 10.

Id.

D. & O. at 22-23.

Id. at 23-25.

Id. at 26-28.

Id. at 35.

Id.

against them.79 The Board, however, held that the ALJ erred in describing the

contributing-factor casual standard and same-action defense standard and by

failing to adequately engage the parties’ arguments and evidentiary record.80 The

Board therefore vacated the decision and damages award and remanded for the ALJ

to apply the correct standards on remand.81 The Board also provided the ALJ with

several instructions to fully analyze the record, weigh evidence, and make findings

of fact by a preponderance of the evidence on the issues.82

In his D. & O. on Remand, the ALJ discussed the Board’s instructions on

remand and re-analyzed the contributing-factor causal and same-action defense

issues.

The ALJ first discussed the contributing factor element of the whistleblower

claim using the correct standard: whether Complainants demonstrated by a

preponderance of the evidence that their protected activity was a contributing factor

to the adverse actions against them.83 For this factor, the ALJ first considered

whether the protected activity contributed to the suspension.

The ALJ found temporal proximity between the protected activity and the

suspension and determined that Complainants’ disclosure of the restaurant meeting

was not an intervening event that would negate the circumstantial value of the

temporal proximity.84 The ALJ concluded that it was implausible that a meeting

with HPM employees would suddenly result in suspension, noting CSC’s and HPM’s

history of working cooperatively, especially during transition, Elsethagen’s

ARB D. & O. at 11-14.

ARB D. & O. at 15-16.

Id. at 22-23.

Specifically, the Board ordered the ALJ to (1) analyze the record and address CSC’s

argument and evidence that CSC was concerned with HPM attempting to substitute LM for

CSC and suspended Complainants under the belief that they were colluding with HPM, (2)

evaluate CSC’s arguments and supporting evidence that CSC warned employees not to

work with HPM on transition-related activities without permission, (3) assess the

testimony of Conley, Baxter, and Poulter concerning the meetings and decision-making that

took place on September 20 and explain why or why not he disbelieves their testimony, (4)

explain how the ALJ’s findings that CSC’s stated reasons are pretexual support his

ultimate findings of contribution and the CSC’s inability to prove its same-action defense,

(5) analyze the evidence concerning the role that ER played in the investigation and

disciplinary process, and (6) weigh Poulter’s denial to Mooers that Complainants were

suspended for aiding the competition with the remainder of the email conversation and the

record in general. ARB D. & O. at 21-22.

D. & O. on Remand at 8-9.

Id. at 9-11.

permission for CSC employees to provide IT information to HPM, and the fact that

Complainants were not in a position to provide proprietary information.85

The ALJ also found CSC’s stated reasons for the suspension were pretextual,

concluding that CSC did not have a good-faith belief that Complainants had shared

proprietary business information with HPM.86 The ALJ found that testimony from

Mooers and Conley established that Complainants had no access to proprietary

information and that CSC had no reason to think otherwise.87 ER documented that

“only but so much information could have been shared with HPM.” The high level of

cooperation between the two companies further made it unlikely that CSC believed

the meeting violated company policy, and Complainants’ persistent complaints

about OHM distinguished them from the rest of the staff.88 The ALJ also

highlighted that none of CSC’s personnel took responsibility for the suspension,

concluding that an employer would presumably be willing to admit to such a

decision if it had a legitimate basis.89 The ALJ, therefore, concluded that

Complainants’ protected activity contributed to their suspension.

Next, the ALJ considered whether the protected activity led to the decision

not to provide special pay to Complainants. The ALJ noted that CSC promised

special pay to staff for overtime work but then alleged that the pay was withheld

because Complainants were not “giving 100%.”90 The pay however was for extra

hours, not effort, and no other employees were denied it for lack of effort.91 The ALJ

thus found contribution.

The ALJ then considered whether the protected activity contributed to the

decision not to retain Clem for the next contract. The ALJ found choosing a lessexperienced person for a short-staffed team counterintuitive.92 Further, the decision

not to retain Clem was made after Clem made ongoing complaints about OHM and

before the Conley meeting.93 The ALJ therefore found the protected activity

contributed to the decision.

