must obtain certification from the U.S. Department of Labor ("DOL") by filing a Labor Condition Application ("LCA") before the worker is given an H-1B visa. 8 U.S.C. § 1182(n). An LCA filed by an employer must set forth, inter alia, the wage rate and working conditions for the H-1B employee. 8 U.S.C. § 1182(n)(1)(D); 20 CFR §§ 655.731 and 655.732. The wage rate must be the actual wage level paid by the employer to other employees with similar experience and qualifications, or the prevailing wage level for the position in the area, whichever is greater, 8 U.S.C. § 1182(n)(1)(A), in order to "protect U.S. workers' wages and eliminate any economic incentive or advantage in hiring temporary foreign workers." 65 Fed. Reg. 80110 (2000). The DOL is responsible for investigating complaints that an employer has failed to comply with the terms of the LCA, or has failed to pay the appropriate wage rate. 8 U.S.C. § 1182(n)(2). Subsection (n)(2)(C)(iv) provides that it is a violation of the Act for an employer to discriminate against an employee who discloses information about or cooperates with an investigation of a violation of the Act's requirements.

   Dr. Talukdar and Dr. Virdee both served as physicians at VAMC. They contend that they were fired because they provided information to an investigator for the Department of Labor who performed an audit of VAMC's H-1B visa program in January 2001. VAMC denies retaliating against Drs. Talukdar and Virdee for their involvement in the audit, and contends that they were terminated because of budget restraints at VAMC.

   On July 2, 2003, I issued an Order admitting CX 22 and 23, closing the record, and allowing the parties 30 days to submit closing statements. Drs. Talukdar and Virdee submitted closing statements by August 1, 2003. Counsel for VAMC advised that he would not be submitting a closing statement. The record is now closed.

   In reaching my decision, I have reviewed and considered the entire record, including all exhibits admitted into evidence, the testimony at the hearings, and the arguments of the parties.

   Whether VAMC retaliated against Drs. Talukdar and Virdee, in violation of 8 U.S.C. § 1182(n)(2)(C)(iv), by terminating them because of their participation in the H-1B audit of VAMC.

   Pertinent to this claim, the INA provides:

(iv) it is a violation of this clause for an employer who filed an application under this subsection to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any other manner discriminate against an employee (which term, for purposes of this clause, includes a former employee and an applicant for employment) because the employee has disclosed information to the employer, or to any other person, that the employee reasonably believes evidences a violation of this subsection, or any rule or regulation pertaining to this subsection, or because the employee cooperates or seeks to cooperate in an investigation or other proceeding concerning the employer's compliance with the requirements of this subsection or any rule or regulation pertaining to this subsection.

8 U.S.C. § 1182(n)(2)(C)(iv)(emphasis added). The regulations echo that language. 20 CFR § 655.801(a)(2003). As the language and intent of this provision are similar to the employee protection provisions contained in the nuclear and environmental whistleblower statutes administered by DOL, the same analysis applies. 65 Fed. Reg. 80178 (2000) ("The Department is of the view that Congress intended that the Department, in interpreting and applying this provision, should be guided by the well-developed principles that have arisen under the various whistleblower protection statutes that have been administered by this Department (see 29 CFR Part 24)."); see Administrator v. IHS Inc., USDOL/OALJ Reporter (HTML), ALJ No. 93-ARN-1 at 74 (ALJ Mar. 18, 1996).

   In order to prevail on their claims, Drs. Talukdar and Virdee must establish by a preponderance of the evidence that VAMC took adverse employment action against them because they engaged in protected activity. Carroll v. U.S. Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996); Kahn v. U.S. Sec'y of Labor, 64 F.3d 271, 277-278 (7th Cir. 1995). Whistleblower cases are analyzed under the framework of precedent developed in retaliation cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and other anti-discrimination statutes. See Overall v. Tennessee Valley Authority, USDOL/OALJ Reporter (HTML), ARB Nos.1998-111, 128, ALJ No. 1997-ERA-53, at 12-13 (ARB Apr. 30, 2001), citing, inter alia, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); St. Mary's Honor Center v. Hicks, 450 U.S. 502 (1993); and Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000). Where there is direct evidence of discrimination, then the complainant prevails unless the respondent can establish an affirmative defense. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 997 (2002) (Title VII case); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-122 (1985) (Age Discrimination in Employment Act ("ADEA") case). In this case, the Prosecuting Parties have introduced no direct evidence of discrimination.

   When direct evidence of discrimination is not available, prosecuting parties first must create an inference of unlawful discrimination by establishing a prima facie case of discrimination, by showing that the respondent is subject to the Act; that the prosecuting parties engaged in protected activity; that they suffered adverse employment action; and that a nexus exists between the protected activity and adverse action. The prosecuting parties must show that the respondent had knowledge of the protected activity to establish a prima facie case. See Bartlik v. U.S. Dept. of Labor, 73 F.3d 100, 102, 103 n. 6 (6th Cir. 1996); Carroll v. U.S. Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1995); Cohen v. Fred Meyer, Inc., 686 F. 2d 793, 796 (9th Cir. 1982); 29 CFR § 24.5(a)(2). The burden then shifts to the respondent to produce evidence that it took adverse action for a legitimate, nondiscriminatory reason. Under the traditional Title VII analysis, the burden of persuasion remains at all times with the prosecuting parties, who must prove by a preponderance of the evidence that the respondent's proffered reasons were not the true reasons and constitute a pretext for discrimination. Burdine, 450 U.S. at 253.

