U.S. Department of Labor (2024)
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U.S. Department of Labor
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
ANSON TSE,
ARB CASE NO. 2024-0018
COMPLAINANT,
ALJ CASE NO. 2019-SOX-00013
ALJ THERESA C. TIMLIN
v.
DATE: August 31, 2026
EBAY, INC.,
RESPONDENT.
Appearances:
For the Complainant:
Adam Augustine Carter, Esq. and R. Scott Oswald, Esq.; The
Employment Law Group, P.C.; Washington, District of Columbia
For the Respondent:
Thomas A. Linthorst, Esq. and Tova Katims, Esq.; Morgan, Lewis &
Bockius, LLP; Princeton, New Jersey
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL
and KIKO, Administrative Appeals Judges
DECISION AND ORDER
This case arises under Section 806 of the Corporate and Criminal Fraud
Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act (SOX), as amended,
and its implementing regulations.1 On June 9, 2015, Complainant Anson Tse filed a
complaint with the Occupational Safety and Health Administration (OSHA),
alleging that Respondent eBay, Inc. took adverse actions against him, including
termination, because he had engaged in protected activity under SOX.2
Subsequently, Complainant amended his complaint and included allegations that
1
18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2026).
2
Decision and Order (D. & O.) at 1.
2
Respondent had provided an inaccurate and negative reference to a prospective
employer.3 On November 15, 2018, OSHA issued a determination letter, finding no
violation of SOX and dismissing the complaint.4 Complainant requested a formal
hearing before the Office of Administrative Law Judges.5
On January 12, 2024, a United States Department of Labor Administrative
Law Judge (ALJ) issued a D. & O. after a hearing, in which the ALJ denied
Complainant’s claim.6 In the D. & O., the ALJ found Complainant’s credibility
“somewhat impaired” and therefore afforded his testimony “less evidentiary
weight.”7 Furthermore, the ALJ ruled that Complainant “proved that he engaged in
protected activity,”8 but “he did not show that this protected activity contributed to
his adverse action.”9 Finally, the ALJ ruled that Respondent proved by clear and
convincing evidence it would have taken the same actions in the absence of any
protected activity.10 On January 26, 2024, Complainant filed a Petition for Review
with the Administrative Review Board (Board or ARB).
For the reasons set forth below, we affirm the ALJ’s D. & O.
BACKGROUND AND PROCEDURAL HISTORY
1. Background
A. Overview of eBay Motors and Complainant’s Employment
Complainant worked for Respondent from July 30, 2007, until April 3, 2015,
when Respondent terminated his employment as part of a reduction in force (RIF).11
3
Id.
4
Id.
5
Id.
6
Id. at 1, 45.
7
Id. at 20.
Id. at 45. While the ALJ found Complainant engaged in protected activity, the ALJ
also rejected several of Complainant’s other alleged protected activities.
8
9
Id.
10
Id. at 39-45.
11
Id. at 2-3, ¶¶1, 22-23.
3
During his time at eBay, Complainant worked at eBay Motors.12 In February 2012,
Complainant became the interim head of Parts & Accessories (P&A), a subdepartment of eBay Motors.13 In April 2012, eBay acquired WHI Solutions (WHI),
which became a business unit of eBay motors,14 and, in March 2013, Brian Murphy,
WHI’s former CEO, became head of eBay Motors and Complainant’s supervisor. 15
Complainant had served as the interim head of P&A, but Respondent did not
select Complainant for the role of P&A Director.16 Instead, in February 2014,
Respondent hired Sree Menon for the role of P&A Director and Menon became
Complainant’s supervisor.17
B. Famous Rhodes & David Thawley
In 2010 and 2012, Complainant provided information to eBay’s legal team
about misconduct by Famous Rhodes—an eBay employee—and David Thawley—an
independent contractor.18 In February 2012, Respondent terminated Rhodes and
Thawley after an internal investigation concluded that they had misused Company
funds and engaged in a conflict of interest.19
C. Performance Reviews
Respondent evaluated employees using a five-point scale: Exceeds Most,
Exceeds Some, Meets, Meets Some, and Does Not Meet.20 During Complainant’s
tenure, his reviews reflected both positive recognition and recurring areas for
improvement.
12
Id. at 5.
13
Id. at 5, 8.
14
Id. at 8-9.
15
Id. at 8-10.
16
Id. at 13-14.
Id. at 3, ¶21; Id. at 14. Complainant also worked at Jet after Respondent. The ALJ
noted that “[t]he records regarding Complainant’s work at Jet are sealed and the reason for
his termination is not relevant to the instant matter, which involves only his employment
at eBay.” Id. at 20 n.4.
17
18
Id. at 6-7, 27.
19
Id. at 3, ¶¶11-12.
20
Id. at 5.
