Booker v. Constellation Energy Generation, LLC

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
PATRICIA BOOKER,
COMPLAINANT,
v.
CONSTELLATION ENERGY
GENERATION, LLC, f/k/a EXELON
GENERATION CO., LLC,
RESPONDENT.
ARB CASE NO. 2024-0049
2024-0050
ALJ CASE NO. 2016-ERA-00012
ALJ DREW A. SWANK
DATE: September 29, 2026
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge; Judges Johnson and Burrell, Concurring
DECISION AND ORDER
PER CURIAM. This case arises under the whistleblower protections of the
Energy Reorganization Act (ERA) and its implementing regulations.1 On June 5,
2024, Administrative Law Judge (ALJ) Drew A. Swank issued a Decision and Order
Denying Complainant’s Claims on Remand (D. & O. on Remand). The ALJ, after
reconsidering and reexamining the evidence in the record, determined that Patricia
Booker (Complainant) “failed to establish that her protected activity was a
contributing factor in Respondent’s adverse personnel actions[.]”2 The ALJ further
found that, even if Complainant had been able to make this showing, Constellation
Energy Generation (Respondent or Exelon) demonstrated “by clear and convincing
evidence that it would have taken the same adverse personnel actions absent any
protected activity” thus proving its affirmative defense.3 The ALJ also found that
1 42 U.S.C. § 5851; 29 C.F.R. Part 24 (2026).
2 D. & O. on Remand at 30.
3 Id.

2
Complainant failed to meet her burden to prove a hostile work environment claim.4
Complainant appealed to the Administrative Review Board (ARB or Board).
Respondent filed a cross-appeal with the Board. For the following reasons,
we affirm the ALJ’s findings as supported by substantial evidence.
BACKGROUND AND PROCEDURAL HISTORY
1. Complainant’s Reporting of Backdating Concerns
This case is now before the Board for the third time. The full factual
background and procedural history is set forth in the Board’s Decision and Order
Affirming in Part and Vacating and Remanding in Part (2023 Remand Order),
which the Board issued on September 21, 2023, and is incorporated here by
reference. A brief recounting of this matter’s factual background and procedural
history is as follows.
Respondent owns and operates nuclear power plants including the Peach
Bottom Atomic Plant (Peach Bottom) in Delta, Pennsylvania.5 Respondent operates
its nuclear facilities through operating leases issued by the National Regulatory
Commission (NRC).6 In late 2013, while working as an Administrative Coordinator
in the Maintenance Planning unit under the supervision of Maintenance Planning
Manager Tom Powell, Complainant raised concerns regarding employees
backdating maintenance documents.7 Complainant raised these concerns with
Respondent’s Nuclear Oversight Group (NOS), an independent group comprised of
auditors that test for regulatory compliance. In response to these concerns, NOS
issued an incident report (IR), AR 01587659 Report.8 On January 14, 2014,
Complainant contacted NOS and asked for a status update on her report.9 NOS
informed her that the report had been assigned to Powell who had closed it without
resolution. Upon learning this, Complainant asked NOS to reopen the report, which
4 Id.
5 Prior to a corporate divestiture in 2022, the Peach Bottom plant was owned and
operated by Exelon Generation Co., LLC.
6 D. & O. on Remand at 2.
7 Id. at 3.
8 Id.
9 Id.

3
NOS did.10 On January 16, 2014, Complainant reported her concerns regarding the
backdating of maintenance documents to Charles Breidenbaugh, Respondent’s
Maintenance Department head at Peach Bottom and Powell’s supervisor.11
On January 31, 2014, Complainant met with Respondent’s Regulatory
Assurance manager to discuss the backdating concerns.12 That same day, Powell
implemented guidance regarding recordkeeping and oversight of documents.13
The new guidance was in writing and shared with employees, including
Complainant. At around the same time, Breidenbaugh changed Respondent’s
overtime approval policy, specifically by reducing the number of administrative
assistants involved in the overtime approval process.14 On February 1, 2014,
Breidenbaugh sent an email to the affected administrative staff explaining the new
overtime approval procedure. Having left Complainant and one other
administrative staff member off the email, Breidenbaugh forwarded the email to the
two of them one minute later and explained that he should have copied them on the
original email.15 Complainant objected to the new policy to Breidenbaugh, as well as
to Brain Zukauckas, Respondent’s Human Resources Manager, and Laura Rush,
Respondent’s Senior Human Resources. Complainant told Breidenbaugh,
Zukauckas, and Rush that the new process effectively removed some of her existing
responsibilities and “feels like retaliation” related to her “escalati[ion] of an issue.”16
Also on February 1, 2014, Powell revoked Complainant’s access to his email inbox
because he believed she may have been misusing her inbox access privileges.17
Complainant again reached out to Rush to ask if “this [is] considered a chilling
environment.”18
The following week, on February 7, 2014, Complainant filed a complaint with
the NRC, alleging that Respondent was retaliating against her because of her
10 Id.
11 Id. at 4.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.

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attempts to address the backdating issue.19 On April 7, 2014, John Connelly took
over from Powell as Maintenance Planning Manager and became Complainant’s
supervisor.20 On July 31, 2014, NRC conducted an alternative dispute resolution
session with Complainant regarding her retaliation claims and when this did not
resolve her concerns, NRC continued its investigation.21 On September 16, 2014,
the NRC interviewed Complainant as part of its investigation into her complaint.22
2. Complainant’s BOP Review and UAA Hold
Pursuant to NRC regulations, Respondent is required to maintain a
Behavioral Observation Program (BOP).23 Respondent’s BOP requires that
employees undergo an annual review of their behavior. Additionally, employees
who, through the BOP, are determined not to be “trustworthy and reliable” are
liable to have their Unaccompanied Access Authorization (UAA) suspended or
held.24 Complainant’s UAA was required in order to complete her job duties.25
Respondent’s policy is to permit employees whose UAA is suspended or held to
remain on disability leave (if they qualify for such leave) for a period of up to 18
months, after which they will be discharged if they are unable to return to work.26
During the relevant time, Kevin Concannon worked as Respondent’s access
authorization lead for the Peach Bottom plant.27 One of his duties in this role was to
determine which individuals would obtain UAA based on safety rules and
procedures.28 Additionally, Concannon referred abnormal behavior from the annual
behavioral reviews to Respondent’s Medical Review Officer, Dr. Barbara Pohlman, a
licensed physician in internal medicine, for review and further action.29
19 Id. at 4-5.
20 Id. at 5.
21 Id.
22 Id. at 6.
23 See 10 C.F.R. § 73.56(f); see generally 10 C.F.R. Part 26 (2026).
24 D. & O. on Remand at 5.
25 Id.
26 Id.
27 Id.
28 Id.
29 Id.

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On September 2, 2014, Connelly was notified that he would need to complete
an annual BOP review for each of the individuals he directly supervised, which
included Complainant.30 On September 8, 2014, Connelly completed a BOP form for
Complainant, noting that Complainant went out of her way to avoid contact with
certain individuals: “She will change her route on purpose so she doesn’t have to
engage with the person.” Connelly also added that “[Complainant] has been talking
to herself a lot lately. She will sit at her desk talking out loud to no one.”31
Concannon reviewed the BOP form, determined that Complainant’s behavior was
abnormal, and referred the matter to Dr. Pohlman. Concannon also informed
Respondent’s Reviewing Official, Susan Techau, of the report.32
On September 15, 2014, Dr. Pohlman signed documents indicating that
Complainant should be required to complete a mandatory evaluation through
Respondent’s Employee Assistance Program (EAP) within ten days.33 On September
19, 2014, Dr. Pohlman issued a written notification to Complainant regarding the
EAP referral.34
As part of the EAP, Complainant was treated by Dr. Mary Lou Kunkle, a
counselor who evaluated Complainant, recommended that Complainant complete
six counseling sessions to work on interpersonal communication issues, and
determined that Complainant was “trustworthy and reliable to maintain her UAA
while she completed therapy.”35 At this point, Dr. Pohlman did not recommend any
additional action be taken against Complainant and she was permitted to remain in
work status.
On September 25, 2014, Complainant approached Connelly and reported that
she had witnessed another employee sleeping during a meeting. After Connelly
investigated the issue and informed Complainant that no one else had seen the
employee sleeping, Complainant contacted Human Resources (HR) to report that
Connelly had been physically aggressive and raised his voice while speaking to
30 Id.
31 Id. at 6.
32 Id.
33 Id.
34 Id.
35 Id.

6
her.36 HR investigated this complaint and determined that it lacked merit.37 A few
days later, on October 1 and 2, 2014, Complainant reported to Respondent’s
Employee Concerns Program (ECP) that Connelly was mishandling documents by
keeping a work order document unsecured in his office.38 Also on October 2, 2014,
Connelly entered a “Verbal Coaching” entry for Complainant indicating that she
refused to meet with him to go over her midyear review.
On October 7, 2014, HR Manager Zukauckas initiated a conference call with
several managers because he was concerned about Complainant’s “escalating”
behaviors.39 During the call, Respondent’s Director of Occupational Health and
Regulatory Medical Services, Barbara Stevens, shared her opinion that
Complainant’s behaviors were aberrant, and that Complainant sounded
“delusional” and showed signs of an “escalating mental health problem.”40 Based on
the information discussed on this call, Reviewing Official Techau authorized placing
Complainant’s UAA on administrative hold pending further evaluation.41
The following day, Connelly emailed himself a document titled “Viper” which was
originally created on September 25, 2014, and described his interactions with and
observations of Complainant.42
On October 21, 2014, Respondent changed the status of Complainant’s UAA
from administrative hold to temporary hold. That day, Respondent informed NRC
that it had notified Complainant that she was required to participate in a
psychological assessment, but that she declined the testing.43
On December 1, 2014, Dr. Kunkle recommended that Complainant be
allowed to return to work the following week. Doctor Kunkle also recommended that
Complainant report to Elizabeth Haupin, based on their prior good working
relationship, and that Complainant’s desk be moved to an open space of the office
36 Id. at 6-7.
37 Id. at 7.
38 Complainant also identified this issue to the NRC.
39 D. & O. on Remand at 7; Hearing Transcript (Tr.) at 676-78.
40 D. & O. on Remand at 7.
41 Id.
42 Id. at 7-8.
43 Id. at 8.

7
near Haupin.44 Doctor Pohlman objected to this recommendation, interpreting it as
a “huge red flag” that suggested Complainant “is not at all stable [if] she has to
require a specific boss and a specific desk location.”45 Accordingly, Dr. Pohlman
rejected Dr. Kunkle’s recommendations and indicated that Complainant would only
be permitted to return to work if she was able to do so “with NO restrictions.”46
On February 27, 2015, at Techau’s request, Dr. Pohlman sent Respondent a
letter stating that Complainant appeared “unable to achieve her prior level of
functioning,” and that the restrictions Dr. Kunkle recommended were
“not acceptable in a secure nuclear environment.”47 Based on this, Dr. Pohlman
recommended that Complainant’s UAA not be reinstated.48 After 18 months on
disability leave, Respondent terminated Complainant’s employment, consistent
with Respondent’s policy.49
3. Procedural History
On June 25, 2014, Complainant filed ERA whistleblower and hostile work
environment complaints with the Department of Labor’s Occupational Safety and
Health Administration (OSHA). Complainant later filed a second complaint with
OSHA alleging continued retaliation.50 OSHA dismissed both of Complainant’s
complaints on July 10, 2016, determining that the evidence did not support a
finding that her protected activity was a contributing factor in any adverse
employment action.51 Complainant timely filed objections to OSHA’s dismissal and
requested a hearing with the Department of Labor’s Office of Administrative Law
Judges. The case was assigned to ALJ Thomas M. Burke.
On February 9, 2017, Respondent filed a Motion for Summary Decision,
which the ALJ granted in his Order Granting Motion for Summary Disposition on
44 Id.
45 Id.
46 Id.; RX-55 at 2.
47 D. & O. on Remand at 8.
48 Id.
49 Id.
50 Id. at 1.
51 Sec’y’s Findings, Case #3-3500-14-049, Occupational Safety and Health
Administration (July 10, 2016).

