Deltek, Inc. v. Department of Labor, Administrative Review Board

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2415

DELTEK, INC.,

Petitioner,

v.

DEPARTMENT OF LABOR, Administrative Review Board,

Respondent,

DINAH R. GUNTHER,

Intervenor.

On Petition for Review of an Order of the United States
Department of Labor, Administrative Review Board. (13-068; 13-
069)

Argued: December 8, 2015 Decided: May 20, 2016

Before AGEE and HARRIS, Circuit Judges, and Theodore D. CHUANG,
United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by unpublished opinion. Judge Harris wrote the
majority opinion, in which Judge Chuang joined. Judge Agee
wrote a dissenting opinion.

ARGUED: Charles B. Wayne, DLA PIPER LLP (US), Washington, D.C.,
for Petitioner. Dean A. Romhilt, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent. Stephen Martin Kohn,
KOHN, KOHN & COLAPINTO, LLP, Washington, D.C., for Intervenor.
ON BRIEF: M. Patricia Smith, Solicitor of Labor, Jennifer S.
Brand, Associate Solicitor, William C. Lesser, Deputy Associate
Solicitor, Megan E. Guenther, Counsel for Whistleblower
Programs, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

2
PAMELA HARRIS, Circuit Judge:

Dinah R. Gunther, a former employee of Deltek, Inc.,

alleges that Deltek fired her from her position as a financial

analyst in retaliation for whistleblowing activity, in violation

of the whistleblower protections of the Sarbanes-Oxley Act, 18

U.S.C. § 1514A. An Administrative Law Judge (“ALJ”) conducted a

twelve-day hearing on Gunther’s complaint, during which she

heard testimony from multiple witnesses presenting two very

different versions of the events immediately preceding Gunther’s

termination. Crediting Gunther’s account and deeming Deltek’s

explanation for the firing pretextual, the ALJ found Deltek

liable for retaliation. And after additional evidence and

briefing were presented, the ALJ assessed damages against

Deltek, including an award of four years of front pay to

Gunther. The Department of Labor’s Administrative Review Board

(“ARB” or “Board”) affirmed.

Deltek now appeals, asking us to reverse the finding of

retaliation and to overturn the front pay award. But we owe

deference to the findings of the ALJ and the Board and must

uphold them so long as they are supported by substantial

evidence and reached through application of the correct legal

standards. Under that deferential standard, we affirm.

3
 I.

A.

Deltek, a Virginia-based software provider, hired Gunther

in October 2008 as a financial analyst in its Information

Technology (“IT”) Department. 1 Gunther, a former executive

assistant and workflow manager, had been unable to move into a

finance position with her last employer because she lacked a

college degree. Once hired by Deltek, she planned to take

advantage of the company’s tuition reimbursement program and

work toward a degree, hoping for a promotion to senior financial

analyst.

Deltek uses Verizon Business (“Verizon”) as a vendor for

information technology services. Deltek’s IT Department

commonly raised billing disputes with Verizon, as permitted by

the companies, with mixed results; some, but not all, of the

disputed amounts were credited to Deltek’s account. Almost from

the start of her Deltek employment, Gunther was concerned about

the lack of clear procedures and supporting documentation for

invoicing generally, and about Verizon invoicing in particular.

1The facts of this case are recounted in detail in the
ALJ’s two extensive opinions, totaling more than 70 pages. See
Gunther v. Deltek, Inc., No. 2010-SOX-00049 (Dep’t of Labor July
31, 2012), J.A. 23–56; Gunther v. Deltek, Inc., No. 2010-SOX-
00049 (Dep’t of Labor June 5, 2013) (“ALJ Supplemental Decision
and Order”), J.A. 58–96. We review here the facts most relevant
to this appeal, as found by the ALJ.

4
Ultimately, Gunther would become convinced that Deltek employees

were deliberately subjecting Verizon invoices to baseless

disputes in an effort to hide a telecommunications budget

shortfall and obfuscate the true financial condition of the IT

Department.

Gunther came to this conclusion in part through her work

with Chris Reynolds, a Project Manager in the IT Department who

had concerns similar to her own. Reynolds, a former Verizon

employee, was responsible for managing the relationship between

Deltek and Verizon, and his duties included reviewing billing

disputes between the companies, a task with which Gunther

assisted. Reynolds determined that Deltek was raising a number

of unjustified billing disputes; at the hearing before the ALJ,

presented with six disputes raised by Deltek, Reynolds opined

that five were baseless. Reynolds shared his views with

Gunther, and by the spring of 2009, Gunther believed that they

had “uncovered massive fraud and a pattern of abusing the

dispute process as to the Verizon invoices.” J.A. 31.

Gunther’s early efforts to bring the Verizon problem to the

attention of management were, in her view, unsuccessful, and led

to hostility from her immediate supervisor and negative changes

to her work status. By April 2009, Gunther was ready to take

more formal action. On April 20, 2009, she hand-delivered a

letter complaint to Deltek’s General Counsel, David Schwiesow,

5
and submitted the same letter to Deltek’s audit committee,

indicating by a “cc” that a copy also had been sent to the U.S.

Securities and Exchange Commission (“SEC”). Gunther’s letter

reported that Deltek employees were raising fraudulent billing

disputes with Verizon to avoid timely payment of fees and

conceal a large budget variance from Deltek management,

auditors, and shareholders, as well as the SEC. Gunther also

alleged that she had been ignored or punished for raising these

issues with her supervisors. Reynolds filed a similar

complaint.

Schwiesow, the General Counsel, took immediate action,

informing Deltek’s CEO of the complaints and then meeting

separately with Gunther and Reynolds. In his meeting with

Gunther on April 21, Schwiesow assured Gunther that her

complaints would be taken seriously and asked her to gather

information. And Deltek did conduct an investigation,

ultimately finding no improper activity or retaliation by Deltek

employees.

Gunther, however, was not entirely reassured by her meeting

with Schwiesow. After seeing employees shredding documents, she

became concerned about the integrity of documents relevant to

her complaint, and began emailing some of them to her personal

email account, which she shared with her husband. She also

6
became increasingly upset about what she viewed as her

mistreatment at the hands of her supervisor and other coworkers.

The result was a paid leave of absence for Gunther. On May

18, 2009, Gunther told Holly Kortright, Deltek’s Vice President

of Human Resources, that she was experiencing stress and other

medical issues that were affecting her work, and Kortright

offered her a paid temporary leave. Gunther accepted by email,

laying out certain conditions — including her right to receive

full compensation and benefits and to terminate the leave at her

discretion with 24 hours’ notice to Deltek — to which Kortright

agreed. Shortly after her leave began in May, Gunther filed a

complaint with the Occupational Safety and Health Administration

(“OSHA”), alleging retaliation for whistleblowing activities in

violation of the Sarbanes-Oxley Act.

Counsel for Gunther and Deltek began negotiating a

settlement that would result in Gunther’s separation from

Deltek. But the parties had trouble agreeing on terms. And in

the meantime, Gunther became concerned about the status of her

employment at Deltek, given that she received both a notice of

continuation of health coverage under the Consolidated Omnibus

Budget Reconciliation Act, or COBRA, suggesting that her health

benefits had been terminated, and a separate notice that Deltek

had reversed the deposit of a recent paycheck.

7
 Things came to a head on Saturday, October 24, when

Gunther, after directing her counsel to end settlement

negotiations, sent an email to Kortright saying that Deltek was

in arrears on her employee benefits and paychecks and that she

would be reporting to work at 9:00 a.m. on Monday, October 26.

