                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1009

H EATHER A DDIS,
                                                        Petitioner,
                               v.

D EPARTMENT OF L ABOR,
                                                       Respondent,
                              and

E XELON G ENERATION C OMPANY, LLC,

                                        Intervening Respondent.


              Petition for Review of an Order of the
                      Department of Labor.
                            No. 05-118



     A RGUED N OVEMBER 4, 2008—D ECIDED JULY 30, 2009




 Before P OSNER, W OOD , and T INDER, Circuit Judges.
  T INDER, Circuit Judge. Heather Addis resigned from her
job as Operations Supervisor at the Dresden Nuclear
Power Station (operated by Exelon) after an argument
with her supervisor over the company’s requirement that
2                                                  No. 08-1009

Addis make regular entries in the files of the employees
that she supervised. Her supervisor felt her file entries
were not timely and not sufficiently critical; Addis
thought the requirement was pointless at best, and at
worst detrimental to her ability to focus on plant security.
  After her resignation, but during her two weeks’ notice,
she filed an internal complaint with Exelon’s Employee
Concerns Program (ECP) 1 that the disputed reporting
requirements (and plant management’s insistence on
them) threatened the plant’s safety. Then, before the
date that her resignation was to become effective, Addis
had a change of heart and sought to remain at her job;
she conveyed her desire to stay in a letter to Dresden’s
operations director.
  Between Addis’s attempt to rescind the resignation and
the end of her notice period, Exelon management held
two meetings regarding Addis. The first, ostensibly held
to discuss the ECP concerns, involved a human resources
employee, an ECP staffer, and Exelon’s general counsel,
among others. The second meeting included both human
resources and the general counsel, but also the top man-
agement of the Dresden plant. The purpose of this con-
ference call was a discussion of whether to allow Addis
to withdraw her resignation, but her ECP report was
discussed in this meeting as well. The ultimate outcome
of this meeting was management’s decision to accept


1
  Because this is a review of an administrative agency decision,
readers are forewarned that they will be wrestling with
multiple acronyms.
No. 08-1009                                             3

her resignation in light of her refusal to comply with the
record keeping requirement. She was notified at the end
of her two weeks’ notice that she could not continue
at Dresden.


                 I. Procedural History
  Pursuant to the Energy Reorganization Act (ERA),
42 U.S.C. § 5851(b), Addis filed a complaint with the
Occupational Health and Safety Administration (OSHA)
on April 5, 2004, alleging that Exelon did not allow her
to rescind her resignation because of the safety com-
plaints she made to ECP in violation of the statute.
Id. § 5851(a). OSHA’s Area Director conducted an investi-
gation and found that Addis had not sustained her
burden of proving that she was retaliated against. Addis
then requested a hearing in front of an Administrative
Law Judge (ALJ), who dismissed the case after the
hearing, finding likewise that Addis failed to sustain the
burden of proving that her protected activity was a con-
tributing factor in her termination. Addis appealed to the
Department of Labor’s Administrative Review Board
(ARB), who accepted the ALJ’s conclusion and dismissed
the complaint. She petitions this court for review of the
Labor Department’s dismissal. Id. § 5851(c).
  One appellate assertion will be cast to the side before
we begin. Exelon argues that res judicata bars us from
hearing Addis’s petition for review, because an Illinois
state court has already found against her on a state re-
taliatory discharge claim based on her termination from
Exelon. What Exelon ignores is that she was unable to
4                                              No. 08-1009

bring her ERA claim (which requires administrative
adjudication) before the Illinois state court and unable to
bring her Illinois claim before the Department of Labor.
This precludes the application of res judicata. See Alvear-
Velez v. Mukasey, 540 F.3d 672, 678 & n.4 (7th Cir. 2008).


                 II. Standard of Review
  The ERA protects an employee from being discrim-
inated against for filing a complaint about plant safety.
Discrimination is defined as an “unfavorable personnel
action,” 42 U.S.C. § 5851(b)(3), in retaliation for the em-
ployee’s complaints about nuclear safety (complaints
protected by 42 U.S.C. § 5851(a)(1)(A)-(F)). If an employee
believes that she has been retaliated against, she may
complain to the Department of Labor, and specifically
OSHA. After an investigation, the Secretary of Labor
(acting through OSHA) may find a violation “if the com-
plainant has demonstrated that any [protected]
behavior . . . was a contributing factor in the unfavorable
personnel action” unless the “employer demonstrates
by clear and convincing evidence that it would have
taken the same unfavorable personnel action in the
absence of such behavior.” Id. § 5851(b)(3)(C)-(D). Under
the ERA, OSHA gets the first crack at investigating an
employee complaint. The employee may then challenge
OSHA’s determination before an ALJ and seek review
of the ALJ’s decision in front of the ARB and then
review in a federal court of appeals.
  Our review of an ARB decision is conducted according to
the Administrative Procedures Act. Id. § 5851(c)(1) (refer-
No. 08-1009                                                5