4
Complainant received favorable evaluations in 2011 and 2012, including
ratings of “Exceeds Some” and “Exceeds Most.” For example, in his 2012 mid-year
review, his former supervisor, Kristine Chin, complimented his “exceptional”
performance and “automotive expertise.”21 In 2012, Complainant received a
“Critical Talent Award,” which was “conferred to the top one percent of all eBay
employees.”22 Respondent also placed Complainant in the “Emerging Leadership
Program” (ELP), which was “a program for very promising individuals” to assess
their leadership potential.23
At the same time, Complainant received recurring feedback over the years
highlighting areas for improvement related to communication, leadership, and
problem-solving. For example, in a 2008 mid-year evaluation, Curtis Kroeker, a
former supervisor of Complainant, noted that Complainant could “exude a negative
attitude” and urged Complainant to focus on “bringing ideas and finding solutions
rather than primarily pointing out problems.”24 In Complainant’s 2010 reviews,
Rainer Leeb expressed that “occasionally [Complainant’s] communication style
[was] too strong” and “demotivating” towards his team members and that he should
be “more cautious with the style of communication” he used.25 Furthermore, in
Complainant’s 2011 mid-year evaluation, Leeb noted Complainant’s “limited
potential as a people manager unless he [changed] his leadership and
communication style.”26
Murphy and Menon later noted similar areas for improvement in their
evaluations of Complainant. In Complainant’s 2013 year-end review, Murphy noted
three areas for development: “[m]anaging team to deliver results, [o]perating across
the organization to deliver results, [m]oving from problem identification to
21
Id. at 8.
22
Id.
23
Id.
Id. at 6; Joint Exhibit (JX) 4. Rainer Leeb, another former supervisor of
Complainant, rated Complainant for this performance review, but it appears that the
specific notes highlighted here were from Curtis Kroeker.
24
25
D. & O. at 6.
26
Id.
5
solution.”27 In Complainant’s 2014 mid-year review, Menon provided feedback about
his “people management skills,” explaining that he needed to “figure out how to
communicate” about issues “without sounding like he [was] being overtly critical”
and advising him to be “able to take a tough situation and see it [as] a challenge to
surmount versus seeing it as an [unsolvable] issue.”28 In Complainant’s 2014 yearend review, Menon assigned Complainant a “Does Not Meet” rating and noted that
“[h]is 360 feedback is mostly that he has huge domain experti[se] but [is] unable to
drive change and projects and initiative[s] forward.”29
D. eBay Reduction in Force
In 2015, Respondent implemented a RIF that impacted approximately 2,400
employees.30 Management eliminated forty-one positions in Verticals,
approximately 20% of Verticals, the division that housed eBay Motors, including
Complainant.31
Jeff Somers, Vice President of Verticals, was “ultimately responsible for
making the RIF decisions for Verticals,” with Angela Skubovius, an HR specialist,
“providing data and making recommendations.”32 One of the “key changes” within
Verticals was “[r]educing some roles in Motors and WHI to enable more
efficiency.”33 Regarding P&A, Somers and Skubovius determined that P&A “did not
require both a senior manager and a director within the [P&A] business.” 34 Menon
was director of P&A. Therefore, they “decided to eliminate Complainant’s senior
27
Id. at 11.
28
Id. at 15.
29
JX 3; see also D. & O. at 18, 41.
30
D. & O. at 5, 18.
Id. at 18. Complainant highlights that the ALJ incorrectly stated that “Vehicles”
terminated 41 employees, instead of “Verticals.” Complainant Brief (Comp. Br.) at 42. It
appears that the ALJ made a typographical error. Respondent Response Brief (Resp.
Response Br.) at 39 (“The ALJ referenced Somers eliminating 41 roles from the Vehicles
Department, but this was simply a typographical error, as Somers eliminated 41 roles from
the Verticals Department.”).
31
32
D. & O. at 10, 12, 17.
33
Id. at 17.
34
Id.
6
manager role.”35 P&A also lost another position in the RIF, reducing its headcount
from six to four.36
On February 2, 2015, Respondent notified Complainant that his employment
would be terminated as part of a RIF, and that the termination of Complainant’s
employment would be effective on April 3, 2015.37
E. Post-Employment Email from Menon to Rothman
On April 6, 2016, Simon Rothman, founder of eBay Motors, messaged
Menon’s personal email about Complainant, asking “What’s [h]is story? Is he
Talented?”38 On the same day, Menon messaged the following back to Rothman:
Anson knows parts in and out. He understands parts more
than sellers, knows how ecommerce works. But the cons
are that his social skills are very low. He always finds
issues with things which is great from a risk mitigation
perspective, but teams find it hard to function with that
kind of attitude. If it is an [individual contributor] role with
not much influencing to do but more [subject matter
expert] requirement, it would work.[39]
2. ALJ Decision
In 2021, the ALJ held a hearing on June 1-4 and June 23-24.40 Subsequently,
on January 12, 2024, the ALJ issued a D. & O. The ALJ found Complainant had
engaged in protected activity, but that Complainant did not prove that the protected
activity contributed to any adverse actions.41 Furthermore, Respondent proved, by
35
Id.
36
Id. at 42.
37
Id. at 3, ¶¶22-23; Id. at 35, 42.
38
Id. at 18.
39
JX 298; D. & O. at 18-19.
40
D. & O. at 2.
41
Id. at 45.