At 12:18 a.m. on October 26, just nine hours before Gunther was

to report to Deltek, Schwiesow responded with an email telling

Gunther that because she was represented by counsel, Deltek

would be unable to discuss her employment with her if she came

into the office.

Nevertheless, Gunther — who testified that she did not

recall reading Schwiesow’s midnight email before leaving for

work — returned to Deltek on Monday, October 26, setting in

motion the events most critical to this case, and most contested

by the parties. This much is undisputed: Gunther, with her

husband accompanying her in a separate vehicle, arrived at

Deltek and then went alone to the Human Resources Department,

where she was told by Kortright’s assistant that she would have

to wait for Kortright’s arrival. After 15 or 20 minutes,

Gunther met with Kortright and Deltek’s in-house counsel Salman

Ahmad, and Ahmad told Gunther that he could not speak with her

about her employment because she was represented by counsel. In

response to Gunther’s questions, Ahmad assured Gunther that she

still had a job with Deltek, but also told her that she could

8
not return to work that day. After the meeting, Gunther left

the building and, in the parking lot, responded to questions

from her husband, who was holding a video camera, while

Kortright and Ahmad watched the scene from the window of

Kortright’s office. Finally — and, as it turns out, critically

— Gunther secretly made an audio recording of the meeting with

Ahmad and Kortright.

Beyond that, the parties’ accounts diverge. According to

Deltek, and in particular the testimony of Kortright, Gunther’s

behavior on October 26 was “confrontational” and “disruptive.”

Gunther intimidated Kortright’s assistant by standing and

staring at her, refusing to sit in a conference room while she

waited for Kortright; she was “confrontational” and “demanding,”

using a “strong tone,” in her meeting with Kortright and Ahmad;

and her interaction with her husband in the parking lot both

blocked other employees from entering and indicated that Gunther

had no intention of actually returning to work. But after

listening to the audio tape made by Gunther and reviewing the

evidence, the ALJ rejected that characterization, finding no

evidence that Gunther behaved in an inappropriate or threatening

manner or that her parking-lot interview with her husband caused

any disruption.

On the next day, October 27, 2009, Kortright sent Gunther a

letter terminating her employment at Deltek. According to the

9
letter, Gunther was being terminated because of her “disruptive

and very concerning” behavior at Deltek the prior day, and

specifically her “confrontational” posture toward Ahmad and the

“disruptive” videotaped interview with her husband. J.A. 41–42.

That brought to an end the employment relationship between

Gunther and Deltek, and Gunther promptly amended her OSHA

complaint to include her termination as a retaliatory action.

Even after the termination, the parties’ relationship

continued to deteriorate. In November 2009, Gunther and her

husband each sent letters to Kortright and Deltek’s CEO,

respectively, which Deltek characterized as “threatening” and

“aggressive.” J.A. 71. And in the course of its post-

termination investigation and preparation for litigation, Deltek

discovered not only that Gunther had emailed company documents

to her personal email account, but also that she had made secret

audio recordings of certain Deltek meetings and exchanged

allegedly derogatory instant messages with Reynolds.

B.

In July 2010, the Assistant Regional Administrator for OSHA

ruled on Gunther’s OSHA complaint, finding that there was no

reasonable cause to believe that Deltek had violated the

Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which protects from

retaliation whistleblowers who report certain kinds of fraud

committed by publicly traded companies. Gunther filed a notice

10
of objection and requested a de novo hearing in front of an ALJ.

See 29 C.F.R. § 1980.106 (2010).

Following a twelve-day hearing on liability, the ALJ, after

dismissing all individual Deltek employees from the case, issued

a lengthy decision and order finding that Deltek had retaliated

against Gunther in violation of the Sarbanes-Oxley Act. See

Gunther v. Deltek, Inc., No. 2010-SOX-00049 (Dep’t of Labor July

31, 2012), J.A. 23–56. As the ALJ explained, to succeed on her

Sarbanes-Oxley retaliation claim, Gunther was required to show

by a preponderance of the evidence that (1) she had engaged in

protected whistleblowing activity, (2) Deltek was aware of her

protected activity, (3) she suffered an unfavorable personnel

action, and (4) her protected activity was a “contributing

factor” in the unfavorable action. See Jones v. Southpeak

Interactive Corp. of Del., 777 F.3d 658, 668 (4th Cir. 2015); 29

C.F.R. § 1980.104(e) (2012). If Gunther could make that prima

facie showing, then Deltek could avoid liability only by proving

by clear and convincing evidence that it would have taken the

same adverse action even in the absence of the protected

activity. See Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339,

345 (4th Cir. 2014).

On the first element of Gunther’s case, the ALJ found that

Gunther engaged in two forms of protected whistleblowing

activity: the letter complaint filed with Deltek management and

11
the SEC in April 2009, and the original OSHA complaint of May

2009. Deltek did not dispute that the filing of a formal

complaint or participation in OSHA proceedings generally would

constitute protected whistleblowing activity. But for her

reports to be protected, as the ALJ explained, Gunther also

would need both a “subjective” belief and an “objectively

reasonable” belief that the conduct she complained of was

illegal, and Deltek argued that Gunther had insufficient

education and experience to make such an assessment. The ALJ

disagreed, finding that it was clear from the record that

Gunther had a subjective belief that Deltek was engaged in

fraud, and that as a result of her collaboration with and

reliance on the more experienced Reynolds, Gunther’s belief also

was objectively reasonable.

The ALJ had no difficulty determining that Gunther had

satisfied the second element of her case, showing that Deltek

was aware of her April 2009 letter complaint (filed with Deltek

management) and her May 2009 OSHA complaint (naming Deltek).

The ALJ also found it clear that Gunther’s termination was an

adverse action, satisfying the third element.

On the fourth element, that Gunther’s protected activity

was a “contributing factor” in her termination, the ALJ

recognized that proximity in time is sufficient to raise an

inference of causation, and found that Gunther was terminated

12
almost immediately after the breakdown of the settlement

negotiations precipitated by her OSHA complaint. The ALJ also

made a finding that the reason for the termination offered by

Deltek — Gunther’s “egregious” behavior when she came to work on

October 26 — was pretextual. J.A. 52. After listening to

Gunther’s audio recording of the events of that day and

reviewing the record, the ALJ found that Gunther was not in fact

“confrontational” or rude, and that there was no evidence that

Gunther “ever took any actions in the workplace toward other

employees that were inappropriate or threatening” or that

Gunther and her husband had caused any disturbance at Deltek on

October 26. J.A. 52-53. In short, the reasons offered by

Deltek for Gunther’s termination were “contradicted by

[Gunther’s] tape” and unsupported by the record. J.A. 53.

Accordingly, Gunther satisfied the final element of her

prima facie case. And because the ALJ already had rejected

Deltek’s proffered explanation for Gunther’s termination as

pretextual, Deltek could not rebut that case by proving — by

clear and convincing evidence or, as the ALJ noted, under any

standard — that it would have fired Gunther even in the absence

of her protected activity. Deltek therefore was liable for

retaliation.

After considering additional evidence and briefing by the

parties, the ALJ issued a supplemental decision and order

13
awarding damages to Gunther. Gunther v. Deltek, Inc., No. 2010-

SOX-00049 (Dep’t of Labor June 5, 2013) (“ALJ Supplemental

Decision and Order”), J.A. 58-96. Applying the mandate of the

Sarbanes-Oxley Act that an employee who prevails on a

retaliation claim “shall be entitled to all relief necessary to

make the employee whole,” J.A. 64 (quoting 18 U.S.C.