I. SUMMARY OF THE EVIDENCE

   VAMC provides medical care to veterans of the armed forces in Fargo, North Dakota. It is part of an "Integrated Service Network" of medical facilities operated by the U.S. Department of Veterans Affairs in several Midwestern states (North Dakota, South Dakota, Minnesota and Nebraska, and possibly others). Tr. I at 103, 147, Tr. II at 198. Dr. Robert Petzel, the network Director, is located in Minneapolis, Minnesota. In addition to the Medical Center in Fargo, VAMC is also responsible for administering several community-based outpatient clinics, including one in Grand Forks and one in Bismarck. Tr. II at 199. Douglas Kenyon has been the Center Director of VAMC since 1992. Tr. III at 465. The Center Director is responsible for the overall operation of the facility, the administration, the budget, day-to-day operations and communications with stake-holders. Tr. III at 467. David Kirk is the Chief Human Resources Officer, and has been at VAMC since 1995, Tr. I at 153. He does not make or participate in personnel decisions; it is his role to process them. Tr. I at 170. He is also the designated representative of VAMC in union negotiations. Tr. III at 567-568. The Chief of Staff/Medical Director is Dr. Ned B. Nichols. Dr. Talukdar's specialty is internal medicine, while Dr. Virdee's is psychiatry. During 2001 and 2002, when the central events in this case took place, both reported to Dr. Ronald Johnson, as head of primary care, who in turn reported to Dr. Nichols. The chief of psychiatry, also reporting to Dr. Nichols, was Dr. Ada Kirkman.

   Also on August 11, 2000, Dr. Virdee's appointment was extended with a new "not to exceed" date of August 10, 2003. Her base pay was set at $95,723, with special pay of $59,500. AX 1. As was customary, according to Mr. Kirk, another temporary appointment acknowledgment form was not obtained from Dr. Virdee. Tr. I at 145. On October 27, 2000, Dr. Nichols drafted a glowing recommendation letter as part of Dr. Virdee's application for a leadership program at VAMC. CX 10.

   In January 2001, Dr. Virdee assisted Mr. Redding in preparing a study of physician pay that was eventually given to the Wage and Hour Division. Dr. Talukdar also helped gather information from the primary care doctors, and referred Mr. Redding to a statistician to assist with the analysis. Tr. I at 12, 37-38, 59-60, 93; Tr. II at 358. Mr. Redding gave the report to Dr. Nichols, Tr. II at 363, and later to Dr. Petzel, and others. Tr. II at 361. Although Mr. Kenyon testified he never received a copy of the study, Tr. III at 486-490, which Mr. Redding confirmed, Tr. III at 594, Mr. Redding testified that he met with Mr. Kenyon to discuss the issue of physician pay on several occasions between the time the study was issued and April 2002. Tr. III at 591. Mr. Redding contacted the Wage and Hour Division at the request of Dr. Akinwande, which began its audit of the H-1B program at VAMC in the spring of 2001. Tr. I at 94; Tr. III at 590-591. The investigation took almost a year because the issue of the prevailing wage had to be addressed by the OALJ. Tr. I at 94; see Fargo VA Medical Center v. Employment and Training Administration, ALJ No. 2001-LCA-31 (HTML and PDF) (ALJ Jan. 23, 2002). Dr. Talukdar testified that he and Dr. Virdee worked openly on the H-1B case. The investigator from the Wage and Hour Division interviewed them right in front of Mr. Kirk's office. Tr. II at 223. Dr. Talukdar encouraged primary care physicians to testify to the Department of Labor. Tr. II at 237. He also spoke to Dr. Johnson several times about the issue. Tr. II at 238, 253-54.

   Dr. Talukdar's second proficiency report, which rated his performance from April 29, 2000 to April 29, 2001, contained only favorable ratings and comments. He received a rating of "outstanding," the highest rating, in both performance categories that were applicable to his position, and in his overall evaluation. The written comments stated that he had become more active in the management of the Blue Primary Care Team and that he was an excellent clinician. The written comments also stated that through his active support and adoption of Advanced Clinical Access principles, he was proving his worth in program development. Finally, Dr. Talukdar was described as "a pleasure to work with" and "much appreciated." CX 32.

   In April 2001, an incident took place between Drs. Virdee and Kirkman when Dr. Virdee attempted to attend a meeting regarding an H-1B physician who was threatened with termination for alleged errors in patient care. (In the end, he was allowed to resign.) Tr. I at 78, 96; Tr. II at 295-296; Tr. III at 409-412, 547-549. There is substantial disagreement about the severity of the incident. Dr. Virdee testified, and other witnesses corroborated, that Dr. Kirkman was trying to keep Dr. Virdee out of the meeting, and pushed the door into Dr. Virdee as she attempted to enter the room. Tr. I at 42, 63-64, 95-96; Tr. II at 348; Tr. III at 411. Dr. Virdee reported the incident to the Inspector General as an assault, Tr. I at 80-81, and it was investigated by the VA police. Tr. I at 81; Tr. III at 421-422. VAMC argues that the incident was not serious insofar as no assault prevention team was called, the police report stated that the situation may have been over-inflated, and Dr. Virdee felt safe enough to remain in the room with Dr. Kirkman after the incident. Tr. I at 80-81, 83; Tr. III at 552, 555-557. Notably, however, even Mr. Kirk, the Human Resources Officer who testified for VAMC, admitted on cross-examination that had he been in Dr. Virdee's situation, he would not have wanted to work with Dr. Kirkman after such an incident. Tr. I at 159.

   On June 27, 2001, Dr. Virdee received her fourth proficiency report, prepared by Dr. Johnson, rating her performance from August 11, 2000 to August 11, 2001. She received one "outstanding" mark (clinical competence), one "satisfactory" mark (administrative competence), and one "high satisfactory" mark (personal qualities). The overall rating was "high satisfactory." The written comments stated that Dr. Virdee did an excellent job with compensation and pension examinations and included the following statement: "I hope that in the future she will take a more active role in the process improvement activities related to C&P [compensation and pension] as there are changes coming in the near future." Dr. Nichols signed as the approving official. CX 4.