Id. at 10-11.

D. & O. on Remand at 11.

Tr. 1109; Mooers’ Dep. 15.

D. & O on Remand at 13.

Id.

Id. at 14.

Id.

Lastly, the ALJ found that the protected activity contributed to the failure to

rehire Clem. The ALJ found CSC’s proffered reason for not rehiring him, that they

received stronger resumes, not credible and unsupported.94 The ALJ also found

contribution supported by temporal proximity because Clem was not rehired in

December 2012 or October 2013, both within approximately one year of the

protected activity and the suspension.95

Because Complainants had proven that their protected activities contributed

to the adverse employment actions, the ALJ then analyzed CSC’s same-action

defense to determine whether CSC demonstrated by clear and convincing evidence

that CSC would have taken the same adverse actions if there were no protected

activity. The ALJ noted that the question in this case was whether CSC would have

taken the same adverse action against Complainants if it had only learned about

the off-site meeting with HPM, without any connection to complaints about OHM.96

For the suspension, CSC argued that Complainants’ disavowed knowledge of

the proper protocol for speaking with HPM was not credible because Complainants

knew LM was a direct competitor and that they knew that CSC was deliberately

withholding information from HPM.97 The ALJ found that the assertion was on

shaky evidential ground when considering the whole record, citing the evidence of

close collaboration between the companies during transition and Elsethagen

permitting IT staff to provide information to HPM on transition matters.98 Further,

Mooers had asked Poulter to inform him if discussing IT staff with CSC was

troublesome to her after she suspended Complainants, which suggested there was

no well-known policy that CSC employees could not exchange information with

HPM.99

The ALJ further opined that the discrepancies in testimony regarding the

decision-making process undermined CSC’s defense, highlighting that no CSC

employee would admit to or identify who made the decision to suspend.100 Poulter’s

denial to Mooers that she suspended the employees for aiding the competition also

weakened CSC’s defense, and Mooers’ surprise by the suspension of Complainants

Id.

Id. at 15.

Id. at 17.

Id.

Id. at 18.

100

Id.

suggests that Complainants’ concerns with OHM played a role in the adverse

actions against them.101

The ALJ then addressed the meeting between Conley and Spencer on

September 6, in which she advised Spencer not to speak with Vela about OHM.102

The ALJ opined that the meeting was the strongest evidence supporting CSC’s

argument that Spencer knew not to speak to HPM about OHM and that providing

information to HPM was suspension-worthy.103 The ALJ’s issue with the evidence,

however, was that the command was directed at restricting Spencer’s protected

activity, expressing concern about OHM, not protecting proprietary business

information.104 The ALJ found the evidence supported a conclusion that CSC’s main

concern regarding Complainants’ discussions with HPM was their complaints about

OHM.105 The ALJ therefore found that CSC failed to prove their same-action

defense for the suspensions.

The ALJ next found that CSC failed to demonstrate with clear and

convincing evidence that it would not have given Complainants special pay absent

their protected activity. Even if such pay were discretionary, as argued by CSC, the

ALJ determined that CSC would have provided Complainants special pay if they

had not made the complaints, as their colleague Johnston received special pay after

working the same hours and not engaging in protected activity.106

The ALJ then found that CSC failed to prove that it would not have retained

Clem absent the protected activity, concluding that it was counterintuitive to select

a more junior developer and remote worker for an IT team with low staffing and

highlighting that the initial three selections were all senior programmers like

Clem.107 The ALJ noted that CSC was likely aware of Complainants’ protected

activity when the selections were made because DOE had already investigated their

complaints and Conley had already told Spencer not to discuss OHM with HPM.108

Last, the ALJ found that CSC failed to prove its defense regarding rehiring

Clem. Conley claimed that she did not hire Clem because of reliability and trust

issues from his conversations with HPM, despite finding him eligible. The ALJ

101

Id. at 19.

