On February 18, 2016, the Administrative Review Board dismissed a former employee’s whistleblower retaliation claim under Section 806 of SOX, concluding that he failed to show that his protected activity contributed to the decision to terminate his employment, noting.  The ARB noted that Complainant threatened a co-worker and failed to attend a required counseling program before his employment was terminated.  Folger v. SimplexGrinnell, LLC, ARB Case No. 15-021 (Feb. 18, 2016).

Background

Complainant was employed by the Company, a provider of fire protection and life safety systems, as a Senior Tech Representative.  He alleged that he was terminated by the Company in retaliation for reporting potential violations of SOX—namely, he alleged, that customer inspection assignments were mysteriously disappearing from the Company’s dispatch system.  Complainant made a number of complaints to various co-workers, including his direct supervisor, about alleged inconsistencies in the Company’s billing and inspection practices and other unspecified alleged “book cooking.”  On October 5, 2011, the Company decided to terminate Complainant’s employment for the proffered reasons that he had threatened a co-worker and failed to attend a required counseling program.  Complainant subsequently filed a complaint against the Company with the DOL, alleging that he was discharged in violation of Section 806 of SOX for engaging in protected activity.

The ARB’s Ruling

The ARB pointed to several deficiencies with respect to Complainant attempt to show that his complaint contributed to the decision to terminate his employment.  First, he failed to present any evidence showing that any of the individuals who made the decision to terminate his employment were aware of his complaints.  Second, the Company presented evidence establishing that Complainant threatened a co-worker and failed to attend a required counseling program before his employment was terminated.  Third, Complainant had a documented history of making allegations about the Company’s financial practices that preceded his termination (in addition to several positive performance evaluations) by nearly five years.  Accordingly, the ARB affirmed the ALJ’s finding that Complainant’s protected activity was not a contributing factor in the decision to terminate his employment.

Implications

This decision shows that causation defenses are still well received by the ARB, particularly the defense that protected activities did not contribute to an adverse employment action.