After Stuart told Callaghan on June 22, 2001 that Halloum continued to struggle in interdepartmental meetings, he thought about extending Halloum's probation for continued lack of engagement with various projects, absences from key meetings and the significant amount of missed work. TR at 659, 666-669; EX 6. He emailed these thoughts to Sherry Jacob, of Intel's Human Resources unit at FAB 12, who advised that extending probation was unusual, and would require additional explanation. EX 6; TR at 669, 831-832. Termination was normal when a probationary employee consistently failed to perform adequately. TR at 668-669.

   Halloum's subordinates told Callaghan they were concerned about Halloum's ability to run meetings, prepare required presentations on time, or regularly offer useful opinions and ideas on projects. TR at 1002-1003, 1006, 1075-1088. He not only missed interdepartmental meetings he needed to attend, but several times sent Townsend or another cost analyst in his place at the last minute, with minimal preparation, which precluded effective participation by the Spares Group. TR at 1003-1004, 1084-1087. They felt Halloum's deficient knowledge about Intel's manufacturing processes hampered the group's effectiveness and reflected badly on it; they doubted he was willing to learn those processes by "shadowing" subordinates who were more familiar with them. TR at 1005, 1086-1087. Based on these observations, in his July 17, 2001 review at the close of Halloum's probation, Callaghan wrote that Halloum needed to improve in the areas of "leadership, circle of influence, process/business knowledge and team development." EX 7. Invoice approval is not mentioned among Complainant's responsibilities or accomplishments during probation. Id.; TR at 580.

   Callaghan consulted FAB 12's Human Resources manager, Kendall McNail, about Complainant's inadequate performance. TR at 699-700. Intel evaluates employees annually in January, assigning them one of three ratings, from "improvement required" (the lowest), to "outstanding" (the highest). TR at 518. He told McNail he likely would rate Complainant as "improvement required" in January. TR at 699. Employees who receive that rating are placed on a Corrective Action Plan (CAP), specifying their deficiencies and prescribing goals they must achieve within 90 days, or they are terminated. TR at 535, EX 9. A CAP generally serves as a tool to improve inadequate performance, although it also can be used as a form of discipline for rule-breaking. TR at 327, 704. Employees may choose to work to achieve the goals in their CAP, or separate voluntarily from Intel, and be paid for the 90-day period their CAP would have lasted (or pro-rata if they begin a CAP but choose to leave before completing it). EX 62; CX 28 at 2.

   McNail advised Callaghan to prepare a CAP if he felt confident Halloum would receive the "improvement required" rating, so Halloum could begin working toward improvement as soon as possible. TR at 585-586, 699-700; EX 62. Callaghan prepared the CAP with assistance from Human Resources in late December, finishing it on December 28, 2001. TR at 585-586, 700; EX 9. The performance deficiencies identified were that Complainant :

1) Required an unusual amount of managerial follow-up;

2) Consistently performed the management of the FAB 12 cost reduction program below expectations;

3) Had difficulty working as part of a matrixed team and was not viewed as a role model;

4) Missed significant amounts of time at work forcing other employees to fill in for him, sometimes with little notice and no effective preparation, resulting in lowered efficiency overall and "a loss in confidence in [Halloum] to deliver on his commitments."

These were all matters he had been informally counseled about.

   Complainant emailed Sherry Jacob of the FAB 12 Human Resources unit around mid-day on January 2, 2002 to invoke Intel's "Open Door" policy that allows an employee to raise work-related issues with a manager or the Human Resources group. EXs 1, 12; TR at 51, 329-330. He complained that Callaghan harassed him and treated him unfairly, and requested information on his rights and how to remedy the situation. TR at 51, 329-330. At a meeting about two and a half or three hours later, Callaghan told Complainant that his performance rating was "improvement required," and presented his CAP. Complainant's Exhibit (CX) 6 at 1; EX 9; TR at 53, 768.

   At their meeting the next day (January 3, 2002), Complainant reiterated to Jacob that Callaghan harassed and treated him inappropriately. Id.; EX 12. He sought two remedies – rescission of the CAP and the firing of Callaghan. TR at 845. Jacob began the Open Door investigation. TR at 837, 843.

