[Page 13]
Conclusion
We agree with the ALJ's conclusion that Smith did not prove that he engaged in SOX-protected activity. Therefore, we agree with the ALJ's decision to dismiss the complaint. We thus AFFIRM the ALJ's R. D. & O. and DISMISS Smith's complaint.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 By letter postmarked April 11, 2005, the Equal Employment Opportunity Commission (EEOC) confirmed the scheduling of an April 25, 2005 interview with Smith. Complainant's Exhibit 15. Smith signed an intake form on April 18, 2005, but added information to it subsequent to the April 22, 2005 termination of his employment. Complainant's Exhibit 16. Smith filed a Discrimination Charge against Hewlett Packard on April 25, 2005. Respondent's Exhibit 3. That charge is not before the Administrative Review Board.
2 Hewlett Packard filed a Motion for Summary Decision, which the ALJ denied by Order dated September 12, 2005. The ALJ found that summary decision was inappropriate where Hewlett Packard did not show the absence of a genuine issue of material fact regarding whether Smith engaged in protected activity.
3 SEC Rule 10b-5 provides as follows:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
17 C.F.R. § 240.10b-5 (2005).
4 Smith alleged to the ARB that Hewlett Packard "abruptly terminated" his employment when he "announced" that he had contacted a federal agency to file a discrimination charge. Petition for Review at 5; Initial Brief at 6. Smith testified, however, that while he was on administrative leave, he complained to Debra Herchek, a Human Resources manager, that he had been put on administrative leave for what he said that he "was going to do, which was to go externally to a federal agency." T. at 513-515, 516, 517. The record contains no evidence showing that Smith told either Fuentes-Wegner or Barsotti, who together made the decision to terminate his employment, that he had actually contacted the EEOC.
5 Smith's Charge of Discrimination filed with the EEOC on April 25, 2005, post-dates his April 22, 2005, termination and therefore could not have motivated it.
6 Similarly, while Smith informed Fuentes-Wegner that some employees planned to meet with the Urban League to discuss hiring an attorney to sue Hewlett Packard for racial discrimination, Smith did not allege that he was fired in retaliation for this disclosure. In fact, Smith asserted to the ARB that when he learned of the meeting with the Urban League, "he dutifully reported it to his supervisor." Rebuttal Brief at 5-6. Further, since no legal proceeding was then pending, Smith's disclosure did not trigger the corporate duty to disclose "any material pending legal proceedings, other than ordinary routine litigation incidental to the business" under 29 C.F.R. § 229.103 (2008). While Smith, in his pleadings before the Board, discusses events and lawsuits filed against Hewlett Packard subsequent to his termination, these events and lawsuits are not germane to the issue before us.
7 The ALJ also found that Smith's refusal to comply with his supervisor's, and other managers', requests for follow-up information concerning his February 2005, group sensing report, was unreasonable. R. D. & O. at 11-12. This factual finding by the ALJ would only become relevant if Smith proved that protected activity was a factor in his termination. Because we do not find that Smith met his burden to establish discrimination, we do not reach Hewlett Packard's burden of demonstrating by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of protected activity. See 18 U.S.C.A. § 1514(b)(2)(a) adopting, 49 U.S.C.A. § 42121(b)(2)(B)(iiii). See also, Getman, slip op. at 8-9 (SOX complainant must allege protected activity that was a contributing factor in the alleged discriminatory personnel action). Therefore, we need not address Smith's arguments pertaining to this finding by the ALJ. See Petition for Review at 11-13, 14; Initial Brief at 10-11, 15; Rebuttal Brief at 5.