102

Id. at 19-20.

103

Id.

104

Id. at 20.

105

Id.

106

Id.

107

Id. at 21.

108

Id.

found that her explanations failed to show it was highly probable she would not

have hired him despite his protected activity.109

Because CSC failed to prove its affirmative defense, the ALJ then discussed

damages. Observing that the Board vacated the award in the initial decision but did

not suggest any error, the ALJ fully incorporated his analysis and findings in his

initial damage award.110

CSC filed a timely petition for review of the ALJ’s findings thereafter.

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.111 The

Secretary has delegated that authority to the Administrative Review Board.112 The

ARB will affirm an ALJ’s findings of fact when supported by substantial

evidence.113 “Substantial evidence is “‘more than a mere scintilla.’ It means . . . such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’”114 The threshold for this “evidentiary sufficiency is not high.”115 This

test “limits the reviewing court from ‘deciding the facts anew, making credibility

determinations, or re-weighing the evidence.’”116

DISCUSSION

The ERA’s whistleblower statute provides that, “No employer may discharge

any employee or otherwise discriminate against any employee with respect to his

compensation, terms, conditions, or privileges of employment because the employee”

109

Id.

110

D. & O. on Remand at 22.

111

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); see 29 C.F.R. § 24.110 (2020).

112

29 C.F.R. § 24.110(b) (2020) (“The ARB will review the factual findings of the ALJ

under the substantial evidence standard.”).

113

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v.

NLRB, 305 U.S. § 197, 229 (1938)).

114

115

Id.

Stone v. Webster Const., Inc, v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th Cir.

2012) (quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)).

116

engaged in protected activity,117 including any “action [designed] to carry out the

purposes of [the nuclear safety statutes].”118 Courts interpret the statute broadly to

implement its “broad, remedial purpose.”119

On remand, the Board tasked the ALJ with re-evaluating two of the required

findings in an ERA whistleblower claim.120 First, whether Complainants

demonstrated by a preponderance of the evidence121 that their protected activity

was a contributing factor to the adverse actions against them. Second, whether CSC

demonstrated by clear and convincing evidence122 that it would have taken the

same unfavorable personnel action in the absence of protected activity. In his initial

decision, the ALJ also made findings regarding damages awards after finding

Complainants prevailed on their claim, which he incorporated into his decision on

remand as the ARB did not address those findings in its remand order. On appeal,

CSC challenges the ALJ’s findings in favor of the Complainants for each adverse

action on remand and the damages awards provided to Clem and Spencer. We

address each issue in turn.

1. Contributing Factor

CSC argues that the record does not support the ALJ’s finding that

Complainants’ protected activity contributed to the adverse actions against them.

Under this element of an ERA whistleblower claim, a complainant can meet this

“rather light burden” by demonstrating that their protected activities “tended to

117

42 U.S.C. § 5851(a)(1).

118

Am. Nuclear Res., Inc. v. U.S. Dep’t of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998).

119

Id. (quoting Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1163 (9th Cir.

1984)).

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

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

unfavorable or adverse personnel action, and that his protected activity was a contributing

factor in the unfavorable personnel action taken against him. If the complainant’s protected

activity was a contributing factor in the adverse action, the employer may avoid liability

and damages only if it demonstrates “by clear and convincing evidence that it would have

taken the same unfavorable personnel action” in the absence of the protected activity. See

Clem v. Comput. Scis. Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004, slip

op. at 11 (ARB Sept. 17, 2019); 42 U.S.C. § 5851(b); 29 C.F.R. § 24.109(b).

120

Preponderance of the evidence requires the ALJ to determine whether the party

with the burden has proven that the fact is more likely than not. Clem, ARB No. 2016-0096,

slip op. at 19.

121

An employer satisfies the clear and convincing burden when it shows that it is

“highly probable” that it would have taken the same action in the absence of protected

activity. Id.

