On May 20, 2015, a split Fourth Circuit panel ruled Deltek, Inc., a Virginia-based software and information services provider, must pay a terminated whistleblower four years of front wages and thirty thousand dollars ($30,000) in college tuition. In doing so, two thirds of the panel affirmed the U.S. Department of Labor’s Administrative Review Board’s determination upholding an Administrative Law Judge’s finding the company retaliated against Dinah R. Gunther, a former financial analyst, in violation of the Sarbanes-Oxley Act, holding these decisions were supported by substantial evidence and reached through application of the correct legal standards. The decision is not precedential but is likely to be relied upon by plaintiff’s counsel for its approval of the ARB’s rulings on causation and damages.

Gunther complained to her supervisors, the company’s general counsel, and the United States Security and Exchange Commission that Deltek was committing fraud by systematically disputing invoices for IT services in order to cover up a budget shortfall and the IT department’s poor financial condition. Deltek investigated with Gunther’s assistance but concluded there was no improper activity. Gunther further complained of harassment, eventually went on medical leave for stress and the parties engaged in drawn out settlement negotiations for her to depart the company. Months later, after talks broke down, Gunther was terminated the day after she returned to work for engaging in what the company called “egregious[ly] disruptive and confrontational” behavior during a meeting with HR. However, after what the majority described as a “painstaking” review of the evidence, the ALJ found – and the ARB affirmed – Gunther had established a prima facie case of whistleblower retaliation, the company’s explanation was pretextual, and awarded “make-whole” prospective damages of four-year’s pay and college tuition on the premise that Gunther – who claimed she could not secure a job comparable to the one she held at Deltek because she had no college degree – could obtain a job comparable, and thus be “made whole,” in four years during which she obtained a degree.

Deltek appealed on principal two grounds – that the ALJ and ARB erred first in holding that Gunther engaged in protected activity and then in finding her protected activity was a contributing factor in her termination. As to protected activity, the court easily rejected Deltek’s argument that because Gunther had only a few months of experience and no college degree, she could not form an “objectively reasonable” belief Deltek engaged in fraud. As to causation, the court noted the “rather light burden” given the “broad and forgiving” contributing factor standard, agreed with the ALJ’s ruling that proximity in time is sufficient to raise an inference of causation and approved the ALJ’s finding that Gunther was entitled to this inference because she was terminated “almost immediately after the breakdown of the settlement negotiations precipitated by her OSHA complaint” even though that action was taken six months after her initial protected activity.

Ultimately, the Court was most persuaded by the finding that Deltek’s stated reason for terminating Gunther was pretextual. According to the Court, this wholly precluded Deltek from showing “the kind of exceptional circumstances that would allow [the Court] to set aside the… finding…as affirmed by the Board” under the deferential standard of review for agency decisions and, thus, “Deltek’s arguments on appeal [were] unavailing.”

In his dissent, U.S. Circuit Judge G. Steven Agee disagreed that the determinations of the ALJ and affirmation by the Board were defensible even under the forgiving “substantial evidence” standard because the ALJ’s decision was “premised on nothing more than post hoc ergo propter hoc reasoning.” According to the dissent, the ALJ found Gunther met her burden to prove causation solely based on the sequence of events leading to her termination of employment. Judge Agee would have rejected this finding, and the ARB’s affirmance, as based on a false inference that the timeline of events was in itself sufficient to prove a causal connection and, because Gunther could not establish the elements of her prima facie case, never reached the question of “pretext.”  The dissent also disagreed with the damages award, calling it a speculative windfall and opining that “no law requires Deltek to bear the onerous burden of subsidizing Gunther’s full time, four-year college education, a qualification Gunther didn’t need to obtain her post with Deltek just one year earlier.”
The case is Dinah R. Gunther v. Deltek, Inc., case number 14-2415, in the U.S. Court of Appeals for the Fourth Circuit.