   On January 3, 2002, Dr. Johnson assigned Dr. Virdee the task of fulfilling Dr. Talukdar's primary care duties while Dr. Talukdar was on vacation. Dr. Johnson did not discuss with Dr. Talukdar, leader of the Blue Primary Care Team, whether Dr. Virdee would be an appropriate substitute. She was assigned specifically to see his panel of patients, but he only found out about it when he returned. When other doctors were gone, the work was distributed among the remaining doctors in the service. Tr. II at 278. Dr. Talukdar knew of no other instances in which doctors were given work outside the scope of their practice. Tr. II at 302. According to Dr. Virdee, the assignment violated the by-laws of the facility. Tr. II at 300-301. See also Dr. Elabasar's testimony, Tr. II at 338-340, that such an assignment would put the patients at risk. That same day, Dr. Virdee composed a memorandum to Dr. Johnson expressing her uneasiness with the assignment because Dr. Talukdar's practice included primary care, while her scope of practice was limited to psychiatry. In the memorandum, she pointed out that she had not practiced as a primary care physician since 1981. She requested assurances that no action would be taken against her license to practice psychiatry in the event she did not perform competently in primary care. CX 8; Tr. I at 60-62. Dr. Virdee testified that Dr. Johnson was so angry with her for objecting to working in primary care that he did not talk to her for a month. Tr. I at 41, 62.

   Asked by Dr. Virdee about his impression of working conditions over time as the two of them worked on the H-1B issue, Dr. Talukdar said as the months went by, their supervisors became more hostile. He remembered a specific incident where he, Mr. Redding and Dr. Virdee were in a meeting with Dr. Johnson and Mr. Kirk. They were trying to find a way to give Dr. Virdee clinical work and had proposed that she be a consultant psychiatrist to work with primary care teams. Dr. Johnson said he wanted Dr. Virdee out of his hair. Dr. Talukdar could not remember the exact date of that meeting, but believed it took place after his trip to India which occasioned the request for Dr. Virdee to look after his patients. Dr. Talukdar described Dr. Johnson as upset, annoyed and angry. Dr. Talukdar attributed Dr. Johnson's anger at being under pressure from upper level management to have Dr. Virdee removed from her work. Tr. II at 293-295. Dr. Johnson did not testify, but his hostility toward Dr. Virdee is reflected in the proficiency report he completed after she was terminated, described below.

   In February 2002, Dr. Virdee was reassigned to work in the psychiatry department under Dr. Kirkman. Dr. Virdee thought the assignment was inappropriate as Dr. Kirkman had assaulted her, and never apologized. Tr. I at 42. Instead, Mr. Redding bargained for her to work full-time in the Union Office to guard Dr. Virdee from what she perceived to be a "dangerous situation." Tr. I at 43, 117.

   On March 20, 2002, the District Director of the Wage and Hour Division issued his determination on the H-1B investigation, notifying Mr. Kenyon and Mr. Kirk that he found that VAMC had violated the INA by failing to pay wages as required, assessing back wages to ten H-1B non-immigrants in the amount of $203,797.54. CX 9. Dr. Virdee posted a notice regarding the violations and communicated the news to the H-1B physicians at VAMC. Tr. I at 29, 101. On April 26, 2002, a local newspaper published an article on the H-1B violations. Tr. I at 44.

   In April 2002, Dr. Talukdar resigned as leader of the Blue Primary Care Team after he was finally told that his two step increase would not be forthcoming. Tr. II at 270. He continued to work in primary care, however. Tr. II at 270. Also, in April 2002, Mr. Redding and Mr. Lomsdal, another union representative, met with Dr. Robert Petzel, Network Director, regarding the H-1B issue. At the meeting, Mr. Redding identified Drs. Virdee and Talukdar as persons who had been working the issue. Dr. Petzel indicated that he would look into the issue. Tr. I at 104; Tr. II at 274; Tr. III at 592-593.

   Also in April 2002, a problem arose with respect to Dr. Virdee's role in the Pain Resource Team, which had only recently become operational. Tr. I at 43; Tr. III at 404. The Pain Resource Team ("Team") had been coordinated by Dr. Robert Cooper, Dr. Virdee's husband, who is board-certified in physical medicine and rehabilitation, independent medical examinations and pain medicine. Tr. III at 401-402. Meetings had been held at various points throughout the year prior to April 2002 to organize and plan for the establishment of the Team. Tr. III at 404. Dr. Virdee had been present at these meetings and provided input. Tr. III at 404. When the Team ultimately became operational in April 2002, Dr. Virdee saw her first patient; however, she did not have access to a computer which could be used for patient information. Tr. I at 43; Tr. III at 387, 404. When she asked for a computer, it was denied because she was authorized to spend 100% of her time on union business. Tr. III at 387. Although she dictated her notes about the first patient, they never came back to her on the system to sign off on them. Tr. III at 388. Because her computer access was blocked, she could not order appointments. Tr. I at 43-44. On April 5, 2002, Dr. Cooper received an unsolicited memorandum from Dr. Nichols stating that Dr. Virdee would no longer have a clinic scheduled because of her full-time duties as NFFE vice president. CX 43. Scheduling a clinic is part of the administrative protocol that must be addressed before physicians are able to see patients. Tr. I at 43-44. As a result, Dr. Cooper sent Dr. Nichols a follow-up memorandum attempting to clarify how Dr. Virdee was to continue to see patients as part of the Pain Resource Team if she did not have a clinic scheduled. A series of back-and-forth memoranda ensued between Drs. Cooper and Nichols. Ultimately, Dr. Cooper referred the matter to his supervisor because he felt unable to clarify the situation himself. CX 43; Tr. III at 403-408. Dr. Virdee never received the necessary computer access, and was never able to see any other patients in the pain clinic. Tr. II at 390; see CX 22. Mr. Kenyon took the position that all psychiatric referrals should go through Dr. Kirkman. Tr. III at 563-564; CX 19.

   At some point during the third week in April 2002, Mr. Kenyon signed an extension of temporary appointment for Dr. Talukdar and his appointment was extended with a new "not to exceed" date of June 30, 2002, on his SF-50. Tr. I at 142. As was customary, according to Mr. Kirk, another temporary appointment acknowledgment form was not obtained from Dr. Talukdar. Tr. I at 145. Mr. Kirk and Mr. Kenyon testified that Dr. Talukdar's appointment was extended by two months because his special pay was set to expire on June 30, 2002. Had his appointment terminated on the original expiration date of April 28, 2002, Dr. Talukdar would not have worked long enough to receive the full amount of the special pay, and would have to pay part of it back. Therefore, VAMC alleged that it extended the appointment by two months as a courtesy to Dr. Talukdar. Tr. I at 142; Tr. III at 470. At the time of the extension, which had an effective date of April 28, 2002, Dr. Talukdar was earning $96,345 in basic pay, and $36,000 in special pay. AX 2.