122

affect [the adverse action] in at least some way.”123 A contributing factor may be

“any factor, small or big, that actually influenced the employer’s actions, regardless

of how many other influences there were,” so “once an ALJ decides that protected

activity contributed, no number of legitimate reasons can undo that finding.”124

CSC challenged the ALJ’s finding that Complainants’ protected activity

contributed to the suspension, arguing that the ALJ disregarded or

mischaracterized evidence supporting CSC’s position. For instance, though CSC and

HPM workers routinely worked on matters together at Hanford, Complainants’

September 18 restaurant meeting was not with front-line clinic employees but with

higher level managers at HPM. CSC had learned that HPM managers had been

working to replace CSC with LM and was aware of Complainants’ interaction with

HPM and LM staff at the clinic in early September. Mooers was HPM’s owner’s

husband and a transition manager and admitted that he did not routinely speak

with CSC IT staff.125 Vela was the quality insurance manager for HPM. While there

was a high level of interaction between employees of both companies, the ALJ

conflated the interactivity with clinic workers and with managerial level employees

in concluding that the restaurant meeting was typical and to be expected.

CSC also argues that the July 2012 email from Elsethagen permitting CSC

employees to assist HPM employees was incorrectly cited to support a finding that

the restaurant meeting was an authorized part of transition. First, the email

limited assistance to “an hour or so” and does not logically permit an after-hours

meeting at an off-site location. Further, the approval was in response to a specific

request regarding inquiries from HPM regarding a certain IT system and did not

translate into a general rule allowing CSC staff to discuss IT information with

anyone at HPM at any time.126

Any notion of a general rule permitting meetings between HPM and CSC

staff is rebutted by other actions by CSC, including Baxter’s email to HPM in July

2012 to confirm that “all requests for contract transition support (meeting requests,

data requests, etc.) be sent to CSC management” and Riley’s demand that HPM and

LM elevate their request for access to a patient database to her management in

September 2012.127 Most notably, the email sent by CSC on August 10, 2012, which

informed staff that they should not be working to support HPM-identified transition

Deltek v. Dep’t of Labor, 649 Fed. Appx. 320, 329 (4th Cir. 2016) (quoting Feldman v.

Law Enf’t Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014)).

123

Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, ALJ No. 2014-FRS-00154, slip

op. at 64 (Jan. 4, 2017) (Corchado, J., concurring).

124

125

CSC Brief (Br.) at 13.

126

CSC Br. at 11-12.

127

CSC Br. at 12.

work unless directed by Baxter or Conley, set boundaries for CSC staff that logically

did not authorize a meeting such as the one at the restaurant. These actions, as

CSC points out, were not discussed by the ALJ.

CSC further argues that the record demonstrates that Complainants were

aware of the boundaries for interacting with HPM staff. After Johnston had notified

Conley of suspicious closed-door meetings with HPM and LM personnel in the

clinic, Conley spoke with Spencer. Spencer noted in his daily journal that Conley

had advised him not to speak with HPM about OHM and informed Clem about the

counseling. In his statement to HR, Clem wrote that “[w]e were told you don’t

discuss CSC scope (IT) with HPM.”128

CSC’s arguments are persuasive and present support for reaching a finding

that differs with the ALJ’s. Under the pertinent standard of review, however, “the

possibility of drawing two inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being supported by substantial

evidence.”129 In our review, we are unable to determine the facts anew, make

credibility judgments, or re-weigh the evidence in the record.130 Even if a reviewing

court disagrees with the ALJ’s factual findings, the court will still uphold the

findings if substantial evidence supports the conclusion.131

Here, several pieces of evidence in the record support the ALJ’s finding. First,

the temporal proximity between the protected activity, namely voicing concerns to

Conley about OHM, and the suspension provided circumstantial evidence towards

128

CX 71.

Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) (citing NLRB v. Nevada

Consol. Copper Corp., 316 U.S. 105, 106 (1942)).