   As part of her inquiry, Jacob asked the three commodity analysts who reported directly to Halloum to complete anonymous evaluations to be sent to Callaghan, which they also could send to Complainant. TR at 844-845, 1008, 1094. After receiving this assignment, Townsend, Hess, and Theodoseau told Jacob that Complainant tried to pressure them to tailor their comments to reflect favorably on him and insisted on reviewing their responses before they turned them in. EX 15; CX 57; TR at 1008, 1097-1103. They feared retaliation in their annual reviews (which were to take place around that time) if they did not do what Complainant wanted. EX 14; TR at 709-710, 848-849, 1016.

   Starting in January 2002, Complainant began to surreptitiously tape-record conversations with each of his three subordinates, Callaghan, Sherry Jacob, Jodi Jacobs (also an employee in FAB 12's Human Resources unit), and the FAB 12 plant managers. TR at 405, 996. About 25 conversations were taped, at least one of which was a telephone call. TR at 405, 411, 416-417. Complainant had read and signed Intel's standard "Discharge and Discipline" guidelines when he was hired, which gave as examples of actions that could result in immediate termination "[v]iolating other's privacy rights such as: [t]ape-recording conversations of others without their knowledge, consent, or proper authorization." Employer's Exhibit (EX) 59 at 2. Complainant knew this when he did the taping. Id.; TR at 405. Intel treats unauthorized taping very seriously as "not only contrary to Intel policy, but absolutely contrary…to Intel's culture," which encourages problem-solving by the free expression of ideas and frowns on anything that may chill that expression. TR at 1254.

   On January 25, 2002, Callaghan confronted Complainant with Jacob present about influencing his subordinates' answers to Jacob's inquiries, and warned him that further efforts to pressure his subordinates could be grounds for termination. TR at 850-852. Jacob met with Complainant three days later to tell him her investigation of his Open Door complaint found no support for his harassment claim. TR at 847; 852-853. Complainant began a medical leave of absence on February 1, 2002, based on stomach symptoms and work-related stress that his physician initially anticipated would last until April 16, but later was extended to April 29, 2002. CX 4 at 2-4; CX 34 at 1. The papers authorizing medical leave also serve as an application for short term disability benefits. CX 3. Intel continues the salary of employees on medical leave for 90 days. If the Employee is out longer, and had paid a premium to a third party insurer for short term disability insurance, that indemnity benefit is paid for the 91st to the 365th day of medical leave.

   Feng Liao, M.D., treated Complainant for gastritis and other symptoms related to an infection of the stomach (h. pylori) during his medical leave. CX 3 at 2. After the January 2, 2002 meeting where Callaghan placed him on the CAP, Complainant also received counseling from a licensed psychologist, Dr. Libby Howell, for symptoms of work-related stress, including depression, fatigue, headaches and anxiety. CX 3 at 4, 5.

   During his medical leave, Complainant told the Securities and Exchange Commission on March 14, 2002 that Callaghan had instructed him to delay payment of invoices until subsequent quarters to enable Intel to meet Wall Street expectations. TR at 143-144; CX 5, CX 32. The letter to the SEC states the well-publicized investigation of Enron's collapse prompted his disclosure of unsound accounting practices at Intel. Id. On April 16, 2002, he reiterated his allegations in a letter to Craig Barrett, Intel's Chief Executive Officer, charging that Callaghan had discriminated against him on the basis of national origin and religion, and had instructed him to engage in investor fraud. CX 6. Intel began to investigate the allegations. TR 1157-1158. As the CAP preceded these reports to the SEC and Intel's CEO, the disclosures could not have motivated Callaghan to assign the "improvement required" performance rating or place Complainant on the CAP.

   The SEC conducted no investigation of its own. TR at 1158-60. It required Intel to investigate itself, focusing especially on FAB 12's payment of invoices to three suppliers during the first three quarters of 2001, and report its findings to the Audit Committee of Intel's Board of Directors and to the SEC. Id. Intel had independently begun to investigate the complaint sent to Craig Barrett. In June of 2002, Intel's senior litigation counsel Steve Rodgers assembled an external accounting team and retained outside legal counsel for the self-investigation. TR at 1159-60. Initially Rodgers' team did not know who made the charge, but learned Complainant had been its source during the investigation. TR at 1161. Ultimately the investigation Intel began on its own and the one required by the SEC were merged.

