ARB CASE NO. 05-066
ALJ CASE NO. 2005-SOX-001
DATE: September 28, 2007
In the Matter of:
JOHN NIXON,
COMPLAINANT,
v.
STEWART & STEVENSON SERVICES,
INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
John Nixon, pro se, San Antonio, Texas
For the Respondent:
M. Carter Crow, Fulbright & Jaworski L.L.P., Houston, Texas
FINAL DECISION AND ORDER
The Complainant,
John Nixon (Nixon), alleges that the Respondent, Stewart & Stevenson
Services, Inc. (Respondent), violated the whistleblower protection provision of
the Sarbanes-Oxley Act of 2002 (SOX)[1]
and its implementing regulations[2]
when the Respondent terminated his employment because he had previously engaged
in activity that the SOX protects against discriminatory adverse action. A
United States Department of Labor (DOL) Administrative Law Judge (ALJ) found
that there was no genuine issue of material fact as to whether Nixon engaged in
protected activity. Therefore, the ALJ
[Page 2]
granted the Respondent’s Motion for
Summary Decision. The ALJ also denied Nixon’s Motion for Voluntary Dismissal.
We concur with the ALJ’s decision granting Summary Decision.
Background
Nixon
began working for Stewart & Stevenson Tactical Vehicle Systems, L.P, a
division of Stewart & Stevenson, in September 2003 in Sealy, Texas. Stewart & Stevenson is a federal defense contractor that manufactures military
vehicles and equipment at its Sealy facility. The Respondent hired Nixon as
the environmental manager for the Sealy facility. The Respondent created
Nixon’s position to identify environmental compliance issues, facilitate
environmental compliance, and help the Respondent achieve “ISO14001
certification,” an environmental compliance standard. Nixon reported to
Richard L. Botkin (Botkin), Vice President of Human Resources. Nixon was also
to maintain close communication with Gary Elkin (Elkin), Director of
Environmental, Health and Safety and (as of January 30, 2004) Business
Practices, to update him on environmental compliance issues.
On January 30, 2004,
Elkin notified the Texas Commission on Environmental Quality (Texas Commission)
that the Respondent would conduct an environmental audit of its Sealy facility
starting on or about February 2, 2004.[3]
Elkin asserted that Section 10(g) of the Texas Environmental, Health and Safety
Privilege Act provided immunity for violations of environmental laws
voluntarily disclosed as a result of a compliance audit.[4]
Elkin subsequently notified the Texas Commission, on February 24, 2004, of the
Respondent’s discovery during the course of the audit that the sludge emanating
from the waste water system had been previously improperly classified as
non-hazardous and would be reclassified as hazardous waste and handled and disposed
of accordingly.
Botkin and Elkin
experienced problems with Nixon’s work performance. According to Botkin, “Nixon’s
job difficulties began soon after he was hired.”[5]
Botkin and Elkin met with Nixon in early February 2004 to address these
problems.[6]
Botkin put Nixon on a performance improvement plan on February 18, 2004, for
failure to adequately perform his job.[7]
Under the plan, Nixon’s performance would be monitored
[Page 3]
for 30 days and then
evaluated.[8]
As part of this plan, Botkin required that Nixon submit to Botkin a list of
current projects with goals and timetables for completion, meet with Botkin daily,
communicate any absences from work to Botkin, and improve his working
relationships with co-workers, managers, and supervisors, especially in the
Maintenance Department.[9]
Botkin indicated that Nixon was not authorized to contact any outside vendor or
agency, including law firms, consultants, and federal, state, county or city
agencies, without prior approval from Botkin or Elkin.[10]
Botkin further indicated that Nixon’s failure to improve his performance would
result in disciplinary action, which could include termination of employment.[11]
On March 15,
2004, Nixon e-mailed to Botkin and others his findings resulting from the audit
he conducted, which identified deficiencies in the waste management program at
the Sealy facility. Nixon suggested that certain management groups facilitate
the necessary changes, and indicated that audit findings from the water and air
exposure/emissions programs were forthcoming. Nixon added that Richard Kroger,
the Respondent’s General Counsel, could explain their “existing immunity status
with the state.”