   Dr. Talukdar's third proficiency report, which rated his performance from April 29, 2001 to April 29, 2002, contained mainly positive ratings and comments. He received ratings in three categories, with "outstanding" marks in clinical competence and personal qualities, and "high satisfactory" in administrative competence. The overall evaluation was "outstanding." The written comments were substantially similar to the comments in the second proficiency report. The only difference was a final statement at the conclusion of the written comments, indicating that "he may be spreading himself too thin … in terms of his workload, as he has fallen behind on his paperwork." CX 33.

CX 40. Dr. Talukdar was taken by surprise by the memo, as no one had told him it was coming, and no one offered him an explanation. Tr. II at 272-273. Dr. Talukdar testified that he talked with Dr. Johnson about it, who said it was because of the budget. He told Dr. Johnson he believed it was related to his work with the H-1B and minority physicians, and advocacy within the union. He said Dr. Johnson responded, "I know you will think that as long as you live, but that [the budget] is the reason I am going to give you." Tr. II at 273.

   On May 13, 2002, Dr. Virdee received a memorandum dated May 10, 2002, stating that she was terminated. Tr. I at 47. The memorandum, signed by Mr. Kenyon as Acting Chief Operating Officer, stated:

CX 6.

   On June 24, 2002, at Dr. Virdee's request, Tr. I at 66-68, 146, a clarification of the termination memorandum was issued by Tamara Holdcroft, on behalf of the Director/Chief Operating Officer, stating that the decision to terminate Dr. Virdee's temporary appointment "was based on budget matters related to the efficiency of operations of this facility." CX 7. Mr. Kirk testified that the "budget reasons and services required were similar in nature," i.e., "Her services were not required due to budgetary reasons." Tr. I at 147, 163-164.

   Mr. Kenyon testified that ultimately, he made the decision to terminate both Dr. Talukdar and Dr. Virdee, in consultation with other individuals, including Dr. Nichols and Dr. Johnson. Tr. III at 468, 477-478. He testified:

… At that time, we were facing a budget deficit of several million dollars, about – it varies between seventy-five and eighty percent of your budget, our salary dollars, so the biggest pot of money is salaries. Usually it's very difficult to just terminate employees, you can't have a RIF, they take a long time, you can't just summarily say, you know, "You're fired", but temporary employees are the – don't have the same amounts of protections and are subject to termination; and we reviewed the workload that we had going at the time, looked to see where there were opportunities to make those difficult decisions, and did.

Tr. III at 468. He said he picked Dr. Talukdar because his appointment was about to run out. He was extended a couple of months to reconcile the problem with his specialty pay. Tr. III at 468-469, 476-477. As to Dr. Virdee, he said:

Again, it was the same sort of situation. We examined the workload and where we thought we could cover, her appointment was also temporary and her workload at that point was very low so that we thought we could cover it and so we made that decision.

   On July 23, 2002, a final proficiency report, prepared by Dr. Johnson, was added to Dr. Virdee's file. The report, which rated her performance from August 11, 2001 to June 6, 2002, contained two "unsatisfactory" marks, the lowest rating, in clinical competence and personal qualities. All other categories were marked "N/A." The overall evaluation was "unsatisfactory." The written comments stated that Dr. Virdee had refused work assignments on two occasions, when the Blue Primary Care Team needed help with co-managed care paperwork, and when she was assigned back to psychiatry. Finally, the comments stated that Dr. Virdee "did essentially no work for primary care for last 7-8 months of employment." The report concluded, however, that she was "let go for budget reasons." It also stated that she "would definitely not be hired again." Dr. Nichols signed as the approving official. The signature block for Dr. Virdee contained the entry, "Unable to sign--No longer at facility." CX 5. Neither Dr. Nichols nor Dr. Johnson, nor any of the other persons Mr. Kenyon said he consulted about letting the Prosecuting Parties go, were called to testify as witnesses by any party. Although Mr. Kenyon was asked repeatedly about Dr. Virdee's performance, as well as the reason for terminating her employment, he never suggested that he was dissatisfied with her performance, or that anyone else recommended that she be terminated because of her performance, and he specifically stated when asked that he would certainly consider hiring her back. Tr. III at 579.

   VAMC advertised for a psychiatrist on five occasions between January and April 2002. CX 44. About May 24, 2002, VAMC submitted an LCA to the Department of Labor seeking authority to hire an H-1B psychiatrist. The period of employment to be covered was from July 1, 2002, to June 30, 2005. CX 14. On September 16, 2002, before the end of fiscal year 2002, Dr. Dalall, a psychiatrist, was hired. Tr. III at 448. While Drs. Dalall and Virdee are both psychiatrists, Mr. Kirk made the distinction that Dr. Virdee had been providing psychiatric services in primary care, rather than psychiatry. Tr. I at 149.

   One primary care physician was hired by VAMC to work at the out-patient clinic in Grand Forks between March 1 and August 1, 2002. Tr. I at 147; Tr. II at 197, 199, 200. VAMC did not hire any other new primary care physicians for the rest of the fiscal year. Tr. I at 147; Tr. III at 462. That notwithstanding, VAMC did place five advertisements for a staff internist in August 2002. CX 44; Tr. III at 450-451. In addition, Mr. Kirk admitted that VAMC would not have been advertising for an internist if there were no position or funding available for an internist's salary. Tr. III at 454-456.

