IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60323

HALLIBURTON, INCORPORATED,

Petitioner,

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT 

OF LABOR,

Respondent.

Petition for Review of the Final Decision and Order of the

United States Department of Labor Administrative Review Board

Before STEWART, Chief Judge, DENNIS, Circuit Judge, and GILSTRAP, 

District Judge.*

PER CURIAM:

Anthony Menendez, an employee of Halliburton, used the company’s 

internal procedures to submit a complaint to management about what he 

thought were “questionable” accounting practices. Menendez also lodged a 

complaint about the company’s accounting practices with the Securities and 

Exchange Commission (“SEC”), which led the SEC to contact Halliburton and

instruct it to retain certain documents during the pendency of the SEC’s

investigation. When Halliburton received the SEC’s notice of the 

* District Judge of the Eastern District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2014

Lyle W. Cayce

Clerk

 

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investigation, the company inferred from Menendez’s internal reports that 

Menendez must have reported his concerns to the SEC too. Halliburton sent 

an email to Menendez’s colleagues that instructed them to start retaining

certain documents because “the SEC has opened an inquiry into the allegations 

of Mr. Menendez.” Once his identity as the whistleblower was disclosed, 

Menendez’s colleagues, whom he had essentially accused of fraud, began 

treating him differently, generally refusing to work and associate with him. 

The Administrative Review Board of the Department of Labor determined that 

the company’s disclosure to Menendez’s colleagues of his identity as the SEC 

whistleblower who had caused an official investigation, thus resulting in

Menendez’s workplace ostracism, constituted illegal retaliation under § 806 of 

the Sarbanes-Oxley Act (“SOX”). See 18 U.S.C. § 1514A(a). For the reasons 

that follow, we affirm.

I. BACKGROUND

A. Facts

Menendez was hired by Halliburton, a global energy products and 

services company, in March 2005 as Director of Technical Accounting Research 

and Training in the Finance and Accounting department of the company’s

Houston office. In that position, Menendez monitored accounting issues and 

gave advice and training to field accountants. He reported directly to Mark 

McCollum, Chief Accounting Officer.

In July 2005, Menendez raised concerns that some of Halliburton’s 

accounting practices involving revenue recognition did not conform with 

generally accepted accounting principles. Menendez circulated a 

memorandum on the revenue recognition issue to colleagues within his 

department, including his direct supervisor, McCollum. McCollum met with 

Menendez and suggested that, although the memorandum was good, 

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Menendez was not a “team player” and needed to work more closely with 

colleagues to resolve any concerns over accounting practices. Halliburton

ordered a new study of the revenue recognition issue, and, in October 2005, the 

study concluded that the company’s practices were proper. That same month,

Menendez sought another meeting with McCollum regarding the revenue 

recognition practices, but McCollum declined to meet with Menendez again. 

On November 5, 2005, Menendez filed a confidential complaint with the 

SEC alleging that Halliburton was engaged in “questionable” accounting 

practices with respect to revenue recognition. After submitting the SEC 

complaint, Menendez continued to try to engage the company on the issue. In 

late 2005, he contacted Charles Muchmore, the Vice President of Financial 

Controls, who, after following up on Menendez’s concerns and deciding that 

they lacked merit, suggested to Menendez that he go to the Audit Committee 

of the Board of Directors if he felt strongly enough about the issues. As 

required by SOX, the Audit Committee had “establish[ed] procedures for” “the 

confidential, anonymous submission by employees of the [company] of concerns 

regarding questionable accounting or auditing matters.” See 15 U.S.C. § 78j1(m)(4)(B). According to the Audit Committee’s policy, “[employees] can report 

[their] concerns anonymously or confidentiality” and “[their] confidentiality 

shall be maintained,” subject to certain exceptions not relevant here.1 To 

report such concerns, the Audit Committee instructed employees to call a listed 

number or to write or email the Board of Directors.

1 “[C]onfidentiality shall be maintained unless disclosure is: [1] Required or advisable 

in connection with any governmental investigation or report; [2] In the interests of the 

Company, consistent with the goals of the Company’s Code of Business Conduct; [3] Required 

or advisable in the Company’s legal defense of the matter.”

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On February 4, 2006, Menendez emailed Halliburton’s Board of 

Directors to make the same complaint as he had made to the SEC. Menendez’s 

internal complaint, which was sent from his company email address and 

included his name, was forwarded to Bert Cornelison, Halliburton’s General 

Counsel. A few days later, on February 8, the SEC contacted Cornelison to 

notify Halliburton that it was investigating the company’s allegedly improper 

accounting practices and that the company was directed to retain certain 

documents relating to the investigation. The SEC did not specify who had 

reported Halliburton’s accounting practices, but Cornelison, having seen 

Menendez’s internal complaint, surmised that Menendez must have been the 

source of the SEC complaint as well. Cornelison sent an email to Menendez’s 

boss, McCollum, and others, instructing them to preserve documents relevant 

to the SEC’s investigation, as directed, because “the SEC has opened an 

inquiry into the allegations of Mr. Menendez.” That same day, McCollum 

forwarded the email identifying Menendez as the whistleblower to fifteen

members of Menendez’s work group, including Menendez himself, thus 

alerting them to the SEC’s investigation and to the fact that Menendez had 

complained to the SEC about the propriety of their accounting practices.