That same day,
Nixon e-mailed to Steve Hackbarth (Hackbarth), Vice President and Divisional
Comptroller, a list of Texas Environmental Laws and Penalties. Nixon wrote,
“Steve, this is an fyi on the structure of penalties and fees, if and when ever
leveyed [sic]. I would think our legal department would assume the lead if
these ever come into play. Legal is leading us on the immunity situation, as
well.”[12]
Again that same
day, Nixon sent Hackbarth two additional e-mails to which he attached
information about Security and Exchange Commission (SEC) regulations, including
the text of SEC Regulation S-K, item 103, 17 C.F.R. § 229.103 requiring company
disclosure of certain legal proceedings.
On March 29,
2004, Botkin met with Nixon to discuss his job performance which Botkin
determined had not improved. Botkin told Nixon that he must improve his
working relationships. Botkin reported Nixon’s performance problems to Steve
Hines (Hines), the Respondent’s Executive Vice President of Human Resources. On
April 8, 2004, Hines discussed with Nixon Botkin’s negative assessment of Nixon’s
job
[Page 4]
performance.[13]
Hines and Nixon met again on April 12 and discussed a possible severance
package in the event that Nixon left his job with the Respondent.[14]
Two days later,
on the morning of April 14, 2004, security guards observed, and surveillance
cameras photographed, Nixon leaving the Sealy facility with a stack of
documents. Nixon did not return to work that day and security was placed on
alert.[15]
The next day, security guards again observed, and surveillance cameras
photographed, Nixon taking a stack of documents from the facility. Security
personnel stopped Nixon and prevented him from taking the documents from the
premises.
When Nixon next
returned to the Sealy facility on April 19, 2004, security personnel escorted him
to Botkin’s office.[16]
Botkin told Nixon that he could not remove documents from the facility without
permission and reminded him that he had signed a confidentiality agreement.[17]
Botkin asked Nixon to return any company documents he had taken.[18]
Nixon later returned with a stack of company documents.[19]
According to the Respondent, the documents that Nixon had taken were
proprietary and confidential and Nixon had violated the confidentiality
agreement he had signed with the Respondent by taking these documents from the
Sealy facility without permission.[20]
The Respondent terminated Nixon’s employment on April 20, 2004, for, according
to the Respondent, poor performance and removal of proprietary and confidential
documents from the Sealy facility without authorization.[21]
Nixon filed a complaint
with the Occupational Safety and Health Administration (OSHA) on July 15, 2004.
Nixon alleged in his Complaint that the Respondent terminated his employment in
retaliation for having previously engaged in activity that
[Page 5]
the SOX protects.
Nixon asserted that on March 15, 2004, he provided information to Botkin and
other officers and managers that showed violations of environmental laws, which
he reasonably believed would result in legal proceedings and financial
penalties which, in turn, would invoke reporting requirements mandated by the
SEC. OSHA investigated the Complaint and found that the Respondent would have
terminated Nixon’s employment regardless of any protected activity. Nixon
requested a hearing before a DOL ALJ.
After an
extended period of discovery, the Respondent filed a Motion for Summary
Decision and argued that no genuine issue of material fact existed as to
whether Nixon engaged in protected activity. Nixon opposed the Respondent’s
motion, arguing that he had engaged in protected activity when on March 15,
2004, he forwarded to Botkin and other managers information that he reasonably believed
showed the Respondent’s failure to comply with SEC Regulation S-K item 103, 17
C.F.R. § 229.103.[22]
That regulation requires publicly-traded corporations to report certain pending
environmental legal proceedings or such proceedings known to be contemplated by
governmental authorities. Nixon later amended his Complaint to include
an allegation that the Respondent engaged in mail fraud in violation of 18
U.S.C.A. § 1341 by falsely claiming immunity from environmental penalties in five
letters to the Texas Commission.