§ 1514A(c)(1)), the ALJ awarded Gunther back pay and benefits

and also, because the parties agreed that Gunther should not be

reinstated at Deltek, four years of front pay — six years less

than the ten years Gunther was seeking. The front pay award was

based on the ALJ’s finding that without a college degree, it was

unlikely that Gunther could obtain a job comparable to her

financial analyst position at Deltek. But four years of front

pay combined with a restoration of tuition reimbursement

benefits, the ALJ concluded, would be sufficient to make Gunther

“whole,” allowing her to complete an undergraduate degree and

find a job similar to the one she held with Deltek.

The ALJ also rejected Deltek’s argument that its liability

should be limited under the after-acquired evidence doctrine to

the brief time period between Gunther’s firing and Deltek’s

discovery of misconduct for which it would have terminated

Gunther: the post-termination letters to Deltek from Gunther and

her husband, Gunther’s recording of Deltek meetings and

forwarding of Deltek documents to her personal email account,

14
and disparaging instant messages between Gunther and Reynolds.

On the record before her, the ALJ found, Deltek had not shown

that any of that conduct would have justified or in fact led to

Gunther’s termination had Deltek known of it earlier, rendering

the after-acquired evidence doctrine inapplicable.

Deltek appealed to the ARB. 2 The Board affirmed, holding

that both the liability finding and the damages award were

supported by substantial evidence and that the ALJ’s legal

conclusions were in accordance with law. Gunther v. Deltek,

Inc., Nos. 13-068, 13-069, 2014 WL 7227263 (Dep’t of Labor Nov.

26, 2014) (“ARB Final Order”), J.A. 14–18. Deltek timely

appealed the Board’s judgment to this Court.

II.

A.

Our review of the Board’s decision is limited. Under the

Administrative Procedure Act, which governs Sarbanes-Oxley

retaliation claims, 3 we must affirm the Board’s decision unless

it is “arbitrary, capricious, an abuse of discretion, or

2
Gunther cross-appealed certain determinations by the ALJ.
Those issues are not relevant to this appeal.

3
The whistleblower retaliation provision of the Sarbanes-
Oxley Act, 18 U.S.C. § 1514A, incorporates the rules and
procedures of 49 U.S.C. § 42121(b), which in turn incorporates
the Administrative Procedure Act’s standard of review in cases
like this, 5 U.S.C. § 706.

15
otherwise not in accordance with law,” or is “unsupported by

substantial evidence.” 5 U.S.C. § 706(2)(A), (E); see Platone

v. U.S. Dep’t of Labor, 548 F.3d 322, 326 (4th Cir. 2008). We

defer to the Board’s interpretation of § 1514A of the Sarbanes-

Oxley Act. See Welch v. Chao, 536 F.3d 269, 276 (4th Cir.

2008); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837, 843–44 (1984). And so long as the Board’s

findings are “supported by substantial evidence and [] reached

based upon a correct application of the relevant law,” we will

uphold them. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir.

1996). We also defer to the factual findings of the ALJ, as

affirmed by the Board, if they are supported by substantial

evidence. Platone, 548 F.3d at 326. And in reviewing for

substantial evidence, our role is not to “substitute our

judgment” for that of the ALJ or the Board; “we do not undertake

to re-weigh conflicting evidence [or] make credibility

determinations.” Craig, 76 F.3d at 589. Rather, the

“substantial evidence” standard requires only that there be in

the record “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Platone, 548 F.3d

at 326 (internal quotation marks omitted).

B.

Deltek challenges the Board’s liability finding on two

grounds, arguing that the ALJ and the ARB erred first in holding

16
that Gunther engaged in protected activity and then in finding

that her protected activity was a “contributing factor” in her

termination. Because substantial evidence supports the ALJ’s

determination, affirmed by the Board, that Gunther complained of

conduct that she reasonably believed to be illegal and that her

complaints contributed to her termination, we affirm.

1.

As discussed above and explained by the ALJ, Gunther’s

April 2009 letter complaint and May 2009 OSHA complaint

constituted “protected activity” under the Sarbanes-Oxley Act

only if they were based on her “reasonable belief” that the

Deltek conduct she was reporting was in violation of the

securities laws and regulations identified by the statute. See

18 U.S.C. § 1514A(a)(1). And as the ALJ recognized, that

“reasonable belief” standard has both a subjective and an

objective component: Gunther must show that she subjectively

believed Deltek’s conduct to be illegal, and that her belief was

“objectively reasonable.” See Welch, 536 F.3d at 275. The ALJ

determined, in a finding affirmed by the Board, that Gunther

satisfied that standard, and we find no fault with her analysis.

There is ample record evidence to support the ALJ’s

finding that Gunther, who raised her concerns early and often,

both informally and formally, and even in the face of what she

perceived as adverse treatment, genuinely believed Deltek to be

17
violating the law. Deltek’s principal argument is that any

subjective belief Gunther may have had was not “objectively

reasonable,” because without a college degree or relevant work

experience, Gunther lacked sufficient knowledge to make that

judgment. But the ALJ rejected that contention, determining

that in forming her belief Gunther reasonably relied on her

close dealings with Reynolds, who did have extensive experience

in Verizon invoicing. Consideration of what Gunther learned

from Reynolds was consistent with governing law, which, in

evaluating objective reasonableness, focuses on the particular

“factual circumstances” of the putative whistleblower, see

Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132

(10th Cir. 2013), which may include what he or she learns from

coworkers, see, e.g., Mahony v. KeySpan Corp., No. 04 CV 554 SJ,

2007 WL 805813, at *1-2, 6 (E.D.N.Y. March 12, 2007) (reasonable

for employee, who had taken only a few accounting classes, to

rely on judgment and expertise of more experienced employee in

forming belief that unlawful conduct was occurring). And there

is substantial evidence to support the ALJ’s finding, affirmed

by the ARB, that Gunther in fact relied on Reynolds, who was

himself a “credible, convincing witness at the hearing,” J.A.

48.

18
 2.

Deltek’s more sustained argument is that the ALJ and the

Board erred when they found the necessary causal link between

Gunther’s 2009 letter complaint and 2009 OSHA complaint, on the

one hand, and her termination, on the other. Again, we

disagree. The ALJ and the Board properly applied the Sarbanes-

Oxley standard for causation — which is not a high one — to

factual determinations supported by substantial record evidence,

and we therefore affirm.

As both the ALJ and the Board explained, to satisfy the

“causation” element of her prima facie case, Gunther had to show

only that her protected activity “contributed to” her

termination. 49 U.S.C. § 42121(b)(2)(B)(i). The “contributing

factor” standard, we have recognized, is a “broad and forgiving”

one, Feldman, 752 F.3d at 350, distinctly more protective of

plaintiffs than the familiar McDonnell Douglas framework applied

in Title VII cases, see Araujo v. N.J. Transit Rail Operations,

Inc., 708 F.3d 152, 158 (3d Cir. 2013). Gunther could satisfy

this “rather light burden” by showing that her protected

activities “tended to affect [her] termination in at least some

way,” whether or not they were a “primary or even a significant

cause” of the termination. Feldman, 752 F.3d at 348.

In this case, application of the “contributing factor”

standard turns critically on one key finding by the ALJ,

19
affirmed by the Board: that the explanation proffered by Deltek

for Gunther’s termination was pretextual — or, more

colloquially, not true. Deltek’s position, tracking Kortright’s

termination letter to Gunther, is that Gunther was fired not for

whistleblowing activity, but as a result of her “egregious[ly]”

disruptive and confrontational conduct at Deltek on October 26,

2009. J.A. 52. But after a painstaking review of the evidence,

and having listened to Gunther’s audio recording of the day’s

events “more than once” and observed Gunther’s demeanor at the

twelve-day hearing, the ALJ rejected that contention as

“contradicted by the tape” and unsupported by the evidence.