7
clear and convincing evidence, that Respondent would have taken the same actions
in the absence of any protected activity.42
A. Credibility Determinations
The ALJ found Complainant’s credibility “somewhat impaired” and therefore
afforded his testimony “less evidentiary weight,” particularly “when contradicted by
the testimony of more credible witnesses.”43 The ALJ highlighted that Complainant
“was not forthright when cross-examined by Respondent’s counsel,” that
Complainant “was frequently cagey and evasive, manifesting a clear desire to avoid
conceding unfavorable facts,” that his testimony “about his interactions with others
lacked self-awareness,” and that “[h]is testimony frequently lacked any
corroborating evidence or other witnesses directly contradicted him.”44 By contrast,
the ALJ afforded “full evidentiary weight” to the testimony of Chin, Vibhute,
Tominaga, Perkin, Murphy, Skubovius, Menon, and Somers.45
B. Protected Activity
The ALJ explained that, to establish protected activity under SOX,
Complainant had to show that he provided information regarding conduct that he
reasonably believed—based on a belief that was both subjectively held and
objectively reasonable—violated one of the categories of conduct covered by SOX.46
The ALJ found that Complainant engaged in protected activity on three
occasions, including: (1) “Complainant’s communication in 2010 with in-house
lawyer Adrienne Go regarding Rhodes and Thawley,” (2) “Complainant’s
communication in 2012 with in-house lawyer Amyn Thawer regarding Rhodes and
Thawley,” and (3) “Complainant’s filing [a complaint] with OSHA in 2015.”47
42
Id. at 39-45.
43
Id. at 20.
44
Id. at 20-23.
Id. at 23-25. The ALJ noted that some of these witnesses had only limited relevance
to the issues in the case.
45
46
Id. at 26-27, 30.
Id. at 34. The ALJ noted that Respondent also conceded that Complainant engaged
in protected activity for these three allegations. Id. at 27.
47
8
The ALJ also explained that “Complainant assert[ed] six further protected
activities.”48 However, as recounted in the following paragraphs, the ALJ concluded
that none of these six additional asserted activities qualified as protected activity
under SOX.49
First, Complainant contended he engaged in protected activity when he
reported “conquest selling” to eBay’s Legal Department as conduct “violating
antitrust and anti-competition laws.”50 However, the ALJ rejected Complainant’s
contention, highlighting how Complainant’s only support for the claim came from
Complainant’s Declaration and testimony, which the ALJ found unpersuasive
because Complainant was not a credible witness.51 The ALJ further concluded that
Complainant’s allegation centered on anti-competition rules untethered to a
potential SOX violation of the enumerated categories of protected activity under
SOX.52
Second, after Murphy reacted negatively upon learning of an alleged
communication Complainant sent Somers, Complainant contended that he engaged
in protected activity by forwarding the underlying communication to Murphy.53
The ALJ disagreed because Complainant provided noncredible testimony and there
was no documentation supporting that Complainant forwarded the communication
to Murphy.54
Third, Complainant argued that he engaged in protected activity when he
reported fear of retaliation to eBay’s Legal Department.55 The ALJ rejected that
48
Id.
49
Id. at 27-33.
Id. at 28. In his post-hearing brief to the ALJ, Complainant explains “Conquest
selling” as “essentially using very aggressive sales tactics to shift business away from a
competitor which may involve questionable methods that may be anti-competitive or
otherwise tortious.” Complainant Closing Brief (Comp. Closing Br.) at 53 n.25.
50
51
D. & O. at 28.
Id.; 18 U.S.C. § 1514A (enumerated categories include a reasonable belief of a
violation of mail fraud, wire fraud, bank fraud, securities fraud, any rule or regulation of
the SEC, or any other federal law related to fraud against shareholders).
52
53
D. & O. at 28.
54
Id.
55
Id.
9
argument, explaining that “Complainant does not assert this to be a report of
potential fraud or an SEC violation, but instead a report of his belief he would be
retaliated against for prior reports.”56 Accordingly, Complainant failed to
demonstrate how this was protected activity under § 1514A(a)(1).57
Fourth,58 Complainant contended that, in May 2013, he told Somers that the
original WHI synergy goals may not be achievable.59 Complainant argued that if
WHI synergies could not be met, Respondent should have impaired the goodwill
from the WHI acquisition.60 The ALJ rejected this contention, explaining: “To the
extent Complainant asserts he believed not reaching the goal would require a
goodwill impairment that Respondent was failing to report, Complainant has failed
to show any relationship between this communication and the implication that
Respondent should record a goodwill impairment.”61 The ALJ further found that
Complainant had failed to present “evidence that could lead him to believe
Respondent did not accurately report any impairment of goodwill” or that
Complainant “believe[d] at the time of the communication that Respondent had not
noted a goodwill impairment.”62 Thus, Complainant failed to show that he had a
subjective belief of a SOX-related violation.
Fifth, in early 2014, Complainant communicated to Menon similar
sentiments regarding his concerns about WHI’s synergy goals and a seller’s
negative review of WHI.63 The ALJ rejected Complainant’s contention and found
Complainant failed to show that he had a subjective belief of a SOX-related
violation.64 Similar to the findings regarding communications to Somers in 2013,
the ALJ found that Complainant had not presented any evidence that he
56
Id. at 29.
57
Id.
The remaining three alleged instances of protected activities related to WHI
following eBay’s acquisition of it. Id.
58
59
Id.
60
Id. at 30-31.
61
Id. at 31.
62
Id. (emphasis in original).
63
Id. at 29, 31.
64
Id. at 31.