Menendez was horrified when he saw the email disclosing his identity as 

the SEC complainant, and he described that day as one of the worst in his life.

Colleagues began to treat him differently, generally avoiding him. Menendez 

missed work frequently after the revelation, showing up at the office only 

sporadically and, in early March, requested paid administrative leave “given 

the current environment and circumstances involving the SEC investigation.”

The company granted the request.

On September 19, 2006, the SEC concluded that no enforcement action 

against Halliburton was recommended. On October 17, 2006, Menendez 

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resigned from Halliburton, stating in his resignation letter that he could not 

“professionally and ethically” return to the company while it persisted in 

accounting practices that, he continued to maintain, were improper. He had 

accepted a consultant position at a law firm during his leave of absence.

B. Procedural History

On May 8, 2006, Menendez filed a complaint with the Occupational 

Safety and Health Administration of the Department of Labor pursuant to 

§ 806 of SOX, the antiretaliation provision, alleging that Halliburton retaliated 

against him because of his complaints about the company’s accounting 

procedures by disclosing his identity as the whistleblower to his colleagues. 

The Assistant Secretary for Occupational Safety and Health dismissed the 

complaint, and Menendez requested a hearing before an Administrative Law 

Judge. Following a hearing that included several days of testimony, the

Administrative Judge issued a decision and order dismissing the complaint. 

The Administrative Judge concluded, among other things, that, although 

Menendez’s reports to the SEC and the company were protected conduct, the 

disclosure of his identity was not an “adverse action” (a required element of an

antiretaliation claim under SOX) because none of the workplace harm 

Menendez suffered as a result of being identified as the whistleblower rose to 

the level of being “materially adverse.” Menendez appealed.

On appeal, the Administrative Review Board affirmed the 

Administrative Judge’s conclusion that Menendez engaged in protected

conduct but found that the Administrative Judge had erred in determining 

that the disclosure was not an “adverse action.” Contrarily, the Review Board 

held, under the facts of this case, the disclosure rose to the level of “material 

adversity.” The Review Board remanded to the Administrative Judge for 

findings on whether Menendez’s protected activity was a “contributing factor” 

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in Halliburton’s disclosure of his identity and whether Halliburton had 

satisfied its burden of establishing, as an affirmative defense to the retaliation 

claim, that “legitimate business reasons” mandated the disclosure of 

Menendez’s identity.

On remand, the Administrative Judge held that Halliburton had shown 

a legitimate business reason for disclosing Menendez’s identity as the 

whistleblower. Specifically, the Administrative Judge found that Halliburton 

did not intend negative consequences for Menendez and rather believed that,

by indicating that the company knew he was the whistleblower, it would show 

him that the company was seeking to address his concerns. However, 

recognizing that the Review Board may determine that he had erred, the 

Administrative Judge held in the alternative that, if he is reversed on liability, 

$1,000 in damages would be appropriate. The Administrative Judge explained 

that, although Menendez suffered emotional distress and, to a limited extent, 

certain reputational injury, the harms were not significant. The 

Administrative Judge further held in the alternative that, if the Review Board

finds his damages award to be inadequate, $30,000 in damages would be 

appropriate instead. Menendez again appealed.

In the decision that is now under review, the Review Board reversed the 

Administrative Judge on the affirmative defense, thus holding Halliburton 

liable for retaliation. As for damages, the Review Board affirmed the 

Administrative Judge’s alternative award of $30,000 in compensatory 

damages for emotional distress and reputational harm. Halliburton petitioned 

this court for review.

II. STANDARD OF REVIEW

“[O]ur review is governed by the standard established in the 

Administrative Procedure Act.” Allen v. Admin. Review Bd., 514 F.3d 468, 476

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(5th Cir. 2008) (citing 5 U.S.C. § 706). The Review Board’s decision “will be 

upheld unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise 

contrary to law.’” Id. (quoting 5 U.S.C. § 706(2)(A)). “Factual findings are 

subject to substantial evidence review.” Id. “[C]onclusions of law are reviewed 

de novo.” Id.

III. DISCUSSION

Menendez’s antiretaliation claim arises under § 806 of SOX, codified at 

18 U.S.C. § 1514A, which “creates a private cause of action for employees of 

publicly-traded companies who are retaliated against for engaging in certain 

protected activity.” Id. at 475. The statute states, in relevant part:

No [public company]2 may discharge, demote, 

suspend, threaten, harass, or in any other manner 

discriminate against an employee in the terms and 

conditions of employment because of [certain protected 

whistleblowing activity].3

2 We use “public company” as shorthand for a “company with a class of securities 

registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is 

required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 

78o(d)) including any subsidiary or affiliate whose financial information is included in the 

consolidated financial statements of such company, or nationally recognized statistical rating 

organization (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c), 

or any officer, employee, contractor, subcontractor, or agent of such company or nationally 

recognized statistical rating organization.” 18 U.S.C. § 1514A(a). There is no dispute in this 

appeal that Halliburton constitutes such a public company.