J.A. 52–53 & n.29. Gunther was not, as Deltek alleged,

“confrontational”; instead, she was “[a]t all times . . . calm,

quiet, and (although she repeated herself) polite.” J.A. 52.

There was no evidence that Gunther “ever took any actions in the

workplace toward other employees that were inappropriate or

threatening.” J.A. 53. And even the alleged parking-lot

“disruption” turned out to be unsupported by the record, which

included “no testimony or other evidence” that Gunther and her

husband actually blocked traffic or hampered pedestrians outside

the Deltek offices. J.A. 52-53. 4

4
The ALJ did believe that Gunther’s decision to return to
work on October 26, without giving Deltek more notice and
obtaining permission, was “ill advised.” J.A. 52. But she also

20
 That finding, affirmed by the Board, is supported by

substantial evidence and entitled to deference. Over the course

of a twelve-day hearing, the ALJ had ample opportunity to

evaluate the credibility of the witnesses before her, and to

assess their testimony in light of the audio tape of the October

26 meeting. Particularly when a factual finding rests on a

credibility determination, it “should be accepted by the

reviewing court absent exceptional circumstances” — where, for

instance, it rests on “an inadequate reason or no reason at all”

or is contradicted by other findings of fact. N.L.R.B. v. CWI

of Md., Inc., 127 F.3d 319, 326 (4th Cir. 1997) (internal

quotation marks omitted). Here, the ALJ fully explained her

finding, pointing to record evidence. Deltek cannot show the

kind of “exceptional circumstances” that would allow us to set

aside the ALJ’s finding of pretext, as affirmed by the Board.

See, e.g., id.; Craig, 76 F.3d at 589 (on substantial evidence

review, court does not “re-weigh conflicting evidence” or “make

credibility determinations”).

And in light of that finding, Deltek’s arguments on appeal

are unavailing. Deltek’s principal claim is that the ALJ and

found that Gunther’s premature return was not a basis for
Gunther’s termination — a finding amply supported by the fact
that Gunther retained the right to end her temporary leave at
her discretion — and that Deltek had not argued otherwise. See
also ARB Final Order, 2014 WL 7227263, at *2.

21
the Board improperly applied the law by failing to recognize

that a “legitimate intervening event” — here, Gunther’s

confrontational and disruptive conduct on October 26 — can

“sever” a causal connection between protected activity and a

subsequent adverse employment action, see Feldman, 752 F.3d at

348. But the ALJ and the Board had no occasion to apply that

doctrine, given their finding that there was no “legitimate

intervening event” because the egregious behavior identified by

Deltek had not in fact occurred. Similarly, the ALJ and the

Board did not, as Deltek would have it, impermissibly second-

guess an employer’s judgment as to the wisdom of terminating

employees who threaten workplace safety or comfort. Rather —

and entirely appropriately — they evaluated the truth of

Deltek’s allegation that Gunther was in fact such an employee

and found the claim pretextual.

Finally, Deltek appears to argue that there is simply no

evidence that Gunther’s April 2009 letter complaint or May 2009

OSHA complaint was a “contributing factor” to her termination,

and that the ALJ improperly relied only on an attenuated chain

of “but-for” causation to determine otherwise. But here again,

Deltek’s argument founders on the finding of pretext, which is

itself circumstantial evidence of causation. See Bechtel v.

Competitive Techs., Inc., No. 09-052, 2011 WL 4915751, *7 (Dep’t

of Labor Sept. 30, 2011) (“[I]f a complainant shows that an

22
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.”);

cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147

(2000) (proof of pretext is a form of circumstantial evidence

probative of intentional discrimination that “may be quite

persuasive”). Moreover, proximity in time, as the ALJ

explained, also is sufficient to raise an inference that

protected activity contributes to an adverse action. See

Feldman, 752 F.3d at 348. And while six months separated

Gunther’s whistleblowing complaints in April from her

termination in October, the termination did come, the ALJ found,

as soon as negotiations around those complaints ended and it

became apparent that Deltek could not otherwise settle its

conflict with Gunther. Cf. King v. Rumsfeld, 328 F.3d 145, 151

& n.5 (4th Cir. 2003) (even extended period of time between

protected activity and adverse action may demonstrate causation

where adverse action occurred at “the natural decision point”). 5

5 That the ALJ relied on both these factors in finding
causation is established with “reasonable clarity,” Greater
Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir.
1970), we think, by the fact that both are analyzed in the
“Causal Relationship” section of her opinion. J.A. 51-54. This
is not a case, in other words, in which we need “guess” as to
whether the ALJ deemed her pretext finding relevant to

23
 Again, the question before us is not whether the record

demands the conclusion that Gunther’s whistleblowing activity

“contributed to” her termination, but only whether substantial

evidence supports the determination of the ALJ and the Board

that Gunther satisfied that forgiving test. See, e.g., Craig,

76 F.3d at 589 (where “evidence allows reasonable minds to

differ,” a reviewing court must defer to an agency determination

under the substantial evidence standard). Under that standard

of review, we have no cause to disturb the determination of the

ALJ, as affirmed by the Board, that Gunther made a prima facie

showing that her April 2009 letter complaint and May 2009 OSHA

complaint contributed to her termination by Deltek. 6

causation, Greater Boston, 444 F.2d at 851, or “substitut[e]” a
factor of our own that the ALJ has not considered, cf. SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947). Parsing the ALJ’s
language, our dissenting colleague argues that the ALJ tied her
pretext finding to the wrong part of the causation inquiry. But
that cuts the analysis too fine. In reviewing an agency’s
reasoning, we demand not “ideal clarity,” Greater Boston, 444
F.2d at 851, but only a discernible path, id., or “rational
bridge” between record findings and legal conclusions, Cordova
v. Holder, 759 F.3d 332, 340 (4th Cir. 2014). It is enough here
that the ALJ required Gunther to “establish[] a causal
relationship by a preponderance of the evidence,” J.A. 51, and
in deciding whether she had met that burden, properly took into
account not only the events leading up to Gunther’s firing but
also Deltek’s pretextual explanation for that firing, J.A. 52-
53.

6For much the same reason, Deltek cannot prevail on its
alternative argument that even if Gunther made out a prima facie
case of retaliation, it rebutted that showing with clear and

24
 C.

Deltek separately challenges the damages award to Gunther.

First, Deltek argues that the ALJ and the Board erred by failing

to apply the after-acquired evidence doctrine, limiting Deltek’s

liability for damages because evidence discovered after

Gunther’s termination would have led to her firing had the

company known of it earlier. Second, Deltek objects to the

award of four years of front pay as unduly speculative and

without a proper evidentiary basis. Again, we think that the

determinations of the ALJ and the Board are supported by

substantial evidence and consistent with law, and we therefore

affirm.

1.

As the ALJ and the Board recognized and all parties agree,

the after-acquired evidence doctrine applies in Sarbanes-Oxley

cases.

Under this doctrine, reinstatement or front pay is
inappropriate if an employer discovers evidence of
misconduct after it has wrongfully terminated an

convincing evidence that it “would have taken the same personnel
action in the absence of the protected activity,” Feldman, 752
F.3d at 345 (internal quotation mark omitted). In support of
this claim, Deltek again points only to Gunther’s October 26
conduct as an explanation for her termination. As the ALJ
determined, given the finding that Deltek’s explanation was
pretextual, Deltek by definition could not show by clear and
convincing evidence (or even a lesser standard of proof) that it
would have terminated Gunther for that reason.

