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WBA-13-0011 - In the Matter of Alison Marschman

On August 1, 2014, the Office of Hearings and Appeal’s (OHA) denied an appeal of an Initial Agency Decision (IAD) issued by an OHA Administrative Judge on May 8, 2014, which denied a Complaint filed by Alison Marschman (hereinafter referred to as “the Employee”) against her former employer, Battelle Energy Alliance (hereinafter referred to as “the Contractor”), under the DOE’s Contractor Employee Protection Program, 10 C.F.R. Part 708.  In that IAD, the Administrative Judge had found, after an evidentiary hearing, that the Employee had participated in protected activities under Part 708.  However, the Administrative Judge found that the Employee had not demonstrated, by a preponderance of the evidence, that the Employee’s participation in a protected activity was a contributing factor to the Contractor’s decision to verbally warn her in November 27, 2012, or to terminate her in January 2013, and further found that the Contractor had met its burden of showing, by clear and convincing evidence, that it would have terminated the Employee in the absence of her protected activity.  The Employee appealed a large number of findings contained in the IAD.  After considering the arguments set forth in the Employee and Contractor’s Appeal briefs, OHA’s Director affirmed the Administrative Judge’s determination that the Employee had not met her initial burden of proving that her protected activity was a contributing factor to her termination.  The OHA Director also concurred with the Administrative Judge’s conclusion that the Contractor would have carried its burden to show by clear and convincing evidence that it would have verbally reprimanded the Employee in November 2012, and terminated her in January 2013, even in the absence of her protected activity.