III. CONCLUSION
For the foregoing reasons, we AFFIRM.
[ENDNOTES]
1 Dr. Hall alleged violations of the whistleblower provisions of various environmental statutes, including the Solid Waste Disposal Act, 42 U.S.C. § 6971(a) ("SWDA"), the Clean Air Act, 42 U.S.C. § 7622(a); the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610(a); the Federal Water Pollution Control Act, 33 U.S.C. § 1367(a); the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i)(1).
2 The ARB found Dr. Hall alleged violations under the SWDA and consequently did not examine the remaining statutes.
3 On appeal, Dr. Hall does not separately press a claim for being subjected to a hostile work environment. He alleges only that because of the hostility at Dugway, he was constructively discharged. Because we affirm the Board's determination that Dr. Hall failed to establish that the alleged hostility was connected to his protected activity, any hostile work environment claim Dr. Hall could have pressed would likewise fail.
4 Once a plaintiff established that retaliation played a motivating part in the defendant's actions against him, it becomes the defendant's burden to prove by a preponderance of the evidence that "it would have made the same decision notwithstanding its retaliatory motive." Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999) (quotation omitted); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).
5 Lieutenant Colonel Kiskowski testified that although he acknowledged that Dr. Hall had a "constitutional right" to report concerns to whomever he wanted, "[w]hat I was concerned about is that there were potential safety or environmental problems somewhere down in the lab ... and he had not informed his immediate supervisor of those problems." Lieutenant Colonel Stansbury, the Chemical Test Division Chief and Dr. Hall's second-line supervisor, testified that his understanding of Lieutenant Colonel Kiskowski's instruction was, "Give the chain of command the opportunity to correct any kind of deficiencies or answer any kind of concerns you may have, and if you're not satisfied, then exercise your authority" to report to outside agencies. Mr. Steelman, when asked if he recalled Dr. Hall being instructed not to communicate with federal or state agencies, said, "I don't believe that's correct. I believe his instructions were not to contact them before he contacted his internal Dugway chain of command."
6 Dr. Hall also claims that Army Commander Colonel John Como decided to revoke Dr. Hall's security clearance based on a packet of information that included Dr. Hall's whistleblower complaint. He argues this is direct evidence of retaliation. As explained supra, per Egan, neither the Board, nor this Court has authority to review this action or the motives surrounding it.
7 Similarly, Dugway's actions in rating Dr. Hall as fully successful in his performance evaluations in 1992 and 1995 but telling a psychiatrist that examined Dr. Hall on October 1, 1996 that he was experiencing unsatisfactory performance is not reviewable evidence of retaliatory motive. The psychiatric evaluation was part of the DIS's reinvestigation of Dr. Hall's security clearance and, per Egan, the Board cannot examine the legitimacy of Dugway's concerns in evaluating his clearance. For the same reason, we reject Dr. Hall's contention that Dugway raised old allegations of sexual harassment in an attempt to influence the outcome of Dr. Hall's security clearance review.
8 During Dr. Hall's opening statement before the ALJ, his counsel asserted that Dr. Hall "basically became convinced that the Army's intent at this point ... was to either terminate his employment ... or to remove his security clearance," so Dr. Hall terminated his employment to "mitigate the damage he was absolutely certain was about to occur, which was his termination and the removal of his security clearance." During the hearing, Dr. Hall's attorney also referred to the alleged constructive discharge as "forced retirement." Dr. Hall maintains that these statements squarely raise the second theory of constructive discharge. We disagree. These ambiguous allegations unsupported by legal argument or citation to evidentiary support in the record are insufficient to raise the specific legal theory Dr. Hall now alleges the ARB overlooked. The ARB cannot be charged with reviewing the entire record to glean and sua sponte raise legal theories referenced only obliquely by a party but not clearly articulated in its briefs or ruled on by the ALJ.
In any case, Dr. Hall's newly articulated distinction makes no difference. As part of its analysis of the "first" claim--that Dugway constructively discharged Dr. Hall by subjecting him to a hostile work environment--the ARB evaluated each act that Dr. Hall now alleges "communicated a threat of imminent termination" and determined that there was no retaliatory motive behind the actions. Because Dr. Hall must show retaliatory motive to succeed on either theory of constructive discharge, the ARB's analysis and factual findings on the "first" constructive discharge claim precludes success on the "second."