Therefore, the ALJ's pretext finding cannot stand because Toney's certification that he did not terminate Kalkunte because of the three incidents is not inconsistent with his testimony that he decided to terminate her because her performance in carrying out her job duties was not adding value to the estate.
C. Conclusion
The entire record herein conclusively demonstrates that Kalkunte did not prove by a preponderance of the evidence that DVI and APS violated the SOX. Simply put, the
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evidence that the ALJ and my colleagues rely upon is not substantial. The record contains no direct evidence that Toney retaliated. The record contains overwhelming evidence that contradicts the ALJ's finding that Toney's words, tone, and demeanor at the September 12 meeting demonstrate retaliatory animus. Nor does the record support the ALJ's "impressions" that Heller's September 10 email proves retaliatory intent. The same is true for the ALJ's three pretext findings. Therefore, I would reverse the ALJ's recommended decision and dismiss Kalkunte's complaint since substantial evidence in the whole record does not support that decision.
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 See § 307 of SOX, requiring an attorney to report evidence of a material violation of securities law or similar violation by the company to the chief legal counsel or chief executive of the company, or, if that is unsuccessful, to the audit committee of the board of directors. 15 U.S.C.A. § 7245.
2 Chief Administrative Appeals Judge Douglass resigned from her position at the Administrative Review Board, effective January 17, 2009. However, she signed this decision before her resignation became effective. The decision was issued subsequently to allow Judge Transue to write separately.
3 Majority opinion at 6, citing Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The quoted language first appeared in Consolidated Edison Co. v NLRB, 305 U.S. 197, 229 (1938).
4 340 U.S. 474, 488 (1951).
5 See 29 C.F.R. § 1980.110(b).
6 Universal Camera, 340 U.S. at 477-487.
7 Id. at 477-478.
8 Id. at 487-488. See also Dalton v. U.S. Dep't of Labor, 58 Fed. App. 442, 445; 2003 WL 356780 (10th Cir. 2003) citing Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989) (noting that whether substantial evidence supports an ALJ's decision "is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion.").
9 See Platone, slip op. at 14-16.
10 R. D. & O. at 40.
11 CX 47, para. 36.
12 Bettner v. Crete Carrier Corp., ARB No. 06-013, ALJ No. 2004-STA-018, slip op. at 13-14 (ARB May 24, 2007).
13 Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002).
14 RX 64 (Kalkunte Deposition) at 247.
15 T. at 244-245.
16 Id. at 562-563.
17 Id. at 567-569.
18 Id. at 249-251.
19 Id. at 299.
20 R. D. & O. at 40.
21 Heller Deposition at 14.
22 T. at 644-645.
23 Meller Deposition at 46.
24 Bromme Deposition at 57, 65, 98, 133-138.
25 RX 21.
26 RX 37.
27 R. D. & O. at 46-47.
28 Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-022, slip op. at 9 (ARB Nov. 30, 2005).
29 Barber v. Planet Airways, Inc., ARB No. 04-056, ALJ No. 2002-AIR-019, slip op. at 6-7 (ARB Apr. 28, 2006).
30 CX 24.
31 R. D. & O. at 47.
32 CX 9.
33 CX 24-1.
34 CX 24(1)-CX 24(2).
35 CX 24(2)-CX 24(3).
36 Heller Deposition at 20.
37 See Allen v. Stewart Enters., Inc., ARB 06-081, ALJ Nos. 2004-SOX-060, 061, 062 (ARB July 27, 2006) citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
38 R. D. & O. at 48-49.
39 RX 62.
40 Kolbe Deposition at 25.
41 RX 62.
42 R. D. & O. at 48-49.
43 T. at 294.
44 Cascioli Deposition at 142.
45 RX 30.
46 Cascioli Deposition at 142.
47 R. D. & O. at 49-50.
48 T. at 527-557; RX 30; DVI Financial Services, Inc.'s Brief in Support of Proposed Findings of Fact and Conclusions of Law at 15-21.
49 T. at 252-253, 541, 648-649.
50 T. at 552.
51 Athanas Deposition at 8-11.
52 Heller Deposition at 16.
53 Meller Deposition at 11-15.
54 R. D. & O. at 50; T. at 304.
55 Cascioli Deposition at 144; R. D. & O. at 50.
56 CX 48, para 22; R. D. & O. at 50.
57 R. D. & O. at 50.
58 CX 47, para 20-29; T. at 541-546.
59 CX 47, para 35.
60 R. D. & O. at 50 (emphasis supplied).
61 T. at 627.
62 R. D. & O. at 51.
63 T. at 552.