CX 28. Complainant responded by e-mail on Friday, July 19, 2002, that he did not want to resign, and he would be at FAB 12 the following Monday at 8:00 a.m., ready to work. CX 29; TR at 810-811. Jacob was not at work that Monday morning, so she did not receive his response before his arrival. TR at 807, 833.

   When Complainant arrived at work at 8:00 a.m. that Monday, his identification/access badge had been deactivated because he was still on medical leave, so security would not permit him to enter. He interpreted his exclusion as a deliberate slight, feeling humiliated as arriving co-workers saw him detained by security outside the work area. CX 30. He informed Jacob in an email later that day of his unsuccessful attempt to return as he had promised, and asked to meet with her at 5:30 p.m. Tuesday (the next day). CX 30. Jacob reiterated that the CAP would not be removed, and confronted Halloum about his taping of conversations and reminded him that recording conversations with Intel employees was against company policy when she and Callaghan met him Tuesday evening. TR at 614-615, 875-876. He refused to answer any of her questions about taping. TR at 876. She also asked whether he would now meet with the Intel's investigators about his SEC complaint. TR at 875. He had been contacted during his medical leave to be interviewed as part of Rodgers' investigation, but refused. TR at 1163. He told the person who tried to set up the interview that he and Intel were "at war," and he would be interviewed only if Intel removed the CAP. TR at 1163, 1224.

   Complainant was taken off medical leave and placed on administrative leave effective July 22, 2002 so he would be available to give an interview to one of Rodgers' investigators. TR at 877-878. This was significant to him, because he had no income since his 91st day of medical leave. Although he qualified for short term disability payments under insurance he had paid for, he did not regard himself as disabled, and so had refused to cash those checks. TR at 192. When interviewed on August 1, 2002 he described no delays in payments of invoices, only deferrals of purchases. CX 31; TR at 878, 1170-172.

TR at 821-822; EX 46 at 1-2; EX 48. His salary and benefits were undiminished by the modifications. TR at 378. Callaghan reiterated that Complainant would be a sole contributor without supervisory responsibilities. CX 35, TR at 818. The three analysts remained under the supervision of Lana Rock, an employee of the same grade as Complainant, who had supervised them during most of his absence since February 1st. EX 48; TR at 201. Over the course of those 6 months, the group had successfully developed projects with other departments and increased its efficiency. Id.

   Callaghan made clear his dissatisfaction with Halloum's efforts under the modified CAP in their August 27, 2002 progress meeting. TR at 219, 385, 639. I do not believe Callaghan's testimony that the 2 assignments in the modified CAP could be completed within the allotted time, or that the periods for completing them were not firm. Complainant submitted a request to participate in Employer's Voluntary Separation Program (VSP) on August 27, 2002. CX 39. This was a separate, temporary program Intel offered to lower its labor costs by inducing employees to leave. Those employees left with four month's base pay, plus an additional amount based on length of service. TR at 646-647, EX 45. This was more advantageous than the remaining pro-rata buyout under his CAP, and he would not have qualified for the VSP if he were terminated for failure to achieve his CAP goals. Complainant ended his employment at Intel as of September 3, 2002. CX 44.

   A tangential matter Intel raised also remains. Before October 23, 2000, Complainant worked for IBM in Tucson, Arizona. TR at 131, 287. Halloum and his family lived in Tempe (in the Phoenix area) before IBM hired him. He attempted to relocate to Tucson with his family while he worked at IBM, going so far as to place his four children in Tucson schools for a time, but his wife and the children were reluctant to leave the family home in Tempe. TR at 292-293. He rented an apartment and furniture in Tucson, where he stayed, but also maintained the Tempe residence where his family lived. TR at 287. When Callaghan offered the job at FAB 12, Complainant explained his family's difficulty in adjusting to Tucson and told Callaghan of their desire to return permanently to Tempe. TR at 292. As a new Intel hire, Complainant was eligible for relocation benefits if he resided more than 50 miles from the Intel facility where he would be working. TR at 288, 501, 895-896. He moved back to Tempe after Callaghan's job offer. The relocation agreement he submitted to Intel represented that his wife and children also were moving from Tucson, which affected the benefit calculation; Intel paid him nearly $18,000.00 in relocation benefits. EX 60; TR at 288. Only in the course of preparing for this litigation did Intel learn that Complainant's family members had not actually relocated to Tucson, making them ineligible for relocation benefits. TR at 292-293. Employer's penalty for falsification of company documents is involuntary termination. TR at 896.