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April 4, 2017. Complainant appealed this order to the Board. On July 31, 2019, the
Board vacated the ALJ’s decision and remanded the matter for the ALJ to proceed
with an evidentiary hearing on the merits. The Board concluded that the ALJ
“improperly weighed the evidence and made findings of fact as if he was resolving
the case on its merits based on the record before him in the absence of a hearing.”52
The Board further determined that Complainant had created a genuine issue of
material fact as to whether Respondent harassed Complainant and whether
Respondent retaliated against Complainant for engaging in protected activity.53
On remand, the case was reassigned to ALJ Drew A. Swank. On May 14,
2020, Respondent filed a Motion for Summary Decision arguing that the ALJ lacked
legal authority to review Respondent’s actions, which ALJ Swank denied on
January 21, 2021. Following a seven-day formal hearing that was held over several
months, the ALJ issued a Decision and Order Denying Complainant’s Claims in
which he found that Complainant engaged in protected activity when she filed
complaints with her superiors and the NRC regarding backdated safety documents
and that she suffered adverse actions, including reassignment of some of her work
duties and Respondent’s revocation of her UAA, which ultimately led to her
termination. The ALJ further found, however, that Complainant failed to establish
that her protected activity contributed to the Respondent’s adverse actions against
her.54 The ALJ also found that Complainant failed to show that she suffered any
intentional harassment and thus failed to establish a claim of a hostile work
environment in violation of the ERA.
On appeal, the Board affirmed the ALJ’s conclusion that the Department of
Labor had jurisdiction to decide the case but vacated the ALJ’s determination that
Complainant failed to establish by the preponderance of the evidence that her
protected activity was a contributing factor in the removal of certain job duties and
Respondent’s revocation of her UAA, as well as the ALJ’s determination that
Complainant failed to establish her hostile work environment claim. The Board
identified more than a dozen pieces of evidence that “the ALJ did not mention,
discuss, or evaluate” in his decision and order.55 The Board remanded the case to
52 Booker v. Exelon Generation Co., LLC, ARB No. 2017-0038, ALJ No. 2016-ERA-
00012, slip op. at 7 (ARB July 31, 2019) (Decision and Order of Remand).
53 Id. at 8.
54 Decision and Order Denying Complainant’s Claims (2022 ALJ Decision).
55 2023 Remand Order at 25.

9
the ALJ in order for him to fully analyze the record and reexamine the issue of
contributing factor causation and to address Complainant’s allegations of
intentional harassment in light of applicable law.56
On remand, the ALJ re-examined the evidence and made specific references
to much of the evidence that the Board had noted was not mentioned in his earlier
decision. In his Decision and Order Denying Complainant’s Claims on Remand, the
ALJ reached the same conclusions, again finding that Complainant engaged in
protected activity and suffered adverse employment actions but had not
demonstrated that her protected activity was a contributing factor in the adverse
employment actions.57 Similarly, the ALJ concluded that, even if Complainant had
proven contributing factor causation, Respondent proved by clear and convincing
evidence that it would have taken the same actions. Lastly, the ALJ concluded that
Complainant failed to establish that she experienced intentional harassment or
experienced a hostile work environment.
On appeal, Complainant raises a number of issues, challenging virtually all
aspects of the ALJ’s decision. In the broadest sense, Complainant argues that
(1) the ALJ failed to fully analyze the record and reexamine the issue of
contributing factor causation; and (2) the ALJ failed to fully analyze the record and
adequately consider the evidence regarding her claim of intentional harassment,
in both cases as instructed to do so by the Board in the 2023 Remand Order.58
Respondent has also filed an appeal, challenging again both the Board and the
ALJ’s conclusion that the Department of Labor has jurisdiction over Complainant’s
claim that Respondent unlawfully retaliated against her when it suspended her
UAA.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the Board to hear appeals
from ALJ decisions and to issue agency decisions in cases arising under the ERA.59
56 Id. at 34.
57 D. & O. on Remand at 31.
58 Petition for Review at 4-18.
59 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020); 29
C.F.R. § 24.110(a).

10
In ERA cases, the Board reviews questions of law presented on appeal de novo,
but is bound by the ALJ’s factual findings that are supported by substantial
evidence.60 Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”61 The Board affords great
deference to an ALJ’s credibility determinations and will only overturn such
findings if they “conflict with a clear preponderance of the evidence” or “are
inherently incredible or patently unreasonable.”62
DISCUSSION
1. Complainant’s Protected Activity
The ERA prohibits an employer from discharging or otherwise discriminating
against an employee with respect to his compensation, terms, conditions, or
privileges of employment because that employee has:
(A) notified his employer of an alleged violation of . . .
the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);
(B) refused to engage in any practice made unlawful by . .
. the Atomic Energy Act of 1954, if the employee has
identified the alleged illegality to the employer;
(C) testified before Congress or at any Federal or State
proceeding regarding any provision (or proposed provision)
of . . . the Atomic Energy Act of 1954;
(D) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under .
. . the Atomic Energy Act of 1954, as amended, or a
proceeding for the administration or enforcement of any
60 29 C.F.R. § 24.110(b); Tran v. S. Cal. Edison Co., ARB No. 2018-0024, ALJ No. 2017-
ERA-00008, slip op. at 2 (ARB Oct. 24, 2019).
61 Mazenko v. Pegasus Aircraft Mgmt., LLC, ARB No. 2021-0032, ALJ No. 2019-AIR-
00001, slip op. at 10 (ARB June 18, 2024) (quoting Universal Camera Corp. v. NLRB, 340
U.S. 474, 477 (1951) (other citations omitted)).
62 Bobreski v. J. Givoo Consultants, Inc., ARB No. 2009-0057, ALJ No. 2008-
ERA00003, slip op. at 9 (ARB June 24, 2011) (citation omitted); see also Folger v.
SimplexGrinnell, LLC, ARB No. 2015-0021, ALJ No. 2013-SOX-00042, slip op. 4 n.8
(ARB Feb. 18, 2016).

11
requirement imposed under this chapter or the Atomic
Energy Act of 1954, as amended;
(E) testified or is about to testify in any such proceeding or;
(F) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any
other manner in such a proceeding or in any other action
to carry out the purposes of . . . the Atomic Energy Act of
1954, as amended.[63]
The parties do not dispute that Complainant engaged in protected activity.
Specifically, Complainant engaged in protected activity under subclauses (A) and
(D) when she: (1) reported concerns about the backdating of documents to the NOS;
(2) reported concerns about backdating to Maintenance Department head
Breidenbaugh; (3) met with Respondent’s Regulatory Assurance manager to discuss
her concerns about the backdating of documents; and (4) contacted and filed a
complaint with the NRC regarding backdating and alleged retaliation in response to
it. The ALJ correctly determined that Complainant engaged in protected activity
and neither party contests that finding on appeal.64
2. Respondent’s Adverse Action
The ALJ determined that Complainant took certain adverse actions against
Complainant. Specifically, he determined that Respondent (1) rescinded some of
Complainant’s work duties, including her access to Powell’s email inbox and her
role in the overtime approval process; (2) told Complainant that if she wanted to
talk to the NRC, she was required to do so on-site at Peach Bottom in order for the
time spent talking to the NRC to count as work hours; (3) placed Complainant’s
63 42 U.S.C. § 5851(a)(1).
64 See D. & O. on Remand at 10. As the ALJ correctly noted, Complainant is only
required to show that her complaints about backdating were based on a reasonable belief
that the complaints were related to an unlawful practice under federal law regarding
nuclear safety. See, e.g. Williams v. Mason & Hanger Corp., ARB No. 1998-0030, ALJ No.
1997-ERA-00014, slip op. at 18 (ARB Nov. 13, 2002) aff’d, 376 F.3d 471 (5th Cir. 2004)
(“[A] whistleblower’s objection to practices, policies, directives or occurrences is covered if
the whistleblower reasonably believes that compliance with applicable nuclear safety
standards is in question; it is not necessary for the whistleblower to cite a particular
statutory or regulatory provision or to establish a violation of such standards.”) (citations
omitted).

12
UAA on administrative and then temporary hold; and (4) declined to reinstate
Complainant’s UAA, which resulted in Complainant’s termination.65 We find no
error in the ALJ’s analysis. As the Board has recognized, “stripping an employee of
job duties or altering the quality of an employee’s duties” can be actionable adverse
actions.66 Similarly, we have recognized that revocation of an employee’s UAA can
constitute adverse action, particularly when the affected employee is in a position
that requires UAA.67
3. The Board has Jurisdiction to Review the Revocation of Complainant’s
UAA
Before considering whether Complainant’s protected activity was a
contributing factor in the adverse actions taken by Respondent, we necessarily must
address Respondent’s argument that its decision to revoke Complainant’s UAA is
unreviewable by Board—as well as by the ALJ, the Secretary of Labor and,
ultimately, the federal courts. This argument was raised by Respondent and
rejected by the Board when this case was last before us.68 Respondent’s argument
presents a pure question of law, yet Respondent does not cite any new authority
that has been issued since the Board considered and rejected this argument in its
2023 Remand Order. Respondent’s argument is reducible to the claim that the
Board erred when it rejected Respondent’s invitation to extend Department of the
Navy v. Egan to cover not just decisions relating to government-issued security
clearances but to decisions relating to private entities’ building access programs.
However, we need not decide this issue in the instant proceedings, as liability has
been resolved on other grounds.
65 D. & O. on Remand at 11.
66 See Jenkins v. Env’t Prot. Agency, ARB No. 1998-0146, ALJ No. 1988-SWD-00002,
slip op. at 20 (ARB Feb. 28, 2003) (citation omitted).
67 See, e.g., Nelson v. Energy Nw., ARB No. 2013-0075, ALJ No. 2013-ERA-00002,
slip op. at 5 (ARB Sept. 30, 2015) (in which the Board noted and left undisturbed as not
appealed, the ALJ’s conclusion that revocation of an employee’s UAA badge was
unquestionably adverse action).
68 At the time, we noted that Respondent did not file a petition for review with the
Board as required by 29 C.F.R. § 24.110(a), but nonetheless elected to address Respondent’s
arguments in light of the legal question raised regarding Egan’s applicability.” 2023
Remand Order at 19 n.134. Respondent filed a Conditional Cross Petition for Review to re-
raise its Egan argument in this appeal.