encing 5 U.S.C. §§ 701-06). We can only set aside the
Board’s decision if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law” or
“in excess of statutory jurisdiction, authority, or limita-
tions, or short of statutory right” or “unsupported by
substantial evidence.” 5 U.S.C. § 706(2); see Kahn v. U.S.
Sec’y of Labor, 64 F.3d 271, 276 (7th Cir. 1995). Substantial
evidence is that which is “more than a mere scintilla” but
it “may be less than a preponderance of the evidence . . .
and a reviewing body may not set aside an inference
merely because it finds the opposite conclusion more
reasonable.” Kahn, 64 F.3d at 276 (citations omitted).
  The task for the Department of Labor in Addis’s case
was to determine whether Exelon’s refusal to let her
return to work was an “unfavorable personnel ac-
tion”and if so, whether the protected action was a con-
tributing factor to the refusal. In the Department’s final
decision (the ARB decision), the ARB punted on the
unfavorable action issue (although the ALJ had found that
Addis did not suffer an unfavorable personnel action)
and affirmed the ALJ’s decision on the ground that
Addis failed to prove that her complaint was a contribut-
ing factor to the termination. The ARB adopted the ALJ’s
findings in their entirety on the contributing factor
issue and we will therefore refer to the ALJ’s decision
throughout our discussion of this issue. Both the “unfavor-
able personnel action” and “contributing factor” argu-
ments were raised on appeal, but the ARB rested its
decision on the contributing factor issue which deter-
mines the outcome of the case.
6                                               No. 08-1009

                       III. Analysis
  The burden was on the plaintiff to prove, by a prepon-
derance of the evidence, that her complaint was a con-
tributing factor to Exelon’s decision not to take her
back. Congress intended that ERA’s contributing factor
standard provide complainants a lower hurdle to clear
than the bar set by other employment statutes. See
Williams v. Admin. Review Bd., 376 F.3d 471, 476 (5th Cir.
2004) (“In 1992, Congress inserted into the ERA an inde-
pendent burden-shifting framework to be used in deter-
mining employer liability . . . .”); Stone & Webster Eng’g
Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997)
(“Section 5851 is clear and supplies its own free-standing
evidentiary framework.”). In particular, the ERA frame-
work is intended to replace the traditional McDonnell
Douglas formulation of retaliation. See Stone & Webster
Eng’g Corp., 115 F.3d at 1572 (“For 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.” (citing H. Rep.
No. 102-474(VIII), at 79 (1992))); Trimmer v. U.S. Dep’t of
Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (rejecting
McDonnell Douglas burden-shifting framework for ERA
claims); see also Frobose v. Am. Sav. & Loan Ass’n, 152 F.3d
602, 612 (7th Cir. 1998). Once the employee clears this
hurdle, the burden is on the employer to prove by clear
and convincing evidence that it would have taken the
same personnel action absent the employee’s complaint.
42 U.S.C. § 5851(b)(3)(D).
  We have acknowledged that a “contributing factor” is
something less than a substantial or motivating one.
No. 08-1009                                                 7

Frobose, 152 F.3d at 612. Indeed, Congress’s statements on
the Whistleblower Protection Act (where the term first
appeared) defined the term as “any factor which, alone
or in connection with other factors, tends to affect in
any way the outcome of the decision.” Marano v. Dep’t of
Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (quoting 135 Cong.
Rec. 5033 (1989) (Explanatory Statement on S. 20)). The
“contributing factor” phrase “is specifically intended to
overrule existing case law, which requires a whistleblower
to prove that his protected conduct was a ‘significant’,
‘motivating’, ‘substantial’, or ‘predominant’ factor in a
personnel action in order to overturn that action.” Id.
  We therefore accept the petitioner’s contention that
she can shift the burden to Exelon with a lesser showing
than plaintiffs must make in the traditional McDonnell
Douglas employment action. We note, though, that she
was required to prove the contributing factor issue by a
preponderance of the evidence. Dysert v. U.S. Sec’y of
Labor, 105 F.3d 607, 610 (11th Cir. 1997). The ALJ found
that she did not prove any retaliatory intent on Exelon’s
part. The ALJ instead found that Exelon refused Addis’s
attempt to rescind her resignation because the company
was unhappy with her substandard performance. It
was her performance record, of course, that led to the
fateful meeting with her supervisor that culminated in
her resignation.
  To argue that she met her burden of proof, Addis points
to the evidence she offered before the ALJ, which
included a statement that Danny Bost, the plant manager,
made in the meeting Exelon called to determine Addis’s
8                                              No. 08-1009