25
 employee if the misconduct, standing alone, would have
justified terminating the employee had the employer
known of it at the time of discharge. In such an
instance, an employer is only liable for back pay from
the date of unlawful discharge to the time this new
evidence is discovered.

ALJ Supplemental Decision and Order, J.A. 65 (citing McKennon v.

Nashville Banner Publ’g Co., 513 U.S. 352 (1995)).

To prevail, an employer must show by clear and convincing

evidence that it would have terminated the employee when it

discovered the misconduct in question. 49 U.S.C.

§ 42121(b)(2)(B)(ii), (iv) (“Relief may not be ordered . . . if

the employer demonstrates by clear and convincing evidence that

the employer would have taken the same unfavorable personnel

action in the absence of that behavior.”); Ameristar Airways,

Inc. v. Admin. Review Bd., 771 F.3d 268, 273 (5th Cir. 2014).

The ALJ found that Deltek failed to offer sufficient evidence

that the after-acquired evidence doctrine applied, and the ARB

affirmed. 7 And Deltek now faces an even higher burden on appeal:

it must show that this finding was unsupported by substantial

evidence or, put differently, that there could be no reasonable

difference of opinion as to whether Deltek had met the clear and

convincing threshold. See Platone, 548 F.3d at 326 (substantial

7 Neither the ALJ nor the Board referred expressly to the
clear and convincing standard in applying the after-acquired
evidence doctrine. To the extent that either applied the less
demanding preponderance of the evidence standard, such an error
could have worked only in Deltek’s favor.

26
evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion”). Deltek cannot

satisfy that exacting standard.

Deltek points first to its discovery, post-termination,

that Gunther had emailed certain Deltek documents to her home

email account, shared by her husband, in violation of Gunther’s

employment contract and Deltek policies. In connection with

that claim, the ALJ recognized Gunther’s understanding that

Schwiesow, Deltek’s General Counsel, had directed her to collect

information to support her complaint. And the ALJ made specific

findings, affirmed by the Board, that Gunther forwarded to her

home account only documents that were relevant to her

whistleblowing reports; that when she did so, she had a

reasonable concern that the documents might be shredded by

Deltek employees or otherwise destroyed; and that Gunther’s

motivation for forwarding the documents was “to support her

[Sarbanes-Oxley] allegations.” J.A. 68-69. Distinguishing

cases like JDS Uniphase Corp. v. Jennings, 473 F. Supp. 2d 697,

703–04 (E.D. Va. 2007), in which courts had deemed employees

unprotected when they “indiscriminately misappropriated

documents containing proprietary information,” J.A. 68, the ALJ

concluded, and the ARB agreed, that Deltek had not made the

requisite showing that Gunther’s activity would have justified

her termination.

27
 On this record and in light of the specific factual

findings of the ALJ and the Board, we see no reversible error.

Deltek contests the ALJ’s factual findings, but the ALJ cited

ample evidentiary support for her conclusions. And under those

narrow factual circumstances, we agree that Gunther’s effort to

protect selected relevant documents from what she reasonably

believed was a risk of destruction, on what she understood to be

instructions from Deltek’s General Counsel, would not have

justified her termination. Indeed, it is perhaps to Deltek’s

credit that it has not offered much by way of evidence that it

would have fired Gunther, or any other employee, for limited

efforts to document what is reasonably believed to be fraud:

all we have in this record are Deltek’s written policies and

Schwiesow’s self-serving testimony that their violation would

have led to termination, without any evidence of similar

circumstances under which Deltek had fired employees or

otherwise enforced its policies against them. Accordingly, we

defer to the determination of the ALJ and the Board that Deltek

has not made the requisite showing under the after-acquired

evidence doctrine.

We also find that substantial evidence supports the

determination of the ALJ, affirmed by the Board, that Deltek did

not meet its burden of showing that it would have terminated

Gunther for any of the other misconduct it identifies. As to

28
Gunther’s surreptitious audio recording of Deltek meetings, we

have no reason to question the ALJ’s finding that Deltek failed

to cite any company policy or law prohibiting the recordings,

and that Schwiesow’s testimony that “this kind of action would

not be tolerated” was by itself insufficient to meet Deltek’s

burden of proof. J.A. 66. Similarly, in the absence of record

evidence that Deltek had terminated other employees for sending

instant messages or that no other employee had sent comparable

messages, we defer to the ALJ’s finding that Gunther’s instant

messages were “trivial in nature” and so “petty” that Deltek

could not show that an employee would have been terminated on

that ground alone. J.A. 70.

And finally, substantial evidence supports the rejection of

the post-termination letters from Gunther and her husband as

after-acquired evidence limiting damages. As proof that those

letters would have led to Gunther’s termination, Deltek cited

only its own characterization of the letters as threatening and

aggressive. But the ALJ reviewed Gunther’s letter and concluded

that it was neither threatening nor aggressive, and went on to

“agree with [its] substance” because it did no more than request

a retraction of the mischaracterizations in Kortright’s

termination letter. J.A. 71. The ALJ also reviewed the letter

sent by Gunther’s husband, and while criticizing its tone, found

that its thrust was “simply [] to ask Deltek to refrain from

29
harassing his wife” and that it had been sent without Gunther’s

participation. J.A. 71. In light of that record, we have no

reason to disturb the determination of the ALJ and the Board

that Deltek has not met its significant burden of demonstrating

that it would have terminated Gunther for the post-termination

letters.

2.

Finally, Deltek challenges the ALJ’s award, affirmed by the

ARB, of four years of front pay totaling $300,352, along with

tuition reimbursement benefits of $30,000. As the ALJ

recognized, reinstatement rather than front pay is the

“presumptive and preferred remedy” for unlawful discharge in

whistleblower cases. See J.A. 80 (citing Hobby v. Ga. Power

Co., Nos. 98-166 & 98-169, 2001 WL 168898 (Dep’t of Labor Feb.

9, 2001)). But where, as here, pronounced animosity between the

parties leads both of them to advocate against reinstatement,

front pay may be an appropriate substitute, as the ALJ

concluded.

Neither party has appealed the threshold determination that

front pay and not reinstatement was the proper remedy in this

case, and so the only issue before us is the calculation of the

front pay award. Under Sarbanes-Oxley, a prevailing employee is

entitled to “all relief necessary to make the employee whole,”

18 U.S.C. § 1514A(c)(1), and front pay “is designed to place the

30
complainant in the identical financial position” that she would

have occupied had she remained employed or been reinstated.

Bryant v. Mendenhall Acquisition Corp., No. 04-014, 2005 WL

1542547, at *6 (Dep’t of Labor June 30, 2005) (internal

quotation mark omitted). By their nature, front pay awards are

“speculative,” but they “cannot be unduly so,” id. at *7, and it

is up to the employee to provide the “essential data necessary

to calculate a reasonably certain front pay award.” Id.

(quoting McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1372 (7th

Cir. 1992)). But front pay is an equitable remedy, and given

the “infinite variety of factual circumstances” that must be

considered, front pay awards “rest in the discretion of the

court in shaping the appropriate remedy.” Duke v. Uniroyal

Inc., 928 F.2d 1413, 1424 (4th Cir. 1991).