The ALJ found
that when Nixon provided information to Botkin in March 2004 regarding the
disclosure requirements of 17 C.F.R. § 229.103, there was no evidence of pending
environmental litigation or of a known environmental proceeding contemplated by
governmental authorities that would have triggered the Respondent’s duty to
disclose.[23]
The ALJ stated that Nixon’s belief that “government agencies would soon be
contemplating proceedings is not the same thing as a belief that they actually
were contemplating proceedings.”[24]
The ALJ thus determined that Nixon did not provide evidence that he reasonably
believed the Respondent violated the disclosure requirements of 17 C.F.R. §
229.103. With regard to the mail fraud claim under 18 U.S.C.A. § 1341, the ALJ
also found that Nixon provided no evidence that the letters were part of a “scheme
or artifice to defraud, or for obtaining money or property,” as required by 18
U.S.C.A. § 1341, and that there was no evidence that Nixon, prior to his April
2004 termination, considered the Respondent’s conduct to constitute mail fraud.[25]
Therefore, the ALJ concluded that there was no genuine issue of material fact that
Nixon had engaged in protected activity and determined that the Respondent was
entitled to summary decision and dismissal of Nixon’s Complaint. The ALJ also
denied Nixon’s
[Page 6]
motion for voluntary dismissal of his complaint.[26]
Nixon petitioned the Administrative Review Board (the Board) for review of the
ALJ’s D. & O. The Board issued a Notice of Appeal and Order Establishing
Briefing Schedule on March 9, 2005.
Jurisdiction and Standard of Review
The Secretary of
Labor has delegated to the Board her authority to issue final agency decisions
under SOX.[27]
We review a decision granting summary decision de
novo. That is, the standard the ALJ applies, also governs our review.[28] The standard for granting summary
decision under the Rules of Practice and Procedure for Administrative Hearings
before the Office of Administrative Law Judges is similar to that found in Federal
Rule of Civil Procedure 56, which governs summary judgment in the federal
courts. Accordingly, summary judgment is appropriate if there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.[29] The determination of whether facts are material is based
on the substantive law upon which each claim is based.[30] A genuine issue of a material fact
is one, the resolution of which “could establish an element of a claim or
defense and, therefore, affect the outcome of the action.”[31]
We view the evidence in the light most favorable to Nixon, the
non-moving party, and then determine whether there are any genuine issues of
material fact and whether the ALJ correctly applied the relevant law.[32] To prevail on a motion for summary decision,
the Respondent, the moving party, must show
that Nixon failed to make a showing sufficient to establish the existence of an
element essential to his SOX case, and on which
[Page 7]
he bears the burden of proof at
trial.[33]
Accordingly, the Respondent may prevail on its motion by pointing to the absence of
evidence proffered by Nixon on the issue of material fact as to whether the Complainant engaged in activity protected by the SOX.[34]
Furthermore, a party opposing a motion for summary decision
may not rest upon the mere allegations or denials of its pleadings but must set
forth specific facts which could support a finding that there is a genuine
issue of fact for hearing.[35]
Where the record taken as a whole could not lead a rational trier of
fact to find for Nixon, there is no genuine issue for trial.[36] Nixon must come forward with sufficient rebuttal evidence
to show that if the case went to trial, the jury would find in his favor.[37] We find that Nixon has not put forth facts sufficient to
support a finding that there is a genuine issue of material fact.