3 The whistleblowing activity protected under the statute includes any lawful act done 

by the employee—

(1) to provide information, cause information to be provided, 

or otherwise assist in an investigation regarding any 

conduct which the employee reasonably believes 

constitutes a violation of section 1341, 1343, 1344, or 

1348, any rule or regulation of the Securities and 

Exchange Commission, or any provision of Federal law 

relating to fraud against shareholders, when the 

information or assistance is provided to or the 

investigation is conducted by—

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18 U.S.C. § 1514A(a). To prevail on an antiretaliation claim under that 

provision, the employee must prove, by a preponderance of the evidence, that 

(1) he engaged in protected whistleblowing activity, (2) the employer knew that 

he engaged in the protected activity, (3) he suffered an “adverse action,”4 and 

(4) the protected activity was a “contributing factor” in the “adverse action.” 

Allen, 514 F.3d at 475-76.

In this appeal, Halliburton does not challenge the Review Board’s 

conclusions that (1) Menendez engaged in protected activity when he reported 

his concerns about Halliburton’s accounting practices to the SEC and the 

Board of Directors, and (2) Halliburton knew that Menendez engaged in such 

reporting. Halliburton does, however, challenge the conclusions that (3) 

Menendez suffered an “adverse action” when the company disclosed his 

identity as the whistleblower to his colleagues, and (4) Menendez’s protected 

(A) a Federal regulatory or law enforcement 

agency;

(B) any Member of Congress or any committee 

of Congress; or

(C) a person with supervisory authority over 

the employee (or such other person 

working for the employer who has the 

authority to investigate, discover, or 

terminate misconduct); or

(2) to file, cause to be filed, testify, participate in, or 

otherwise assist in a proceeding filed or about to be filed 

(with any knowledge of the employer) relating to an 

alleged violation of section 1341, 1343, 1344, or 1348, any 

rule or regulation of the Securities and Exchange 

Commission, or any provision of Federal law relating to 

fraud against shareholders.

18 U.S.C. § 1514A(a).

4 What we, like the parties to this appeal, here refer to as an “adverse action” is 

sometimes alternatively called an “unfavorable personnel action.” See, e.g., Allen, 514 F.3d 

at 476. The difference is semantic, not substantive.

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activity was a “contributing factor” in the disclosure, as that element should be 

understood. We address the “adverse action” arguments first.

A. Adverse Action

Halliburton challenges the Review Board’s conclusion that Menendez 

suffered an “adverse action” when the company disclosed his identity as the 

whistleblower to his colleagues. To put the argument in context, we start with 

background legal principles.

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 

(2006), the Supreme Court addressed the antiretaliation provision in Title VII 

of the 1964 Civil Rights Act, which generally prohibits employers from 

retaliating against employees who report employment discrimination based on 

“race, color, religion, sex, or national origin.” See 42 U.S.C. §§ 2000e-2, 2000e3. An antiretaliation claim under Title VII, like an antiretaliation claim under 

SOX, requires a showing of an “adverse action” the employer imposed on the 

employee. In Burlington, the Court addressed, among other things, “how 

harmful [the adverse] action must be to constitute retaliation.” 548 U.S. at 60. 

The Court answered that, “the [adverse] action [must be] materially adverse, 

which in this context means it well might have dissuaded a reasonable worker 

from making or supporting a charge of discrimination.” Id. at 67-68 (internal 

quotation marks and citation omitted). “We speak of material adversity 

because we believe it is important to separate significant from trivial harms.” 

Id. at 68. “We refer to reactions of a reasonable employee because we believe 

that the provision’s standard for judging harm must be objective.” Id.

Subsequently, in this court’s decision in Allen v. Administrative Review 

Board, we concluded that the Burlington material-adversity standard applied 

to SOX’s antiretaliation provision as well as Title VII’s. 514 F.3d at 476 n.2. 

Thus, under Allen, a SOX antiretaliation claim requires an “adverse action” 

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that meets Burlington’s definition of material adversity, i.e., an action harmful 

enough that it well might have dissuaded a reasonable worker from engaging 

in statutorily protected whistleblowing. Here, the Review Board found that 

Halliburton’s disclosure to Menendez’s colleagues of his identity as the 

whistleblower who had reported them to the authorities, thus invoking an 

official investigation, constituted such an “adverse action.”5

Halliburton contends that the Administrative Judge, who ruled in the 

company’s favor, correctly applied the Burlington standard to hold that 

Halliburton’s disclosure of Menendez’s identity was not “materially adverse,” 

and, in reaching the opposite conclusion, the Review Board “disregarded” the 

5 As an initial matter, Halliburton contends that the Review Board should be reversed 

because its “perplexing and contradictory” opinion does not apply the proper standard, that 

is, Burlington’s material-adversity standard, but rather applies a lesser standard of some 

sort, which would be clear error in light of Allen, 514 F.3d at 476 n.2. Certain language in 

the Review Board’s opinion suggests that Halliburton is correct. For example, parts of the 

opinion suggest that the Burlington standard does not “control” because it is not “broad” 

enough, but it is “compelling” and a “helpful guide.” We agree with Halliburton that this 

language is troubling, but we conclude that it is dicta. After those parts of the opinion that 

Halliburton points to as problematic, the opinion concludes that Halliburton’s disclosure of 

Menendez’s identity as the whistleblower “constituted adverse action,” and, importantly, in 

so holding, the opinion cites Burlington in a footnote. It proceeds to state:

Menendez need only demonstrate that [Halliburton’s conduct] 

would deter a reasonable person from engaging in protected 

activity. Clearly, a reasonable employee in Menendez’s position 

would be deterred from filing a confidential disclosure regarding 

misconduct if there existed the prospect that his identity would 

be revealed to the very people implicated in the alleged 

misconduct. 