1. Whether Complainant engaged in protected activity under the Act;

2. Whether Employer took unfavorable employment action against Complainant;

3. Assuming Complainant took part in a protected activity, was that activity a contributing factor to any unfavorable action;

4. Whether Employer would have taken the same unfavorable employment action in the absence of Complainant's protected activity.

   This is a trial de novo rather than an appeal from OSHA's findings. The Secretary's interim final regulations under the Act are patterned after regulations that implement the whistleblower provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), codified at 29 C.F.R. part 1979, the Surface Transportation Assistance Act (STAA), codified at 29 C.F.R. part 1978, and the Energy Reorganization Act (ERA), codified at 29 C.F.R. part 24. See, Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 68 Fed. Reg. 31860 (May 28, 2003).

   The Act protects employees who provide information to authorities in the executive branch, to Congress, or to the employer, that the employee reasonably believes show the employer violated federal laws against shareholder fraud. 29 C.F.R. § 1980.102(b)(1).

   Intel knew of Complainant's allegations no later than April 16, 2002, when he sent similar allegations to Intel's Chief Executive Officer. This element of his case is satisfied. 29 C.F.R. §§ 1980.104(b), 1980.109(a); Paynes v. Gulf States Utilities, 1993-ERA-47, slip op. at 4-5 (ARB Aug. 31, 1999).

   Employer says the CAP imposed on January 2, 2002 and modified on August 19, 2002 are essentially the same, and were the only adverse actions taken during Complainant's employment. TR at 705-705. Complainant argues that the January and August iterations of the CAP are separate adverse actions, Intel's insistence that he complete the CAP when he was to return to work after April 29, 2002 is another violation, and that the "Ground Rules" and "Hopes and Fears" documents he received at the April 29, 2002 meeting are additional intimidating retaliatory acts. TR at 338. Complainant also argues that Employer constructively discharged him. I will consider each of the unfavorable personnel actions alleged by Complainant, but evaluate whether the constructive discharge allegation under the topic of Employer's "dual motive," below.

   Halloum had made no qualifying disclosures before Intel assigned the "improvement required" rating and imposed the original CAP on January 2, 2002. The CAP was a pre-existing remedy for earlier inadequate performance. Halloum's disclosures after Intel imposed it did not immunize him from management efforts he disliked, or convert them into forbidden discrimination. Insistence that Complainant complete the CAP upon return from medical leave was not retaliation.

   Complainant also argues that requiring him to work under the CAP caused him so much mental distress and anxiety that it should be regarded as an unfavorable employment action. I am unconvinced that the suggestion to shadow his direct reports stigmatized him; while Complainant was an educated man, he lacked knowledge of Intel's manufacturing and accounting processes and procedures. Familiarizing himself with his support staff's jobs was a reasonable method of acquiring that knowledge.

   Complainant always perceived the CAP as intolerable harassment, along with Employer's efforts to understand the nature of the limitations Drs. Liao and Howell had communicated. I do not accept the premise that Dr. Liao knuckled under to pressure from Intel when he withdrew his statement barring work under the original CAP. Dr. Howell's statement that he should not work in an environment that caused "stress and anxiety" provided no functional guide to what Complainant could do. Vagueness about the limitations reasonably invited Employers' initial request for clarification; Dr. Howell's inability or refusal to clarify prompted additional requests. Seeking more specificity about work-related limitations health care providers communicated to Intel would not deter other employees from making protected disclosures. The requests for clarification were not unfavorable personnel actions.

   The fragmentary language and bullet-point organization of the document convince me that the Ground Rules were intended to serve as an agenda for the April 29 meeting Jacob had expected to conduct rather than a strategy to harass Complainant. The document is not discriminatory on its face, and Employer did not intend to use it to punish protected whistle blowing or to give it to Complainant as an indirect warning to others not to disclose corporate acts to the government. Handing it to Complainant was not an unfavorable personnel action for purposes of the Act.