Discussion
A. The Legal Standard
Title VIII of the SOX is designated
the Corporate and Criminal Fraud Accountability Act of 2002. Section 806, the SOX’s
whistleblower provision, protects employees against retaliation by companies
with a class of securities registered under section 12 of the Securities
Exchange Act of 1934[38]
and companies required to file reports under section 15(d) of the Securities
Exchange Act of 1934[39]
or any officer, employee, contractor, subcontractor, or agent of such companies
because the employee provided information to the employer, a Federal agency, or
Congress which the employee reasonably believes constitutes a violation of 18
U.S.C. sections 1341 (mail fraud and swindle), 1343 (fraud by wire, radio, or
television), 1344 (bank fraud), or 1348 (securities fraud), or any rule or
regulation of the Securities and Exchange Commission, or any
[Page 8]
provision of
Federal law relating to fraud against shareholders.[40]
In addition, SOX protects employees against discrimination when they have
filed, testified in, participated in, or otherwise assisted in a proceeding
filed or about to be filed against one of the above companies relating to any
such violation or alleged violation.[41]
Actions brought
pursuant to the SOX are governed by the legal burdens of proof set forth in the
employee protection provision of the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR 21).[42]
Accordingly, to prevail on his SOX claim, Nixon must prove by a preponderance
of the evidence that: (1) he engaged in activity or conduct that the SOX
protects; (2) the Respondent knew about this activity; (3) the Respondent took adverse
personnel action against him; and (4) the protected activity was a contributing
factor in the adverse personnel action.[43]
The Respondent can avoid liability by demonstrating by clear and convincing
evidence that it would have taken the same unfavorable personnel action in the
absence of the protected activity.[44]
B. Respondent’s Motion for Summary Decision
Nixon’s Arguments
Nixon seeks review
of the ALJ’s decision to grant the Respondent’s Motion for Summary Decision.
Nixon, however, does not specifically argue that the ALJ erred in
determining that there was no genuine issue of material fact with respect to
Nixon’s providing information regarding conduct he reasonably believed
to be a violation of SEC Regulation S-K item 103, 17 C.F.R. § 229.103. Nixon merely
asserts, without supporting argument, that he engaged in protected activity
by “reporting additional audit findings linking Security [and] Exchange
Commission regulations requiring agency disclosures” and that the Respondent discriminated
against him in violation of the SOX when it fired him “shortly” thereafter.[45]
Nixon has failed to argue the legal significance of this alleged
[Page 9]
error in his
brief to the Board and, generally, the Board will not consider an issue that a
party has not raised or briefed and will consider any argument thereon waived.[46]
In his Petition
for Review, Nixon asserts three new claims of fraud under 17 C.F.R. §§ 229.101,
229.303 and 17 C.F.R. § 240.10b-5.[47]
Nixon did not raise these three claims before the ALJ
in response to the Respondent’s Motion for
Summary Decision.[48]
Under our well-established precedent, we decline to consider arguments that a
party raises for the first time on appeal.[49]
Consequently, Nixon’s
only argument on appeal is that the ALJ improperly defined “fraud” in finding
that the Respondent’s letters to the Texas Commission did not constitute mail
fraud under 18 U.S.C. § 1341.
Nixon’s Alleged Protected Activity: 18 U.S.C. § 1341
The SOX prohibits retaliation against an employee who
provides information to a Federal regulatory agency or person with supervisory
authority over the employee which the employee reasonably believes constitutes
a violation of 18 U.S.C. §§ 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.[50]
Whether a whistleblower’s belief is reasonable depends on the knowledge
available to a reasonable person in the same circumstances and with the
employee’s same training and experience.[51]
[Page 10]
To support its Motion for Summary Decision, the Respondent has the burden to establish the absence of
evidence to support Nixon’s case under the SOX. Nixon must demonstrate that he
engaged in SOX-protected activity prior to his April 2004 termination. To
bring himself under the whistleblower protection of the SOX, Nixon must
establish that he provided information regarding the Respondent’s conduct that he reasonably believed constituted
mail, wire, radio, TV, bank, or securities fraud, or violated any SEC rule or
regulation, or any provision of Federal law relating to fraud against
shareholders.[52]
In his brief to
us, Nixon, citing part of the definition of “fraud” contained in Black’s Law Dictionary 594 (5th ed.
