Lockheed Martin Corp. v. Admin. Review Bd.

• Citation: 717 F.3d 1121
• Decision Date: 04 June 2013
• Docket Number: No. 11–9524.,11–9524.
• Parties: LOCKHEED MARTIN CORPORATION, Petitioner, v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent, Andrea Brown, Intervenor, Chamber of Commerce of the United States of America; National Employment Lawyers Association, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

717 F.3d 1121

LOCKHEED MARTIN CORPORATION, Petitioner,

v. ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent,Andrea Brown, Intervenor,Chamber of Commerce of the United States of America; National Employment Lawyers Association, Amici Curiae.

No. 11–9524.

United States Court of Appeals, Tenth Circuit.

June 4, 2013.

Matthew J. Rita (Shella B. Neba with him on the briefs), Ford & Harrison LLP, Denver, Colorado, for Petitioner.

Tammy R. Daub, Attorney (M. Patricia Smith, Solicitor of Labor; Jennifer S. Brand, Associate Solicitor; and Megan E. Guenther, Counsel for Whistleblower Programs, with her on the briefs), United States Department of Labor, Washington, D.C., for Respondent.

Diane S. King (Laura E. Schwartz with her on the brief), King & Greisen, LLP, Denver, Colorado, for Intervenor.

Lloyd B. Chinn and Harris M. Mufson, Proskauer Rose LLP, New York, New York; Robin S. Conrad and Shane B. Kawka, National Chamber Litigation Center, Inc., Washington, D.C., on the brief for Amicus Curiae, Chamber of Commerce for the United States of America.

Michael T. Anderson, Murphy Anderson PLLC, Boston, Massachusetts; Joan M. Bechtold, Counsel of Record, Sweeney & Bechtold, LLC, Denver, Colorado; and Rebecca M. Hamburg, National Employment Lawyers Association, San Francisco, California, on the brief for Amicus Curiae, National Employment Lawyers Association.

Before HOLLOWAY, MURPHY, and O'BRIEN, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Lockheed Martin Corp. (“Lockheed”) seeks to set aside a decision of the Administrative Review Board of the Department of Labor (the “ARB” or the “Board”) concluding Lockheed violated Section 806 of the Sarbanes–Oxley Act of 2002 (“Sarbanes–Oxley” or the “Act”). See18 U.S.C. § 1514A(a). The Board affirmed the decision of an administrative law judge (“ALJ”), who concluded Lockheed violated the Act by constructively discharging employee Andrea Brown after she had engaged in protected activity. Exercising jurisdiction pursuant to 18 U.S.C. § 1514A(b)(2)(A) and 49 U.S.C. § 42121(b)(4)(A)¹, this court affirms the decision of the Board.

II. Background

Brown worked as Communications Director for Lockheed from June 2000 to February 2008. In 2003, she became the Director of Communications in Colorado Springs, Colorado. In that position, she reported to Wendy Owen, Vice President of Communications, and Ken Asbury, President of Lockheed Martin Technical Operations. In May 2006, Brown began having difficulty getting responses from Owen on work-related matters. She discussed the problem with Asbury as well as Tina Colditz, a coworker and personal friend. Colditz was a longtime Lockheed employee who reported directly to Owen. Colditz also ran a pen pals program for the company, through which Lockheed employees could correspond with members of the U.S. military deployed in Iraq. Colditz told Brown that Owen had developed sexual relationships with several of the soldiers in the program, had purchased a laptop computer for one soldier, sent inappropriate emails and sex toys to soldiers stationed in Iraq, and traveled to welcome-home ceremonies for soldiers on the pretext of business while actually taking soldiers to expensive hotels in limousines for intimate relations. Colditz told Brown she was concerned Owen was using company funds for these activities, and Brown understood that most employee expenses incurred were passed on to Lockheed's customers, in this case the government. Brown thus became concerned Owen's actions were fraudulent and illegal and that there could be media exposure which could lead to government audits and affect the company's future contracts and stock price.

Brown brought her concerns to Jan Moncallo, Lockheed's Vice President of Human Resources. Moncallo told Brown she would submit an anonymous ethics complaint on Brown's behalf, and that she would be protected from retaliation because no one would know her identity. On May 25, 2006, Moncallo sent an email to Jean Pleasant, the office Ethics Director, for an investigation. The email detailed Brown's allegations, including, inter alia, the purchase of a laptop with company funds, the use of company funds to rent limos to transport soldiers, the use of company funds for lodging with soldiers, the use of company funds to purchase gifts for soldiers, communications with staff stating she was meeting with generals when in fact she was meeting with soldiers, not responding to calls from staff due to non-business related meetings with soldiers, having affairs with soldiers, sending pornographic material to soldiers, using her position to influence staff to cover for her, and tarnishing Lockheed's image. The email identified Brown as an individual who should have some knowledge about the allegations.