future that he was “not sure” that Addis would be dis-
charged absent her ECP complaint. The ALJ noted that
this was the “closest indication of any retaliatory animus
on the part of Respondent’s management.” Other
evidence that Addis marshaled to meet her burden in-
cluded the fact that the processing of Addis’s ECP com-
plaints deviated from Exelon’s standard procedure (in
particular, Exelon did not keep whatever promises of
confidentiality it had made in connection with the sub-
mission of an ECP complaint), that Exelon’s upper man-
agement failed to meet with Addis’s immediate super-
visor before her termination, that Exelon offered shifting
rationales for her termination during depositions, and
that Exelon management’s testimony was impeached at
the ALJ hearing. Addis also cited the short time frame
between her complaint and the end of her employment as
evidence that the former contributed to the latter. If we
were reviewing a grant of summary judgment in Exelon’s
favor, we would be faced with a situation where there
are numerous contested facts that are sufficiently impor-
tant to warrant consideration by a trier of fact. But
Addis has already had the benefit of a fact-finder (and one
round of review), and our task is only to ensure that
substantial evidence supports the decision below. Kahn,
64 F.3d at 276.
  The ALJ determined that the evidence Addis presented
was outweighed by the entire record which, in particular,
detailed Addis’s continued difficulties with the plant’s
working files requirement. The ALJ dismissed the plant
manager’s statement that he was “not sure” she would
be terminated absent her complaint as insufficiently proba-
No. 08-1009                                                  9

tive to outweigh the other record evidence. Similarly, the
ALJ relied on Addis’s employment history to rebut any
inference based on the proximity of her termination to
the date she filed the complaint. The ALJ also resolved
credibility determinations in favor of Exelon manage-
ment, finding that they were focused on safety, receptive
to complaints, and exhibited no retaliatory animus
toward Addis.
   Our reading of the record finds substantial support
for the ALJ’s position. Both parties during the hearing
and on appeal refused to meaningfully grapple with the
import of Addis’s resignation. Addis asks us to treat this
as a straightforward termination case and to disregard
the fact that she resigned. Exelon asks us to look at this
case as if the company took no action but simply allowed
Addis to carry out her wishes. There are significant flaws
with both positions, and the success of the ALJ’s opinion
lies in its ability to capture the sensible middle ground
of reality that lies between both parties’ contentions.
  Two things changed between the moment Addis met
with her supervisor and the moment her employment
ended twelve days later. One of those was that Addis
issued a safety complaint through Exelon’s ECP process.
This was protected conduct and as such if this con-
tributed to Addis’s firing, she is entitled to relief under the
ERA. See Am. Nuclear Res., Inc. v. U.S. Dep’t of Labor, 134
F.3d 1292, 1295 (6th Cir. 1998). The other thing that
changed was that Addis got angry and submitted a
letter of resignation. Neither event should be viewed
independently from the other.
10                                              No. 08-1009

  Thus, the temporal proximity Addis cites to support a
finding of retaliation is mitigated by the fact that the time
frame was created by Addis’s own resignation over a
disagreement with her supervisor; this disagreement
provided both the impetus for the termination of her
employment and the impetus for her safety complaint.
Similarly, both Exelon’s divergence from its normal
procedures for handling safety complaints and the dis-
cussion of Addis’s complaint during plant management’s
meeting to determine her status can easily be attributed
to the unique situation her resignation and subsequent
complaint presented.
  The resignation also, as the ALJ noted, differentiated
Addis from the other supervisors at the plant who had
exhibited similar deficiencies in their working files.
Evidence presented to the ALJ showed that Addis was
far from the only employee to resist the working file
requirement. But, none of the other supervisors resigned
and sought to return to work. This is an important distinc-
tion and the one that lies at the heart of the ALJ’s
ultimate decision. For there to be substantial evidence
supporting his decision, the ALJ had to determine and
explain why management’s attitude toward Addis was
different on September 28, when her supervisor met
with her and exhorted her to improve her performance,
and on October 10 when she was told that her employ-
ment was at an end. The ALJ was entitled on the
record before him to find that while management was
continually frustrated by Addis’s performance, her angry
resignation was the straw that broke the camel’s back,
No. 08-1009                                   11

prompting the company to part ways with her. The
petition for review is, therefore, D ENIED.




                     7-30-09