10
communicated regarding goodwill impairment to Menon in early 2014.65 The ALJ
explained that “Complainant did not raise goodwill impairment in these
communications,” and “on their face, [the communications to Menon] debriefed [her]
in a newly assumed position, to help her better understand the WHI progress (or
lack thereof).”66
Sixth, in October 2014, Complainant alleged protected activity based on his
forwarding of an email Murphy sent to the Motors team, in which Murphy
“indicat[ed] WHI was meeting its [performance] targets.”67 Specifically,
“Complainant forwarded the email to Linda Shan, questioning how these positive
reports are possible if WHI was ‘behind by 5.5M,’” and then Complainant also
“forwarded Murphy’s email to Menon, raising the same question.”68
With respect to forwarding the email to Shan, the ALJ found that
Complainant had “a subjective belief that a SOX related violation was ongoing or
imminent.”69 However, Shan corrected Complainant’s understanding of the figures
and Complainant acknowledged the error.70 The ALJ found that Complainant’s
October 2014 email to Shan did not evince an objectively reasonable belief that the
numbers were inaccurately reported because Complainant “compared incorrect
metrics over an incorrect period.”71 The ALJ also relied on the testimony of Vibhute,
65
Id.
66
Id.
67
Id. at 29.
Id. at 29-30. In other words, “Complainant communicated to Shan and Menon that
Murphy reported falsely positive data, inaccurately measuring the true success of the WHI
acquisition.” Id. at 31.
68
Id. at 30. The ALJ’s findings here appear to be inconsistent. The ALJ first stated
that “Complainant did have a subjective belief that a SOX related violation was ongoing or
imminent at the time Complainant forward[ed] Murphy’s email to Shan in October 2014.”
Id. (emphasis added). Later, however, the ALJ stated that she “does not find Complainant
had a subjective belief . . . when he forwarded Murphy’s email to Shan in October 2014.” Id.
at 32 (emphasis added). Despite the apparent inconsistency, the ALJ expressly found that
Complainant had a subjective belief regarding this communication. Therefore, we construe
the ALJ as finding Complainant had a subjective belief when he forwarded Murphy’s email
to Shan.
69
70
Id. at 31.
71
Id. at 33.
11
who was responsible for calculating WHI synergies.72 The ALJ afforded Vibhute’s
testimony “full evidentiary weight”—noting that he “did not testify to finding or
ever being concerned about any errors in the synergy calculations.”73
With respect to the Menon communication, the ALJ found Complainant had
not shown he had a subjective belief.74 The ALJ noted how, after Complainant
forwarded Murphy’s email to Shan, Shan had replied to Complainant’s email,
clarifying the data.75 Complainant now had a corrected understanding of Murphy’s
analysis. Nonetheless, Complainant still proceeded to forward Murphy’s email to
Menon with concerns despite Shan’s clarification.76
C. Adverse Actions
Complainant filed his SOX complaint on June 9, 2015, alleging numerous
adverse actions. The ALJ noted that any adverse actions must have occurred on or
after December 11, 2014, to be timely (180 days prior to June 9, 2015),77 because a
SOX action “shall be commenced not later than 180 days after the date on which the
violation occurs, or after the date on which the employee became aware of the
violation.”78 Thus, the ALJ found three alleged adverse actions as timely:
(1) Complainant’s 2015 termination in the reduction in force, (2) the denial of the
2014 bonus due to a “Does Not Meet” rating in his 2014 year-end review, and
(3) Menon’s April 6, 2016 email to Rothman.79
However, the ALJ also found six of Complainant’s alleged actions to be
untimely, including that (1) Murphy and Menon failed to complete Complainant’s
72
Id.
73
Id.
74
Id. at 31.
75
Id.
76
Id.
77
Id. at 35.
18 U.S.C. § 1514A(b)(2)(D); see also 29 C.F.R. § 1980.103(d) (“Within 180 days after
an alleged violation of the Act occurs or after the date on which the employee became aware
of the alleged violation of the Act, any employee who believes that he or she has been
retaliated against in violation of the Act may file, or have filed on the employee’s behalf,
a complaint alleging such retaliation.”).
78
79
D. & O. at 35.
12
performance reviews on time or in full, (2) Murphy reprimanded Complainant for
reaching out to Somers, (3) Murphy and Complainant stopped meeting in-person in
2013, (4) Murphy expressed annoyance about Complainant’s participation in the
Vertical Career Pathing project, (5) Respondent hired Menon as Director of P&A
instead of Complainant, and (6) Menon questioned the entire P&A team in Las
Vegas and sent them all development plans.80 Likewise, the ALJ found that
Complainant failed to show by a preponderance of the evidence that any actions
taken before December 11, 2014, establish a continuing hostile work environment.81
D. Contributing Factor
Because only three protected activities and three timely adverse actions
remained at issue, the ALJ noted “Complainant must show that one of the three
identified protected activities contributed to any of the three adverse employment
actions.”82 The ALJ reasoned that Complainant’s 2010 and 2012 protected activities,
related to the Rhodes and Thawley investigation, were too distant in time to
establish temporal proximity to the timely adverse actions that occurred between
2014 and 2016: the RIF, the loss of the bonus, and the Rothman email.83 The ALJ
further found that the record did not otherwise establish a causal connection
between those protected activities and the adverse actions.84
As to the remaining protected activity, Complainant’s filing of his SOX
Complaint on June 9, 2015, the ALJ noted that the only adverse action that
occurred after this filing was Menon’s email to Rothman, dated April 6, 2016.85
The ALJ highlighted how “Menon testified that she did not recall being aware of
Complainant’s filing at the time of the exchange.”86 Relying on Menon’s testimony,
80
Id.