1979), relies on a definition of fraud different than the meaning of that term
as developed in the case law interpreting section 1341.[53]
That statute involves a “scheme or artifice to defraud, or for obtaining money
or property.” Nixon does not allege that the Respondent engaged in a “scheme
or artifice to defraud, or to obtain money or property.” Rather, Nixon argues
that the Respondent, through Elkin’s January 30, 2004 letter to the Texas
Commission claiming immunity from penalties for violations of environmental
laws voluntarily disclosed as a result of a compliance audit, tried to evade
any potential liability for penalties. According to Nixon, the Respondent had
discovered environmental violations prior to its audit which rendered it
ineligible for immunity from any ensuing penalty and thus, the claim of
immunity was false.
For the purpose
of our summary decision analysis, we accept as true Nixon’s assertion that the Respondent
discovered these environmental violations prior to, rather than during, the
course of the audit it commenced in February 2004. This fact would render the Respondent
ineligible for immunity from any ensuing penalty or fee. Nixon has submitted
several letters that the Respondent sent to the Texas Commission. However, only
the January 30, 2004 and February 24, 2004 letters from Elkin to the Texas
Commission preceded Nixon’s April 20, 2004 termination and can constitute
evidence of protected activity. We accept as true Nixon’s assertion that Elkin
sent these two letters knowing that they contained false information. Nixon,
however, has submitted no evidence to show that he engaged in protected activity
in connection with his mail fraud claim.
We explained in Getman
that to qualify as protected activity, an employee must actually communicate a
concern that the employer’s conduct constitutes one of the
[Page 11]
enumerated violations.[54]
Under the SOX, Nixon must show that before his April 20, 2004 termination, he provided
information to a “a Federal regulatory or law enforcement agency,” “any member
of Congress or any committee of Congress,” or to a “person with supervisory
authority” over him, which he “reasonably believes to constitute a violation of
section 1341 ….”[55]
Yet, the first time Nixon claimed mail fraud under 18 U.S.C. § 1341 was in his
February 7, 2005 Brief to the ALJ. To the extent that Nixon argues that he
generally asserted fraud in his Complaint, his argument is unavailing. In
determining whether Nixon engaged in protected activity, the relevant inquiry
is not what he alleged in his Complaint but what he actually communicated to the
Respondent prior to his April 20, 2004 termination.[56]
Nixon proffered no evidence to the ALJ or to us showing that he provided
information to the Respondent before his April 20, 2004 termination, which he
reasonably believed showed that the Respondent engaged in mail fraud by virtue
of Elkin’s January 30, 2004 and February 24, 2004 letters to the Texas
Commission. We agree with the ALJ that, “Moreover, no evidence in the record exists
that indicates that at the time, Complainant considered Respondent’s conduct to
constitute the offense of federal mail fraud. The first mention of the mail
fraud statute was in his last filing in response to (and days after) a conference
call during which I asked if there was any other basis for his claim beyond the
SEC rule violation.”[57]
Relying on Cleveland v. United States,[58]
the ALJ further notes that because the offense of mail fraud under
18 U.S.C. § 1341 requires a “scheme or artifice to defraud, or for obtaining
money or property,” that provision is limited in scope to the protection of
property rights. Nixon does not allege that the Respondent engaged in any
conduct to defraud the Texas Commission of any property or to obtain any money
or property from the Texas Commission. The Respondent’s claim of immunity from
the imposition of penalties does not involve any property of the Texas
Commission and does not constitute mail fraud under 18 U.S.C. § 1341 according
to the ALJ.[59]
While all of this may be true, the SOX does not require that an employee
provide information about an actual violation of Section 1341 to be protected.
Rather, the employee only has to show that he reasonably believed that there
was a violation and conveyed that belief to his employer. However, we find
this to be harmless error because, as noted above, the ALJ correctly
[Page 12]
found that
the record contained no evidence that Nixon actually communicated his section
1341 concerns to the Respondent prior to his April 2004 termination.
Based on this
record, we agree with the ALJ’s finding that there is no genuine issue of fact as
to whether Nixon provided sufficient information to establish, prior to his termination,
that he reasonably believed the Respondent engaged in mail fraud in violation
of 18 U.S.C. § 1341. Therefore, no genuine issue of fact exists as to
protected activity, a necessary element of Nixon’s claim.