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4. Contributing Factor Causation
Under the ERA, Complainant bears the burden of proving by a
preponderance of the evidence that her protected activity was a contributing factor
in Respondent’s adverse actions.69 A contributing factor is “any factor, which alone
or in connection with other factors, tends to affect in any way the outcome of the
decision.”70 Further, “the level of causation that a complainant needs to show is
extremely low[.]”71 To meet its burden, an employee only needs to demonstrate that
the protected activity played some role; the protected activity’s role “need not be
‘significant, motivating, substantial or predominant.”72 Indeed, federal courts have
recognized that “[f]or employers, this is a tough standard, and not by accident.
Congress appears to have intended that companies in the nuclear industry face a
difficult time defending themselves.”73
69 29 C.F.R. § 24.109(b)(1).
70 Jones v. Exclusive Jets, LLC, ARB No. 2023-0034, ALJ No. 2022-AIR-00003, slip op.
at 15 (ARB Dec. 31, 2024) (quoting Mazenko, ARB No. 2021-0032, slip op. at 26; Printz v.
STS Aviation Grp., ARB No. 2022-0045, ALJ No. 2021-AIR-00013, slip op. at 29 (ARB Dec.
15, 2023)); see also Addis v. Dep’t of Lab., 575 F.3d 688, 691 (7th Cir. 2009) (citing Marano
v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed.Cir.1993)).
71 Printz, ARB No. 2022-0045, slip op. at 31 (quoting Palmer v. Canadian Nat’l Ry.,
ARB No. 2016-0035, ALJ No. 2014-FRS-000154, slip op. at 15 (ARB Sept. 30, 2016)).
72 Dick v. USAA, ARB No. 2022-0063, ALJ No. 2018-STA-00054, slip op. at 14 (ARB
Apr. 16, 2024) (quoting Simpson v. Equity Transp. Co., ARB No. 2019-0010, ALJ No. 2017-
STA-00076, slip op. at 9 (ARB May 13, 2020)); Addis, 575 F.3d at 691 (citing Marano, 2
F.3d at 1140). Both the Board and federal courts have recognized that “Congress intended
that ERA’s contributing factor standard provide complainants a lower hurdle to clear than
the bar set by other employment statutes.” Addis, 575 F.3d at 690 (citing Williams v.
Admin. Review Bd., 376 F.3d 471, 476 (5th Cir. 2004)).
73 Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997)
(superseded in part by regulation on other grounds). As the House Report on the National
Energy Policy Act of 1992 (which amended the ERA) noted, “[r]ecent accounts of
whistleblower harassment at both NRC licensee [] and DOE nuclear facilities [] suggest
that whistleblower harassment and retaliation remain all too common in parts of the
nuclear industry. These reforms are intended to address those remaining pockets of
resistance.” H. Rep. No. 102–474(VIII), at 79 (1992).

14
A. Complainant’s Loss of Email Inbox Privileges
With regard to Complainant’s access to Powell’s email inbox being removed,
the ALJ concluded that “Powell revoked Complainant’s email inbox access for solely
nonretaliatory reasons and not, in any part, because of her protected activity.”74
The ALJ noted the temporal proximity between Complainant reporting concerns to
the NOS in January 2014 and Powell removing her access to his inbox on February
1, 2014, but concluded that this temporal proximity did not import a causal
connection because, prior to removing Complainant’s email inbox access, “Powell
implemented new guidance to address [Complainant’s] concern.”75 Taken alone, this
would be insufficient to justify the ALJ’s conclusion that “Powell revoked
Complainant’s email inbox access for solely nonretaliatory reasons and not, in any
part, because of her protected activity.”76 As we have recognized in the protected
activity context, “an employer cannot ‘cure’ protected activity or erase that it
occurred by admitting to wrongdoing, by apologizing, or by agreeing with the
employee about a safety concern.”77 This applies with equal force in the contributing
factor analysis; an employer admitting to, apologizing for, or even correcting a
safety issue may have some probative value but does not act as a shield that bars a
factfinder from finding that the protected activity was a contributing factor in any
adverse actions undertaken by the Respondent.
Here, however, the ALJ also credited Powell’s explanation that he revoked
Complainant’s access to his email because of her misuse of that privilege.78
Specifically, Powell testified that Complainant only had access to Powell’s inbox for
the purpose of alerting him to urgent emails that he received while in meetings.79
Shortly before he removed Complainant’s access to his inbox, Powell discovered that
Complainant had (mis)used her inbox privilege to read an email that another
74 D. & O. on Remand at 14.
75 Id. at 13. The ALJ does not mention that Powell’s decision to remove Complainant’s
inbox access occurred only one day after Complainant spoke to Respondent’s Regulatory
Assurance manager on January 31, 2014, about her backdating concerns.
76 Id. at 14.
77 Sewade v. Halo-Flight, Inc., ARB No. 2013-0098, ALJ No. 2013-AIR-00009, slip op.
at 8 (ARB Feb. 13, 2015).
78 D. & O. on Remand at 13-14.
79 Tr. at 816.

15
manager sent to Powell with feedback on how that manager believed Powell should
handle an interpersonal dispute between Complainant and another assistant.80
After discussing this incident with other managers and his wife, Powell decided to
revoke Complainant’s access to his inbox.81 The ALJ’s decision to credit Powell’s
explanation of why he chose to remove Complainant’s access to his email inbox—
and, just as importantly, why he chose to do so on February 1, 2014—is entitled to
great deference, and we will not disturb it.82 Accordingly, we find that the ALJ’s
conclusion regarding whether Complainant’s protected activity was a contributing
factor in Powell’s decision to remove her access to his email inbox is supported by
substantial evidence.
B. Complainant’s Loss of Certain Job Duties
Complainant also alleges that, due to her protected activity, Respondent (i)
took away her payroll/overtime duties for the CMO Department; (ii) took away her
her payroll/overtime duties for the Planning Department; (iii) removed her from the
overtime approval process; and (iv) temporarily removed her duty of inputting
payroll for Pete Dalgaard, an employee in the Planning Department.83 The first
three allegations all relate to a change in overtime approval processing that was
announced on February 1, 2014.84 The fourth allegation concerns events that
occurred in late September 2014. With regard to each of these allegations, the ALJ
concluded that Complainant’s protected activity played no role in the decision to
remove her responsibilities.85
On February 1, 2014, Breidenbaugh sent an email to ten employees,
including relevant administrative staff, stating:
I was informed yesterday that our overtime expenses for
the month of January were 3 times the money that was
budgeted. Some of the expenses were beyond our control
80 Id. at 816-18.
81 Id. at 818.
82 See, e.g., Bobreski, ARB No. 2009-0057, slip op. at 9.
83 D. & O. on Remand at 8-9.
84 Id. at 4; RX-42.
85 D. & O. on Remand at 14-15.

16
(weather related issues[,] icing, snow removal and
treatment, priority work lists, TSA windows).
Some of this overrun was because I didn’t do a good job to
challenge the requests. I need your help to get us back on
track. I realize that these requests bypass you and
sometimes the results do not get properly communicated
back to the supervisors.[86]
The email explained that, moving forward, Respondent would utilize a new
protocol for overtime approval. Under the new process, the responsibility for
soliciting overtime requests from supervisors in the CMO and I&C departments was
assigned to Heidi Pabis and the responsibility for soliciting overtime requests from
supervisors in the FIN and Planning departments was assigned to Joanie Froman.87
The email also laid out a six-step process for how overtime approval would work.
One minute after sending out the email, Breidenbaugh forward it to Complainant
and another administrative assistant with the note “FYI I should have cc’d you on
this message.”88 Complainant promptly replied to ask why Froman would be
handling requests for the Planning Department, stating that “CMO belongs to me –
it has for as long as I can remember. Is there some reason that you have taken away
my responsibilities? When you asked me to review a draft email on this issue last
week, I had not been removed from my duties.”89
Despite the temporal proximity between this change in how overtime
requests would be processed and Complainant’s protected activity the previous day,
the ALJ’s conclusion that Complainant’s protected activity was not a contributing
factor in this decision is supported by substantial evidence.90 As an initial matter,
86 RX-42.
87 Id. Additionally, the responsibility for soliciting overtime requests from supervisors
in the Electrical & Mechanical and Support departments was assigned to Edie Nelson.
Complainant does not allege that this was previously one of her responsibilities.
88 Id.; D. & O. on Remand at 4.
89 RX-42.
90 As with the ALJ’s discussion of Powell removing Complainant’s access to his email
inbox, the ALJ points out that “Powell implemented new guidance to address the concern”
prior to allegedly removing Complainant’s duties. See D. & O. on Remand at 14. For the
reasons previously explained, this is of only limited probative value when determining

17
the contemporaneously-provided rationale for the change in the overtime approval
process—that the relevant departments’ overtime costs for the previous month had
greatly exceeded the amount that was budgeted—is plausible on its face. At trial,
Complainant did not provide evidence demonstrating that this reason was
pretextual. Additionally, the policy change was one that affected multiple
administrative staff members, not only Complainant. While not dispositive, this
undercuts Complainant’s argument that the policy change was retaliation for her
reporting concerns about backdating.
In addition to this, Complainant struggled to demonstrate that some of the
supposedly reassigned responsibilities had even belonged to her prior to the policy
change. For instance, when asked what responsibilities were taken away from her
in relation to the payroll/overtime process for the CMO Department, Complainant
stated “I’m not quite sure. I didn’t do the work so, I’m sorry, I can’t answer
something that I’m not sure what it all entailed.”91 When asked again, Complainant
stated “I didn’t do the work, so I’m not sure. All I know is CMO was my work.”92
Importantly, nothing relating to CMO was included in Complainant’s job
description.93 Although Complainant credibly testified that she had been
responsible for handling overtime for the Planning Department prior to the change,
when asked if all that was taken away from her was the responsibility for sending
out four or five emails per week (one to each manager or supervisor in the
department) asking about upcoming overtime, she testified “If that’s what was
required. I didn’t do the work.”94 Complainant also argues that Breidenbaugh had
originally drafted an email explaining the new policy and in this earlier version of
the email, he did not remove any of her responsibilities. 95 This argument is
undermined by Complainant’s testimony that the draft email she reviewed did not
state that she would remain responsible for handling overtime requests for the
CMO and Planning departments and that the email did not list any of the
whether a complainant’s protected activity was a contributing factor in the employer’s
adverse action.
91 Tr. at 152.
92 Id.
93 Id. at 137.
94 Id. at 153.
95 Id. at 141-42.

18
administrative assistants who, from then on, would be responsible for handling
overtime for the various departments.96
Similarly, the ALJ’s conclusion that Complainant’s protected activity was not
a factor in the temporary removal of Complainant’s responsibility for inputting
payroll for Dalgaard is supported by substantial evidence.97 This alleged removal of
job responsibilities lasted for five days, during a period in which Dalgaard was
placed on disciplinary leave.98 Connelly credibly testified that he took over inputting
Dalgaard’s payroll during this brief period at the direction of human resources (HR)
in order “to protect the individual and maintain some confidentiality on why they’re
not at work.”99 This was confirmed by Complainant’s own testimony when she
stated that she spoke with the HR representative and was informed that HR had
directed Connelly to enter payroll for Dalgaard during the time of his suspension.100
Complainant testified that despite this measure, she was fully aware that
Dalgaard had been suspended and that “HR doesn’t know what the process is for
payroll because they only see their own.”101 Whether HR’s instruction to have
Connelly input Dalgaard’s payroll made sense is immaterial to the analysis of
whether Connelly’s action was influenced even in part by Complainant’s protected
activity. If anything, that this temporary change occurred at HR’s direction rather
than Connelly’s weakens Complainant’s argument.
In sum, substantial evidence supports the ALJ’s conclusion that
Complainant’s protected activity was not a factor in the decision to remove certain
job responsibilities from her in February and September 2014.
C. Requiring Complainant to Speak to the NRC While on Site
The ALJ determined that Complainant’s protected activity was not a
contributing factor in Powell telling her that, if she wanted to talk to NRC, she
96 Id.
97 D. & O. on Remand at 15.
98 Tr. at 523-24.
99 Id.
100 Id. at 168-69.
101 Id. at 169.

