They would fail anyway. Even if Reed were to prove that MCI retaliated against him, and even if MCI continues to deny that it uses stolen software, again, Reed only speculates that these facts would defraud stockholders. Moreover, without additional evidence, we would conclude that MCI's use of the mail and Internet to disseminate its ethics policy does not constitute mail or wire-radio-TV fraud.
[Page 6]
Conclusion
MCI is not entitled to summary decision on the grounds that Reed filed an untimely complaint because the record demonstrates that Reed filed the complaint within 90 days of the day MCI finally, definitively, and unequivocally notified Reed that he was terminated. But like the ALJ, we grant MCI's motion for summary decision because Reed has not sufficiently proven that he reasonably believed that MCI violated the Federal fraud statutes, an SEC rule or regulation, or any Federal law pertaining to shareholder fraud. Accordingly, we DENY Reed's complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514A (West Supp. 2005).
2 See 29 C.F.R. § 18.40 (2007).
3 Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1980.110(a) (2007).
4 29 C.F.R. § 18.40.
5 Fed. R. Civ. P. 56.
6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
7 Bobreski v. United States EPA, 284 F. Supp. 2d 67, 72-73 (D.D.C. 2003).
8 Lee v. Schneider Nat'l, Inc., ARB No. 02-102, ALJ No. 2002-STA-025, slip op. at 2 (ARB Aug. 28, 2003); Bushway v. Yellow Freight, Inc., ARB No. 01-018, ALJ No. 2000-STA-052, slip op. at 2 (ARB Dec. 13, 2002).
9 Bobreski, 284 F. Supp. 2d at 73 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
10 Bobreski, 284 F. Supp. 2d at 73.
11 29 C.F.R. § 18.40(c). See Webb v. Carolina Power & Light Co., No. 1993-ERA-042, slip op. at 4-6 (Sec'y July 17, 1995).
12 18 U.S.C.A. § 1514A(b)(2)(D).
13 See Rollins v. Am. Airlines, Inc., ARB No. 04-140, ALJ No. 2004-AIR-009, slip op. at 2-3 (ARB Apr. 3, 2007 (corrected)).
14 Motion for Summary Decision, Attachment 8 (emphasis added).
15 Motion for Summary Decision, Attachment 9 ("The Company has until now accommodated you with additional leave, but unfortunately, we cannot continue to carry you in a leave of absence status. For this reason, your employment will terminate effective 10/21/05.").
16 See Getman v. Southwest Sec., Inc., ARB No. 04-059, ALJ No. 2003-SOX-008 (ARB July 29, 2005).
17 18 U.S.C.A. §§ 1341, 1343, 1344, and 1348.
18 See 18 U.S.C.A. § 1514A(a).
19 Complainant's Response to Motion for Summary Decision at 6.
20 Complainant's Brief at 17, 20.
21 Id. at 24-25.
22 Id. at 26.
23 Id. at 30.
24 See Harvey v. Home Depot U.S.A., Inc., ARB Nos. 04-114, 115; ALJ Nos. 2004-SOX-020, 036, slip op. at 14 (ARB June 2, 2006) ("A mere possibility that a challenged practice could adversely affect the financial condition of a corporation, and that the effect on the financial condition could in turn be intentionally withheld from investors, is not enough. Accordingly, Harvey's August 31, 2002 letter does not express his reasonable belief that Home Depot was defrauding shareholders or violating security regulations.").
25 See Rollins, slip op. at 4 n.11.