This explanation of what Menendez “need demonstrate”—that the company’s conduct 

“would deter a reasonable person from engaging in protected activity”—represents a 

restatement of the Burlington material-adversity standard. See Burlington, 548 U.S. at 67-

68. Therefore, we read the Review Board to have applied the proper standard, as required 

by Allen, and we understand language in the opinion that appears otherwise to be 

unfortunate dicta. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 

659 (2007) (“We are not persuaded that this statement constitutes the type of error that 

requires a remand. . . . The Federal Register statement . . . was dictum, and it had no bearing 

on the final agency action that respondents challenge.”).

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Administrative Judge’s factual findings. “In the end,” the company says, the 

difference “was a factual one.” Citing Stone & Webster Construction., Inc. v. 

Department of Labor, 684 F.3d 1127, 1132 (11th Cir. 2012), Halliburton 

contends that, because the Review Board substituted its own view of the facts

for the Administrative Judge’s factual findings, this court should vacate the 

Review Board’s decision and reinstate the Administrative Judge’s.

Halliburton’s argument is flawed in that it rests on a false premise. The 

company’s assumption that an “adverse action” determination under 

Burlington is a purely factual determination is incorrect. It is not. The pure 

facts are the “who,” “what,” “when,” “where,” and “how” of the circumstances 

underlying Menendez’s claim of retaliation. See Thompson v. Keohane, 516 

U.S. 99, 109-10 (1995) (in the context of habeas corpus law, describing “issues 

of fact” to mean issues of “basic, primary, or historical facts: facts in the sense 

of a recital of external events and the credibility of their narrators”) (citing 

Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963)); Black’s Law Dictionary (9th 

ed. 2009) (defining “fact” as “[a]n actual or alleged event or circumstance, as 

distinguished from its legal effect, consequence, or interpretation”). For 

example, it is a pure fact here that Cornelison’s email to McCollum, which was 

forwarded to Menendez’s colleagues, identified Menendez as the 

whistleblower. The Burlington standard asks whether a company’s actions 

were such that they “well might have dissuaded a reasonable worker from 

[engaging in protected conduct].” 548 U.S. at 67-68 (internal quotation marks 

and citation omitted). Whether in its context a company’s conduct well might 

dissuade a “reasonable” worker from engaging in protected conduct is a legal 

question. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009)

(deciding “material adversity” “as a matter of law”); Aryain v. Wal-Mart Stores 

Tx. LP, 534 F.3d 473, 485 (5th Cir. 2008) (same); Morales-Vallellanes v. Potter, 

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605 F.3d 27, 33 (1st Cir. 2010) (same); see also Burlington, 548 U.S. at 68 (“We 

refer to reactions of a reasonable employee because we believe that the 

provision’s standard for judging harm must be objective. An objective standard 

is judicially administrable.”). Therefore, the ultimate “adverse action” 

question—viz., whether the factual circumstances are such that Halliburton’s 

actions well might dissuade an objectively reasonable employee in Menendez’s 

shoes from engaging in protected conduct—involves the application of a legal 

standard, Burlington “material adversity,” to the facts of the case. “[T]he 

historical facts are admitted or established, the rule of law is undisputed, and 

the issue is whether the facts satisfy the statutory standard, or to put it 

another way, whether the rule of law as applied to the established facts is or is 

not violated.” See Pullman-Standard v. Swint, 456 U.S. 273, 290 n.19 (1982).6

Here, contrary to Halliburton’s suggestion, nowhere do we see in the 

opinion under review any indication that the Review Board rejected the 

Administrative Judge’s factual findings. The Review Board stated that, “we 

do not so much reject the [Administrative Judge’s] findings as view them from 

a different perspective.” We take this to mean that the Review Board adopted 

the Administrative Judge’s factual findings but came to a different conclusion

as to the legal import of those facts, that is, whether Halliburton’s disclosure 

of Menendez’s identity in the surrounding circumstances amounted to a 

“materially adverse” action under Burlington. And it is obvious that the 

Review Board did not exceed its authority merely because it came to a different 

6 Cf., e.g., Ornelas v. United States, 517 U.S. 690, 696-97 (1996) (whether a police 

officer’s suspicion of criminal activity is “objectively reasonable” under the Fourth 

Amendment “is a mixed question of law and fact”); Strickland v. Washington, 466 U.S. 668, 

698 (1984) (whether a criminal defense attorney’s representation falls below an “objective 

standard of reasonableness” under the Sixth Amendment is a “mixed question[] of law and 

fact”).

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legal conclusion than did the Administrative Judge. See Roadway Exp., Inc. v. 

Dole, 929 F.2d 1060, 1066 (5th Cir. 1991). We reject Halliburton’s argument 

that the Review Board exceeded its authority by impermissibly overriding the 

Administrative Judge’s factual findings.