19
must do so on site at Peach Bottom.102 In support of this conclusion, the ALJ
pointed out that this action occurred after Powell implemented new guidance
regarding the backdating of documents.103 We do not find this to be particularly
persuasive, given that Complainant’s relevant protected activity—filing a complaint
with the NRC—occurred after Powell implemented the backdating guidance.
Still, we review the ALJ’s findings of facts under a deferential standard and our
review of the record convinces us that Complainant’s protected activity was not a
contributing factor in Powell requiring that she speak to the NRC on site.
For one thing, the record indicates that Powell did not bar Complainant from
speaking with the NRC from home; rather, he simply informed her that calls she
made from home would be on her own time rather than work time.104
This undercuts Complainant’s argument that the requirement was imposed with
retaliatory intent or to limit her ability to speak freely and openly with the NRC
investigator. Additionally, Powell offered to “arrange to have a private place on site
for [Complainant] to make these calls if required.”105 Although Complainant would
have preferred to speak with the NRC from home and be able to have the time
spent doing so count as work hours, she has not carried her burden of
demonstrating that her protected activity was a contributing factor in Powell’s
refusal to agree to that request.
D. Changes to Complainant’s UAA
The ALJ determined that Complainant’s protected activity was not a factor in
any of the following decisions related to her UAA: (i) Connelly’s submission of the
BOP form; (ii) Respondent’s decision on or about October 7, 2014, to place
Complainant’s UAA on administrative hold pending further evaluation;
(iii) Respondent’s decision on October 21, 2014, to change the status of the UAA
hold from an administrative hold to a temporary hold; and (iv) Respondent’s
102 D. & O. on Remand at 15.
103 The ALJ also noted that Complainant testified that Human Resources had approved
for her to speak with the NRC from home and that there “there’s no real ability to have a
confidential conversation” on site. D. & O. on Remand at 15 (citing Tr. at 136). To the
extent this has any probative value, it supports Complainant’s argument.
104 CX-64.
105 Id.

20
decision not to reinstate Complainant’s UAA even after Dr. Kunkle recommended
that Complainant be allowed to return to work.106
In reaching this conclusion, the ALJ pointed out Respondent’s repeated
failures to comply with NRC regulations related to behavioral observation programs
and unaccompanied or unescorted access. Specifically, the ALJ found that
Respondent failed to comply with 10 C.F.R. § 73.56(l), which requires that NRC
licensees adhere to a process that includes “provisions for the review . . . of a denial
or unfavorable termination of unescorted access” and must “allow . . . an
opportunity . . . for an impartial and independent internal management review.”107
The ALJ also found that Respondent failed to comply with 10 C.F.R. § 73.56(e)(6),
which requires that fitness for duty and reliability or trustworthiness
determinations be made by a licenses psychologist or psychiatrist, rather than a
physician (as Dr. Pohlman was).108
i. Connelly’s Submission of the BOP Form
The ALJ determined that Connelly “honestly completed the BOP form for
nonretaliatory reasons and submitted the BOP form in accordance with his job duty
to do so. Thus, Complainant’s protected activity played no role in Connelly’s
submission of the BOP form.”109 Although the ALJ included minimal discussion of
the evidence he relied upon in order to reach this conclusion, our review of the
record persuades us that this conclusion is supported by substantial evidence.
For one thing, the requirement to complete the BOP form and the timing of its
completion are standardized as part of Respondent’s Access Authorization Program,
which requires a “supervisory review conducted on a nominal annual basis for each
individual with UAA/UA, maintained for 365 consecutive days, by the individual’s
immediate supervisor[.]”110 At trial, Connelly credibly testified that although BOP
forms were not completed on an annual basis down to the exact date, they were
completed every 12 months” and Connelly thus had no control over when the form
106 D. & O. on Remand at 16-19.
107 D. & O. on Remand at 19 (citing 10 C.F.R. § 73.56(l)).
108 Id. at 19-20 (citing 10 C.F.R. § 73.56(e)(6)).
109 Id. at 15.
110 RX-7 at 2.

21
was required to be submitted.111 This severely undercuts Complainant’s argument
that the timing of Connelly’s submission of the form was retaliatory.
Further, Complainant did not present evidence that either of the two
remarks Connelly included on her form were inaccurate.112 In fact, at multiple
times Complainant acknowledged that she had engaged in the behavior described
by Connelly (talking out loud to herself), or at least a behavior similar to it.
Specifically, Complainant questioned why Connelly viewed the behavior as
unusual,113 and implied that the behavior was not a change in behavior,114 in each
instance to argue that the behavior did not merit inclusion on the BOP form.
The evidence in the record demonstrates that Connelly truthfully and accurately
completed the BOP at the time he was required to do so pursuant to company
policy. The ALJ’s conclusion that Complainant’s protected activity was not a
contributing factor in Conelly completing the BOP form is supported by substantial
evidence.
ii. Respondent’s Administrative Hold on Complainant’s UAA
The ALJ determined that “a combination of Complainant’s ongoing abnormal
behavior and negative interactions with Human Resources triggered the conference
call between several managers which resulted in [Reviewing Official] Techau
authorizing the decision to place Complainant’s UAA on administrative hold.”115
The ALJ also added that “Complainant’s ongoing abnormal behavior played the
foremost role in the decision to place her UAA on administrative hold” and found
111 Tr. at 576-77.
112 In a space reserved for descriptions of changes in behavior identified by the
supervisor, Connelly wrote that “Patricia will change her route on purpose so she doesn’t
have to engage with the person” and that “Patricia has been talking to herself a lot lately.
She will sit at her desk talking out loud to no one.” Although Complainant alleges that the
talking to herself involved verbal prayer, Connelly disputed this characterization. See Tr. at
532-33 (“I can tell you what I heard coming from her cubicle was not praying or at least not
praying from any religion I am aware of.”).
113 Tr. at 63 (“I have no way to explain why they would think that humming out loud
was an unusual behavior.”).
114 Tr. at 603. During Complainant’s cross examination of Connelly, she asked, while
questioning him about his comment on the BOP form that she spoke out loud to herself,
whether Connelly had previously worked with Complainant during an outage. Complainant
also testified that she managed episodes of post-traumatic stress disorder by praying.
Tr. at 252.
115 D. & O. on Remand at 17.

22
“that Complainant’s complaints were not a factor – not even an insignificant or
insubstantial factor – in the decision to place her UAA on administrative hold.”116
The ALJ’s conclusion is supported by substantial evidence.
Although it was Zukauckas who initiated the October 7 conference call,
he credibly testified that he did so upon the recommendation of Karen Greig,
Respondent’s Vice President of Human Resources.117 Grieg was the chairperson of
Respondent’s Employee Issues Advisory Council (EIAC), which was composed of
representatives from various departments including Occupational Health Services,
HR, and legal, and was tasked with reviewing employee concerns, discussing
investigations, and providing guidance about next steps.118 Other than a bare
allegation that everyone who “was involved in the strategizing meeting” retaliated
against her, Complainant has not alleged that Grieg retaliated against her, had
animus toward her, or even had knowledge of Complainant’s protected activity prior
to the October 7 call.119
On appeal, Complainant notes that the October 7 call included multiple
corporate executives, along with local employees who were aware of her protected
activity, and argues that this alone is sufficient to demonstrate that Techau’s
decision to place her UAA on administrative hold (which Complainant refers to as
“revok[ing]” her UAA) was done at least in part due to her protected activity.120
The problem with this line of reasoning is that Complainant has not shown that her
protected activity was discussed during this meeting. Rather, individuals in the
meeting credibly testified that the discussion was focused on her recent behavior
(such as speaking to herself) and the unsubstantiated allegations she made against
Connelly (regarding yelling at her and intimidating her by standing insider her
cubicle).121 Barbara Stevens, Respondent’s Director of Occupational Health and
Regulatory Services, attended the meeting and concluded that Complainant’s
116 Id.
117 Tr. at 676-77.
118 2023 Remand Order at 12 n.86.
119 Tr. at 134. In her opening brief, Complainant states that the ALJ erred in
interpreting this testimony as an allegation that the individuals on the call retaliated
against her. Rather, she “presented this evidence only to show Corporate knowledge of
protected acts” prior to Respondent revoking her UAA. Comp. Br. at 36.
120 Petition for Review at 6.
121 Tr. at 485-87, 677.

23
behavior was “aberrant” and potentially delusional, and that her “mental health
was deteriorating[.]”122 Importantly, Stevens—like Greig—was not aware of
Complainant’s complaints to the NRC or her concerns regarding backdating at this
time.123
Complainant argues that Connelly and Zukauckas, both of whom were aware
of Complainant’s protected activity and allegedly sought to retaliate against her
because of it, provided input during the October 7 meeting and “[t]heir input is why
[the] UAA hold was applied.”124 When we remanded this case, we did so with
instructions for the ALJ to evaluate the contradiction between Conelly’s testimony
that he “did not, repeat, did not give any input on that call” and his OSHA witness
statement in which he stated”
Based on input from myself and HR and the interactions
HR had had [stet] with Complainant, it was decided at
[the] end of [the] meeting that her access would be put on
hold and that she would be told to leave the site and not
return until she was contacted by Exelon. I had no role in
the decision to put her access on hold. I provided input.”[125]
On remand, the ALJ took Connelly’s contradictory statements into account
and deemed “Connelly’s testimony regarding the conference call unreliable.”126
The ALJ concluded that Connelly “likely provided input during the conference
call[.]”127 Thus, even after discounting Connelly’s testimony, the ALJ concluded that
Complainant had not demonstrated that her protected activity was in any way a
factor in Respondent’s decision to place an administrative hold on her UAA.
In reaching this conclusion, the ALJ cited the witness testimony regarding
Complainant’s “ongoing abnormal behavior” and her negative interactions with HR
(on matters unrelated to her protected activity).128 There is, of course, evidence in
the record that would support a different conclusion. Yet under a substantial
122 Id. at 486-87.
123 Tr. at 484.
124 Comp. Br. at 15.
125 2023 Remand Order at 26; Tr. at 587; CX-38 at 9.
126 D. & O. on Remand at 16.
127 Id.
128 Id. at 16-17.

24
evidence standard of review, “we must uphold an ALJ’s findings of fact to the extent
they are supported by substantial evidence even if there is also substantial evidence
for the other party, and even if we justifiably disagree with the finding.”129
Upon our review of the record, we are satisfied the ALJ’s conclusion is supported by
substantial evidence.
On appeal, Complaint argues that the ALJ did not address her “cat’s paw”
theory of liability.130 Although the ALJ did not explicitly refer to that theory of
liability, it is clear that—unlike when this case was previously before the ALJ—he
did consider it. After considering the evidence, the ALJ rejected Complainant’s cat’s
paw theory, finding instead that it was Stevens sharing her view that
Complainant’s behaviors were aberrant that prompted Techau to place an
administrative hold on Complainant’s UAA.131 Even if we grant that Stevens
learned of Complainant’s behavior through reports or other documents prepared by
Connelly and Zukauckas, that would not be enough for Complainant to prevail on a
cat’s paw theory. The record makes clear that although some of the specific
behaviors that caused alarm among Stevens, Dr. Pohlman, and Techau were
identified by Connelly and Zukauckas, multiple other employees, including station
nurse Bob Pilkey132 and security manager Phil Simmons,133 also documented and
raised concerns about Complainant’s behavior.
iii. Respondent’s Temporary Hold on Complainant’s UAA
On October 16, 2014, Dr. Kunkle’s office provided a status report to Pilkey,
Concannon, and Dr. Pohlman stating that Dr. Kunkle “is recommending the
employee remain off work at this time. She is also recommending the employee
attend outpatient counseling 2x per week for the next 3 weeks. She will reassess the
129 Bobreski, ARB No. 2009-0057, slip op. at 8 (quoting Hirst v. Se. Airlines, Inc.,
ARB Nos. 2004-0116, -0160, ALJ No. 2003-AIR-00047, slip op. at 6 (ARB Jan. 31, 2007));
Clark v. Hamilton Hauling, LLC, ARB No. 2013-0023, ALJ No. 2011-STA-00007,
slip op. at 4 (ARB May 29, 2014).
130 Complainant’s Opening Brief (Comp. Br.) at 10, 15-16.
131 D. & O. on Remand at 7.
132 Tr. at 485-87.
133 RX-68.