129

Stone & Webster Const., Inc., 684 F.3d at 1133 (quoting Moore v. Barnhart, 405 F.3d

1208, 1211 (11th Cir. 2005)).

130

See Sharpe v. Supreme Auto Transp., ARB No. 2017-0077, ALJ No. 2016-STA-00073,

slip op. at 5 (ARB Dec. 23, 2019) (“We must uphold an ALJ’s factual finding that is

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.’”); see also Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013)

(“It may well be that reasonable minds would disagree as to [the finding], but it is clear

from the record that the ALJ . . . simply reached a conclusion, supported by substantial

evidence.”); Yi Teng Zheng v. Bd. of Immigr. Appeals, 235 F. App’x 757, 758-59 (2d Cir.

2007) (“Although we do not agree with” the finding, “we need not remand on that basis

because we can confidently predict that the agency would adhere to its adverse credibility

finding on remand.”); Dema v. Gonzales, 193 F. App’x 109, 110 (2d Cir. 2006) (“Although we

do not agree with all of the [factual findings], remand is not required because we can

confidently predict that the decision-maker would reach the same conclusion on remand.”).

131

finding contribution.132 Second, Conley admitted in her testimony that Poulter

informed her to immediately suspend Complainants because CSC management was

worried that Complainants could cause the failure of OHM that they had warned

management about, suggesting that Complainants’ protected activity had some

effect on their suspension.133 Further, Mooers’ reaction to Complainants’ suspension

and Elsethagen’s email permitting CSC staff to assist HPM staff on transition

demonstrate that there was no clear or well-known policy against discussing IT

matters with HPM staff. These facts all indicate that Complainants’ OHM

complaints at least played a part in their suspension.

While evidence in the record supports Complainants’ position, it is entirely

possible that a reasonable mind could have come to a different finding than the

ALJ’s, given the strong evidence favoring CSC’s position. However, at this point, the

egg in this case has been scrambled, as we are unable to substitute our judgment

with the ALJ’s under the applicable standard of review. We therefore hold that

substantial evidence supports the ALJ’s finding that Complainants’ protected

activity contributed to their suspension.

CSC also objects to the ALJ’s finding that the protected activity contributed

to the failure to retain or rehire Clem.134 CSC argues that the ALJ was improperly

acting as a “super-personnel department” when opining that CSC’s reasons for not

retaining or rehiring Clem were insufficient. CSC notes that Spencer was offered a

job on the new contract prior to the suspension and that the ALJ failed to consider

all of CSC’s reasons why it did not rehire Clem.

Given that substantial evidence supports the ALJ’s finding regarding the

suspension, however, CSC’s arguments do not persuade us that Clem’s protected

activity did not also contribute to the decision not to retain or rehire him. Along

with the evidence supporting the suspension finding, the ALJ cited evidence that

Clem had made complaints about OHM prior to the decision not to retain him, that

the decision to hire a less experienced IT worker for a short-staffed team was

counterintuitive, and that the decisions not to hire Clem occurred within a year of

the suspension. Though CSC proffered several reasons why they did not retain or

Temporal proximity between an adverse action and protected activity may

constitute circumstantial evidence of retaliation, though the causal connection may be

severed “where the protected activity and the adverse action are separated by an

intervening event that independently could have caused the adverse action.” Robinson v.

Nw. Airlines, Inc., ARB No. 2004-0041, ALJ No. 2003-AIR-00022, slip op. at 9 (ARB Nov.

30, 2005).

132

133

Tr. 1147-49.

CSC does not present an argument against the ALJ’s finding that the OHM

complaints contributed to the failure to provide Complainants special pay.

134

rehire Clem,135 they do not negate a finding that the protected activity also

contributed to the decision not to employ Clem. Further, the ALJ is not “required to

discuss every piece of evidence submitted” in its decision, and his “failure to cite

specific evidence does not indicate that such evidence was not considered.”136

Accordingly, we shall not disturb the ALJ’s findings.