   In addition to the advertisements for a psychiatrist and internal medicine, in fiscal year 2002, VAMC also advertised for a urologist, cardiologist, gastroenterologist, chief of surgery and primary care. CX 44. Dr. Talukdar also introduced into evidence a VAMC vacancy announcement for the position of Interior Designer open for applications from September 6-26, 2002. According to an SF-50 introduced along with the vacancy announcement, the position was filled at a salary of $45,285 effective September 30, 2002. CX 45. Mr. Kenyon testified that he did not hire the interior decorator; by the end of the fiscal year, someone else was acting in the position of Center Director. He had returned to the position by the time he testified. Tr. III at 586, 588.

II. DISCUSSION

   A. Protected Activity

   Drs. Talukdar and Virdee established that they engaged in protected activity by speaking to VAMC management officials about H-1B pay issues and participating in the Wage and Hour Division's H-1B audit of VAMC. As union representatives for the physicians in Local 225 of NFFE, Drs. Talukdar and Virdee worked extensively with Mr. Redding on the H-1B issue. Counsel for VAMC stipulated that both Dr. Talukdar and Dr. Virdee advocated on behalf of the H-1B visa holders as part of the Department of Labor's audit. Tr. II at 244-246. Mr.

Redding testified that he identified Drs. Talukdar and Virdee as participants to Dr. Petzel. Tr. I at 104. Mr. Redding, Dr. Talukdar and Dr. Virdee participated in a telephone conference on the subject with Janet Murphy, the "CEO of the Primary Care Service Line" in Minneapolis, about six months before the doctors were let go. Tr. II at 275. Mr. Kirk testified that he was aware that they had worked with the Department of Labor once the Wage and Hour investigator started to investigate the complaint. Tr. I at 160. Mr. Kenyon testified that he knew Dr. Virdee had worked on the issue since she became a member of the union. Tr. III at 498. Additionally, Prosecuting Parties established instances in which they disclosed information to VAMC regarding the violations. In approximately September 2001, Dr. Talukdar spoke to Dr. Johnson several times about the H-1B issue. Tr. II at 253-54. Dr. Virdee also asked Dr. Johnson about why pay scales were different for the doctors. Tr. I at 73. In October 2001, Dr. Talukdar had a conversation with Dr. Nichols during which Dr. Talukdar voiced his concerns about the H-1B issue. Tr. II at 254. In April 2002, Dr. Virdee posted the H-1B violations at VAMC and communicated the news to H-1B physicians. Tr. I at 101.

   B. Adverse Action

   VAMC took adverse action against Dr. Talukdar when it decided not to renew his appointment. CX 40. VAMC took adverse action against Dr. Virdee when it decided to terminate her appointment early. CX 6.

   C. Nexus Between the Protected Activity and Adverse Action

   Although Drs. Talukdar and Virdee worked on the H-1B issue with Mr. Redding over an extended period of time, the sequence of events representing the crux of this case transpired over a period of less than two months. "Proximity in time is sufficient to raise an inference of causation." Bechtel Construction Co. v. Sec'y of Labor, 50 F.3d 926, 934 (11th Cir. 1995), citing Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).

   On March 20, 2002, the H-1B issue truly came to the forefront at the VAMC when DOL sent a letter to Mr. Kenyon and Mr. Kirk explaining that VAMC owed over $200,000 in back wages to ten H-1B physicians. In April 2002, Dr. Talukdar was told that a two step increase in his pay, which had been proposed initially in September 2001, would not be forthcoming. Tr. II at 270. Also during the month of April 2002, a meeting among union representatives and VAMC authorities was held to discuss the H-1B issue. Tr. II at 274. At some point during the third week in April 2002, having decided to terminate Dr. Talukdar and Dr. Virdee, Mr. Kenyon signed a two-month extension of appointment for Dr. Talukdar to coincide with the anniversary of his special pay. Shortly thereafter, on April 26, 2002, a local newspaper published an article regarding the H-IB violations. Tr. I at 142; Tr. I at 44. The memorandum to Dr. Talukdar stating that his temporary appointment with VAMC was to expire on June 30, 2002 was issued and delivered during the next two weeks. CX 40. Although he claimed that Dr. Talukdar's participation in the H-1B audit did not influence his decision not to renew Dr. Talukdar, Mr. Kenyon admitted having known of Dr. Talukdar's involvement in the audit. Tr. III at 472. Dr. Talukdar had been given no advance warning regarding his non-renewal. Tr. II at 273. Similarly, Mr. Kenyon's memorandum to Dr. Virdee stating that her temporary appointment with VAMC was to terminate at close of business on June 6, 2002, was issued without advance warning on May 10, 2002. Although he claimed that Dr. Virdee's participation in the H-1B audit did not influence his decision to terminate her, Mr. Kenyon admitted having known of Dr. Virdee's involvement in the audit. Tr. III at 472.

   D. Respondent's Legitimate, Non-Discriminatory Reason

   VAMC has articulated "budget matters" as the legitimate, non-discriminatory reason for non-renewal of Dr. Talukdar and termination of Dr. Virdee. CX 40; CX 7. Mr. Kenyon said that Dr. Talukdar was selected for non-renewal because his appointment was due to expire. Tr. III at 469. He testified Dr. Virdee was chosen for termination because it was believed that her workload was very low and could be covered by other physicians. Tr. III at 470-71.

   E. Pretext

   Both the underlying reason of budget matters, and the particular explanations for selecting Drs. Talukdar and Virdee for termination, lack credibility.

   Several admissions made by Mr. Kenyon indicate that VAMC's proffered budget reasons are pretextual. He admitted that in April 1999, the month during which Dr. Talukdar was hired, there was a budget deficit at VAMC. Tr. III at 474. Despite the deficit at that time, VAMC allocated funds not only to hire Dr. Talukdar but also to afford him specialty pay as a primary care specialist. Tr. III at 469. Mr. Kenyon also testified that in the past five years, from 1997-2002, there had never been a budget surplus at VAMC. Tr. III at 476. Therefore, when Dr. Virdee was hired, in August 1997, there was at least a budget "struggle," if not a budget deficit, at VAMC. Nonetheless, VAMC managed to apportion sufficient funds to hire Dr. Virdee at that time.