After laying out the legal standard governing front pay

awards, Deltek devotes only a single, largely conclusory

paragraph of its brief to its argument on damages. 8 But reading

between the lines, Deltek appears to argue in part that the

front pay award in this case is “unduly speculative” because

8Indeed, the Secretary of Labor urges that Deltek’s “few
sentences of argument” on this point are so lacking in
specificity that they are insufficient to engage the issue on
appeal. Br. for the Secretary of Labor at 60 (citing cases).
We need not decide that question. Even assuming that Deltek’s
argument, supplemented by an additional paragraph in its reply
brief, adequately presents the issue for appeal, we find no
ground to disturb the ALJ’s front pay award.

31
Gunther failed to provide the ALJ with “essential data” on which

to rest a proper award. We disagree. Gunther submitted a proof

of damages that included her annual salary and benefits, and the

ALJ used that data to calculate the value of four years of front

pay, essentially multiplying by four. As is always the case,

“some speculation about future earnings [was] necessary,”

Barbour v. Merrill, 48 F.3d 1270, 1280 (D.C. Cir. 1995)

(emphasis in original), but the ALJ and the Board made the

reasonable choice to assume that Gunther would have continued to

earn the same salary and benefits at Deltek had she not been

unlawfully terminated. Indeed, the ALJ was careful to avoid

undue speculation, rejecting Gunther’s request to include in the

award annual salary increases that were “not guaranteed.” J.A.

83. 9

9
To the extent the dissent suggests that Gunther’s
obligation to provide “essential data” went beyond this showing,
we must disagree. Under case law applying the “essential data”
standard, Gunther amply met her burden of providing the ALJ with
the basic data necessary to calculate a front pay award: “a
proposed salary base” and “a definite duration for the award.”
See Barbour v. Merrill, 48 F.3d 1270, 1279, 1280 (D.C. Cir.
1995) (under “essential data” rule, where plaintiff established
a “prima facie case” for front pay by providing a proposed
salary base and duration, district court erred by denying front
pay as unduly speculative); see also McKnight v. Gen. Motors
Corp., 973 F.2d 1366, 1372 (7th Cir. 1992) (affirming denial of
front pay in part because plaintiff failed to provide “essential
data” such as “the amount of the proposed award” and “the length
of time the plaintiff expects” the award to cover).

32
 The heart of Deltek’s claim, as we understand it, is that

the choice of four years as the period for front pay (and

perhaps the inclusion of tuition reimbursement benefits for

those years) lacked an evidentiary or logical basis. Gunther

sought ten years of front pay, arguing that it would take her at

least that long to regain the professional status she lost when

Deltek fired her. The ALJ rejected that claim, and found that

Gunther could obtain a job comparable to the one she held at

Deltek, and thus be “made whole,” in four years during which she

obtained a college degree. We think that determination, as

affirmed by the Board, is supported both by the ALJ’s reasoning

and by substantial evidence in the record.

Based on record evidence that Deltek does not contest, the

ALJ found that Gunther had worked in administrative and support

positions prior to her time at Deltek, and that she had been

unable to obtain a finance position from her prior employer

because she lacked a college degree. The ALJ also found that

Gunther again had been unable to secure a position as a

financial analyst after her termination by Deltek and that she

was “now unlikely to obtain” comparable employment without an

undergraduate degree, “as she did not work for [Deltek] for a

sufficient period of time to obtain on-the-job qualifications.”

J.A. 82. It followed, the ALJ concluded, that in order for

Gunther to be “made whole” as required by statute, she would

33
need the opportunity to earn a college degree, which generally

requires four years. Accordingly, the ALJ ordered Deltek to pay

four years of front pay, along with the tuition-reimbursement

benefits to which Gunther had been entitled when employed.

We cannot agree with Deltek that the ALJ provided no

“logical basis” for her ruling, or that her determination is

unsupported by substantial evidence. Deltek insists that,

contrary to the ALJ’s determination, Gunther could find work as

a financial analyst without a college degree, pointing to its

own decision to hire Gunther. But the ALJ considered and

rejected that claim, finding that Gunther had been unable to

obtain a financial analyst position either before or after her

tenure at Deltek, and that Gunther remained unlikely to find

such a position without a degree despite the fact that Deltek

had been “willing to give [Gunther] a chance” that other

employers had not. J.A. 81. And while the ALJ’s assessment of

Gunther’s employment prospects necessarily involved some

speculation, so too does Deltek’s — and nothing in this record

required the ALJ to adopt Deltek’s optimistic prediction about

Gunther’s future as a financial analyst without a college

degree. Cf. Barbour, 48 F.3d at 1280 (front pay should not be

denied because “some speculation about future earnings is

necessary, or because parties have introduced conflicting

evidence” (emphasis in original)).

34
 Gunther was entitled to be returned to “the identical

financial position” that she would have occupied had she not

been terminated unlawfully for protected whistleblowing

activities. See Bryant, 2005 WL 1542547, at *6; 18 U.S.C.

§ 1514A(c)(1) (employee entitled to all relief necessary to be

made whole). Consistent with that statutory mandate, the ALJ

determined, and the Board agreed, that a four-year front pay

award would return Gunther to the position she would have been

in but for her termination — that is, employment as a financial

analyst. The ALJ’s rationale is fully explained and its

findings, as affirmed by the Board, are supported by substantial

evidence. Even if “reasonable minds might disagree regarding

the amount,” Traxler v. Multnomah Cnty., 596 F.3d 1007, 1014

(9th Cir. 2010) (affirming front pay award), the ALJ and the

Board did not abuse their discretion in shaping the appropriate

front pay remedy in this case. See Duke, 928 F.2d at 1424

(front pay awards rest in equitable discretion of court);

Traxler, 596 F.3d at 1014 (holding that district court did not

abuse discretion in setting front pay award).

III.

For the foregoing reasons, we affirm the judgment of the

Administrative Review Board.

AFFIRMED

35
AGEE, Circuit Judge, dissenting:

As the Supreme Court has stressed, Courts of Appeals in

administrative agency cases must engage in a “meaningful review”

to determine whether the record supports the agency’s

conclusions. Dickinson v. Zurko, 527 U.S. 150, 162 (1999). We

are to undertake that review to assure we are “not simply

rubber-stamping agency factfinding.” Id. In my view, the

majority fails in that obligation to engage in a meaningful

review. Instead, it permits the administrative law judge’s

(“ALJ’s”) fallacious post hoc ergo propter hoc basis for

causation to pass review and affirms a front pay award that is

patently unreasonable and bears no relation to Gunther’s

prospective future losses. I therefore respectfully dissent.

I. Causation

The ALJ found that Gunther met her burden to prove

causation solely based on the sequence of events leading to her

termination of employment. In the ALJ’s view, the timeline of

events was in itself sufficient to prove a causal connection

between Gunther’s protected activity and subsequent termination

because her “termination resulted after her return from a leave

of absence that was precipitated by an investigation into the

matters raised by the SEC [SOX] complaint.” J.A. 52. The

Administrative Review Board (the “Board”) affirmed the ALJ’s

36
finding of causation, reciting only the chronology of events

with one following in time after the other with the last being

Gunther’s termination. J.A. 15.

To see why the ALJ’s causation finding is not simply

erroneous but illusory, it is necessary to consider, not simply

recite, the standard that appellate courts employ when reviewing

an administrative agency decision. The Court will set aside an

administrative agency’s conclusions that are “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” Welch v. Chao, 536 F.3d 269, 276 (4th

Cir. 2008) (quoting 5 U.S.C. § 706(2)(A)) 1; Craig v. Chater, 76

F.3d 585, 589 (4th Cir. 1996) (explaining that deference is owed

only where the ALJ’s finding was “supported by substantial

evidence and was reached based upon a correct application of the

relevant law”). A reviewing Court is obliged to take into

account the entire record, including the evidence opposed to the

agency’s view from which conflicting inferences reasonably could

be drawn. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,

487-88 (1951). Thus, where the record “clearly precludes [the]

Board’s decision from being justified by a fair estimate of the

worth of the testimony of witnesses or its informed judgment on

1
I have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.

37
matters within its special competence,” the Court must set aside

the agency’s findings. Id. at 490.