   Neither the Hopes and Fears exercise, nor reducing to writing the apprehensions the three analysts who had reported to Halloum harbored about his return as their supervisor were done to intimidate, threaten, restrain or in any other manner discriminate against him in the terms and conditions of his employment. They were standardized efforts Intel used when managers changed. They also communicated to the analysts that management would protect them from reprisal or intimidation. Like the original CAP, these measures were neither discrimination nor strategies to deter others from disclosing illegal conduct.

   Loss of supervisory responsibilities is an unfavorable personnel action. See Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 799 (10th Cir. 1993) (reassignment of duties is actionable discrimination if employee demonstrates decrease in pay, decrease in responsibility or requirement to use lesser degree of skill than his previous assignment). Callaghan's modifications removing his supervisory responsibilities and permanently reassigning his subordinates were adverse actions.

   The modification also assigned Complainant two significant tasks. At the hearing, independent investigator Carla Minnard appeared not to know that the CAP had been modified. She conceded the possibility that CAP assignments could be so onerous as to guarantee failure and serve as a means of removing a whistle blower entitled to protection. Intel contends the modified CAP's tasks were reasonably attainable and therefore not discriminatory. The assignment to plan reductions in FAB 12's manufacturing budget was consistent with Complainant's existing job duties and not unreasonable per se.

   Development of a plan to save $13-$15 million in manufacturing costs was a major project, yet he had to complete it and obtain management approval for it in less than a month, without the aid of Townsend, Hess and Theodoseau or any replacements, while also achieving the original four CAP goals and another new one. Requiring him to obtain management approval of the plan clearly was beyond his control. Taken together the cost reduction assignment in the modified CAP was unreasonable.

   Halloum had 11 days to formulate an effective program to eliminate the loss of warranties, an area in which he had no previous direct experience, when Intel employee Tricia McGuire's attempts to do so had been unsuccessful for six months. The modified CAP set Complainant up for failure by assigning him unattainable tasks. The certain failure to achieve the modified CAP goals would result in his termination, so they not only adversely affected the terms of his employment, they would deter other employees from daring to make protected disclosures. Complainant proved the modifications to his original CAP were unfavorable employment actions.

   As the final element, Complainant must prove that his disclosures to the SEC and to Intel's CEO contributed to the decision to modify his CAP. 29 C.F.R. § 1980.109(a). In the context of similar whistle blower cases, a contributing factor includes "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (citations omitted) (defining "contributing factor" in the Whistleblower Protection Act for federal employees). A whistle blower need not prove his protected conduct was a "significant," "motivating," "substantial," or "predominant" factor in an adverse personnel action.

   An unfavorable personnel action taken shortly after a protected disclosure may lead the fact finder to infer that the disclosure contributed to the employer's action. 29 C.F.R. § 1980.104(b)(2). Judges have drawn inferences of causation when the adverse action happened as few as two days later, Lederhaus v. Donald Paschen & Midwest Inspection Serv., Ltd., 1991-ERA-13 (Sec'y Oct. 26, 1992), to as much as about one year later. Thomas v. Ariz. Pub. Serv. Co., 1989-ERA-19 (Sec'y Sept. 17, 1993). The causal connection may be severed by the passage of a significant amount of time, or by some legitimate intervening event. Tracanna v. Arctic Slope Inspection Serv., 1997-WPC-1 (ARB July 31, 2001) (slip op. at 7-8).

   Employer imposed the CAP modifications on August 19, 2002, some five months after Complainant made his allegations to the SEC on March 14, 2002, two months after Intel assigned Steve Rodgers to investigate whether those allegations were true, and immediately upon Complainant's actual return to work. Callaghan, the author of the modifications, had learned of the charges Complainant made about him to Intel's CEO Barrett and to the SEC in May. I do not believe he could segregate this knowledge from other reasons for the modifications; it played some role in his decision to modify the CAP as he did. It was not the primary motivating factor, but it need not be for Complainant to establish this element of his case. More than just the timing, the unreasonable nature of the two new assignments also leads me to infer retaliation. Setting Complainant up to fail by adding unreasonable goals to his CAP carried a none-too-subtle message of management's displeasure that would make others think twice about disclosing suspicions of corporate wrongdoing to the government.