2. Same-Action Defense

CSC argues that it had proven that it would have suspended and withheld

special pay from Complainants and declined to retain or rehire Clem absent their

protected activity. If an ALJ determines a complainant’s protected activity

contributed to an adverse employment action, an employer may avoid liability by

proving by clear and convincing evidence that it would have committed the adverse

action in the absence of the protected activity.137 Clear and convincing evidence

demonstrates “that a fact is ‘highly probable’ and ‘immediately tilts’ the evidentiary

scales in one direction.”138 This “is a tough standard [for employers], and not by

accident,” as “Congress appears to have intended that companies in the nuclear

industry face a difficult time defending themselves.”139

As directed by the Board, the ALJ discussed on remand CSC’s argument that

it had a good-faith belief that Complainants violated company policy by meeting

and sharing proprietary information with HPM, which CSC contends would have

warranted the adverse actions against Complainants.140 The ALJ found that CSC

did not have such a belief, noting that Complainants were not in a position to share

proprietary information and that testimony indicated that no proprietary

information was discussed at the restaurant meeting.

CSC argues that the ALJ improperly focused on what actually happened, as

opposed to what CSC believed to have happened, and failed to address the evidence

regarding the attempt to replace CSC with LM on the IT subcontract. CSC cites to

Conley’s documentation of the September 20 meeting, in which she noted that

CSC did not list these reasons, however, in the section of its brief discussing

contribution for failure to retain and rehire Clem.

135

Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citations

omitted).

136

Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA00006, slip op. at 9 (ARB Apr. 25, 2014).

137

138

Id. at 11 (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)).

Id. at 9 (quoting Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th

Cir. 1997)).

139

Martinez, the ER employee, testified that sharing information with a competitor

would be considered a serious offense under CSC policy. ARB D. & O. at 9.

140

Spencer had provided information to LM for a pricing proposal and that

Complainants had provided information about the IT systems to HPM, which

demonstrated her understanding of the conversation with Complainants.141 A day

before the suspension, an email informed CSC that HPM was attempting to change

the contract with the DOE from fixed-firm costs to cost-reimbursable, which would

replace CSC with LM. HPM had also been delaying the execution of the subcontract

with CSC.142 CSC staff knew that Complainants had met with HPM and LM, and

HPM’s proposal to switch the contract noted that it included “more technical

information.”143 Spencer also informed Conley that he had met with all levels of LM

in their meeting. CSC contends that this evidence proves that it believed at the time

that Complainants had shared proprietary information with a “direct competitor.”

CSC is correct that this evidence is sufficient for the ALJ to have found it had

a good-faith belief that Complainants gave away proprietary information and that

the ALJ’s decision lacked discussion of LM’s role in the events. As discussed supra,

however, our main concern on review is whether substantial evidence supports the

ALJ’s finding that CSC did not have a good-faith belief. CSC conceded indirectly

that Complainants’ complaints about OHM were a factor in the suspension decision.

CSC believed that they might sabotage the program. Evidence in the record

demonstrated that Complainants did not have access to pricing data, which was

stored on a separate server, and that CSC knew so, as counsel for CSC stated that

“only but so much information” Complainants could have shared. Indeed, Conley

could not say what proprietary information Complainants could have used or how

they undermined CSC’s competitive position. Further, Poulter denied to Mooers

that CSC suspended Complainants for “aiding the competition.” This evidence

supports the ALJ’s finding.

Evidence that there was not a well-established policy for speaking with HPM

employees further undermines CSC’s defense. Employees from both companies

interacted with each other frequently before and during transition. Elsethagen gave

permission to staff to assist HPM employees with transition matters. After the

suspension, Mooers sent an email asking Poulter to let him know if she had an issue

with HPM staff discussing IT with CSC staff. On the other hand, CSC points to its

email to HPM asking that “all requests for contract transition support be sent

through CSC management” and the notice sent on the day of the suspension

reminding CSC employees to coordinate transition through CSC management.