C. Complainant’s Submission of New Evidence to the Board
Nixon filed with
the Board an excerpt from the Texas Commission’s January 2006 Administrative
Enforcement Report and requested the Board to consider it in resolving this
appeal. In response, the Board directed Nixon to establish that the proffered
evidence meets the requirements for accepting new evidence under 29 C.F.R. §
18.54(c). That regulation provides that once the ALJ closes the record, “no
additional evidence shall be accepted into the record except upon a showing
that new and material evidence has become available which was not readily
available prior to the closing of the record.”[60]
The Board ordinarily relies upon this standard in determining whether to
consider new evidence, i.e., any evidence that is submitted after the ALJ has
closed the record. Absent a showing that the proffered evidence is “new and
material evidence [that] has become available which was not readily available
prior to the close of the record,” the Board will not consider the new
evidence.[61]
In response to
the Board’s order, Nixon argues that the new evidence, showing that the Texas
Commission assessed a $94,489.00 penalty against Stewart & Stevenson
Tactical Vehicle Systems, LP in January 2006, proves that “legal proceedings
did occur” and, consequently, supports his case.[62]
We disagree.
We have held
that the evidence of record shows that there is no genuine issue of
fact that Nixon engaged in protected activity. The fact that what
Nixon anticipated would happen did happen, namely that the Texas Commission did
assess a penalty against the Respondent for environmental violations, does not
retroactively make any activity Nixon engaged in prior to his termination activity
protected under the SOX. Thus, we find that the new evidence is not material.
Accordingly, we do not consider it.
[Page 13]
Conclusion
Nixon has not
presented sufficient evidence to create a genuine issue of fact that he engaged
in SOX-protected activity. Accordingly, we GRANT the Respondent’s Motion
for Summary Decision and DENY the Complaint.
SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[1] 18 U.S.C.A. § 1514A (West 2002).
[2] 29 C.F.R. Part 1980 (2007).
[3] Complainant’s Abbreviated Amended Answer to
Respondent’s Motion for Summary Decision, Attachment A.
[4] Id.
[5] Declaration of Richard Botkin at 2.
[6] Id. at 2.
[7] Declaration of Richard Botkin, Exhibit A.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Complainant’s Abbreviated Amended Answer to
Respondent’s Motion for Summary Decision, Attachment D.
[13] Complaint at 3.
[14] Id.
[15] Respondent’s Brief in Support of Motion for
Summary Decision at 4.
[16] Declaration of Richard Botkin at 2.
[17] Id.
[18] Id. at 2-3.
[19] Id. at 3.
[20] Respondent’s Brief in Support of Motion for
Summary Decision at 2, 4, and at Exhibit 1, Declaration of Steve Hines at 2.
[21] Respondent’s Brief in Support of Motion for
Summary Decision at 1, 4, and at Exhibit 1, Declaration of Steve Hines at 2.
[22] ALJ’s [Recommended] Decision and Order (D.
& O.) at 4.
[23] Id. at 13.
[24] Id. at 13.
[25] Id. at 15.
[26] On February 2, 2005, Nixon notified the ALJ
that he intended to bring a de novo action in federal district court as the DOL
had not made a final decision in his case within 180 days of filing his
complaint with OSHA. See 29 C.F.R. § 1980.114. It appears that Nixon
believed that he also needed to withdraw his complaint in the DOL proceeding
before he could file de novo in the district court. There is no such
requirement.
[27] Secretary’s
Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. §
1980.110(a).
[28] 29 C.F.R. § 18.40
(2006).
29] Fed. R. Civ. P.
56(c); 29 C.F.R. § 18.40(d); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
[30] Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
[31] Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
[32] Id. at 255.
[33] Celotex, 477 U.S. at 322.
[34] Id.
[35] 29 C.F.R. §
18.40(c); see Anderson, 477 U.S. at 252.
[36] Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-587 (1986) (footnote omitted).
[37] Hasan v. Southern Co., Inc., ARB No.
