U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

ERIK LECKNER,

COMPLAINANT,

v.

ARB CASE NO. 2020-0028

ALJ CASE NO. 2019-SOX-00028

DATE: October 22, 2020

GENERAL DYNAMICS INFORMATION

TECHNOLOGY, INC. (formerly CSRA),

and

APEX SYSTEMS, LLC,

RESPONDENTS.

Appearances:

For the Complainant:

Erik Leckner; pro se; Fallbrook, California

For Respondent General Dynamics Information Technology:

Andrew F. Merrick, Esq. and Miriam J. Wayne, Esq.; Jenner & Block

LLP; Chicago, Illinois

For Respondent Apex Systems, LLC:

Laura D. Windsor, Esq.; Williams Mullen; Richmond, Virginia

BEFORE: James D. McGinley, Chief Administrative Appeals Judge, and

Heather C. Leslie and Randel K. Johnson, Administrative Appeals Judges

2

DECISION AND ORDER

This case arises under the employee protection provisions of the Clean Air

Act (CAA), 42 U.S.C.A. § 7622 (1977); Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 42 U.S.C.A. § 9610 (1980); Solid Waste

Disposal Act (SWDA), 42 U.S.C. §6971 (1980); Toxic Substances Control Act

(TSCA), 15 U.S.C. § 2622 (1986); Federal Water Pollution Control Act (WPCA), 33

U.S.C. §1367 (1972) (collectively, the Environmental Acts); Energy Reorganization

Act (ERA), 42 U.S.C. § 5851 (2005); and Section 806 of the Corporate and Criminal

Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act (SOX), 18

U.S.C. § 1514A (2010).

Erik Leckner filed a complaint alleging that Respondents General Dynamics

Information Technology, Inc. (GDIT) and Apex Systems, LLC (Apex) violated those

laws by discharging him from employment. On January 23, 2020, an Administrative

Law Judge (ALJ) dismissed the complaint in a Decision and Order (D. & O.)

granting Respondents’ Motions for Summary Decision. For the following reasons,

we affirm the ALJ.

BACKGROUND

GDIT provides information technology services to government contractors. It

acquired CSRA, also a provider of information technology services, in 2018. Apex is

a staffing agency. In 2017, the U.S. Environmental Protection Agency (EPA)

contracted with CSRA for work on an “Emergency Management Portal” project.

CSRA contacted Apex to obtain a lead Java developer for the project. Apex referred

Leckner to CSRA, and CSRA hired Leckner in January 2018 for the position. His

duties included designing, writing, testing, documenting, and maintaining computer

software, as well as mentoring a junior Java developer.

In January 2018, Leckner asked CSRA supervisor Ed Campbell for access to

the project’s full source code repository. The repository is a software system that

records changes to source code files and thereby provides a history of all of the

revisions in the development of the source code. Campbell was unable to provide the

access. Leckner also opined that CSRA had failed to complete a formal transition of

the project.

Between January and March 2018, Leckner’s CSRA supervisors concluded

that Leckner was involved in several “defensive and aggressive interactions with

3

team members and management.”1 On April 9, 2018, GDIT notified Apex that it

was removing Leckner from the project and wanted Apex to find a replacement.

On April 13, 2018, Leckner emailed Rob Thomas, CSRA’s contact at EPA,

and complained that the GDIT development team was being denied access to

portions of the project code. Leckner also expressed this concern to Campbell, who

thereafter told Dominique Reed, an Apex Account Executive, that Leckner had

discussed “alleged project inefficiency and other project matters” with EPA. On

April 16, 2018, Leckner sent a series of emails to Reed in which he complained

about “productivity and responsiveness on his assignment.”2 Apex found a

replacement and on May 29, 2018, Reed notified Leckner that his employment was

terminated and that he must return his badge and laptop.3

On July 18, 2018, Leckner initiated a SOX complaint before the Occupational

Safety and Health Administration (OSHA). He amended the complaint to include

allegations that his discharge violated the Environmental Acts and ERA. According

to Leckner, Respondents retaliated against him for complaining that his lack of

access to the repository was a cybersecurity risk that caused a waste of federal

funds, and the failure to complete a formal transition allowed a former contractor to

retain access to the project.4

OSHA concluded that the claims under the Environmental Acts were

untimely. OSHA also concluded that Respondents were not covered employers

under the ERA, and that Leckner did not engage in SOX-protected activity prior to

his discharge. Leckner requested a hearing before an ALJ but, prior to any hearing,

GDIT and Apex submitted motions for summary decision. On January 23, 2020, the

ALJ granted the motions, and Leckner appealed the ALJ’s ruling to the Board.

1

D. & O. at 7.

2

Declaration of Dominique Reed at 4.

3

Id.

D. & O. at 12; see, e.g., Complainant’s Opposition to Respondent CSRA’s Motion

for Summary Decision at 3-5.

4

4

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board his authority to review

ALJ decisions under the Environmental Acts, ERA, and SOX.5 The ARB reviews an

ALJ’s grant of summary decision de novo under the same standard the ALJ applies.

Summary decision is permitted where “there is no genuine dispute as to any

material fact and the movant is entitled to decision as a matter of law.”6 The ARB

views the record on the whole in the light most favorable to the non-moving party.7

DISCUSSION

1. Leckner’s Claims Under the Environmental Acts Were Untimely

A complainant must file a complaint of unlawful discrimination under the

Environmental Acts within thirty days of a discrete adverse action.8 The thirty-day

limitations period begins to run on the date that a complainant receives final,

definitive and unequivocal notice of a discrete adverse employment action.

