We conclude that the alleged September 29, 2005 "interrogation" does not constitute an adverse action against Brookman and given the ALJ's limitation of the allegations he would consider in response to Brookman's failure to file a formal complaint, that the ALJ acted properly in not addressing it in his R. D. & O.
IV. Levi Strauss's Alleged Pattern of Whistleblower Retaliation
Brookman's final claim in his petition for review alleges that Levi Strauss has engaged in previous whistleblower retaliation against other employees that is similar to that which he alleges. In support of this allegation Brookman quotes at length from a complaint filed by two former Levi Strauss employees, Robert Schmidt and Thomas Walsh, filed in the United States District Court for the Northern District of California. Brookman's attempt to analogize his circumstances to allegations of other parties does not raise specific objections to the ALJ's R. D. & O., nor does it allege any protected activity or adverse actions in Brookman's case. Therefore we need not consider this argument further.
CONCLUSION
Having examined all evidence and briefs presented, we hold that the ALJ properly concluded that Brookman failed to raise an issue of material fact regarding whether Brookman's July 19 letter constituted protected activity. We also agree with the ALJ that Brookman did not engage in activity protected by the Act, that Levi Strauss lacked any knowledge of Brookman's alleged protected activities, and that Brookman's alleged protected activities played no role in Levi Strauss's decision to terminate his employment. Since Brookman has failed to establish essential elements of his case, we DENY his complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
[ENDNOTES]
1 We henceforth refer to Levi Strauss and its employees, unless specifically named, as Levi Strauss.
2 18 U.S.C.A. § 1514A (West 2008).
3 29 C.F.R. Part 1980 (2007).
4 Transcript (Tr.) at 135.
5 Respondent's Exhibit (RX) 2.
6 RX 1, Ex. B.
7 RX 7.
8 RX 1, Ex. B.
9 R. D. & O. at 10.
10 Id.
11 Id. at 11.
12 Id.
13 Id. at 4. Brookman did not specify the nature of the SOX violations.
14 Id. at 11.
15 Id.
16 Id.
17 RX 3.
18 Complainant's Exhibit (CX) 1.
19 RX 3, Ex. G.
20 R. D. & O. at 14.
21 Id.
22 Id. at 13.
23 Id.
24 Respondent's Motion for Summary Judgment.
25 Ruling on Motion to Dismiss (R. M. D.) at 10.
26 R. M. D. at 2.
27 R. M. D. at 9.
28 Id.
29 R. D. & O. at 16.
30 See 29 C.F.R. § 1980.110(a).
31 Complainant's Petition for Review.
32 Id.
33 Secretary's Order No. 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1980.110(a) .
34 29 C.F.R. § 18.40 (2007).
35 Fed. R. Civ. P. 56.
36 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
37 Bobreski v. United States EPA, 284 F. Supp. 2d 67, 72-73 (D.D.C. 2003).
38 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).
39 Bobreski, 284 F. Supp. 2d at 73 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
40 Bobreski, 284 F. Supp. 2d at 73.
41 29 C.F.R. § 18.40(c). See Webb v. Carolina Power & Light Co., ALJ No. 1993-ERA-042, slip op. at 4-6 (Sec'y July 17, 1995).
42 See 29 C.F.R. § 1980.110(b).
43 Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998), (quoting Richardson v. Perales, 402 U.S. 289, 401 (1971)).
44 Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
45 5 U.S.C.A. § 557(b) (West 2008).
46 See Getman v. Sw. Secs., Inc., ARB No. 04-059, ALJ No. 2003-SOX-8, slip op. at 7 (ARB July 29, 2005).
47 18 U.S.C.A. § 1514A(b)(2)(C) (West 2008).
48 See 49 U.S.C.A. § 42121(b)(2)(B)(iii). See also Getman, slip op. at 8; Peck v. Safe Air Int'l, Inc. d/b/a Island Express, ARB No. 02-028, ALJ No. 2001-AIR-003, slip op. at 6-10 (ARB Jan. 30, 2004).
49 See 49 U.S.C.A. § 42121(b)(2)(B)(iv). See also Getman, slip op. at 8; Peck, slip op. at 10.
50 The SOX prohibits an employer from retaliating against an employee who "provide[s] information" to "a Federal regulatory … agency" or "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)" "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." 18 U.S.C.A. § 1514A.
51 R. D. & O. at 14-15.
52 Id. at 15.
53 See Harvey v. Home Depot, U.S.A., Inc., ARB Nos. 04-114, 04-115; ALJ Nos. 2004-SOX-020, 2004-SOX-036, slip op. at 13-16 (ARB June 2, 2006) (holding that to be protected by SOX the employee's complaint must be directly related to fraud or securities violations); Getman, slip op. at 9-10 (requiring that a complaint be specific enough to provide information regarding fraud against shareholders or some other securities violation).
54 Id.
55 Id. at 16.
56 Complainant's Petition for Review at 1-2.
57 hile Brookman contends his letter was a report to the Company's audit committee, this assertion is contested by Levi Strauss. It is unclear from the record whether his letter was anything more than a complaint regarding the alleged violation of the Company's Code of Conduct on June 17, 2005. In any event, we need not decide this question to determine if the ALJ erred in his R. M. D.
58 See Nixon v. Stewart & Stevenson Services, Inc., ARB No. 05-066, ALJ No. 2005-SOX-001, slip op. at 10-11 (ARB Sept. 28, 2007) (requiring an employee to communicate that the employer's conduct constitutes one of the enumerated violations in order to be protected); Harvey, slip op. at 13-16 (holding that to be protected by SOX, the employee's complaint must be directly related to fraud or securities violations).
59 Complainant's Petition for Review at 2.
60 Complainant's Brief at 3.
61 Complainant's Petition for Review at 2.
62 See 18 U.S.C.A. § 1514A ("No 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)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee… .")(emphasis added).
63 RX 3.
64 R. M. D. at 2.
65 Complainant's Objections to Secretary's Findings and Preliminary Order.