The question for us becomes whether the Review Board’s ultimate 

conclusion that Halliburton’s disclosure of Menendez’s identity as the 

whistleblower amounts to a “materially adverse” action constitutes reversible 

legal error. We conclude that it does not. The undesirable consequences, from 

a whistleblower’s perspective, of the whistleblower’s supervisor telling the 

whistleblower’s colleagues that he reported them to authorities for what are 

allegedly fraudulent practices, thus resulting in an official investigation, are 

obvious. It is inevitable that such a disclosure would result in ostracism, and,

unsurprisingly, that is exactly what happened to Menendez following the 

disclosure. Furthermore, when it is the boss that identifies one of his 

employees as the whistleblower who has brought an official investigation upon 

the department, as happened here, the boss could be read as sending a 

warning, granting his implied imprimatur on differential treatment of the 

employee, or otherwise expressing a sort of discontent from on high. Moreover, 

in Menendez’s workplace, collaboration with colleagues was valued. 

Menendez’s supervisor scolded him for not collaborating with his colleagues 

enough and told him to be more of a “team player.” In an environment where 

insufficient collaboration constitutes deficient performance, the employer’s

disclosure of the whistleblower’s identity and thus targeted creation of an 

environment in which the whistleblower is ostracized is not merely a matter of 

social concern, but is, in effect, a potential deprivation of opportunities for 

future advancement. 

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We, like other courts that have addressed similar circumstances, agree 

with the Review Board’s conclusion that, in a workplace environment such as 

Menendez’s where collaboration is an important part of the job, the employer’s 

targeted disclosure to the whistleblower’s colleagues that the whistleblower 

had reported them to the authorities for alleged wrongdoing and has caused 

them to become the subject of an official investigation, thus creating an 

environment of ostracism, well might dissuade a reasonable employee from 

whistleblowing. See Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 

2010) (supervisor’s posting of employee’s equal employment opportunity 

complaint to the office intranet, which the employee’s colleagues could and did 

access, could “chill a reasonable employee from further protected activity”); 

Franklin v. Local 2 of the Sheet Metal Workers Int’l Ass’n, 565 F.3d 508, 520 

(8th Cir. 2009) (union’s public posting of legal bills associated with employees’ 

lawsuit could dissuade a reasonable employee from making a charge of 

discrimination); Booth v. Pasco Cnty., 829 F. Supp. 2d 1180, 1201-02 (M.D. Fla. 

2011) (union’s public posting of announcement that named employees had sued 

it could dissuade a reasonable worker from making a charge of discrimination 

because “no one volunteers for the role of social pariah”).

B. Contributing Factor

To maintain an antiretaliation claim under SOX, the employee must 

prove that his protected conduct was a “contributing factor” in the employer’s 

adverse action. Allen, 514 F.3d at 476. The Review Board found here that 

Menendez’s whistleblowing was indeed a “contributing factor” in Halliburton’s 

disclosure of his identity as the whistleblower. (Given the facts of this case, it 

is difficult to see how a different outcome could have been possible.) 

Halliburton contends that, as a matter of law, it is not enough that the 

protected conduct be a “contributing factor” in the employer’s adverse action. 

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Rather, according to Halliburton, an employee must prove a “wrongfullymotivated causal connection.” (Emphasis added.) The principal problem with 

Halliburton’s argument is that it conflicts with our statement in Allen that a 

“contributing factor” is “any factor, which alone or in combination with other 

factors, tends to affect in any way the outcome of the decision.” Id. at 476 n.3 

(citation omitted, emphasis added). Furthermore, the argument entirely lacks 

support in the case law.7 We are unaware of any court that has held that, in 

addition to proving that the employee’s protected conduct was a “contributing 

factor” in the employer’s adverse action, the employee must prove that the 

employer had a “wrongful motive” too. On the contrary, the Federal Circuit 

has explained that “a whistleblower need not demonstrate the existence of a 

retaliatory motive on the part of the [employer] in order to establish that his 

[protected conduct] was a contributing factor to the personnel action.” Marano 

v. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir. 1993).8 “Regardless of the 

official’s motives, personnel actions against employees should quite simply not 

be based on protected activities such as whistleblowing.” Id. (citation and 

alteration omitted). We reject Halliburton’s argument that the Review Board 

7 Halliburton cites Lockheed Martin Corp. v. Administrative Review Board, 717 F.3d 

1121, 1136 (10th Cir. 2013), and Harp v. Charter Communications, Inc., 558 F.3d 722, 727 

(7th Cir. 2009), in support of its proposed “wrongful motive” rule. Neither case, however, 

applied such a rule nor suggested in any way that such a rule ought to be applied. In fact, 

the Tenth Circuit in Lockheed Martin Corp. described the “contributing factor” test as “broad 

and forgiving” and cited our Allen decision for the standard: “any factor, which alone or in 

combination with other factors, tends to affect in any way the outcome of the decision.” 717 

F.3d at 1136 (citing Allen, 514 F.3d at 476 n.3).