25
employee for return to work in 3 weeks.”134 On October 21, 2014, Respondent
changed the status of Complainant’s UAA from administrative hold to temporary
hold.135 In the two weeks that elapsed after Respondent placed Complainant’s UAA
on administrative hold, Complainant attended outpatient counseling with Dr.
Kunkle.
It was Concannon, in his role as authorization lead, who changed the status
of Complainant’s UAA from an administrative to a temporary hold.136 Both when
her UAA was on administrative hold and when it was on temporary hold,
Complainant was not permitted to work at the Peach Bottom plant. Since there
were no developments related to Complainant’s report to the NRC regarding
backdating between October 7, 2014, and October 21, 2014, the ALJ determined
that Complainant’s protected activity was not a contributing factor in Respondent
taking this action for the same reasons that her protected activity was not a
contributing factor in the October 7, 2014 decision to place her UAA on
administrative hold.137 We see no error with this conclusion.
The ALJ also rejected Respondent’s argument that it could maintain the
temporary hold on Complainant’s UAA for an indefinite period of time without
providing any appeal procedures.138 The ALJ noted that this view is directly
contradicted by the applicable regulations, which provide that NRC licensees must
provide “provisions for the review, at the request of the affected individual, of a
denial or unfavorable termination of unescorted access or unescorted access
authorization that may adversely affect employment.”139 At trial, Concannon
acknowledged that the temporary hold placed on Complainant’s UAA was a
revocation of her access but explained that he believed that the regulations
providing employees a right of review applied only to denials of UAA, not
134 RX-30 at 6. Doctor Kunkle provided additional status reports to Pilkey, Concannon,
and Dr. Pohlman on October 30, 2014, and November 3, 2014. In both of these reports she
indicated that she was not recommending that Complainant return to work.
135 RX-69 at 5.
136 Order Granting Motion for Summary Disposition at 10.
137 D. & O. on Remand at 18 (“No relevant facts occurred during this two-week lapse.”).
138 Id.; Tr. at 376 (“You can be on temporary hold for one day or for 10 years until the
issue’s cleared up, if that’s what you’re asking. There’s no time limit on a temporary hold.”).
139 10 C.F.R. § 73.56(l).

26
revocations.140 This view was rejected by the ALJ and has been rejected by multiple
federal courts.141 The ALJ concluded, however, that Respondent “failed to comply
with regulatory directives due to misunderstanding of the applicable law.”142
On appeal, Complainant assails this conclusion, arguing that “there is NO
reference to ‘misunderstanding’ NRC regulations in any document ever submitted
by Respondent[.]”143 Complainant also points out that Respondent, in its briefing on
remand, “doubles down” on its argument that it was complying with NRC
regulations.144 None of this helps Complainant’s argument, however. Respondent’s
insistence that its action complied with applicable regulations, to the extent it has
any bearing on the contributing factor analysis, would tend to support a finding
that Respondent failed to provide Complainant with a mechanism by which she
could appeal the hold placed on her UAA not in an effort to retaliate against her but
because Respondent believed—and still believes—that such an appeal right was not
required under the NRC regulations.
iv. Respondent’s Decision not to Reinstate Complainant’s UAA
On December 1, 2014, Dr. Kunkle provided Pilkey, Concannon, and Pohlman
with a status report in which she recommended that Complainant “return to work
with nuclear access starting 12/9/14.”145 In a cover letter to the report, Dr. Kunkle
stated that “[i]n my professional opinion, Ms. Booker is trustworthy and reliable to
perform her duties, including her nuclear access to protected areas[.]”146 The status
report also included Dr. Kunke’s recommendation that Complainant be provided
with the following accommodations for a period of three months: “1) the employee be
140 Tr. at 376-77.
141 See, e.g., Exelon Generation Co., LLC v. Loc. 15, Int’l Bhd. of Elec. Workers, AFL-
CIO, 676 F.3d 566, 573-75 (7th Cir. 2012) (holding that 10 C.F.R. § 73.56(l) applies to
denials or revocations of access authorizations); Pub. Serv. Elec. & Gas Co. v. Loc. 94 Int’l
Bhd. of Elec. Workers, 140 F. Supp. 2d 384, 392 (D.N.J. 2001), aff’d, 27 F. App’x 127 (3d Cir.
2002) (finding that “the NRC’s intent was to permit an arbitration provision to be utilized
as the appeal process for revocation or denial of site access authorization when
appropriate[.]”).
142 D. & O. on Remand at 19.
143 Comp. Br. at 6.
144 Id.
145 RX-30 at 10.
146 Id. at 9.

27
able to report to a female manager and 2) the employee’s desk be moved near the
female manager.”147 Doctor Kunkle also recommended that Complainant continue
with outpatient counseling upon her return to work.148 Upon receiving this
recommendation, Dr. Pohlman completed an Access Authorization / Fitness for
Duty Review Form in which she rejected Dr. Kunkle’s recommendations and stated
that Complainant “[n]eeds full/complete [release-to-work] with NO restrictions.”149
On February 27, 2015, Dr. Pohlman sent Techau, Respondent’s Reviewing
Official, a letter stating that Complainant “appears unable to achieve her prior level
of functioning,” and that the restrictions Dr. Kunkle recommended were
“not acceptable in a secure nuclear environment” because it was “simply impossible
to guarantee that a specific manager will be physically nearby at all times.”150
The letter concluded by noting that Complainant’s suitability for access
authorization could be re-evaluated “[w]hen her condition has stabilized such that
she no longer requires a specific female manager to supervise her work and be
physically nearby[.]”151 On the same date, Techau informed Complainant via letter
that “the MRO [Dr. Pohlman] has concluded that your current condition is not
sufficiently stable and controlled to meet the standards, under the NRC’s
regulations and the Company’s Access Authorization Program, to warrant
recommending reinstatement of your unescorted access at this time.”152
In his decision, the ALJ observed that “Doctor Pohlman was not qualified,
per applicable regulations, to make the recommendation or determination of fitness
at issue with respect to Complainant” and since Dr. Pohlman is not a licensed
psychologist nor psychiatrist, she lacked the authority to recommend that a full
clearance, free of conditions, was required for reinstatement of Complainant’s
UAA.153 On appeal, Respondent argues that the ALJ misinterpreted the regulation,
which only applies to psychological assessment for “[i]ndividuals who are applying
for initial unescorted access or unescorted access authorization, or who have not
maintained unescorted access or unescorted access authorization for greater than
147 Id. at 10.
148 Id.
149 D. & O. on Remand at 8; RX-58 at 2.
150 RX-58
151 Id.
152 RX-57.
153 D. & O. on Remand at 19 (citing 10 C.F.R. § 73.56(e)(6)).

28
365 days, shall be subject to a psychological assessment” (emphasis in original).154
Although part of the regulation deals with the psychologic assessment for initial
UAA, the subparagraph that the ALJ cited applies, by its own terms, to
“psychological reassessments[.]”155 We find no error with the ALJ’s conclusion on
this point. Even so, the mere fact of Respondent’s noncompliance with NRC
regulations is not enough for Complainant to carry her burden.
In short, the ALJ conclusion that “Complainant’s protected activity played no
role in Respondent’s decision” not to approve Dr. Kunkle’s recommendation that
Complainant be permitted to return to work with accommodations is supported by
substantial evidence. 156 At trial, Dr. Pohlman testified that never in her 35 years of
practice as an occupational medicine physician had she written or approved a
return-to-work recommendation with similar accommodations.157 Doctor Pohlman
also testified that she would view other types of accommodation requests, such as a
request that an employee work only “a certain number of days or only a certain
number of hours” as a sign that the employee’s condition is not stable and they are
not fit to work in a nuclear environment.158 Similarly, when Complainant had her
unescorted access authorization suspended in 2010 and sought to return to work
with restrictions, Dr. Candeletti, a psychologist working with Respondent, wrote to
Concannon stating “normally, I do NOT recommend someone for work unless it is
WITHOUT restrictions. Either you are stable and reliable or you are NOT.
You cannot be stable and reliable WITH restrictions.”159
The ALJ also concluded that Complainant’s protected activity played no role
in Respondent informing the NRC, as part of the NRC’s investigation of
Complainant’s complaints, that Complainant had declined to participate in a
psychological assessment with the Access Authorization Clinical Psychologist and
“has yet to make herself available to participate in the psychological assessment.”160
Complainant testified that she did not decline testing, but knew that she since had
not been released from the EAP (through which she was seeing Dr. Kunkle) she was
154 Respondent’s Response Brief (Resp. Br.) at 6-7 (citing 10 C.F.R. § 73.56(e)).
155 10 C.F.R. § 73.56(e)(6).
156 D. & O. on Remand at 19.
157 Tr. at 423.
158 Id. at 425
159 RX-29.
160 CX-33; D. & O. on Remand at 20.

29
not yet eligible for the psychological testing.161 Assuming for the sake of argument
that Respondent’s statement to the NRC was an adverse action, we conclude the
ALJ’s finding that Complainant’s protected activity was not at all a factor in
Respondent providing that statement to the NRC to be supported by substantial
evidence,
5. Respondent’s Affirmative Defense
Under the ERA, if a complainant satisfies his burden of proof, the respondent
may avoid liability if it demonstrates by clear and convincing evidence that it would
have taken the same unfavorable personnel action in the absence of the
complainant’s protected activity.162 Under Board precedent, it is not enough for an
employer to show that it could have taken the same adverse action; it must show
that it would have done so even in the absence of protected activity.163 We have
previously said that for the assessment of an employer’s affirmative defense “it is
not enough to confirm the rational basis of [the employer’s] policies and decisions.
Instead, we must assess whether they are so powerful and clear that [the adverse
action] would have occurred apart from the protected activity.”164
In his analysis, the ALJ concluded that Respondent demonstrated by clear
and convincing evidence that it would have taken the same challenged actions even
if the absence of Complainant’s protected activity.165 However, Because substantial
evidence supports the ALJ’s conclusion that Complainant did not prove that
Respondent violated the ERA, we “need not reach the question of whether
161 Tr. at 295.
162 42 U.S.C. § 5851(b)(3)(D); 29 C.F.R. § 24.109(b)(2).
163 See, e.g., Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, ALJ No. 2014-FRS-
000154, slip op. at 57 (ARB Sept. 30, 2016) (reissued with full dissent Jan. 4, 2017);
Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA-00006,
slip op. at 10-11 (ARB Apr. 25, 2014). Similarly, the Board has recognized that an employer
cannot carry its burden by showing that it might have taken the same adverse action
against an employee. Jones, ARB No. 2023-0034, slip op. at 20 (citing Douglas v. Skywest
Airlines, Inc., ARB Nos. 2008-0070, -0074, ALJ No. 2006-AIR00014, slip op. at 17 n.108
(ARB Sept. 30, 2009)).
164 Henderson v. Wheeling & Lake Erie Ry., ARB No. 2011-0013, ALJ No. 2010-FRS-
00012, slip op. at 15 (ARB Oct. 26, 2012).
165 D. & O. on Remand at 24.

