UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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., 

, 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., 

,

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, 

(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, 

, 326 (4th Cir. 2008).                            We

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

Oxley Act.        See Welch v. Chao, 

, 276 (4th Cir.

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

Inc., 

, 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, 

, 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.        

.                   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.”         

.          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.”                       

(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 

.                  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., 

, 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,

, 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, 

, 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., 

, 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.            

.

       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.,    

,     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.; 

(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, 

, 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 

.    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, 

, *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., 

, 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

.        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, 

, 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, 

, 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., 

  (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 

, or “substitut[e]” a
factor of our own that the ALJ has not considered, cf. SEC v.
Chenery Corp., 

, 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 

, but only a discernible path, 

bridge” between record findings and legal conclusions, Cordova
v. Holder, 

, 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,” 

(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., 

(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., 

, 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 

(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, 

,

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, 

(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,       

,          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,” 

and it

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

to   calculate           a     reasonably     certain      front       pay   award.”          

v. Gen. Motors Corp., 

, 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., 

, 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,   

,   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, 

, 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., 

, 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. 

(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,   

,   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., 

, 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 

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

(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, 

, 162 (1999).                                We

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

rubber-stamping       agency        factfinding.”             

    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, 

, 276 (4th

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

, 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., 

,

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.               

      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., 

, 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.     

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.,      

, 1243 (11th Cir. 2005); see also Huss v. Gayden, 

, 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,

, 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., 

,    182     (4th     Cir.    1998)     (accord);       Bermudez      v.     TRC

Holdings, Inc., 

, 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 

.       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 

(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., 

, 196 (1947).    Where, as here, the
agency has made a finding “for no reason or for the wrong
reason,” King v. Califano, 

, 1020 (4th Cir. 1980),
the Court is “powerless to affirm . . . by substituting what it
considers to be a more adequate or proper basis.” 

; see also N.L.R.B. v. Ky. River Cmty. Care, Inc.,

, 721 (2001) (“We may not enforce the Board’s order
by applying a legal standard the Board did not adopt.”); Nken v.
Holder, 

, 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.             

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., 

, 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., 

, 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, 

, 1020 (4th Cir. 1980).

See also Cotter v. Harris, 

, 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, 

, 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., 

, 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., 

, 1372 (7th Cir. 1992).                                   We will

not     give     deference       to     front        pay   awards        that     are     “unduly

speculative.”          

.

       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

.

       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 

.             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., 

, 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.

                                                47
       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.



                                              48
       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.                  

.



                                   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.

.                  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,” 

, and amounts to a gross

“windfall,” 

.                     I respectfully dissent and

would reverse the judgment of the Board.




                                             49