   Mr. Kenyon also admitted that it was routine for VAMC to convert funds in various parts of the budget as needed, such as from capital expenses to operating expenses. Tr. III at 475. Such a conversion was in fact executed for fiscal year 2002. Tr. III at 475. In addition, he indicated that the Network often furnished VAMC with funds to balance its budget. Tr. III at 476. Depending on the circumstances, the funds would, at times, be returned to the Network. Tr. III at 476. In fiscal year 2002, approximately one quarter of a million dollars of borrowed funds were returned to the Network. Tr. III at 476. Thus Mr. Kenyon testified that, while there appeared to be a balance at the conclusion of VAMC's fiscal year 2002, the Network ultimately reclaimed that balance. Tr. III at 475. However, that testimony did not establish that the funds could not have been used to pay the salaries of Drs. Talukdar and Virdee. Indeed, VAMC sought to hire another internist within two months of Dr. Talukdar's leaving, before the end of the fiscal year. Mr. Kirk admitted that VAMC would not have been advertising for an internist if there were no vacancy or money available for an internist's salary. Tr. III at 456. Moreover, on September 16, 2002, before the end of fiscal year, VAMC hired Dr. Dalall, a psychiatrist, for the Mental Health Department. Tr. III at 448. VAMC justified its hiring of Dr. Dallal so shortly after terminating Dr. Virdee, also a psychiatrist, by making the distinction between Primary Care, the department in which Dr. Virdee worked, and Mental Health, the department for which Dr. Dallal was hired. Tr. I at 149. The evidence, however, supports the conclusions that VAMC could have funded both Dr. Talukdar's and Dr. Virdee's positions as well as Dr. Dallal's, and had considerable latitude in how it assigned physicians to departments.

   Finally, Mr. Kenyon admitted that VAMC had "never fired a physician for trying to balance the budget." Tr. III at 476. He further admitted that between 1992 and 2002, VAMC had terminated contract physicians, but never employee physicians, for budgetary reasons. Tr. III at 475. Drs. Talukdar and Virdee were not considered contract physicians. Tr. III at 475. Mr. Kenyon also admitted that Drs. Talukdar and Virdee were the first temporary employee physicians to be "let go" in the ten years that he had served as Center Director at VAMC. Tr. III at 492.

   Nor do the explanations offered for selecting Dr. Talukdar and Dr. Virdee for termination stand up to close scrutiny. Mr. Kenyon said that Dr. Talukdar was chosen because his temporary appointment was ending, and his patients could be covered by other doctors. By their terms, temporary appointments could be terminated at any time. Thus the fact that Dr. Talukdar's appointment was ending had no particular significance. Moreover, Dr. Talukdar carried a substantial patient load. By mid-August 2002, VAMC began advertising for a primary care physician.

   As to Dr. Virdee, whose appointment would not expire until August 2003, Mr. Kenyon said only that her appointment was temporary and her work load was very low, so they thought they could cover it. In fact, Dr. Virdee had no work to be distributed to other physicians, as she was spending 100% of her time on union activities. Moreover, several witnesses gave uncontradicted testimony that they attempted to arrange for her to see patients, for example, in the pain clinic, but all of their efforts were blocked. Mr. Kenyon's testimony that Dr. Virdee's work could be covered by others makes no sense in the context of these facts.

   Although counsel for VAMC suggested in his opening and closing statements on the first day of hearing that concern with Dr. Virdee's performance was a factor in her termination, Tr. I at 16, 180-181, neither of VAMC's witnesses so testified. Mr. Kirk said he was told that she was let go for budgetary reasons, and that was his understanding of the reason. Despite repeated questioning about Dr. Virdee's performance, and the evidence in the record that by the time of her termination, Dr. Virdee had had conflicts with Dr. Kirkman, Dr. Johnson, and Dr. Nichols about matters other than the H-1B physicians, Mr. Kenyon never said that he, or anyone he consulted, took Dr. Virdee's performance or those conflicts into account in the decision to terminate her. Dr. Johnson's negative post-termination performance rating does not by itself constitute evidence that Dr. Virdee was selected for termination because of poor performance. Moreover, the July 23, 2002 proficiency report appears baseless for several reasons.

   First, the report is wholly inconsistent with the four other proficiency reports that Dr. Virdee received while at VAMC. Moreover, the report at issue was not added to her file until over a month after her appointment had been terminated. Finally, the record supports the conclusion that the report was inaccurate and vindictive in several respects.

   The report rates Dr. Virdee as "unsatisfactory" in clinical competence. Her only duties relating to clinical competence during the rating period had to do with compensation and pension evaluations. The "unsatisfactory" rating is inconsistent with Dr. Johnson's letter of recommendation, CX 13, written in December 2001, contemporaneously with the end of Dr. Virdee's stint in compensation and pension work. According to Mr. Kenyon's testimony, those duties were removed from Dr. Virdee for political reasons having nothing to do with the quality of her work.

   The report also states that Dr. Virdee refused to assist the Blue Primary Care Team with co-managed care paperwork. This is a distortion of fact as it appears from the record before me. The record shows that Dr. Virdee was asked by Dr. Johnson to fulfill all of Dr. Talukdar's primary care duties while he was on vacation, not mere paperwork. The record also shows that Dr. Virdee's refusal to accept the assignment was well-founded because it was outside the scope of her practice, and would have compromised patient care.

   The negative proficiency report was not explained by any witness. I therefore draw the inference that it was given, at least in part, because of Dr. Virdee's advocacy for the H-1B physicians. I further find that it should be expunged from her record as part of the relief to Dr. Virdee.

   What Dr. Talukdar and Dr. Virdee had in common was their activities, through the union, on behalf of the H-1B doctors. As far as the evidence before me reveals, they were the only non-H-1B staff physicians who engaged in such activities. They disclosed information to VAMC management officials that the H-1B doctors were improperly paid, and they cooperated with the Wage and Hour Division's investigation. Their conduct was protected by the whistleblower provision of the INA in both respects. They have shown a causal nexus between their protected activity and their terminations, which occurred within two months of the Wage and Hour Division's determination that VAMC had violated the INA. The reasons proffered for their terminations are not the true reasons. Thus the evidence supports the conclusion that their activities on behalf of the H-1B doctors was the reason they were let go, also a violation of the INA.

