[Andrea Brown filed a complaint with the U.S. Department of Labor alleging that Lockheed Martin violated SOX's employee protection provision when it constructively discharged her because she made protected complaints. From a favorable recommendation by the ALJ for Brown, Lockheed Martin appealed to the ARB.]
FINAL DECISION AND ORDER: We adopt the ALJ's findings of fact and summarize the facts of the case. Brown worked as Communications Director for Lockheed Martin Corporation in Houston, Texas beginning in June 2000. She reported to the Vice President of Communications, Wendy Owen, as well as to Ron Meter in the business unit.
In 2003, she became the Director of Communications for Lockheed in Colorado Springs. Brown had a good relationship with Owen at this time. As Director of Communications, Brown reported to Owen and Ken Asbury, the president of Lockheed Martin Technical Operations. Brown became a Level-5 communicator with an "L-code," indicating that she had a leadership position with supervisory responsibility over others. Brown then became [Ken] Asbury's spokesperson, a position with a much higher-profile than her position in Houston.
For the calendar years 2003, 2004, and 2005, Asbury gave Brown the highest or second highest performance rating in a scale of five performance rating ("exceptional contributor" or "high contributor"). For the calendar years 2006 and 2007, after she reported ethics concerns, Asbury and then Judy Gan gave Brown a lower performance rating ("successful contributor"). In approximately May 2006, Brown had difficulty getting responses on work-related matters from Owen. Brown discussed this difficulty with Tina Colditz, a communicator who reported directly to Owen, who also ran a Pen Pal program between Lockheed employees and U.S. soldiers in Iraq.
Colditz told Brown that Owen had developed sexual relationships with several soldiers in the Pen Pal program, purchased a laptop computer for one soldier, sent inappropriate e-mails and items to soldiers in Iraq, and had traveled to welcome-home ceremonies to visit soldiers on the pretext of business when she actually took soldiers in limousines to expensive hotels for intimate relations rather than working. Colditz told Brown that she was concerned that Owen was expending company funds for these activities. Brown understood that most expenses employees incurred were passed on to the customer, presumably the government in this case. Brown knew that Lockheed's standard business practice was to bill its costs to its customers. Colditz told Brown that she had personally witnessed these activities or that Owen had told her about them....
After learning this information, Brown was concerned that Owen's actions were fraudulent and illegal with respect to using company funds for a laptop, hotel, limousine, and travel expenses that had been passed on to the customer. She was also concerned that there could be media exposure which could lead to government audits and affect future contracts and the company's shares. Brown told Asbury about her concerns, and he spoke to Owen; this had apparently little effect. Brown spoke to Jan Moncallo, the Vice President of Human Resources, about Owen's behavior. Brown told Moncallo that she thought that Owen's actions were fraudulent and illegal. Moncallo told Brown that she would submit an anonymous complaint about Owen, and Brown agreed. Moncallo told Brown that no one would know her identity and that there would be no retaliation.... Lockheed investigated Owen's behavior from May 2006 to August 2006.
In approximately May 2006, within a few days of Brown's anonymous complaint, the Pen Pal program was discontinued, and Owen later changed positions but remained a vice president.... Owen attempted to find out who had reported her and apparently believed it was Colditz because she began treating Colditz unfairly. Eventually Brown told Asbury and Colditz that she had made the complaint. On or about December 19, 2006, Owen called Brown to try to find out who had reported her. Brown testified that Owen told her that she had lost her annual bonus due to the complaint. Brown told Owen that she had told Moncallo "a few things" but that she was not sure that her comments had resulted in the complaint. Brown reported Owen's telephone call and inquiry to Asbury and Moncallo....
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 Owen, who was on the selection committee, told him to apply for the position. Jewell sought Owen's advice regarding his position and his employees. Owen told Jewell that Brown had received less than perfect evaluations in the past. After Jewell was hired, Brown was asked to vacate her office and work from home or use the visitor's office (which was also a storage room). Jewell took Brown's former title, leaving her no title and took her responsibility over four employees she had previously supervised. Additionally, senior vice president Judy Gan told Brown that she could not attend the annual communications conference that she had always attended previously despite the fact that she was one of a number of Comet Award winners to be honored at the conference. Also during this time, despite repeated requests as to the nature of her position with Lockheed, no one would tell her whether she would have a job or be laid off.