04-040, ALJ No. 03-ERA-032, slip op. at 4 (ARB Mar. 29, 2005)(mere speculation
about how the employer might have become aware of complainant’s protected
activity is not sufficient rebuttal evidence).
[38] 15 U.S.C.A. § 781 (Thompson/West 2007).
[39] 15 U.S.C.A. § 780(d) (Thompson/West 2007).
[40] 18 U.S.C.A. § 1514A.
[41] Id.
[42] 49 U.S.C.A. § 42121 (West Supp. 2005); 18
U.S.C.A. § 1514A(b)(2)(C).
[43] Getman v. Southwest Sec., Inc., ARB
No. 04-059, ALJ No. 2003-SOX-008, slip op. at 8 (ARB July 29, 2005); see
49 U.S.C.A. § 42121(a)-(b)(2)(B)(iii)-(iv); cf. 29 C.F.R. §§
1980.104(b), 1980.109(a).
[44] Getman, slip op. at 8; see 49
U.S.C.A. § 42121(a)-(b)(2)(B)(iv); cf. 29 C.F.R. § 1980.104(c).
[45] Complainant’s Brief at 4.
[46] See Higgins v. Glen Raven Mills, Inc.,
ARB No. 05-143, ALJ No. 2005-SDW-007, slip op. at 8 (ARB, Sept. 29, 2006); see
also Walker v. American Airlines, ARB No. 05-028, ALJ No. 2003-AIR-017,
slip op. at 17 (ARB Mar. 30, 2007); United States ex. rel Verdone v. Circuit
Court for Taylor County, 73 F.3d 669, 673 (7th Cir. 1995)(per curiam)(even
pro se litigants must file a legal argument with some supporting authority).
[47] Petition for Review, at 1-3.
[48] Complainant’s January 11, 2005
“Multi-Purpose Document;” Complainant’s January 18, 2005 “Notification of Delay
of Interrogatories, and Motion to Dismiss Respondent’s Motion for Summary
Decision;” Complainant’s January 23, 2005 “Abbreviated Amended Answer to
Respondent’s Motion for Summary Decision;” Complainant’s February 7, 2005
“Additional Claims.”
[49] Harris v. Allstates Freight Sys., ARB
No. 05-146, ALJ No. 2004-STA-017, slip op. at 3 (ARB Dec. 29, 2005); Farmer
v. Alaska Dep’t of Trans. & Pub. Facilities, ARB No. 04-002, ALJ No.
2003-ERA-011, slip op. at 6 (ARB Dec. 17, 2004); Honardoost v. PECO
Energy Co., ARB No. 01-030, ALJ No. 00-ERA-036, slip op. at 6 n.3 (ARB Mar.
25, 2003).
[50] See 18 U.S.C.A. § 1514A.
[51] See Stockdill v. Catalytic Indus. Maint.
Co., Inc., No. 90-ERA-043, 1996 WL 171409 at *1 (Sec’y Jan. 24, 1996); Melendez
v. Exxon Chems. Ams., ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 27
(ARB July 14, 2000), appeal dismissed sub nom., Exxon Chems. Ams. v. Chao, 298
F.3d 464 (5th Cir. 2002).
[52] Harvey v. Home Depot U.S.A., Inc.,
ARB Nos. 04-114, 04-115, ALJ Nos. 2004-SOX-20, 2004-SOX-036, slip op. at 14
(ARB June 2, 2006).
[53] See note 58, infra.
[54] Getman, slip op. at 18.
[55] 18 U.S.C.A. §1541A.
[56] Platone v. FLYi, Inc., ALJ No.
03-SOX-027, ARB No. 04-154, slip op. at 17 (ARB Sept. 29, 2006).
[57] D. & O. at 15.
[58] 532 U.S. 12, 19 (2000).
[59] See Ward v. United States, 845 F.2d
1459, 1462 (7th Cir. 1988) (potential fines imposed by a judge are not a
property right under the mail fraud statute.)
[60] 29 C.F.R. § 18.54(c).
[61] September 13, 2006 Order at 1.
[62] September 28, 2006 Pleading at 2.