III. RELIEF

   Violations of the employee protection provision of the INA are subject to appropriate administrative remedies, including reinstatement, back wages and other appropriate legal or equitable remedies. 20 CFR §810(e). Dr. Talukdar seeks the following relief: 1) back pay to compensate him for lost earnings; 2) reimbursement for lost employee benefits, including family heath insurance and the Federal Thrift Savings Plan; 3) reimbursement for relocation expenses; 4) reinstatement at either VAMC or another VA facility of his choosing; 5) civil penalties for violating 20 CFR § 655.801(a). Tr. II at 279-81. Dr. Virdee seeks the following relief: 1) back pay to compensate her for lost earnings; 2) an order requiring VAMC to purge her file of the July 23, 2002 proficiency report; 3) reinstatement at a different VA facility of her choosing. Tr. I at 74-77.

   A. Reinstatement

   Both Prosecuting Parties are entitled to reinstatement. Both have expressed reservations about returning to work at VAMC in Fargo. However, counsel for VAMC represented that VAMC does not have the authority to transfer employees to other facilities. See Transcript of the January 14, 2003, telephone conference at 13. The record indicates that some of the Prosecuting Parties' concerns can be met due to changed circumstances, and the fact that the Fargo VAMC employs physicians at outpatient facilities in other cities. Moreover, both parties are at liberty to accept or reject the offer of reinstatement, with the caveat that if they decide to reject it, their back pay would terminate as of the date they reject the offer.

   As for Dr. Virdee, the most appropriate placement may be at Fargo, as her husband also works there. Although the record discloses that both Dr. Kirkman and Dr. Johnson have demonstrated animus against her, Dr. Kirkman has left for other employment and is therefore no longer the head of the mental health service. Tr. III at 578. The record also suggests that Fargo has a chronic need for psychiatrists in the mental health service. Dr. Kenyon characterized Dr. Virdee as "qualified eminently as a psychiatrist," Tr. III at 547, and testified without hesitation that he would consider hiring her back, Tr. III at 579. I conclude that VAMC should offer Dr. Virdee employment at Fargo as a psychiatrist in the mental health service, with the same salary and benefits as if she had no gap in service. In the alternative, if the parties agree on an alternate location, she may be placed at another facility operated by VAMC.

   Dr. Talukdar has moved his family to Texas, and has put substantial time and effort into a fellowship in a new specialty. Nonetheless, like Dr. Virdee, he is entitled to an offer of employment in an equivalent position in primary care as he occupied before, at Fargo or another mutually agreeable facility operated by VAMC, with the same salary and benefits as if he had no gap in service.

   B. Back Pay, Benefits and Interest

   The purpose of a back pay award is to make the employee whole, that is, to restore the employee to the same position he or she would have been in if not discriminated against. Back pay awards should, therefore, be based on the earnings the employee would have received but for the discrimination. See Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991). A complainant has the burden of establishing the amount of back pay that a respondent owes. See Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993). Because back pay promotes the remedial statutory purpose of making whole the victims of discrimination, "unrealistic exactitude is not required" in calculating back pay. EEOC v. Enterprise Ass'n Steamfitters Local No. 638, 542 F.2d 579, 587 (2d Cir. 1976) (quoting Hairston v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975)). Uncertainties in establishing the amount of back pay to be awarded are to be resolved against the discriminating party, however. McCafferty v. Centerior Energy, 96-ERA-6 (ARB Sept. 24, 1997). Interim earnings at a replacement job are deducted from back pay awards. Williams v. TIW Fabrication & Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992). Although it is well settled that back wage calculations should include fringe benefits, courts disagree about the proper method of

calculating the value of lost insurance coverage. See, e.g., Aledo-Garcia v. Puerto Rico Nat'l Guard Fund, Inc., 887 F.2d 354, 356 (1st Cir. 1989)(holding that cost to employer is reasonable method for calculation of value of health insurance benefits as amount of wages that could have been earned includes value of any fringe benefits, such as medical insurance, that are generally provided by employer); Kossman v. Calumet County, 800 F.2d 697, 703-04 (7th Cir. 1986)(holding employer must reimburse the cost of alternate insurance actually purchased); Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1132 (D. N.J. 1990) (awarding actual unreimbursed medical expenses). In this case, as there is no evidence regarding the cost of alternate insurance or unreimbursed medical expenses, I find that both parties should receive as part of their back pay the same benefits as they were receiving at the time they left their employment with VAMC, i.e., whichever benefits programs they were participating in (e.g., health insurance, life insurance, retirement plan, thrift plan). In order to achieve this, the back pay calculation should include the employer contributions which would have been made had their employment been uninterrupted. If they accept reinstatement, they should also be given the option to deposit, along with the employer contributions, any required employee contributions to the retirement and thrift plans for the period they were not in the employment of VAMC. Finally, in order to make them whole, they are entitled to interest on their back pay awards.

   As of April 2002, Dr. Talukdar was earning basic pay of $96,345 and special pay of $38,000, for a total of $134,345 per year. AX 2. The most recent SF 50 in the record for Dr. Virdee indicates that in August 2000, she was earning basic pay of $95,723, and special pay of $59,500, for a total of $155,223. AX 1. Dr. Virdee testified that at the time she was terminated, she was making approximately $168,500 per year. Tr. I at 75. According to the web-site maintained by the U.S. Office of Personnel Management at http://www.opm.gov, of which I take official notice pursuant to 29 CFR § 18.45, Department of Veterans' Affairs employees received an increase of 2.7% in calendar year 2001, 3.6% in calendar year 2002, 3.1% in calendar year 2003, and 2.7% in calendar year 2004. Application of the percentage increases for 2001 and 2002 to Dr. Virdee's August 2000 salary yields a 2002 salary of $165,163. I conclude that application of the percentage increases specified by OPM yields a sufficiently accurate projection of their prospective salaries to calculate their back pay. Since interim earnings at a replacement job are deducted from back pay awards, it is also necessary to assess Dr. Talukdar's and Dr. Virdee's earnings after leaving VAMC.