To prevail on her SOX retaliation claim, Gunther shoulders

the burden of establishing causation by showing that her

protected activity was a “contributing factor” in her

termination. 29 C.F.R. § 1980.109(a). The contributing factor

standard of causation is not “toothless.” Feldman v. Law Enf’t

Assocs. Corp., 752 F.3d 339, 350 (4th Cir. 2014). Under this

standard, a complainant must still point to evidence showing a

causal link between protected activity and adverse employment

action. Id.

In deciding that Gunther established a causal nexus between

her filing of a SOX complaint and her termination, the ALJ

looked only at the sequence of the events that led to the

cessation of Gunther’s employment at Deltek. The ALJ concluded

that because Gunther’s termination followed protected activity,

the protected activity must have caused her termination. But

nothing tied the chain of events to causation other than

happenstance.

The ALJ’s only discussion of proof of causation is, in

toto, the following:

Had neither complaint been filed, . . . she would not
have returned to work on the day that she did, and she
would not have been terminated based upon her actions
at the time she returned. Accordingly, Complainant’s

38
 termination was causally related to the protected
activities.

J.A. 52. It was solely upon this finding that the ALJ concluded

Gunther met her burden of proof of the element of causation.

But this is a post hoc ergo propter hoc conclusion that is

erroneous as a matter of law. Post hoc ergo propter hoc is “a

fallacy because it makes an assumption based on the false

inference that a temporal relationship proves a causal

relationship.” McClain v. Metabolife Int’l, Inc., 401 F.3d

1233, 1243 (11th Cir. 2005); see also Huss v. Gayden, 571 F.3d

442, 459 (5th Cir. 2009) (noting “the post hoc ergo propter hoc

fallacy assumes causality from temporal sequence”). The mere

circumstance that protected activity precedes termination is not

proof of a causal connection between the two.

Retaliation under SOX necessarily requires more than the

mere occurrence of protected activity followed by adverse

employment action, but that is all that the ALJ found to satisfy

Gunther’s burden of proving the element of causation. The

statute cannot be read to mean, as the ALJ and Board found, that

whenever an employee engages in protected activity prior to an

adverse employment action like termination, the plaintiff has

met her burden as to causation. See Huskey v. City of San Jose,

204 F.3d 893, 899 (9th Cir. 2000) (noting that a retaliation

claim cannot rest on the logical fallacy of post hoc ergo

39
propter hoc, i.e., “after this, therefore because of this”);

Gibson v. Old Town Trolley Tours of Washington, D.C., Inc., 160

F.3d 177, 182 (4th Cir. 1998) (accord); Bermudez v. TRC

Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998) (“Timing may

be an important clue to causation, but does not eliminate the

need to show causation -- and [the plaintiff] really has nothing

but the post hoc ergo propter hoc ‘argument’ to stand on.”).

Proof of causation requires an evidentiary link between the

protected act and an adverse event. That evidentiary nexus

mandates evidence of actual causation, which is not supplied by

the metaphysical concept that an event later in time could only

have happened after an earlier event. But that is the ALJ’s

stated basis of finding causation. The majority ignores this

error and relies on a new basis for causation that neither the

ALJ nor Board found: “that the explanation proffered by Deltek

for Gunther’s termination was pretextual – or, more

colloquially, not true.” Maj. op. at 20. The ALJ’s finding

that Deltek’s proffered reasons for terminating Gunther were

pretextual came only after the ALJ determined that Gunther

satisfied the elements of her prima facie case, including

causation. At no time did the ALJ or the Board tie any part of

a prima facie finding of causation to any finding of pretext,

40
which came only after the burden had shifted to Deltek to show

an affirmative defense. 2

Congress has imposed on this Court the responsibility to

ensure that an agency “keeps within reasonable grounds. That

responsibility is not less real because it is limited to

enforcing the requirement that evidence appear substantial when

viewed, on the record as a whole, by courts invested with the

authority and enjoying the prestige of the Courts of Appeals.”

Universal Camera Corp., 340 U.S. at 490. Under that standard, I

am compelled to conclude based on this record that the ALJ erred

as a matter of law in determining Gunther met her burden of

proof for causation. See Welch, 536 F.3d at 276 (indicating we

owe no deference to an agency determination that is “otherwise

not in accordance with law”). Accordingly, I would reverse the

2 The ALJ found causation solely based on a post hoc ergo
propter hoc logical fallacy, and the majority is foreclosed from
saving the ALJ’s causation determination for reasons the ALJ did
not articulate in the prima facie causation stage. “[A]
reviewing court . . . must judge the propriety of [agency]
action solely by the grounds invoked by the agency.” SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947). Where, as here, the
agency has made a finding “for no reason or for the wrong
reason,” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
the Court is “powerless to affirm . . . by substituting what it
considers to be a more adequate or proper basis.” Chenery, 332
U.S. at 196; see also N.L.R.B. v. Ky. River Cmty. Care, Inc.,
532 U.S. 706, 721 (2001) (“We may not enforce the Board’s order
by applying a legal standard the Board did not adopt.”); Nken v.
Holder, 585 F.3d 818, 822 (4th Cir. 2009) (“Established
precedent dictates that a court may not guess at what an agency
meant to say, but must instead restrict itself to what the
agency actually did say.”).

41
decision of the Board and direct that judgment be entered for

Deltek.

II. Damages

The ALJ awarded Gunther four years of front pay in the

amount of $300,352 in addition to tuition reimbursement of

$30,000 for the same period, although the ALJ recognized that

Gunther “was essentially an entry level employee in a new

field.” J.A. 81. Gunther had neither a high school nor a

college degree when Deltek hired her approximately one year

before her termination, but the ALJ opined that Gunther would be

“unlikely to obtain employment in her chosen field without the

degree, as she did not work for [Deltek] for a sufficient period

of time to obtain on-the-job qualifications.” 3 J.A. 82. For

reasons not apparent in the record, the ALJ then awarded Gunther

four years of front pay and tuition reimbursement so that she

could “attend a university full-time, without working, if she so

chooses” in order to obtain a bachelor’s degree in accounting or

finance. Id. Although I would reverse the ALJ’s decision on

liability on the merits, I also address the damages award in

view of the majority’s approval of an award that is rankly

3 Gunther represented that she had obtained a GED at some
point.

42
speculative and not substantially supported by the record. See

Dotson v. Pfizer, Inc., 558 F.3d 284, 300 (4th Cir. 2009).

It is again helpful to consider the standard by which we

review the ALJ’s findings. We will defer to an ALJ’s factual

findings only if supported by substantial evidence. 5 U.S.C.

§ 706(2)(E). “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.” Consol.

Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938). “Even

if legitimate reasons exist for rejecting [or crediting] certain

evidence, the [ALJ] cannot do so for no reason or for the wrong

reason.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980).

See also Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)

(“[I]t is apparent that the ALJ cannot reject evidence for no

reason or for the wrong reason.”).