8 In Marano, the statute at issue was not the SOX antiretaliation provision but rather 

the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16. That statute, 

however, contains the same “contributing factor” test as SOX, i.e., “any factor, which alone 

or in combination with other factors, tends to affect in any way the outcome of the decision.” 

For Allen’s recitation of the “contributing factor” test under SOX, we cited to Marano. See

Allen, 514 F.3d at 476 n.3 (citing Marano, 2 F.3d at 1140).

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committed legal error by failing to require proof that the company had a 

“wrongful motive.”

C. Damages

The Review Board affirmed a damages award of $30,000 to Menendez 

for emotional distress and reputational harm. Halliburton now contends that 

such “noneconomic compensatory damages” (i.e., emotional distress and 

reputational harm) are not available under SOX. The statute provides:

(1) In general.—An employee prevailing in [an

antiretaliation action] shall be entitled to all relief 

necessary to make the employee whole.

(2) Compensatory damages.—Relief for any action under 

paragraph (1) shall include—

(A) reinstatement with the same seniority status 

that the employee would have had, but for the 

discrimination;

(B) the amount of back pay, with interest; and

(C) compensation for any special damages sustained 

as a result of the discrimination, including 

litigation costs, expert witness fees, and 

reasonable attorney fees.

18 U.S.C. § 1514A(c).

As an initial matter, we read the word “include” in §1514A(c)(2) (“Relief 

for any action under paragraph (1) shall include . . .”) to indicate that the three 

forms of relief listed as included (reinstatement, back pay, and certain “special 

damages”) are non-exhaustive. Put another way, we read the entitlement to 

“all relief necessary to make the employee whole” in §1514A(c)(1) to have a

broader scope than the three enumerated forms of relief in §1514A(c)(2). See 

United States v. Canada, 110 F.3d 260, 263 (5th Cir. 1997) (construing the 

word “includes” in another statute to “unambiguously indicate” a scope that is

“inclusive” of the items listed but not “exclusive” of all others); Project 

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Vote/Voting for Am. v. Long, 682 F.3d 331, 337 (4th Cir. 2013) (“Courts have 

repeatedly indicated that ‘shall include’ is not equivalent to ‘limited to.’”). If 

we were to hold otherwise, that is, to hold that SOX affords nothing beyond the 

three forms of relief enumerated in §1514A(c)(2), we would in effect be reading 

§1514A(c)(1) out of the statute, and we decline to do so. See In re McBryde, 120 

F.3d 519, 525 (5th Cir. 1997) (“It is axiomatic that we must construe statutes 

so as to give meaning to all terms,” and “we cannot accept” a construction that 

renders statutory text “mere surplusage.”). In short, SOX affords “all relief 

necessary to make the employee whole” (§1514A(c)(1)), and such relief “shall 

include,” but is not limited to, reinstatement, back pay, and certain “special 

damages” (§1514A(c)(2)). See Lockheed Martin Corp. v. Admin. Review Bd., 

717 F.3d 1121, 1138 (10th Cir. 2013) (concluding the same). The question then 

is whether noneconomic compensatory damages, i.e., emotional distress and 

reputational harm, are included too.

Thus far, only one circuit court, the Tenth Circuit, has addressed 

whether SOX affords noneconomic compensatory damages, and that circuit 

answered in the affirmative. See Lockheed Martin Corp., 717 F.3d at 1138. 

That opinion offers scarce reasoning though, so its conclusion is of limited 

persuasive value to us, but we are nevertheless hesitant to create a circuit split

absent a persuasive justification.

Halliburton’s argument that SOX does not allow noneconomic 

compensatory damages relies primarily on the analysis in Murray v. TXU 

Corp., No. 3:03-CV-888, 2005 WL 1356444 (N.D. Tex. June 7, 2005). In 

Murray, the court compared the relevant SOX statutory language (that is, 

§1514A) to prior statutory language of Title VII. Before amendment in 1991

(see Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071), Title VII 

provided the following relief:

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[T]he court may enjoin the respondent from engaging 

in [an] unlawful employment practice, and order such 

affirmative action as may be appropriate, which may 

include, but is not limited to, reinstatement or hiring 

of employees, with or without back pay . . . or any other 

equitable relief as the court deems appropriate.

See Murray, 2005 WL 1356444, at *3 (quoting 42 U.S.C. § 2000e-5(g) (1991)). 

The courts construed such language to preclude noneconomic compensatory 

damages, including emotional distress and reputational harm. See id. (citing 

United States v. Burke, 504 U.S. 229, 238-39 (1992)); see also Bennett v. 

Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988). The court in Murray

concluded that, because SOX’s language is similar to Title VII’s preamendment language, the latter of which was construed to preclude 

noneconomic compensatory damages, it follows that this court should construe 

SOX to do the same. Halliburton urges us to adopt Murray’s reasoning.

 We are not persuaded by Halliburton’s argument because, contrary to 

Murray’s suggestion, the text of SOX plainly evinces a broader remedial scope 

than the text of pre-amendment Title VII. Under SOX, the employee “shall be 

entitled to all relief necessary to make the employee whole.” 18 U.S.C.