Lockheed investigated Owen from May 2006 to August 2006. Within a few days of Brown's anonymous complaint, the pen pal program was discontinued. Owen later changed positions but remained a vice president. Apparently believing Colditz to have reported her, Owen began to treat Colditz unfairly. Brown recalled an email from Colditz indicating Owen had told Colditz she would soon be out of work. In the fall of 2006, Brown revealed to Asbury and Colditz that it was she who made the complaint. On December 19, 2006, Owen called Brown to try to find out who had reported her. According to Brown, Owen told her she had lost her annual bonus due to the complaint. Brown revealed to Owen that Brown had told Moncallo “a few things,” but stated she was not sure if her comments had resulted in the complaint. Brown reported the phone call with Owen to Asbury and Moncallo. Prior to 2006, Brown received a “high contributor” or “exceptional contributor” rating in her performance evaluations. In late 2006, and thereafter, however, Brown received a lower rating of “successful contributor.”

On February 22, 2007, Lockheed announced to all employees it was undergoing a corporate-structure reorganization. On March 1, 2007, Lockheed's Communications Department announced that further reorganizations would be made. Brown began reporting to Judy Gan, the Senior Vice President of Communications. Owen became Gan's assistant, but retained her title as Vice President. According to Brown, Gan's attitude toward her was negative from the beginning of their professional relationship. For example, Gan told Brown she was not the right person for her current position and indicated there would be a reduction in staff. On June 12, 2007, Brown received a phone call from Owen who announced that Brown's job had been posted on the internet and that she should get her resume together. Distraught, Brown told Asbury and Gan about the phone call in an email.

At this point, Brown first began discussing with Moncallo the possibility of leaving the company. However, she instead decided to apply for the new Director of Communications position. In the course of applying, she learned that the newly-posted position was classified as “Level 6.” Brown held a “Level 5” position at the time she applied. Brown sent an email to Gan, Asbury, Owen, and a more senior manager in the communications department, informing them she was applying for the position. Shortly after sending the email, Brown received a phone call from Gan, who lambasted her for applying. Gan told Brown she was not qualified for the position, that she had performed poorly since she had been with Lockheed, and that she had hurt her future with Lockheed by applying. Brown thereafter withdrew her application for the position.

In September 2007, Lockheed hired David Jewell as the new Director of Communications. Owen had a good relationship with Jewell prior to his hiring and had told him to apply for the position. Owen was also a member of the selection committee which considered Jewell. Jewell sought Owen's advice regarding his position and his employees, and was told that Brown had received less-than-perfect evaluations in the past. Shortly after Jewell assumed his new position, Brown was asked to vacate her office and either work from home or use the visitor's office. The visitor's office doubled as a storage room for office supplies, files, and canned food donations that were being collected for a food drive. Brown also lost her title and her supervisory responsibilities over four employees. Further, Gan told Brown she could not attend an annual communications conference, which she had always attended previously, even though she was to receive an award at the conference. Around this time, Brown repeatedly requested information as to the nature of her position and future with Lockheed, but received no answer. Jewell informed her that either she or a Lockheed employee in Houston would be laid off, but would not provide her with any additional information. On January 3, 2008, Brown came into the office at Jewell's request and found someone else working in the visitor's office. When she asked Jewell what she should do, he told her he was looking for a cubicle for her. Brown protested that, as a Level 5 employee with a leadership position (L–Code), she was entitled to an office. Jewell responded that he was in the process of removing her L–Code. Brown then had an emotional breakdown, fell into a deep depression, and took medical leave.

Brown brought a complaint with the Occupational Safety and Health Administration (OSHA) ² on January 25, 2008, alleging violations of Sarbanes–Oxley. On February 4, 2008, with the assistance of counsel, Brown provided Lockheed with a notice of forced termination. On February 6, 2008, Brown amended her OSHA complaint to allege constructive discharge. OSHA denied Brown's complaint on May 27, 2008.

Brown subsequently requested a hearing before the Office of Administrative Law Judges. A two-day hearing was held in Denver, Colorado, at which the parties were given the opportunity to adduce testimony, offer documentary evidence, and submit post-hearing briefs. The...