CSC further cites Spencer’s September 6 meeting with Conley, in which she

warned him not to discuss OHM with HPM, as evidence that CSC warned staff not

141

CSC Br. 22-23; CX 66.

142

Tr. 1516-17.

143

CSC Br. 22.

to meet with HPM regarding transition and that Complainants were aware of this

policy. The ALJ acknowledged that this was CSC’s “strongest evidence” of their

contention. Complainants argue that this meeting attempted to limit their protected

activity, discussing OHM, rather than protect CSC’s proprietary business

information. The ALJ found this to demonstrate that CSC was more concerned

with Complainants’ complaints about OHM than them meeting with HPM staff.

While this evidence may adequately support a finding in favor of either party,

our review is limited to whether the ALJ’s finding that CSC failed to prove its

defense by clear and convincing evidence is supported by substantial evidence. We

hold that it is and, therefore, shall affirm this finding.

The ALJ was unpersuaded by CSC’s arguments that the remaining adverse

actions would have occurred in the absence of Complainants’ protected activity. For

the special pay, the ALJ noted that CSC’s explanation that Complainants were not

paid for failing to “give 100%” was unconvincing, given that other CSC workers who

did not engage in protected activity but worked similar hours were provided the

pay. For failure to retain Clem, the ALJ was unpersuaded by CSC’s argument that

it hired Matthews over Clem to have an “available mix of skills,” considering the

original three selections were all senior programmers. Last, the ALJ found CSC’s

explanation that Clem was not rehired because of reliability and trust issues,

despite Conley finding him eligible, to be ambiguous. Because substantial evidence

supports the ALJ’s finding for the suspension, it is hardly possible to conclude that

substantial evidence does not support the ALJ’s findings for the subsequent adverse

actions.

3. Damages Award

CSC contests several aspects of the ALJ’s damages award, arguing that it

was not supported by substantial evidence.144 Incorporating the damages award

from the initial D. & O., the ALJ awarded Clem $172,889.21 in back pay145 and

$30,000 in compensatory damages and awarded Spencer $3,191.12 in back pay146

Complainants also contest the damages award, arguing that the ALJ should have

awarded higher compensatory damages to Complainants and more special pay to Spencer.

We shall not consider Complainants’ arguments, however, as they did not file a petition for

review of the damages award. See Talukdar v. U.S. Dep’t of Veteran Affs., ARB No. 20040100, ALJ No. 2002-LCA-00025, slip op. at 8 (ARB Jan. 31, 2007); Adm’r, Wage and Hour

Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024, slip op.

at 5 (ARB Dec. 9, 2020).

144

Clem’s back pay included: $2,716.95 in pay lost because of his suspension; $1,728.80

in special pay withheld; $7,884.24 in employer contributions to his 401(k); and $160,559.22

in lost wages. D. & O. on Remand at 22.

145

and $10,000 in compensatory damages. Damages awards are factual findings and

must be supported by substantial evidence.147

CSC first contests the ALJ’s reward of loss of contribution from CSC to

Clem’s 401(k) retirement account. CSC argues that the only evidence of the

contribution, pay stubs from 2012, was insufficient and that the award should be

totally reversed.148 That year, however, was the year Clem was suspended, meaning

it was the most recent evidence of what CSC was contributing for him, and

testimony established that CSC employees were still receiving “full benefits” at the

time of the hearing.149 This award is supported by substantial evidence.

CSC next argues that Clem’s special pay award should be reduced because

evidence demonstrates that Clem had already received 36 of 61 overtime hours he

submitted for special pay.150 Complainants respond that Clem asserted that he did

not receive a portion of the special pay for hours he did work, rather than no special

pay at all.151 Because the record lacked documentary evidence for the precise

number of hours, the ALJ awarded the lowest of Clem’s estimate from his

testimony. We decline to disturb the ALJ’s award.