Id. On appeal, Complainant objects to the ALJ’s ruling that the actions before
December 11, 2024, were not actions constituting a hostile work environment. Petition for
Review at 5. However, outside of the objection in the Petition for Review, Complainant does
not appear to have articulated why the ALJ erred on this point. We agree with the ALJ’s
ruling on this issue and we affirm it.
81
82
D. & O. at 37.
83
Id.
84
Id.
85
Id. at 38.
86
Id.
13
the ALJ found that Complainant failed to prove the 2015 SOX Complaint
contributed to Menon’s 2016 email to Rothman.87
E. Affirmative Defense
The ALJ concluded that the case could be resolved on causation grounds
because Complainant “failed to show how any of the three protected activities were
a contributing factor to any of the three adverse employment actions he faced as an
employee or former employee of Respondent.”88 Nonetheless, the ALJ still addressed
“Respondent’s affirmative defense, assuming arguendo that Complainant had
proven that his protected activity contributed to his RIF and other acts of
retaliation.”89
First, the ALJ found that Respondent avoided liability for Menon’s email to
Rothman because Menon was not acting as an agent of the company when she sent
it.90 The ALJ further held that, even assuming Menon had been acting as an agent,
she still provided an “unambiguous and highly probable explanation” for sending
the communication that did not relate to Complainant’s protected activity.91
In particular, the ALJ relied on Menon’s testimony that she was unaware of
Complainant’s SOX Complaint at the time, and the ALJ noted that the content of
the email was consistent with Complainant’s documented strengths and
weaknesses in his performance history.92
Second, the ALJ found that Respondent provided clear and convincing
evidence that Tse’s performance reviews would have been the same (negative or
mixed) in the absence of his protected activity. The ALJ pointed out that
“Complainant had consistently received managerial feedback about his leadership
skills, communication style, and problem-solving, as reflected in his 2013 and 2014
ratings.”93
87
Id.
88
Id.
89
Id.
90
Id. at 43-44.
91
Id. at 43.
92
Id. at 44.
93
Id. at 40.
14
Third, Respondent established with clear and convincing evidence that it had
legitimate business reasons for including Complainant in the RIF, and
Complainant’s protected activity, known or unknown, would not have changed its
decision.94 In particular, Somers and Skubovius determined that P&A was a small
business unit that did not need two senior employees, and decided to eliminate
Complainant’s position, as the less senior of the two employees.95 Moreover, the RIF
impacted more than Complainant, as Respondent eliminated 41 roles in the
Verticals department.96
Fourth, the ALJ found that Respondent provided unambiguous and highly
probable explanations for its decision to hire Menon as the director of P&A.97
Namely, Somers prioritized candidates with leadership capability, not subject
matter expertise, and “Complainant had consistently received poor reviews of his
leadership and communication skills.”98
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the ARB to review ALJ
decisions and issue agency decisions in cases arising under SOX.99 The ARB reviews
questions of law presented on appeal de novo but is bound by the ALJ’s factual
determinations if they are supported by substantial evidence.100 Substantial
evidence “means—and means only—such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”101 “[T]he threshold for such
evidentiary sufficiency is not high.”102 The substantial evidence standard “limits the
reviewing court from ‘deciding the facts anew, making credibility determinations, or
94
Id. at 42-43.
95
Id. at 42.
96
Id.
97
Id. at 41.
98
Id.
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).
99
29 C.F.R. § 1980.110(b); Leviege v. Vodafone US, Inc., ARB No. 2019-0058, ALJ No.
2016-SOX-00001, slip op. at 3 (ARB Mar. 19, 2021) (citations omitted).
100
101
Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quotations and citation omitted).
102
Id.
15
re-weighing the evidence.’”103 If substantial evidence supports the ALJ’s conclusion,
the ALJ’s decision must be upheld even if it is “possible that a reasonable mind
could have come to a different finding.”104 The Board generally defers to an ALJ’s
credibility findings “unless they are inherently incredible or patently
unreasonable.”105
DISCUSSION
SOX is governed by the rules and procedures set out in the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (AIR21).106 To prevail,
a SOX complainant must establish by a preponderance of the evidence that:
(1) the complainant engaged in activity that SOX protects; (2) the respondent took
an adverse action against the complainant; and (3) the protected activity was a
contributing factor in the adverse action.107 If a complainant meets this burden of
proof, the employer may avoid liability only if it proves its affirmative defense,
which requires demonstrating by clear and convincing evidence that it would have
taken the same adverse action in the absence of any protected activity.108
On appeal, Complainant primarily argues: (1) the ALJ’s credibility findings
were improper; (2) the ALJ erred in determining that certain allegations did not
constitute protected activity; (3) the ALJ erred in finding that Complainant failed to
prove his protected activity was a contributing factor in the adverse actions with
Complainant primarily focusing on the ALJ’s determination regarding Menon’s
email to Rothman; (4) the ALJ erred in finding that Menon was not acting as an
agent of Respondent when she emailed Rothman and that the ALJ erred in finding
that eBay avoided liability because more controlling than agency law analysis is
SOX; and (5) the ALJ erred in finding that Respondent proved by clear and
Stone & Webster Constr., Inc. v. U.S. Dep’t of Lab., 684 F.3d 1127, 1133 (11th Cir.
2012) (quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)).
103
Clem v. Comput. Sci. Corp., ARB No. 2020-0025, ALJ Nos. 2015-ERA-00003, -00004,
slip op. at 17 (ARB Mar. 10, 2021).