   Because Complainant proved the modified CAP was imposed, at least in part, due to his protected disclosures, Intel had to prove by clear and convincing evidence that the CAP modifications would have been the same if Complainant never made his disclosures to the SEC or to its CEO. 29 C.F.R. § 1980.109(a); Gonzalez v. Langone Pipeline & Utility Contracting Division, 2001-STA-18 (ALJ Sept. 2001) (slip op. at 9) (applying "dual motive" test set forth in Pogue v. U.S. Dep't of Labor, 940 F.2d 1287, 1289-90 (9th Cir. 1991)). "Clear and convincing" evidence is more than a preponderance of the evidence but less than proof "beyond a reasonable doubt." See Yule v. Burns Int'l Sec. Serv., 1993-ERA-12 (Sec'y May 24, 1995). Employer says it modified the CAP for his demonstrated inabilities to meet performance expectations and his violations of company policy.

   Employer believed Complainant recorded conversations before it modified his CAP. Taping violates explicit company policy, chills employee self-expression, is anathema to Employer's corporate culture, and Complainant knew it was grounds for dismissal. Employer's evidence on this point was consistent, undisputed by Complainant, and meets the clear and convincing standard. It was Employer's prerogative to modify Complainant's CAP as a means of enforcing this policy. Imposing unattainable goals is a somewhat ham-fisted way of doing so, but had it terminated Complainant outright, it would have been within its rights. The modifications accomplished the same thing indirectly.

   Employer points to Halloum's attempts to coerce his support staff to give only positive evaluations of his performance during Sherry Jacob's investigation of his Open Door claim as another reason for modifying the CAP. I am fully persuaded the staff feared recrimination if he were returned to a supervisory role over them, which they expressed clearly during the Hopes and Fears exercise. These circumstances reasonably caused Employer to remove him as Group Leader in the modified CAP. Complainant's attempt to coerce his subordinates to say what he wanted them to say in evaluating his performance was good reason to recast his position to that of a sole contributor. He lost his management responsibilities as the result of his conduct, not due to any whistle blowing.

   My rejection of portions of Callaghan's testimony does not establish that Intel violated the Act. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). Viewing the evidence as a whole, Complainant failed to persuade me that Employer retaliated against him for whistle blowing. Id. at 524.

   A constructive discharge qualifies as an unfavorable employment action, for it is legally equivalent to discharge by the employer. Jordan v. Clark, 847 F.2d 1368, 1377 & n. 10 (9th Cir. 1988); Draper v. Coeur Rochester, 147 F.3d 1104, 1110 (9th Cir. 1998) ("Constructive discharge is . . . just one form of wrongful discharge"). The key factor in constructive discharge cases, actionable discrimination that becomes so intolerable that the complainant quits, is missing. I already found that the removal of management authority and the imposition of the two modified CAP assignments were adverse actions under the Secretary's regulations, but also that they were justified. Complainant proved that Intel set him up to fail in August 2002, but this begs the question of whether removal in that fashion was retaliation for whistle blowing. Intel demonstrated by clear and convincing evidence that it had adequate reasons to fire Complainant, directly or indirectly, unrelated to his protected disclosures to the SEC and to Intel's CEO.

   Any misrepresentation about the number of family members who relocated from Tucson to Tempe could not have served as a justification for the modifications made to his CAP in August 2002, for it was discovered only much later. Intel apparently combed through things Complainant had submitted to it, as part of its defense of this claim. Intel proved other contemporaneous reasons for the CAP modifications. An employer's after-acquired evidence of wrongdoing that could have resulted in discharge does not bar an employee from prevailing in a retaliation case. McKennon v. Nashville Publishing Co., 513 U.S. 352, 358 (1995). The relocation misrepresentation would have limited the remedy had Complainant prevailed. Id.; see also O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 760 (9th Cir. 1996).

It is recommended that Complainant's complaint be DISMISSED.

      WILLIAM DORSEY
      Administrative Law Judge

NOTICE OF APPEAL RIGHTS: This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1980.110, unless a petition for review is timely filed with the Administrative Review Board ("Board"), U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210, and within 30 days of the filing of the petition, the ARB issues an order notifying the parties that the case has been accepted for review. The petition for review must specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily shall be deemed to have been waived by the parties. To be effective, a petition must be filed within ten business days of the date of the decision of the administrative law judge. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing. If the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the Board. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1908.109(c) and 1980.110 (a) and (b), as found OSHA, Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002; Interim Rule, 68 Fed. Reg. 31860 (May 29, 2003).