SOX entitles a prevailing employee only to such “relief

necessary to make the employee whole,” including reinstatement,

back pay with interest, and various other fees and costs. 18

U.S.C. § 1514A(c). The statute does not identify front pay as

an available remedy, but front pay “has been recognized as a

possible remedy in cases under the Sarbanes-Oxley and other

whistleblower statutes enforced by OSHA in circumstances where

reinstatement would not be appropriate.” Department of Labor,

Procedures for the Handling of Retaliation Complaints Under

43
Section 806 of the Sarbanes-Oxley Act of 2002, as Amended, 80 FR

11865-02. Front pay, however, is “disfavored.” Sellers v.

Mineta, 358 F.3d 1058, 1063 (8th Cir. 2004). As such, we have

cautioned courts to employ “discretion, restraint and balance”

when considering whether to award front pay in order to avoid a

“windfall” to the party seeking front pay. Duke v. Uniroyal

Inc., 928 F.2d 1413, 1424 (4th Cir. 1991). A plaintiff bears

the burden of providing “the essential data necessary to

calculate a reasonably certain front pay award.” McKnight v.

Gen. Motors Corp., 973 F.2d 1366, 1372 (7th Cir. 1992). We will

not give deference to front pay awards that are “unduly

speculative.” Dotson, 558 F.3d at 300.

The amount of front pay awarded in this case lacks

substantial evidentiary support. The ALJ explicitly tied the

award of four years’ front pay, with full time tuition

reimbursement for those years, to Gunther’s supposed entitlement

to a four-year college degree. But Gunther declined to present

testimony from a vocational expert, a job counselor, or any

neutral witness to support the ALJ’s conclusion that she would

be unable to secure comparable employment absent a college

degree. The only record evidence to support the ALJ’s award is

Gunther’s self-serving speculation as to her prospective ability

to secure similar employment. On this record, she has failed to

meet the required burden of proof to adduce the “essential data”

44
necessary to calculate a reasonable front pay award. See

McKnight, 973 F.2d at 1372.

Gunther’s anecdotal and self-serving testimony that a four-

year college degree would be a prerequisite for obtaining

comparable employment is belied by the fact that Deltek hired

Gunther just one year prior to her termination without any

college education and without relevant on-the-job training.

Gunther admitted she had none of the usual certifications for a

financial analyst position and was not pursuing any. J.A. 1281-

82 (testifying that she was not a Certified Internal Auditor,

Certified Fraud Examiner, or a Charted Financial Analyst and

lacked a certificate in financial forensics). Her only

certification was “a certificate in common sense.” J.A. 1282.

Put simply, the ALJ did not temper the front pay

calculation to avoid a “windfall” in Gunther’s favor. See Duke,

928 F.2d at 1424. During her brief stay at Deltek, Gunther was

enrolled only in a two-year program at a community college where

she took two courses. She was not seeking a bachelor’s degree,

nor was she attending school full time. Further, Gunther

discontinued taking classes after her termination. No law

requires Deltek to bear the onerous burden of subsidizing

Gunther’s full time, four-year college education, a

qualification Gunther didn’t need to obtain her post with Deltek

just one year earlier. There is no record evidence remotely

45
supporting this award, which actually puts Gunther in a far

superior position than if she had remained at Deltek.

For example, the Deltek tuition reimbursement policy was

limited to two classes per semester. J.A. 2224. And any such

reimbursement plan was tied to Deltek receiving the benefit of

the employee’s services and a commitment to future services, a

fact not accounted for in the tuition or front pay awards. Even

if Gunther had taken the maximum reimbursable course-load year

round (assuming the availability of three semesters) her maximum

coverage over four years would be 24 classes, far fewer than

required for a bachelor’s degree. See U.S. Dep’t of Educ., NCES

1999-179, Credit Production and Progress Toward the Bachelor’s

Degree: An Analysis of Postsecondary Transcripts for Beginning

Students at 4-Year Institutions, at iii (1999) (noting a

bachelor’s degree generally requires 120 earned credit hours).

Assuming each of those 24 courses was worth three credit hours

and that she never missed one and performed satisfactorily,

Gunther would only accumulate 72 credit hours in four years

under the Deltek plan -- barely half those needed for a

bachelor’s degree. Gunther’s tuition award bonanza thus puts

her in a far better position than she could have been in while

employed at Deltek.

Nothing in the record shows Gunther had a specific plan,

much less a plan approved by Deltek, to obtain any level of

46
further education while employed there. The ALJ’s conclusion

that Gunther was entitled to attend school full time to obtain a

bachelor’s degree is fundamentally divorced from what is

necessary to make Gunther whole. See 18 U.S.C. § 1514A(c). See

also Shore v. Fed. Express Corp., 777 F.2d 1155, 1160 (6th Cir.

1985) (“The cost of obtaining a college degree, cited by the

plaintiff as a basis for the front pay award, cannot be

considered a post-judgment effect of defendant’s discrimination

. . . . However desirable a college education may be, we cannot

impose this cost on the defendant in this case.”); Ogden v. Wax

Works, Inc., 29 F. Supp. 2d 1003 (N.D. Iowa 1998) (“[T]he

expense of a college education should not be borne by [the

employer] under the guise of front pay.”).

The “windfall” character of the front pay award is also

apparent from its extended duration. Gunther worked for Deltek

for approximately one year and, for a substantial period, she

was out on Deltek-approved paid medical leave. The front pay

award exceeds the amount of time Deltek employed Gunther by at

least three years. A front pay award extending years into the

future where the employee’s tenure lasted approximately a year

is patently speculative. Moreover, Gunther has failed to

present any evidence justifying such a lengthy prospective

award. Four years of front pay is an arbitrary award plucked

from space without any record basis.

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 The majority, for its part, accepts the ALJ’s four-year

front pay award because the ALJ rejected Gunther’s demand for

ten years of front pay. Under the majority’s logic, had Gunther

only had the foresight to demand twenty years of front pay, she

would have received an eight-year pay award. But rejection of

Gunther’s unsupported front pay request of ten years does not

fill the void of record evidence to support the actual award.

The only record “evidence” to support the award is Gunther’s

self-serving speculation. See, e.g., J.A. 2197-2201, 2288-95.

Searching for some evidentiary basis on which to affirm the

ALJ’s front pay determination, the majority points to the ALJ’s

finding that Gunther did not work for Deltek long enough to

“‘obtain on-the-job qualifications’” and is “‘now unlikely to

obtain’ comparable employment without an undergraduate degree.”

Maj. op. at 34 (quoting J.A. 82). This reasoning misses the

mark, for if Gunther could obtain sufficient “on-the-job

qualifications” then she would not require a college degree.

This is not a circumstance where a longtime employee is

terminated from a post she held for years and years and faces a

vastly different job market with expanded job-credential

requirements. Deltek hired Gunther just one year prior to her

termination without a college degree, and nothing precludes

another employer from doing the same.

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 The award of front pay and tuition in this case is an

arbitrary and capricious agency act. The Court owes no

deference to the ALJ’s decision on front pay, as it lacks a

basis in the record and shows no “discretion, restraint and

balance,” which is required to avoid a front pay “windfall” such

as Gunther received in this case. Duke, 928 F.2d at 1424.

III. Conclusion

For all the foregoing reasons, I believe the majority

opinion fails to take account of the Supreme Court’s direction

that we engage in “meaningful review” of agency decisions.

Dickinson, 527 U.S. at 162. Instead, it affirms a finding of

causation premised on nothing more than post hoc ergo propter

hoc reasoning and a front pay award that is “unduly

speculative,” Dotson, 558 F.3d at 300, and amounts to a gross

“windfall,” Duke, 928 F.2d at 1424. I respectfully dissent and

would reverse the judgment of the Board.

49