104
Young v. CSX Transp., ARB Nos. 2023-0028, -0029, ALJ No. 2021-FRS-00001,
slip op. at 8 (ARB Mar. 27, 2025) (citation and inner quotations omitted).
105
106
18 U.S.C. § 1514A(b)(2)(A) (citing 49 U.S.C. § 42121(b)).
29 C.F.R. § 1980.109(a); 18 U.S.C. § 1514A(b)(2)(A) (citing 49 U.S.C. § 42121(b));
Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 6 (ARB
Jan. 17, 2023) (citation omitted).
107
108
29 C.F.R. § 1980.109(b).
16
convincing evidence its affirmative defense as to Menon’s email, Complainant’s
performance reviews, Complainant’s selection for the RIF, and Respondent’s hiring
of Menon.
Upon review of the ALJ’s D. & O., the parties’ arguments on appeal, and the
record, the Board affirms the ALJ’s rulings.
1. Credibility Determinations
Complainant argues that the “ALJ’s determination that Tse was a less than
credible witness was patently unreasonable because her reasons for discrediting Tse
were not supported by the record.”109 Complainant further argues that the “ALJ’s
decision to afford eBay’s witnesses full evidentiary weight was improper because
Menon, Murphy and Somers were impeached” and “their testimony was at times
incoherent and implausible,” inconsistent, and contradicted by other evidence.110
“It is the ALJ’s function to weigh the evidence and determine witness
credibility.”111 The Board generally defers to an ALJ’s demeanor-based credibility
findings “unless they are inherently incredible or patently unreasonable.”112
Having reviewed the evidentiary record and the parties’ briefs on appeal,
we conclude that the ALJ’s credibility findings are neither inherently incredible nor
patently unreasonable, and we therefore affirm them as supported by substantial
evidence. Notably, the ALJ highlighted that she closely observed Complainant’s
demeanor during his testimony and found that Complainant “was not forthright
when cross-examined” and “was frequently cagey and evasive.”113
109
Comp. Br. at 33.
110
Id.
111
Young, ARB Nos. 2023-0028, -0029, slip op. at 12 (citation omitted).
Id. at 8 (citation and inner quotations omitted); see also Garrett v. Bigfoot Energy
Servs., LLC, ARB No. 2016-0057, ALJ No. 2015-STA-00047, slip op. at 5 (ARB May 14,
2018) (“The ARB typically gives high deference to an ALJ’s credibility determinations.”)
(citations omitted); Hall v. U.S. Army Dugway Proving Ground, ARB Nos. 2002-0108, 20030013, ALJ No. 1997-SDW-00005, slip op. at 27 (ARB Dec. 30, 2004) (“And we generally
defer to ALJ findings of fact when based on the credibility of witnesses as shown by their
demeanor or conduct at the hearing.”) (citation omitted); Kopack v. N.L.R.B., 668 F.2d 946,
954 (7th Cir. 1982) (“To the extent that the ALJ’s decision rests explicitly on his evaluation
of demeanor, we are required to weigh those particular findings more heavily.”).
112
113
D. & O. at 20-21.
17
Likewise, we affirm the ALJ’s decision to afford full evidentiary weight to
other witnesses, including Murphy, Skubovius, Somers, and Menon. The ALJ found
that these witnesses testified in good faith, and with respect to Murphy and Menon,
the ALJ noted that any inconsistencies resulted only from lapses in memory after
several years.114 The ALJ’s findings are supported by substantial evidence. None of
Complainant’s arguments establish that the ALJ’s credibility determinations are
inherently incredible or patently unreasonable.
2. Protected Activity
The ALJ found Complainant engaged in protected activity but also rejected
several other alleged protected activities. On appeal, Complainant challenges the
ALJ’s determination that certain allegations did not constitute protected activity.115
An employee engages in protected activity when the employee “provide[s]
information” to the government or a supervisor “regarding any conduct which the
employee reasonably believes constitutes a violation of section 1341 [mail fraud],
1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or
regulation of the Securities and Exchange Commission, or any provision of Federal
law relating to fraud against shareholders.”116
“Reasonable belief” has both subjective and objective components.117
A subjective belief is satisfied when the employee holds an actual belief in good
faith that the conduct complained of constitutes a violation of one of the enumerated
114
Id. at 24-25.
115
Comp. Br. at 43-48.
116
18 U.S.C. §1514A(a)(1).
Sylvester v. Parexel Int’l, LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039,
-00042, slip op. at 14-15 (ARB May 25, 2011) (“[T]he legislative history of Sarbanes-Oxley
makes clear that its protections were ‘intended to include all good faith and reasonable
reporting of fraud, and there should be no presumption that reporting is otherwise.’”
(quoting Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1002 (9th Cir. 2009)).
117
18
provisions in Section 806.118 Objective reasonableness is evaluated based on
whether “a reasonable person of similar experience, training, and factual knowledge
would objectively believe that a violation had occurred.”119
The ALJ found that Complainant engaged in protected activity on three
occasions, including: (1) “Complainant’s communication in 2010 with in-house
lawyer Adrienne Go regarding Rhodes and Thawley,” (2) “Complainant’s
communication in 2012 with in-house lawyer Amyn Thawer regarding Rhodes and
Thawley,” and (3) “Complainant’s filing with OSHA in 2015.”120 The parties do not
dispute these findings on appeal, and they will be considered further in analysis
related to contributing factor.