   Immediately after his appointment at VAMC expired on June 30, 2002, Dr. Talukdar began performing emergency staff work, consisting of intermittent night and weekend shifts. Tr. II at 279. He earned approximately half of what he earned at VAMC and received no benefits at these positions. Tr. II at 279-280. He thereafter assumed a locum tenens position (i.e. a contract position) in New Zealand for six weeks, where he earned approximately forty percent of what he earned at VAMC. Tr. II at 280. He received neither benefits nor transportation costs. Tr. II at 280. Subsequently, Dr. Talukdar relocated to Texas with his family where he began a fellowship in October 2002. Tr. II at 281. The fellowship provides approximately $48,000 a year with benefits. Tr. II at 281. Based on a calendar year salary of $134,345 at VAMC for 2002, his back wages may be calculated by subtracting these earnings from projected earnings from VAMC of $67,173 for the remainder of 2002 after June 30, an annual salary of $138,500 in 2003, and an annual salary of $142,240 in 2004. Benefits calculations should be based on the full VAMC salary, without deductions for alternate earnings.

   After she was terminated from VAMC, Dr. Virdee attempted to start her own practice in Fargo. Tr. I at 75. Thus far, she has not made any income from her private practice. Tr. I at 75. Rather, she is approximately $25,000 - $30,000 in debt. Tr. at 75. I find that Dr. Virdee's attempt to start her own practice was a reasonable means of mitigating her damages. As she had no earnings, however, nothing should be deducted from her back pay. Based on a calendar year salary of $165,153 at VAMC for 2002, Dr. Virdee's back pay may be calculated by projecting earnings from VAMC of $96,340 for the remainder of 2002 after June 6, an annual salary of $171,273 for 2003, and an annual salary of $176,265 in 2004.

   C. Relocation Expenses for Dr. Talukdar

   Dr. Talukdar incurred expenses in the amount of $4,500 to relocate from North Dakota to Texas. Tr. II at 281. Although Dr. Talukdar had been seeking a fellowship while employed at VAMC, the fellowship he ultimately obtained in Texas was not in his chosen field. Tr. II at 281. He nevertheless accepted the fellowship because he "needed to get a position where [he] could move on." Tr. II at 281. I find that he should be reimbursed for those expenses, and, if he accepts re-employment by VAMC, VAMC should also bear his moving expenses to return from Texas.

   D. Purging the Proficiency Report from Dr. Virdee's Personnel File

   20 CFR § 655.810(e)(2) provides that I have the discretion to assess "other appropriate legal or equitable remedies" against employers that have violated 20 CFR § 655.801(a). Because I have concluded that the July 23, 2002, proficiency report was motivated in part by her advocacy for the H-1B physicians, it should be expunged from Dr. Virdee's records.

   E. Civil Penalties

   Although the INA authorizes the imposition of civil penalties and debarment from participation in the H-1B program for violations of the LCA provisions, I conclude that these remedies are inappropriate against this Respondent, a publicly funded veterans' medical center with chronic budget struggles, which needs H-1B physicians to provide care for its patients.

   IT IS THEREFORE ORDERED:

   1. VAMC shall offer reinstatement to Dr. Talukdar in primary care at Fargo or another mutually agreeable facility operated by VAMC, with the same salary and benefits as if he had no gap in service. If Dr. Talukdar accepts the offer of reinstatement, VAMC shall pay his moving expenses, and he shall be credited with continuous federal service for all purposes, including retirement if he makes the required employer and employee contributions for the period he was unemployed. If Dr. Talukdar declines the offer of reinstatement, the obligation of VAMC to pay back wages shall end as of the date of such rejection.

   2. VAMC shall pay back wages and benefits to Dr. Talukdar in accordance with my findings above for the period from June 30, 2002, until he resumes employment with VAMC or declines the offer of reinstatement. If he resumes employment, Dr. Talukdar shall be given the option of making employer and employee contributions to his retirement and thrift savings plan accounts for the period covered by back wage payments.

   3. VAMC shall reimburse Dr. Talukdar for moving expenses in the amount of $4500.00. If he accepts reinstatement, VAMC shall pay his moving expenses to return.

   4. VAMC shall offer reinstatement to Dr. Virdee as a psychiatrist in the mental health department at Fargo or another mutually agreeable facility operated by VAMC, with the same salary and benefits as if she had no gap in service. If Dr. Virdee accepts the offer of reinstatement, she shall be credited with continuous federal service for all purposes, including retirement if she makes the required employer and employee contributions for the period she was unemployed. If Dr. Virdee declines the offer of reinstatement, the obligation of VAMC to pay back wages shall end as of the date of such rejection.

   5. VAMC shall pay back wages and benefits to Dr. Virdee in accordance with my findings above for the period from June 6, 2002, until she resumes employment or declines the offer of reinstatement. If she resumes employment, Dr. Virdee shall be given the option of making employer and employee contributions to her retirement and thrift savings plan accounts for the period covered by back wage payments.

   6. Prosecuting Parties are entitled to interest on accrued unpaid wages, benefits and moving expenses. The applicable rate of interest shall be calculated in accordance with 28 U.S.C. §1961.

   7. The Administrator of the Wage and Hour Division shall make all calculations necessary to carry out this order.

   8. VAMC shall purge the July 23, 2002, proficiency report from all of Dr. Virdee's personnel files, wherever maintained.

      ALICE M. CRAFT
      Administrative Law Judge

NOTICE OF APPEAL RIGHTS: Pursuant to 20 CFR § 655.845, any party dissatisfied with this Decision and Order may appeal it to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210, by filing a petition to review the Decision and Order. The petition for review must be received by the Administrative Review Board within 30 calendar days of the date of the Decision and Order. Copies of the petition shall be served on all parties and on the administrative law judge.