and for good cause,
It is hereby ORDERED that JDSU's motion for summary judgment on Jennings' counterclaims is GRANTED.
The clerk is directed to send a copy of this Order to all counsel of record.
T. S. Ellis, III
United States District Judge
Alexandria, Virginia
February 7, 2007
[ENDNOTES]
1 For ease of reference, the parties will be referred to hereinafter as "JDSU" and "Jennings."
2 Issuance of this Order was deferred to allow the parties an opportunity to resolve this matter. Their efforts in this regard did not bear fruit.
3 Since the employee had not been screened by the JDSU 3 DSU HR Department, he had not passed a background check, signed a nondisclosure form, or provided proof of eligibility to work in the United States, all of which are required to work at JDSU
4 The record reflects that JDSU believed, at the time the temporary employee was hired, that Jennings' wife was a partner at the temporary employee's firm. Jennings contends, and JDSU does not dispute, that in fact Jennings and his wife had divorced by that time.
5 Importantly, assuming that Jennings has exhausted administrative remedies is not an impermissible exercise of "hypothetical jurisdiction" prohibited by Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89-101 (1998). That case prohibits resolution of a case on the merits based on the assumption that article III jurisdiction exists. See id. at 97 n.2. But it permits resolution of merits questions before resolution of statutory jurisdictional questions. Id; see also Restoration Preservation Masonry, Inc. v. Grover Europe Ltd., 325 F.3d 54, 59-60 (1st Cir. 2003) (noting that Steel Co. is limited to article III jurisdictional disputes and that courts may bypass problematic statutory jurisdictional issues provided they do not implicate the "case or controversy" requirement). Here, assuming proper exhaustion does not implicate the case or controversy requirement.
6 It is far from obvious that a prima facie case has been made. First, it is unclear whether the alleged protected activity – reporting tax problems – is protected by Sarbanes-Oxley. See JDS Uniphase Corp v. Jennings, No. 1:06cv200 at 5 n.4 (E.D.Va. February 5, 2007) (memorandum opinion granting partial summary judgment). Second, Jennings narrowly avoided summary judgment on causation; his case is tenuous at best. Jennings is correct that Vellequette knew about Jennings' reports of tax problems and terminated Jennings a short time thereafter, which would permit a rational jury to infer that the protected activity was a "contributing factor" in the decision to terminate. But Jennings ignores the more probative facts that (i) no action was taken against Jennings for raising tax issues until Jennings violated JDSU policy by hiring the temporary employee and (ii) that Jennings reported tax problems with impunity until his improper hiring of the temporary employee.
7 The transcript of the bench ruling reflects that Jennings was mistakenly referred to as "plaintiff" on several occasions. This error did not affect the substance of the ruling.