30
[Respondent] demonstrated that it would have taken the same unfavorable action
in the absence” of Complainant’s protected activity.166
6. Complainant’s Hostile Work Environment Claim
The ERA “protects employees who raise nuclear safety-related concerns from
retaliation . . . [and this] protection has been construed to prohibit retaliatory
harassment that creates a [hostile work environment].”167 To prevail on a hostile
work environment claim, a complainant is required to establish, by a preponderance
of the evidence:
(1) that he engaged in protected activity;
(2) that he suffered intentional harassment related to that
activity;
(3) that the harassment was sufficiently severe or
pervasive so as to alter the conditions of employment and
to create an abusive working environment; and
(4) that the harassment would have detrimentally affected
a reasonable person and did detrimentally affect
Complainant.[168]
As we noted in the 2023 Remand Order, “[p]roving a hostile work
environment claim is a high bar.”169 Hostile work environment claims involve
“repeated conduct or conditions that occur over a series of days or perhaps years.”170
166 See Hasan v. Burns & Roe Enters., Inc., ARB No. 2000-0080, ALJ No. 2000-ERA-
00006, slip op. at 6 n.7 (ARB Jan. 30, 2001); see also Robinson v. Nw. Airlines, Inc.,
ARB No. 2004-0041, ALJ No. 2003-AIR-00022, slip op. at 7 n.5 (ARB Nov. 30, 2005) (“We
need not reach the respondent’s burden of proof in this case because Robinson failed to
prove that his protected activity was a contributing factor in Northwest’s adverse
employment actions.”); Turin v. Maiden Holdings, LTD, ARB No. 2021-0066, ALJ No. 2010-
SOX-00018, slip op. at 4-5 (ARB June 29, 2023) (declining to reach other questions after
affirming the ALJ’s conclusion that complainant did not engage in protected activity).
167 Williams, ARB No. 1998-0030, slip op. at 11.
168 Id. at 11-12 (citations omitted).
169 2023 Remand Order at 30 (quoting Forrand v. FedEx Express, ARB No. 2019-0041,
ALJ No. 2017-AIR-00016, slip op. at 6 (ARB Jan. 4, 2021)).
170 Lewis v. U.S. Env’t Prot. Agency, ARB No. 2004-0117, ALJ Nos. 2003-CAA-00005,
-00006, slip op. at 5 (ARB June 30, 2008), aff’d, 368 F. App’x 20 (11th Cir. 2010) (quoting
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)).

31
Importantly, the conduct complained of must be “sufficiently severe or pervasive to
alter the conditions of the [complainant’s] employment and create an abusive
working environment.”171 Circumstances relevant to determining whether a hostile
work environment exists include “the frequency of the discriminatory conduct, its
severity, whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee’s work
performance.”172
We have already established that the Complainant engaged in protected
activity, thus satisfying the first element she is required to show to prevail on a
hostile work environment claim. It is the second element—intentional
harassment—where Complainant’s argument and evidence fall short. In his
analysis, the ALJ concluded that the conduct Complainant proffered as examples of
intentional harassment “do not constitute intentional harassment” either when
considered separately or taken together.173 He further found that the complained of
conduct “did not create an abusive work environment that was pervasive and
regular, nor harsh, abusive, or discriminatory.”174 Because these findings are
supported by substantial evidence, we affirm.
171 Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062,
slip op. 13 (ARB June 17, 2019) (citing Williams v. Nat’l Passenger Corp., ARB No. 2012-
0068, ALJ No. 2012-FRS-00016, slip op. at 6-7 (ARB Dec. 19, 2013)).
172 Hoffman v. Netjets Aviation, Inc., ARB No. 2009-0021, ALJ No. 2007-AIR-00007, slip
op. at 12 (ARB Mar. 24, 2011) (citation omitted).
173 D. & O. on Remand at 30.
174 Id.

32
Judge Burrell, Concurring:
I concur in the outcome reached in the per curiam decision. The ALJ’s
decision that Complainant failed to prove that protected activity was a contributing
factor in any of the adverse actions she may have suffered is supported by
substantial evidence and legally sound. I would also affirm the ALJ’s affirmative
defense findings as legally sound and supported by substantial evidence.
After briefly reviewing the ALJ’s findings, I write separately to address a few
observations regarding the ARB’s 2023 decision on Department of the Navy v.
Egan.175
1. Protected Activity Did Not Contribute to Complainant’s Adverse
Actions176
A. Complainant’s Adverse Actions Before Losing Her UAA
As recounted in the per curiam opinion and the several ALJ and ARB
opinions preceding this opinion, Complainant engaged in protected activity
concerning proper recordkeeping and dating of safety-related documents.177
Regarding these concerns, Complainant first filed internal complaints in late 2013
and early 2014 with Respondent and then elevated those concerns to the NRC in
February 2014.178 The ALJ found that Complainant’s then supervisor, Tom Powell,
embraced Complainant’s concerns about proper dating of records and instituted
guidance to correct practices once becoming aware of the problem through
Complainant’s reporting.179 The ALJ wrote as follows (2022):
In February 2014, after the NRC’s Condition Report
regarding the back-dating, Respondent implemented
guidance encouraging accurate recordkeeping and
175 484 U.S. 518 (1988).
176 I would apply the same reasoning below to affirm the ALJ’s affirmative defense
analysis.
177 ALJ 2024 D. & O. on Remand at 1-2 (procedural history of the case to date), 3-4
(describing Complainant’s protected activity), 10-11 (same). Neither party appealed the
ALJ’s findings regarding protected activity and adverse action. They were not part of the
ALJ’s D. & O. on Remand. Id. at 11.
178 Id. at 3-5.
179 Id. at 4, 14.

33
oversight of documentation. RX-41. Specifically, Tom
Powell developed a solution to the issues raised in AR
01587659. TR 792. Powell discussed the solution with other
employees, including Complainant, to ensure the plan
addressed the problems that had occurred. TR 792.
Powell’s new guidance was provided in writing and in
discussions with management. RX-43; TR 795-96. Powell
testified that he was glad that Complainant raised the
issue because it was something that the safety governance
and procedure did not address. TR 821-22.[180]
Complainant stated that she suffered several adverse actions beginning in
early 2014, including, among others, being removed from access to Powell’s email,
being removed from certain overtime procedures, having her duties changed, and
being required to meet with the NRC at work in order to be paid for the meeting.181
The ALJ found that protected activity did not contribute to any of the adverse
actions she alleged.182 As noted above, throughout the ALJ’s 2024 D. & O. on
Remand, the ALJ credited the fact that Respondent embraced Complainant’s
protected activity. Instead, the changes to Complainant’s work environment were
either administrative in nature or Respondent’s response to Complainant’s own
behavior.
B. Complainant’s Loss of UAA
Complainant worked at Respondent’s nuclear power plant. Several
regulations regarding security and access to the premises apply to operation of the
plant.183 One of those regulations provides that employees who have
Unaccompanied Access Authorization (UAA) be subject to the Behavioral
Observation Program (BOP), which requires an annual certification to determine
“trustworthiness and reliability.”184 Complainant required a UAA as part of her
duties at the plant.185 Complainant’s supervisor, at the time Jack Connelly, filed an
180 ALJ 2022 D. & O. at 2.
181 ALJ 2024 D. & O. on Remand at 8-9.
182 Id. at 13-15.
183 Id. at 5.
184 10 C.F.R. § 73.56.
185 ALJ 2024 D. & O. on Remand at 5.

34
annual BOP review of Complainant on September 8, 2014, in which he indicated
Complainant’s abnormal behavior of talking to herself and unusual social
distancing from others.186
The ALJ found that protected activity played no role in the submission of the
BOP.187 Substantial evidence supports that Connelly filed an annual BOP review of
Complainant on September 8, 2014, not because of protected activity but because it
was an annual certification for all employees who had UAA at the nuclear power
plant.188 Complainant was directed to attend medical and psychological evaluation
services.189 Complainant received medical treatment in mid-September and no
further action was taken.190
Around this time, Complainant’s behavior deteriorated with Connelly.191
Complainant accused Connelly of aggressive behavior on or about September 25,
2014. Human Resources (HR) investigated and found this to be without merit.192
On or about October 1 and 2, 2014, Complainant made a second complaint against
Connelly for allegedly mishandling documents. On October 2, 2014, Connelly in
turn filed a performance intervention against Complainant because she would not
meet with him to go over her mid-year review.193 On October 3, 2014, Complainant
filed another complaint against Connelly for allegedly intimidating behavior, which
HR found to be without merit.194
On October 7, 2014, several managers discussed Complainant’s behavior and
UAA via a conference call.195 The meeting was arranged following evaluations
received as part of Complainant’s medical treatment following the BOP and referral
as well as Complainant’s interactions with Connelly and HR following initial
186 Id. at 5-6, 15.
187 Id. at 15, 18-19.
188 Id. at 5, 15-16.
189 Id. at 6.
190 Id. at 6.
191 Id. at 6-7.
192 Id. at 6-7; ALJ 2022 D. & O. at 11.
193 ALJ 2024 D. & O. on Remand at 7.
194 Id. at 7; ALJ 2022 D. & O. at 11.
195 ALJ 2024 D. & O. on Remand at 7.

35
treatment.196 Based on the abnormal behavior discussed in the call, Respondent’s
Reviewing Official, who was also on the call, decided to place Complainant’s UAA on
an administrative hold and then a temporary hold.197 These events occurred
because of Complainant’s behavior and not because of her protected activity.
The ALJ observed that Complainant made allegations shortly before the October 7
call but that the October 7 meeting was called because of Complainant’s overall
behavior including, among other items, failing to meet Connelly for her mid-year
review and filing multiple complaints against Connelly found to be without merit.198
Complainant’s UAA was not reinstated because she did not agree to return
except under specified conditions.199 Complainant’s counselor recommended that
upon her return Respondent should change her desk arrangement and assign her to
a different supervisor.200 Respondent rejected the restrictions, and Complainant and
Respondent entered an impasse.201 The ALJ found the decision to reject
Complainant’s conditions-based return was not because of protected activity.202
Because Complainant’s UAA was not restored and she did not comply with
reinstatement requirements, Complainant’s employment was terminated.203
2. The ARB’s 2023 Decision on Department of Navy v. Egan’s Application to
Nuclear Power Plants
I write separately to add a few observations concerning Respondent’s cross-
appeal objecting to the ARB’s 2023 decision concerning Department of Navy v.
Egan.204 The ARB held that Egan does not cover the referral of Complainant’s
aberrant behavior to Respondent’s UAA officials because a UAA is not sufficiently
analogous to the security clearances at issue in Egan. According to Respondent,
196 Id. at 16-17.
197 Id. at 5, 7-8, 16-18; ARB No. 2022-0049 2023 Remand Order, slip op. at 12-13.
198 ALJ 2024 D. & O. on Remand at 17.
199 Id. at 8, 18.
200 Id. at 8; ARB No. 2022-0049 2023 Remand Order, slip op. at 13-14.
201 ALJ 2024 D. & O. on Remand, slip op. at 18-19.
202 Id. at 18-20.
203 Id. at 8, 18-19.
204 484 U.S. 518 (1988).