However, Complainant contests the ALJ’s findings that Complainant did not
engage in protected activity regarding the remaining allegations of protected
activity. As detailed in Background and Procedural History Section 2(B) of this
decision, the ALJ ruled that Complainant did not engage in protected activity
regarding any of the following allegations: (1) reporting an issue of “conquest
selling,”121 (2) forwarding communications with Somers to Murphy,122 (3) reporting
to Respondent’s Legal Department that he feared retaliation,123 (4) reporting in
May 2013 to Somers his belief that the “original WHI synergy goals may not be
achievable,”124 (5) reporting in early 2014 to Menon his belief that the WHI
acquisition was unlikely to meet synergy goals,125 and (6) communicating with Shan
Id.; see also Williams, ARB No. 2020-0019, slip op. at 7 (citation omitted); Schaefer v.
New York Cmty. Bancorp, Inc., ARB No. 2022-0050, ALJ Nos. 2018-SOX-00048, -00051, slip
op. at 15 (ARB June 22, 2023) (citations omitted) (“Before the ALJ, Complainants bore the
burden of establishing that they subjectively believed their reports related to conduct which
constituted bank fraud, a violation of one of the laws listed in SOX, and that they held their
actual subjective beliefs in good faith.”).
118
119
Williams, ARB No. 2020-0019, slip op. at 7 (citation omitted).
120
D. & O. at 34.
121
Id. at 28.
122
Id.
123
Id.
124
Id. at 29-31.
125
Id.
19
and Menon that Murphy reported falsely positive data.126 Complainant has
appealed the ALJ’s findings that these allegations were not protected activity.127
Having reviewed the evidentiary record and considered the parties’ briefs on
appeal, we conclude that the ALJ’s decision regarding these allegations of protected
activity is supported by substantial evidence. None of Complainant’s arguments
concerning these other six alleged protected activities demonstrate that the ALJ
abused her discretion or committed reversible error regarding the ALJ ruling.
We therefore affirm the ALJ’s ruling that Complainant did not engage in protected
activity with respect to these allegations of protected activity. As the ALJ found,
some allegations were not established by sufficient or credible evidence, and some
alleged communications did not concern conduct relating to any SOX violation.
The ALJ found that Complainant’s concern regarding conquest selling was
based on Complainant’s own testimony, which the ALJ found unpersuasive because
Complainant was not credible.128 Further, the subject of conquest selling was
antitrust related and not tethered to the enumerated categories of SOX.129
For Complainant’s communications regarding WHI synergies, the ALJ found they
failed to satisfy either the subjective component or objective components of the
reasonable-belief standard.130 We affirm those findings as supported by substantial
evidence. The ALJ observed that Shan corrected complainant’s misunderstanding
regarding the perceived inaccuracies.131 The ALJ correctly credited Vibhute’s
testimony that he was not concerned with errors in the WHI synergy calculations.132
Complainant argues that his report that he feared retaliation for reporting
SOX protected activity to Respondent’s legal department is itself SOX protected
activity.133 We might agree with this statement if the reported fear constitutes a
source communicating SOX protected activity to the employer. Here, however,
126
Id. at 29-33.
127
Comp. Br. at 43-48.
128
D. & O. at 28.
129
Id.
130
Id. at 29-34.
131
Id. at 31.
132
Id. at 33.
133
Comp. Br. at 45.
20
we have an alleged fear of retaliation for prior reports. As the ALJ found,
Complainant has not argued how communication of a fear of retaliation for prior
reports constitutes protected activity.134 The ALJ discussed the prior reports as:
(1) the Rhodes investigation; (2) the 2012 communication with in-house counsel
concerning Rhodes; and (3) Complainant’s communication regarding conquest
selling.135 The first two the ALJ found to be protected activity.136 The third, the ALJ
did not deem protected. Thus, the “fear of retaliation” activity concerns matters the
ALJ has already deemed protected or not protected.
Moreover, Complainant’s claim appears to be asserting that the
communication of fear itself is protected activity. Complainant argued “because
retaliation for a SOX disclosure is a clear violation of SOX, reporting potential
retaliation constitutes a report of a potential SOX violation and is therefore also
protected activity.”137 If Complainant’s theory of protected activity is that the fear
itself is protected regardless of the content underlying the fear this would create a
new category of SOX protected activity. A complainant could have no subjective or
objectively reasonable belief of a violation of SOX’s categories of fraud, a rule or
regulation of the SEC, or any federal law related to fraud against shareholders,
but yet report an untethered fear of retaliation and be protected. We think this
muddies the waters and bypasses Congress’s careful enumeration of SOX protected
activities.
3. Contributing Factor
On appeal, Complainant contests the ALJ’s contributing factor finding,
primarily disputing the ALJ’s determination that his SOX Complaint was not a
contributing factor in Menon’s email to Rothman and claiming that “the ALJ’s
determination that eBay did not blacklist [Complainant] is not supported by
substantial evidence.”138
134
D. & O. at 29.
135
Id. at 28-29.
136
Supra Background and Procedural History Section 2(B).
137
Comp. Br. at 45.
138
Id. at 26.