§ 1514A(c)(1). By contrast, under the text of pre-amendment Title VII, the 

employee was not “entitled” to any relief, let alone “all relief necessary to make 

the employee whole.” Compare id. (the employee “shall be entitled to all relief 

necessary to make the employee whole”), with 42 U.S.C. § 2000e-5(g) (1991)

(the court “may enjoin the respondent” and order certain other relief “as may 

be appropriate”). And, while SOX plainly affords at least some damages, that 

is, legal relief, in addition to equitable remedies, pre-amendment Title VII 

afforded only equitable relief. Compare 18 U.S.C. §§ 1514A(b)(1)(B), (c)(2)(C)

(stating that antiretaliation claims may be asserted in “an action at law or 

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equity” and that the employee’s relief “shall include” “special damages”), with

42 U.S.C. § 2000e-5(g) (1991) (the court may “enjoin the respondent” and order 

certain “affirmative action” and other “appropriate” “equitable relief”).9

The Secretary of Labor argues, and we agree, that SOX’s language is 

more comparable to language in the False Claims Act’s antiretaliation 

provision. The relevant language in the False Claims Act provides:

(1) In general.—Any employee, contractor, or agent 

shall be entitled to all relief necessary to make that

employee, contractor, or agent whole, if that employee, 

contractor, or agent is [retaliated against].

(2) Relief.—Relief under paragraph (1) shall include 

reinstatement with the same seniority status that 

employee, contractor, or agent would have had but for 

the discrimination, 2 times the amount of back pay, 

interest on the back pay, and compensation for any 

special damages sustained as a result of the 

discrimination, including litigation costs and 

reasonable attorneys’ fees. 

31 U.S.C. § 3730(h). Both SOX’s and the False Claims Act’s antiretaliation 

remedial provisions state that employees “shall be entitled to all relief 

necessary to make [them] whole.” Both statutes then provide that the relief 

available “shall include” reinstatement, back pay, and certain “special 

damages.” The relevant statutory language is almost identical. Compare 18 

U.S.C. § 1514A(c)(1), with 31 U.S.C. § 3730(h). And, as is relevant here, the 

circuit courts that have addressed the question have concluded that the False 

Claims Act affords noneconomic compensatory damages. See Neal v. 

Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999); Brandon v. Anesthesia & 

9 See generally Dan B. Dobbs, Law of Remedies § 1.2 (2d ed. 1993) (“The damages 

remedy was historically a legal remedy. The injunction and most other coercive remedies 

were equitable. . . . Although the courts of law and equity are merged almost everywhere,

this dichotomy remains in the remedial language today.”).

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Pain Mgmt. Associates, Ltd., 277 F.3d 936, 944 (7th Cir. 2002); Hammond v. 

Northland Counseling Ctr., Inc., 218 F.3d 886, 893 (8th Cir. 2000). This would 

suggest that SOX does too.10

The Secretary of Labor also argues persuasively that, because the text of 

SOX’s antiretaliation provision proscribes certain employer conduct, namely 

“threat[s] and “harass[ment],” see 18 U.S.C. § 1514A(a), that in the usual case 

will cause only noneconomic harm such as emotional distress, rather than 

economic harm, it would be anomalous to construe the statute to fail to afford 

a corresponding remedy for such. We agree. It would be an odd result, to say 

the least, to construe a statute that prohibits certain “threat[s]” and 

“harass[ment]” against employees and purports to afford “all relief necessary 

to make the employee[s] whole” to not offer a remedy for the most usual and 

predictable result of threats and harassment, emotional distress. See Dan B. 

Dobbs, Law of Remedies § 1.7 (2d ed. 1993) (stating that, because “remedies 

are means of carrying into effect the substantive right,” “the remedy should 

reflect the right or the policy behind that right as precisely as possible”).

Additionally, we take note of the common-law background to SOX’s 

antiretaliation claim. At common law, many jurisdictions recognize torts for

wrongful discharge of employment, which, in many cases, is essentially an 

antiretaliation claim analogous to the cause of action at issue here, and the 

courts in such jurisdictions allow recovery of noneconomic compensatory 

damages, emotional distress damages specifically, for such claims. See, e.g.,

Smith v. Atlas Off-Shore Boat Svc., Inc., 653 F.2d 1057 (5th Cir. 1981); 

10 See also Rutherford v. Jones Lang LaSalle Am., Inc., No. 12-CV-14422, 2013 WL 

4431269, at *3-4 (E.D. Mich. Jan. 29, 2013) (rejecting the analogy between SOX and preamendment Title VII, reasoning that SOX is more comparable to the False Claims Act).

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Merchant v. Am. S.S. Co., 860 F.2d 204 (6th Cir. 1988); Hentzel v. Singer Co., 

188 Cal. Rptr. 159 (Cal. Ct. App. 1982); Perry v. Hartz Mountain Corp., 537 F. 

Supp. 1387 (S.D. Ind. 1982); Niblo v. Parr Mfg., Inc., 445 N.W.2d 351 (Iowa 

1989); Chavez v. Manville Prods. Corp., 777 P.2d 371 (N.M. 1989); Nees v. 

Hocks, 536 P.2d 512 (Or. 1975); Cagle v. Burns and Roe, Inc., 726 P.2d 434 

(Wash. 1986); Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692 (W. Va. 