36
Respondent’s UAA officials are involved in the trustworthiness and reliability205
assessment for the nuclear power plant, and, following a rationale analogous to
Egan, those decisions are not subject to judicial review and evaluation because of
the national security interest in unaccompanied access at a nuclear facility.206
Egan involved officials from the Navy denying a security clearance to an
employee with access to a nuclear submarine.207 The Supreme Court stated that the
Merit Systems Protection Board did not have authority to review the denial of the
security clearance. Security clearance determinations, the Court explained, require
a “[p]redictive judgment” about “whether, under compulsion of circumstances or for
other reasons, [an individual] might compromise sensitive information.”208
The Court reasoned that the security clearance had been committed to an
appropriate agency of the Executive Branch.209 The President and his officers
classify and control access to information bearing on national security and to
whether an individual is “sufficiently trustworthy” to occupy a position with such
access.210
When this case was previously before the ARB in September 2023, the panel
ruled that Egan does not apply to UAA at Respondent.211 The ARB chiefly relied
upon Summerland v. Exelon Generation, Co.212 In particular, the ARB block-quoted
from Summerland wherein the district court stated that the UAA involved only
access to a nuclear facility and was not analogous to a government-issued security
clearance.213 The ARB and the Summerland decision equated UAA at a nuclear
205 10 C.F.R. § 73.56(c) (“The licensee’s or applicant’s access authorization program
must provide high assurance that the individuals who are specified in paragraph (b)(1),
and, if applicable, paragraph (b)(2) of this section are trustworthy and reliable, such that
they do not constitute an unreasonable risk to public health and safety or the common
defense and security, including the potential to commit radiological sabotage.”).
206 Respondent’s Opening Brief (Resp. Opening Br.) at 14-15.
207 484 U.S. at 520.
208 Id. at 528-29.
209 Id. at 527.
210 Id.
211 ARB No. 2022-0049 2023 Remand Order, slip op. at 18-23.
212 Summerland v. Exelon Generation Co., 455 F. Supp. 3d 646 (N.D. Ill. 2020). There
are several subsequent cases following Summerland, mostly in the Illinois district courts.
213 ARB No. 2022-0049 2023 Remand Order, slip op. at 21-22.

37
power plant to “building access,” for which courts had denied Egan’s application.214
The ARB also focused on Complainant’s day-to-day duties as nonsensitive,
nonclassified, and secretarial.215 The ARB sharply distinguished “as a world apart”
predictive judgments involved in national security and security clearances from the
UAA at issue for nuclear power plants.216
I briefly address several shortcomings in the ARB’s 2023 decision. As set out
below, the fulcrum of the Egan analysis is whether: (1) the UAA at a nuclear power
plant involves national security entrusted to the Executive Branch or to personnel
delegated from that authority and (2) the decision under review involves predictions
about someone’s future conduct related to that national security interest. If the
answer to both is yes, then Egan and its progeny apply to preclude the courts and
tribunals from second-guessing that decision.
Egan, as the per curiam opinion notes, involved a security clearance under
executive authority. Because an agency derives its authority to grant or deny
security clearances from the President’s Article II authority, “courts traditionally
have been reluctant to intrude upon the authority of the Executive in military and
national security affairs.”217 Like security clearances, nuclear power plants are
regulated by a panoply of federal regulations including statutes and executive
orders.218
Security clearances and UAA have many things in common. Courts have
applied Egan to security clearances even though those clearances did not involve
214 The defendants argued to the district court that Egan should apply to the nuclear
power plant the same way it applies to security clearances. The district court disagreed,
analogizing UAA with access to buildings. Summerland, 455 F. Supp. 3d at 656
(“Defendants are incorrect because, as the Fifth Circuit correctly explained, ‘[s]ecurity
clearances are different from building access.’ Toy, 714 F.3d at 885. The review, grant, and
revocation of security clearances are subject to procedures, imposed by Executive Order,
that address who may access classified information—not who may enter and access
buildings.”).
215 ARB No. 2022-0049 2023 Remand Order, slip op. at 22-23.
216 Id. at 23.
217 Egan, 484 U.S. at 530.
218 Exelon’s UAA program is derived from regulatory requirements imposed by the
Nuclear Regulatory Commission (NRC), which receives its authority by statute 42 U.S.C.
§ 5841 (creation of the NRC), and Executive Order 11,834 of January 19, 1975.

38
“classified” information.219 Both clearances and UAA involve background
investigations including identity verification, assessment of history (education,
military), criminal background, substance abuse review, and financial assessments.
The issuance of both security clearances and UAA rely upon principles of
trustworthiness and reliability through fitness for duty (FFD) standards.220 Unlike
suitability background checks, Part 73 has an extensive psychological assessment
and Behavioral Observation Program.221 UAA’s BOP program is similar to, if not
more demanding than, the continuous vetting and evaluation protocol for holders of
security clearances. This is likely due to the significant risk of severe radiological
disaster at a nuclear power plant.222
As noted above, the 2023 ARB remand and Summerland decision leaned
heavily on the comparison of UAA to FBI building access, citing Toy v. Holder.223
The Fifth Circuit in Toy wrote as follows:
No court has extended Egan beyond security clearances,
and we decline to do so. Security clearances are different
from building access; security-clearance decisions are
219 Kaplan v. Conyers, 733 F.3d 1148, 1157-58 (Fed. Cir. 2013) (en banc) (extending
Egan to “sensitive” materials clearances because of the national security component);
Foote v. Moniz, 751 F.3d 656, 657-59 (D.C. Cir. 2014) (Egan applies to the Department of
Energy’s (DOE) Human Reliability Program (HRP)).
220 Compare 5 C.F.R. Parts 731 with 10 C.F.R. Parts 26, 73 and 5 C.F.R. Part 732. UAA
under Part 73 does not automatically grant access to classified material within a nuclear
facility, but as mentioned above courts have extended Egan beyond “top secret” and
“classified.” Supra note 220.
221 10 C.F.R. 73.56(e); Foote, 751 F.3d at 659 (identifying the psychological evaluation
for DOE’s HRP certification within the category of predictive judgment under Egan);
Mowery v. Nat’l Geospatial-Intelligence Agency, 42 F.4th 428, 439 (4th Cir. 2022) (observing
that the psychological evaluation was to ensure that an applicant’s employment was
“clearly consistent with national security” and to evaluate an applicant’s “reliability,
trustworthiness, judgment, and ability to protect classified information” and that “a
psychological evaluation like this is precisely the type of predictive assessment protected
by Egan.”).
222 The access authorization program must “provide high assurance that the individuals
who [are granted unescorted access] are trustworthy and reliable, such that they do not
constitute an unreasonable risk to public health and safety or the common defense and
security, including the potential to commit radiological sabotage.” 10 C.F.R. § 73.56(c).
To accomplish that purpose, all individuals who are granted unescorted access are subject
to a Fitness-For-Duty (“FFD”) program. 10 C.F.R. Part 26.
223 Toy v. Holder, 714 F.3d 881 (5th Cir. 2013).

39
made by specialized groups of persons, charged with
guarding access to secured information, who must make
repeated decisions.6 There is also significant process
involved in granting security clearances,7 the kind of
process that allows agencies to make the deliberate,
predictive judgments in which they specialize.[224]
It is not clear this characterization of FBI building access would apply to
nuclear power plants with the rigorous UAA and national security interests.225
The UAA is required to enter the protected area of the nuclear plant, which includes
the operational facility.226 In a sense, UAA is “access” to the facility, but equating a
building with a nuclear power plant defies common sense.
Additionally, the Fifth Circuit in Toy rejected one of the government’s
arguments relying upon Berry v. Conyers227 because the Federal Circuit had
granted en banc rehearing in that case. Thereafter, the Federal Circuit issued
Kaplan v. Conyers which extended Egan beyond security clearances to include
access to “sensitive” information.228 Applicable regulations defined “sensitive” as
that which may have an effect on national security.229
Subsequent to Toy, courts have followed Kaplan and extended Egan when
national security is present and decisions on national security derive from Article II
224 Toy, 714 F.3d at 885.
225 10 C.F.R. Part 73; id., Appendix B.
226 The ARB focused on Complainant’s day-to-day duties as nonsensitive, nonclassified,
and secretarial. ARB No. 2022-0049 2023 Remand Order, slip op. at 22-23. Respondent
takes issue with the point that Booker was in a secretarial position and not intimately
involved in sensitive nuclear processes. Respondent notes security is about access to the
facility, not the particular job duties of personnel. Resp. Opening Br. at 17. Indeed, nuclear
security extends beyond job duty classification because one cannot assume that an
employee intending nuclear sabotage would stay within their job classification and not
exploit other opportunities, such as unaccompanied access to sensitive and operational
facilities within the plant.
227 Berry v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012).
228 Kaplan v. Conyers, 733 F.3d 1148, 1151, 1155-56 (Fed. Cir. 2013) (“This rationale
applies to all prediction of risk regarding national security. Thus, absent congressional
action, judicial review of national security matters is generally prohibited.”).
229 Id. at 1151 n.3.

40
authority.230 In Foote v. Moniz, the court began with the principle that “the
Government has a substantial national security interest in denying unreliable or
unstable individuals access to nuclear devices, materials, and facilities, a point that
requires no extended discussion.”231 The employee was denied a certification that
required a psychological evaluation as part of the Department of Energy’s Human
Reliability Program established under Executive Order, the same E.O. underlying
security clearances at issue in Egan.232 The court in Foote extended Egan to the
denial of the certification because it “carefully evaluates employment applicants for
certain positions, such as those where the employees would have access to nuclear
devices, materials, or facilities.”233 The court refused to second-guess the DOE’s
psychological evaluation of the plaintiff, which formed the basis of the denial of the
certification.234 In Sanchez v. U.S. Department of Energy, the Tenth Circuit held
that the revocation of a Human Reliability Program certification “was a security-
clearance decision” under Egan because the certification had the same security
characteristics: (1) the agency derived its authority from the President’s Article II
authority; (2) the decision implicated national security concerns; and (3) the
decision “involve[d] predictions about someone’s future conduct.”235 The ARB’s 2023
decision cited these cases in a footnote but failed to engage the substance of the
holdings.
Contrary to Summerland, a number of cases have found Egan applies to UAA
at nuclear facilities, namely those run by the Tennessee Valley Authority (TVA),
230 Mowery, 42 F.4th at 435-36 (extending Egan beyond security clearances to other
areas of national security authorization decisions involving predictive judgments and
implicating the concerns discussed in Egan).
231 751 F.3d at 658.
232 Id. at 658-59.
233 Id. at 657.
234 Id. at 659 (“The psychological evaluation component of the Human Reliability
Program determines whether an applicant (1) Represents a security concern; or (2) Has a
condition that may prevent the individual from performing duties in a reliable and safe
manner.”) (cleaned up).
235 870 F.3d 1185, 1193 (10th Cir. 2017). The HRP at issue in Foote and Sanchez is
distinguishable from the Part 73 UAA because applicants had to possess or obtain a Q
access authorization which is the DOE’s highest level of security clearance. Id. at 1193.
Though, this attribute was not critical for the court, citing Kaplan v. Conyers, 733 F.3d
1148, 1160 (Fed. Cir. 2013) for the point that “national security is what matters in an Egan
analysis, and not that a position requires access to classified information.”

41
a government-owned corporation.236 The ARB’s 2023 Remand decision distinguished
TVA nuclear plants from private nuclear plants, like Respondent, in a footnote.237
Courts have extended Egan to TVA nuclear power plant facilities because nuclear
power plants involve national security, same as security clearances.238 TVA and
Respondent are more alike in their structure and orientation to the NRC and UAA
than they are different and distinguishable.239
In Coppett v. Tennessee Valley Authority, the district court addressed a claim
asserting that a denied clearance at a nuclear power plant was the result of
unlawful discrimination under federal and state law.240 Co-workers had complained
to Coppett’s supervisor about Coppett’s behavior as well as problems arising from
physical conditions due to Coppett’s illness.241 Coppett’s supervisor believed that he
was compelled under UAA to submit this information to TVA’s UAA organization.242
The supervisor submitted an annual BOP review, noting concerns about Coppett’s
behavior and social interaction:
[The supervisor] indicated that there had been changes in
plaintiff's work behavior, social interaction behavior, and
personal health behavior. He elaborated that plaintiff's
attention to detail and quality of work had declined over
the past month, that plaintiff seemed to be dismissing or
236 Goforth v. Tenn. Valley Auth., No. 1:20-CV-254, 2022 WL 1198213, at *8 (E.D. Tenn.
Feb. 7, 2022) (cleaned up) (applying Egan and thus declining to treat the revocation of UAA
as an actionable adverse action because it would require weighing motives for revocation);
see also Reed v. Tenn. Valley Auth., No. 1:17-CV-00232, 2018 WL 1440829, at *3 (E.D. Tenn.
Mar. 22, 2018) (Egan applies where a “plaintiff[’s] claims would require the court to weigh
the validity of TVA’s proffered reasons for revoking [his] security clearances, judicial review
would constitute precisely the sort of interference criticized in Egan.”).
237 ARB No. 2022-0049 2023 Remand Order, slip op. at 20 n.141.
238 The NRC protects public health and safety and advances the nation’s common
defense and security by enabling the safe and secure use and deployment of civilian nuclear
energy technologies and radioactive materials through efficient and reliable licensing,
oversight, and regulation for the benefit of society and the environment.
https://www.nrc.gov/docs/ML2503/ML25035A025.pdf.
239 Both TVA and private licensees like Exelon are subject to NRC regulations,
including 10 C.F.R. Parts 50, 52, 73.
240 987 F. Supp. 2d 1264, 1267 (N.D. Ala. 2013).
241 Id. at 1275-76.
242 Id. at 1276.