Last, CSC argues that Complainants are not entitled to any compensatory

damages. During the hearing, two psychologists who had treated Clem testified

about the suspension’s emotional impact. Dr. Dan Lowe, who Clem saw for

treatment four times, testified that Clem’s history of psychological issues

contributed to the reason he sought treatment in 2014. Dr. Lowe did not believe

that Clem suffered any mental health conditions directly related to the

suspension.152 Dr. Naughne Boyd, who Clem saw at least 28 times, connected

emotional trauma experienced by Clem to the retaliation.153

Spencer’s back pay included: $1,701.92 in pay lost because of his suspension; and

$1,489.20 in special pay withheld. D. & O. on Remand at 23.

146

See Rudolph v. Nat’l R.R. Passenger Corp. (AMTRAK), ARB Nos. 2014-0053, -0056,

ALJ No. 2009-FRS-00015, slip op. at 14 (ARB Apr. 5, 2016); Youngerman v. United Parcel

Serv., Inc., ARB No. 2011-0056, ALJ No. 2010-STA-00047, slip op. at 10 (ARB Feb. 27,

2013).

147

148

CSC Initial Br. 27.

149

Tr. 1284.

CSC cites to a 158 page exhibit (CX 117) in support of this contention but fails to

include the precise page number in the exhibit where such documentation can be found.

CSC Initial Br. 27.

150

151

Tr. 189-90.

152

Tr. 199; Lowe Dep. 86, 92-93.

153

Tr. 298-99, 304.

CSC contends that Complainants did not prove causation between Clem’s

emotional distress and the adverse employment actions. CSC cites Dr. Lowe’s

testimony that Clem already had a history of mental health conditions and that the

suspension did not lead to any further conditions. CSC also cites Rodriguez v.

Bowen, 154 which it claims states that the ALJ must accept Dr. Lowe’s testimony

because the opinion of a treating physician is subject to special weight.

Under the ERA, however, a complainant needs only to prove that the adverse

action caused emotional pain and suffering or mental anguish, not a diagnosed

mental health condition.155 Further, while Rodriguez does give a treating health

professional’s opinion special weight, the expert opinion is not necessarily

conclusive and may be disregarded for specific, legitimate reasons.156 Here, Dr.

Boyd, who had treated Clem many more times than Dr. Lowe, opined that the

suspension caused Clem emotional distress, including sleep issues, lack of

confidence, anxiety, and depression.157 Dr. Lowe did not deny that the retaliation

caused Clem emotional distress, so his testimony did not negate Dr. Boyd’s. Clem’s

compensatory damages award, therefore, is supported by substantial evidence.

For Spencer’s compensatory damages award, CSC argues for reversing the

award because Spencer had already resigned and found a new job, did not seek

mental health treatment, and any stress he experienced came from the job’s long

hours.158 The ALJ cited to Spencer’s testimony that he had sleeping issues after the

suspension and his worries that his suspension will prevent him from getting a job

in the future.159 The ALJ also cited Spencer’s wife’s testimony that Spencer became

withdrawn, lacked energy, and had difficulty sleeping.160 Because Spencer did not

experience the same effects as Clem, the ALJ awarded Spencer a smaller award.

This evidence is adequate to support the award.

CONCLUSION

154

Rodriguez v. Bowen, 876 F.2d 759 (9th Cir. 1989).

Gutierrez v. Regents of the Univ. of California, ARB No. 1999-0116, ALJ No. 1998ERA-00019, slip op. at 10 (ARB Nov. 13, 2002) (citing Blackburn v. Martin, 982 F.2d 125,

131 (4th Cir. 1992)) (“To recover compensatory damages under the [ERA], a complainant

must show by a preponderance of the evidence that he or she experienced mental suffering

or emotional anguish and that the unfavorable personnel action caused the harm.”).

155

156

Rodriguez, 876 F.2d at 761-62.

157

Tr. 291-92, 298-99.

158

CSC Initial Br. 30.

159

Tr. 577-82.

160

Tr. 766-67.

Because substantial evidence supports the ALJ’s findings, we AFFIRM the

ALJ’s Decision and Order on Remand.

SO ORDERED.

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.