Respondents submitted evidence that Apex notified Leckner of his discharge on

May 29, 2018. The 30-day limitations period ended on June 28, 2018. The ALJ held

that Leckner initiated his complaint with OSHA on July 18, 2018.9 Because Leckner

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

5

6

29 C.F.R. § 18.72(a).

Micallef v. Harrah’s Rincon Casino & Resort, ARB No. 2016-0095, ALJ No.

2015-SOX-00025, slip op. at 3 (ARB July 5, 2018).

7

29 C.F.R. § 24.103(d)(1) (implementing the timeliness provisions of the CAA

(42 U.S.C. § 7622(b)(1)), CERCLA (42 U.S.C. § 9610(b)), SWDA (42 U.S.C. § 6971(b)); TSCA

(15 U.S.C. § 2622(b)(1)), and WPCA (33 U.S.C. § 1367(b)).

8

D. & O. at 10. In his response to GDIT/CSRA’s Motion, Leckner states that he

first contacted OSHA on May 31, 2018, but he provided no documentation that supports this

claim.

9

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failed to file his OSHA complaint within 30 days after he was notified of his

discharge, his claims under the Environmental Acts were untimely.10

2. Respondents Are Not Employers Under the ERA

Congress passed the ERA in 1974 as part of its continuing effort to regulate

nuclear energy. In 1978, Congress amended the ERA to prohibit employers from

discriminating against employees who report violations of the ERA or the Atomic

Energy Act or who participate in any other action to carry out the purposes of those

acts. For purposes of the ERA, the term “employer” includes these entities:

(A) a licensee of the Commission or of an agreement

State under section 274 of the Atomic Energy Act of

1954 (42 U.S.C. § 2021);

(B) an applicant for a license from the Commission

or such an agreement State;

(C) a contractor or subcontractor of such a licensee

or applicant;

(D) a contractor or subcontractor of the Department

of Energy that is indemnified by the Department

under section 170 d. of the Atomic Energy Act of

1954 (42 U.S.C. 2210(d)), but such term shall not

include any contractor or subcontractor covered by

Executive Order No. 12344;

(E) a contractor or subcontractor of the

Commission;

Leckner was represented by counsel before the ALJ but did not present any

exhibits in responding to Respondents’ Motions for Summary Decision. Now appearing pro

se before the Board, Leckner moves to present exhibits that he contends establish the

timeliness of his complaint as well as coverage under the ERA and SOX. However, he does

not explain why he was unable to present these exhibits (in contrast to those he asserts were

requested pursuant to FOIA) to the ALJ. We therefore will not consider this new evidence on

appeal and those motions are denied. See, e.g., Aityahia v. Air Line Pilots Assoc., ARB No.

2019-0037, ALJ No. 2018-AIR-00042, slip op. at 3, n.2 (ARB May 19, 2020).

10

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(F) the Commission; and

(G) the Department of Energy.11

Leckner did not rebut Respondents’ assertions before the ALJ that they are

not employers under the ERA, and the ALJ held that the record was devoid of any

evidence that would bring either Respondent within the ERA’s coverage. The record

supports the ALJ.

3. Leckner Did Not Engage in Protected Activity Under the SOX

The SOX prohibits covered employers from discharging, demoting,

suspending, threatening, harassing, or in any other manner discriminating against

employees who provide information to a covered employer or a federal agency or

Congress regarding conduct that the employee reasonably believes constitutes a

violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank

fraud), or 1348 (securities fraud), or any rule or regulation of the Securities and

Exchange Commission, or any provision of Federal law relating to fraud against

shareholders.12

Reporting an actual violation is not required; a complainant can engage in

protected activity when he reports a belief of a violation that is about to occur or is

in the stages of occurring.13 A complainant need not establish the various elements

of securities fraud to prevail, and a communication is protected where it is based on

a reasonable, but mistaken, belief that the employer’s conduct constitutes a

violation of one of the six enumerated categories of law under Section 806.14

Additionally, a respondent is not shielded from liability because it was already

aware of problems reported by the complainant.15

11

42 U.S.C. § 5851(a)(2).

18 U.S.C. § 1514A(a)(1); see, e.g., Xanthopoulos v. Marsh & McClennan Cos.,

ARB No. 2019-0045, ALJ No. 2019-SOX-00008 (ARB June 29, 2020).

12

Barrett v. e-Smart Techs., Inc., ARB Nos. 2011-0088, 2012-0013, ALJ No. 2010SOX-00031 (ARB Apr. 25, 2013).

13

Zinn v. Am. Commercial Lines Inc., ARB No. 2010-0029, ALJ No. 2009-SOX00025 (ARB Mar. 28, 2012).

14

Gunther v. Deltek, Inc., ARB Nos. 2013-0068, -0069, ALJ No. 2010-SOX-00049

(ARB Nov. 26, 2014).

15

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During his employment on the Emergency Management Portal project,

Leckner expressed concerns about computer software. There is no evidence that he

had an objectively reasonable belief that Respondents violated any SEC rule or

regulation or otherwise engaged in securities fraud when he communicated his

concerns about computer software. And he failed to set forth any regulation, rule, or

Federal law that an objectively reasonable person would think the Respondents

violated.

In sum, we hold that there is no genuine issue of material fact as to whether

Leckner timely filed his complaint under the Environmental Acts, worked for an

entity defined as an employer under the ERA, or engaged in protected activity

under the SOX.

CONCLUSION

We AFFIRM the ALJ’s Decision and Order Granting Summary Decision and

DENY Leckner’s complaint.

SO ORDERED.