1982). This court, for example, in Smith v. Atlas Off-Shore Boat Service, Inc., 

recognized a maritime-law wrongful-discharge claim where an employee was 

terminated in retaliation for filing a personal-injury case against the employer, 

and we held that the employee was “entitled to recover compensatory damages 

for mental anguish that he may suffer as a result of the wrongful discharge.” 

653 F.2d at 1064. This common-law backdrop would tend to suggest that, when 

Congress created SOX’s statutory antiretaliation right and specified that 

recovery thereunder includes “all relief necessary to make the employee whole”

(emphasis added), it intended to encompass within the statute’s broad ambit 

such damages as are often available at common law for analogous claims.

In light of SOX’s plain text and the foregoing considerations, we find that 

the statute affords noneconomic compensatory damages, including emotional 

distress and reputational harm. SOX affords “all relief necessary to make the 

employee whole” (emphasis added), and we think Congress meant what it said.

“All means all.” See Kennedy v. Lynd, 306 F.2d 222, 230 (5th Cir. 1962). If an 

employee suffers emotional distress from actionable retaliation, then 

emotional damages are “necessary to make the employee whole.” See

Hammond, 218 F.3d at 892-93 (“Providing compensation for [emotional 

distress] comports with the statute’s requirement that a whistleblowing 

employee ‘be entitled to all relief necessary to make the employee whole.’”);

Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1199 (11th Cir. 2007)

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(“[E]motional damages, like other forms of compensatory damages, are 

designed to make the plaintiff whole.”); Dobbs-Weinstein v. Vanderbilt Univ., 

185 F.3d 542, 547 (6th Cir. 1999) (“This court has recognized that in making a 

plaintiff whole it often will be appropriate to award . . . damages for emotional 

harm.”); accord Tembenis v. Sec’y of Health & Human Servs., 733 F.3d 1190, 

1193 (Fed. Cir. 2013). The same is true for reputational harm and damages 

for such. See Dobbs-Weinstein, 185 F.3d at 547; Hanna v. WCI Communities, 

Inc., 348 F. Supp. 2d 1332, 1334 (S.D. Fla. 2004); Mahony v. KeySpan Corp., 

No. 04-CV-554, 2007 WL 805813, at *7 (E.D.N.Y. Mar. 12, 2007). Thus, under 

the statute’s text, such noneconomic compensatory damages are available.

In sum, we agree with the Tenth Circuit that the plain language of SOX’s

text relating to remedies for retaliation affords noneconomic compensatory 

damages. See Lockheed Martin Corp., 717 F.3d at 1138. This conclusion 

comports with the decisions of the Seventh and Eighth Circuits respecting

essentially identical statutory text in the False Claims Act. See Neal, 191 

F.3d at 832; Brandon, 277 F.3d at 944; Hammond, 218 F.3d at 893. 

Halliburton has offered us no persuasive reason to differ from these decisions

of three of our sister circuits, and we are unable to find any indication that 

Congress intended to exclude damages that SOX’s plain text appears to 

allow.11

11 Halliburton contends that, if noneconomic compensatory damages are available 

under SOX, and we conclude that they are, the Review Board nevertheless exceeded its 

authority here because it “failed to defer” to the Administrative Judge’s factual findings and 

in fact disregarded them. We disagree. Nowhere in the Review Board’s opinion do we see 

the disregard for the facts that Halliburton contends. We do note, however, that the 

Administrative Judge and the Review Board followed an unusual procedure in this case in 

that the Administrative Judge issued alternative damages awards and the Review Board 

affirmed the one it found more appropriate. But Halliburton’s argument in this regard is so 

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IV. CONCLUSION

Halliburton has failed to show that the Review Board’s decision was 

arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. 

However, nothing in our decision today should be read as implying our 

agreement with all of the dicta in the Review Board’s opinion.12

AFFIRMED.

terse, insubstantial, and lacking in citation to legal authority, we find that the issue has been 

waived and decline to address it.

12 See supra, note 5. Additionally, Halliburton’s brief dedicates substantial space to 

arguing that parts of the Review Board’s opinion suggest that, under SOX’s antiretaliation 

provision, company conduct is actionable regardless of whether it is “employment-related” or 

not. That, the company argues, is wrong because company conduct is actionable under SOX 

only if it affects a “term [or] condition of employment.” See 18 U.S.C. § 1514A(a) (prohibiting 

public companies from “discharg[ing], demot[ing], suspend[ing], threaten[ing], harass[ing], 

or in any other manner discriminat[ing] against an employee in the terms and conditions of 

employment because of [the employee’s protected whistleblowing]”) (emphasis added); cf. 

Burlington, 548 U.S. at 61-67 (addressing whether Title VII’s antiretaliation provision 

“extends beyond workplace-related or employment-related retaliatory acts and harm”). We 

decline to address the argument because it is irrelevant to this case, in which everything that 

occurred was employment-related. Halliburton offers no argument for why the company’s 

disclosure of Menendez’s identity as the whistleblower and the resultant workplace ostracism 

should be construed as not affecting the “condition[s] of [Menendez’s] employment.” See 18 

U.S.C. § 1514A(a). In essence, Halliburton asks us to issue an advisory opinion on the scope 

of SOX’s prohibitions without regard to whether such issues are involved in the instant case, 

and we decline to do so.

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