On January 3, 2008, Jewell told Brown that she had to come into the office to work. When she arrived, someone else was working in the visitor's office so Brown had nowhere to go. When she asked Jewell what she should do, he told her that he was looking for a cubicle for her. When she protested that she was entitled to an office because she was in a leadership position (L-Code), Jewell told her that he was in the process of removing her from her leadership position (L-Code); consequently, she would only be entitled to a cubicle. Brown broke down crying and left the office.
She went on medical leave at this time. Brown had an emotional breakdown and sank into a very deep depression.... The ALJ awarded reinstatement and compensatory damages of $75,000.00. He found Brown's testimony regarding this to be credible. Lockheed filed a timely appeal on January 29, 2010. Issue The issue we consider on appeal is whether substantial evidence supports the ALJ's findings that Brown was constructively discharged because she engaged in protected activity, and whether the ALJ's legal conclusions are correct. Jurisdiction and Standard of Review 1.
Protected Activity The ALJ pointed to a number of Brown's activities in concluding that she engaged in protected activity. Brown met with Jan Moncallo and told her the concerns she had about Owen. Moncallo's e-mail based on this discussion lists concerns of several instances of misuse of company funds. The ALJ found that Brown grew alarmed that Owen made purchases with company funds that would ultimately be billed to the government. The ALJ further found that Brown reasonably believed that Owen's actions were taken "in the furtherance of a ‘scheme or artifice to defraud' because ...
she had been aware of Owen's alleged and undisputed systematic use of the Pen Pal Program to recruit new paramours." The ALJ also found that Brown reasonably believed that Owen used company funds to provide gifts to paramours and that the costs were passed onto the government, given that Lockheed's standard business practice was to bill its costs to its customers. Brown's disclosures contributed to the initiation of an ethics complaint investigation against Owen. Based on the evidence of record, we agree with the ALJ that Brown reasonably believed that Owen engaged in mail and wire fraud.* Thus, we adopt the ALJ's finding that Brown engaged in protected activity.... ...
The ALJ found that the overall combination of actions that Lockheed took against Brown following her ethics complaint against Owen "created an abusive and ‘materially adverse' work environment such that [Brown's] resignation was a reasonable response to the actions of her employer." Substantial evidence in the record overwhelmingly supports this finding. Before Brown made the ethics complaint, she occupied her own office, possessed an L-Code, and received very high performance ratings.
After the complaint, her job privileges and conditions changed dramatically. Her job position seemed to be in constant jeopardy of elimination. Her performance ratings dropped. Jewell was hired in the Colorado Springs office to take over some of Brown's communication duties, and he ultimately took over her office space. Brown faced visceral opposition from Gan when she applied for a promotional opportunity in the company. Lockheed did not provide Brown with new adequate office space, asked her to work from home, and then demanded that she work at the jobsite without any space then available. Lockheed also removed her leadership position status, took her parking space, and gave it to her new supervisor.
Lockheed refused to allow Brown to attend a ceremony at which she was to receive an award, and continued to keep Brown uncertain as to her job status. We agree with the ALJ that a reasonable person in Brown's shoes would have found continued employment intolerable and would have been compelled to resign.... Conclusion Brown established that she engaged in protected activity under the Act and that Lockheed constructively discharged her because of her protected activity. Accordingly, we adopt the ALJ's R. D. & O. and we AFFIRM the complaint. SO ORDERED.
Case Questions
1. What happened to Brown professionally and medically after she initiated the internal complaint that company vice president Owen had misused funds?
2. Speculate on whether the vice president of human resources had adequate organizational standing to protect Ms. Brown from employer retaliation.
3. Does reinstatement and $75,000 in back pay make Andrea Brown whole for the illegal activity of Lockheed?