42
rationalizing errors when coached, that coworkers had
reported plaintiff’s inability to focus, and that plaintiff did
not cooperate with his co-workers and chain of command.
[The supervisor] also stated that plaintiff had repeatedly
voiced animosity toward his co-workers and superiors,
acted withdrawn and sulky when he did not get his way,
demonstrated increasingly argumentative behavior, and
become less receptive to reason. Finally, [the supervisor]
stated that co-workers had observed an increase in
plaintiff’s body shakes, a decrease in his muscle control, a
propensity for plaintiff to call security personnel to assist
him to his vehicle, and a tendency to express concern about
a conspiracy against him.[243]
Under TVA’s fitness for duty policy, when “there are indications that an
individual may be in violation of [the] FFD policy or is otherwise unable to safely
and competently perform his or her duties,” TVA suspends the employee’s UAA.244
Because his UAA was necessary for his work, he was not permitted to return
without further FFD evaluation. Under the FFD, Coppett was required to submit to
two psychological evaluations by licensed psychologists of TVA’s choosing.245
After evaluation, these doctors determined that Coppett did not suffer from
“a behavioral condition that would prevent safe, stable, and reliable performance in
the workplace or warrant unescorted access disqualification for psychological
reasons.”246 The assessment team recommended restoring Coppett’s UAA. Based on
the results of those psychological examinations, TVA’s UAA team determined that
Coppett was fit for duty. Consequently, plaintiff's clearance was restored, and he
returned to work.
Coppett sued, asserting that TVA’s suspension of his UAA pending an FFD
review was retaliation. TVA responded arguing that Egan covers TVA’s issuance or
revocation of the UAA.247 The district court agreed, analogizing to security
clearance cases involving military personnel despite the fact that this case involved
243 Id. (footnote omitted).
244 Id.
245 Id.
246 Id. at 1276-77.
247 Id. at 1287.

43
nuclear power plant operators.248 The court stated as follows:
The safety and security concerns underlying clearance
determinations for access to nuclear power organizations
are no less significant than the safety and security
concerns underlying military intelligence clearance
determinations.
In summary, because this court does not have jurisdiction
to review the suspension of plaintiff’s nuclear unescorted
access, it also does not have jurisdiction over his retaliation
claim. Summary judgment is due to be granted in
defendants’ favor on that claim. Moreover, because the
court does not have jurisdiction over plaintiff’s retaliation
claim, there is no need to address defendants’ arguments
that the claim was untimely asserted, and that the claim
should fail on its merits.[249]
Coppett is analogous to our facts here. While the TVA is owned by the
government and Exelon is a private company, the government-private distinction is
not insurmountable. Courts have extended Egan to facilities operated by private
companies when the same national security interests are at issue and authority has
been delegated by the government. In Beattie v. Boeing Co.,250 the Tenth Circuit
extended Egan’s shield to a claim against a private employer because the Executive
Branch “delegated” security clearance decisions to the private employer. Concerning
a contract for the construction of Air Force One planes, the facility had both
unescorted access and escorted access to the area of construction.251 Only the Air
Force could grant unescorted access. However, Boeing could grant escorted access,
subject to Air Force override. Beattie was denied escorted and unescorted access to
the Air Force One area and later sued Boeing. The Tenth Circuit commented that
Egan precluded review authority of Boeing’s decision:
To be sure, the case before us involves a private party
rather than a government agency. However, Boeing’s
248 Id. at 1289-90.
249 Id.
250 43 F.3d 559 (10th Cir. 1994).
251 Id. at 560.

44
limited authority to grant or deny escorted access clearance
derived solely from its contract with the Air Force. Boeing’s
authority was thus delegated to it by the Air Force, and
hence by the Executive Branch. We see no compelling
reason to treat the security clearance decision by Boeing
differently than the similar decision made by the Air Force.
Both decisions represent the exercise of authority
delegated by the Executive Branch and are entitled to
appropriate deference by the federal courts. Therefore, we
conclude that we may not review Boeing’s action or that of
the Air Force in denying Beattie access to the Air Force One
area.[252]
The ARB’s opinion concluding that Egan did not apply to Respondent’s UAA
did not, in my opinion, sufficiently grapple with these nuances. Nonetheless, I
recognize that case law is mixed and reserve further discussion for a different time.
Because we affirm the ALJ’s dismissal of Booker’s complaint, revisiting the Egan
issue would not change the outcome.
THOMAS H. BURRELL
Administrative Appeals Judge
252 Id. at 566 (internal citations omitted).

45
Chief Judge Johnson, Concurring:
In Department of Navy v. Egan, the Supreme Court considered the “narrow
question” of “whether the Merit Systems Protection Board (Board) has authority by
statute to review the substance of an underlying decision to deny or revoke a
security clearance in the course of reviewing an adverse action.”253 In sum, relying
on the President’s Article II powers over foreign affairs, national security and the
importance of controlling access to sensitive information bearing on national
security, the Court answered that question in the negative. Unsurprisingly, in the
decades since, Egan has spawned an extensive progeny and courts have extended
Egan’s reach to other factual circumstances in some cases and declined to do so in
others. As also discussed by my colleague in his concurring opinion, the case law is
now extensive and varied. 254 The legal commentary is not far behind.255
As night follows day, we can expect that the defense bar will continue to
argue for an expansion of Egan’s underlying theories in defense of their clients’
interests. Indeed, to not do so would border on legal malpractice; and we saw the
same type of litigation following the Supreme Court’s decisions in Securities and
253 484 U.S. 518 (1988).
254 For cases applying Egan to other factual circumstances, see, e.g., Kaplan v. Conyers,
733 F.3d 1148 (Fed. Cir. 2013) (finding that Egan barred review of a Department of Defense
determination that an employee was not eligible to occupy a “noncritical sensitive”
position); Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014) (applying Egan’s bar on judicial
review in a case regarding certification under the Department of Energy’s Human
Reliability Program); Sanchez v. U.S. Dep’t of Energy, 870 F.3d 1185 (10th Cir. 2017)
(same). For cases in which courts declined to extend Egan, see, e.g., Rattigan v. Holder, 689
F.3d 764, 768 (D.C. Cir. 2012) (concluding that Egan’s “absolute bar on judicial review
covers only security clearance-related decisions made by trained Security Division
personnel and does not preclude all review of decisions by other FBI employees who merely
report security concerns.”); Toy v. Holder, 714 F.3d 881 (5th Cir. 2013) (declining to apply
Egan’s bar on judicial review in a Title VII case brought by an FBI employee who alleged
that the FBI revoked her access to its offices); Hale v. Johnson, 845 F.3d 224 (6th Cir. 2016)
(declining to extend Egan in a case where an NRC licensee determined that an employee
did not meet physical fitness requirements).
255 See, e.g., Shreeya Singh, National Security or Nothing to See? Clearances As the Site
of Executive Overreach, 78 Stan. L. Rev. Online 30 (2025); Jason Rathod, Not Peace, but A
Sword: Navy v. Egan and the Case Against Judicial Abdication in Foreign Affairs, 59 Duke
L.J. 595 (2009); Max Jesse Goldberg, Security-Clearance Decisions and Constitutional
Rights, 132 Yale L.J. Forum 55 (2022); Demetri Blaisdell, Title VII Challenges to Security
Clearance Referrals: Rattigan Points the Way, 4 Colum. J. Race & L. 177 (2014).

46
Exchange Commission v. Jarkesy256 and Lucia v. Securities and Exchange
Commission.257 These are but the most obvious examples.
My colleague has expressed his views on the factors to be considered when
deciding whether Egan applies, and I will not here attempt to summarize all of the
elements that courts have found determinative or not determinative. In the instant
case we were not required to resolve the reach of Egan and (fortunately) were able
to decide the case on other grounds. Nevertheless, it is likely that the ARB will, in a
future case, be forced to consider whether or not Egan bars review of the reasons an
employer denies or revokes an employee’s UAA258 and whether that denial or
revocation violated an applicable whistleblower law. Because of this, I feel it
important to emphasize that if Egan is found to apply, the end result would
preclude any consideration of those reasons259—Egan is, in effect, apparently an
absolute shield which no tribunal’s inquiry can pierce.260
It is therefore important, I believe, to reassert what I hope would be obvious:
that whistleblower laws were created to protect employees who raise legitimate
complaints to managers and regulators about how an operation is running or who
report violations of applicable standards or requirements, violations which usually
carry potentially major safety or health implications.261 In the nuclear industry in
256 603 U.S. 109 (2024).
257 585 U.S. 237 (2018).
258 Although this case deals with UAA, subsequent cases in which an employer invokes
Egan could well involve claims of other types of security access.
259 See Rattigan, 689 F.3d at 768 (describing Egan’s holding as an “absolute bar on
judicial review”).
260 I note that courts have drawn a distinction between the substance of a security
clearance denial, which is unreviewable under Egan, and the process by which the security
clearance is denied or revoked, including allegations that the process violated constitutional
rights. See, e.g. Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996); Romero v. Dep’t of Def., 527
F.3d 1324 (Fed. Cir. 2008); Duane v. U.S. Dep’t of Def., 275 F.3d 988 (10th Cir. 2002); Nat’l
Fed’n of Fed. Emps. v. Greenberg, 983 F.2d 286 (D.C. Cir. 1993); but see Lee v. Garland, 120
F.4th 880, 888 (D.C. Cir. 2024) (finding that Egan forecloses review of constitutional
claims).
261 See House Report on the Energy Policy Act of 1992, which “broaden[ed] and
deepen[ed]” the whistleblower protection provisions of the Energy Reorganization Act. In it,
Congress explained that the “ability of nuclear industry employees to come forward to
either their employers or to regulators with safety concerns without fear of harassment or
retaliation is a key component of our system of assuring adequate protection of public
health and safety[.]” H. Rep. No. 102–474(VIII), at 78-79 (1992).

47
particular, these are not complaints involving mere trivialities. As such, unduly
expanding the reach of Egan could perversely undermine national security by
insulating problems at critical infrastructure locations that would otherwise have
been corrected because legitimate whistleblowers will fear retaliation and be left
without a realistic avenue to vindicate their rights.262 The ARB should therefore, in
my view, proceed cautiously as other cases in this area come before us.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
262 The realities of litigation are such that rarely will an employee have the resources to
pursue a cause of action to vindicate his or her rights in the face of an aggressive, usually
well-heeled, employer asserting certain defenses where the law is unclear except where
those defenses are completely frivolous.