21
To prevail, a complainant must prove that protected activity was a
contributing factor in an adverse action.139 The ARB has held that a contributing
factor is any factor, which alone or in combination with other factors, affects the
outcome of the decision.140 Employees may meet their evidentiary burden with
circumstantial evidence.141 Circumstantial evidence may include, but is not limited
to, temporal proximity, inconsistent application of an employer’s policies, pretext,
shifting explanations by the employer, or antagonism.142
Because we affirm the ALJ’s protected-activity rulings, only three protected
activities, together with the three timely adverse actions, remain at issue.
The protected activities include Complainant’s 2010 and 2012 activities related to
Rhodes and Thawley and Complainant’s 2015 SOX complaint, while the timely
adverse actions include the Complainant’s selection for the RIF, denial of the 2014
bonus due to a “Does Not Meet” rating in his 2014 year-end review, and Menon’s
email to Rothman. As the ALJ noted, “Complainant must show that one of the three
identified protected activities contributed to any of the three adverse employment
actions.”143
On appeal, Complainant principally contests the ALJ’s determination that
his SOX Complaint was not a contributing factor in Menon’s email to Rothman.
In reaching that determination, the ALJ relied on Menon’s testimony that she did
not recall being aware of Complainant’s SOX Complaint when she emailed
Rothman.144 Complainant disputes that finding, claiming the record shows Menon
was aware of Complainant’s June 9, 2015 SOX Complaint when she emailed
Rothman on April 6, 2016. In support, Complainant cites two email cover sheets
that provide metadata that, according to him, show that “Menon communicated
with the legal department specifically regarding her management of Tse on
18 U.S.C. § 1514A(b)(2)(A) (citing 49 U.S.C. § 42121(b)); 29 C.F.R. § 1980.109(a);
Williams, ARB No. 2020-0019, slip op. at 6.
139
140
Williams, ARB No. 2020-0019, slip op. at 12 (citation omitted).
141
Id. (citation omitted).
142
Id. (citation omitted).
143
D. & O. at 37.
144
Id. at 38.
22
September 17, 2015.”145 In response, Respondent notes that these two cover sheets
“were never offered or admitted into the record in this case.”146
We agree with Respondent that these cover sheets are not part of the record.
Complainant argues the cover sheets are intrinsic to the admitted emails but fails
to explain or cite to case law that demonstrates an intrinsic standard for deeming
adjacent or related material as part of the record.147 Nonetheless, even assuming
arguendo that they were part of the record, the documents do not establish that
Menon was informed of Complainant’s SOX Complaint. The documents would
merely show that Menon provided documents related to her work with Complainant
to other eBay personnel. We have already expressed agreement with the ALJ’s
decision to afford Menon’s testimony full evidentiary weight. Therefore, we affirm
the ALJ’s determination that Complainant failed to establish that his SOX
Complaint was a contributing factor in Menon’s email to Rothman.148
Regarding the remaining contributing-factor findings, we find that
substantial evidence supports the ALJ’s determination that Complainant’s
protected activity related to the Rhodes and Thawley investigation in 2010 and
2012 did not contribute to any of the timely adverse actions.149 The mere
circumstance that protected activity precedes an adverse personnel action is not
proof of a causal connection between the two.150 As the ALJ explained, the
significant time gap between the Rhodes and Thawley protected activity and the
timely adverse actions occurring between 2014 and 2016—the RIF, denial of the
145
Comp. Br. at 25, 27.
146
Resp. Response Br. at 43.
147
Comp. Closing Br. at 38; Comp. Br. at 25, 27.
Regarding the SOX complaint, we only need to evaluate whether the SOX complaint
was a contributing factor to Menon’s email because the other timely adverse actions
occurred prior to the SOX complaint—thus, the SOX complaint could not be a contributing
factor to their occurrence.
148
D. & O. at 36-38. Complainant argues that the ALJ’s finding that Complainant’s
termination was a result of a reduction in force is not supported by substantial evidence.
Comp. Br. at 41-43. We disagree. As we state infra Discussion Section 4(B), we affirm that
finding as supported by substantial evidence. The ALJ highlighted the large number
included in the RIF and the decisionmakers’ rationale to reduce the number of senior
employees in Complainant’s division.
149
Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, 2016-FRS-00082, slip op. at 8
(ARB Jan. 22, 2020) (citing Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir.
1998)).
150
23
2014 bonus, and the Rothman email—fails to establish temporal proximity.
The insufficiency of temporal proximity as a basis for proving causation is
even more apparent when the facts reveal an intervening event occurring between
the protected activity and the adverse personnel action.151 As the ALJ found,
Complainant had performance reviews highlighting problems throughout his
employment.152 Numerous supervisors concluded that while Complainant had
mastery of technical material and subject matter, he lacked people skills and
leadership skills.153 These repeated performance problems support the ALJ’s
findings that protected activity was not a contributing factor in the adverse
actions.154
4. Affirmative Defense
The ALJ found that Complainant did not establish his alleged protected
activities were a contributing factor to any of the timely adverse actions.
Nonetheless, the ALJ still addressed “Respondent’s affirmative defense, assuming
arguendo that Complainant had proven that his protected activity contributed to
his RIF and other acts of retaliation.”155 The ALJ ruled that Respondent proved by
clear and convincing evidence it would have taken the same actions in the absence
of any protected activity, including Menon’s email to Rothman, Complainant’s
performance reviews, Respondent’s selection of Complainant for termination in the
RIF, and Menon’s hiring.156 On appeal, Complainant contests these findings.
Under SOX, a respondent may avoid liability if it demonstrates by clear and
convincing evidence that it would have taken the same adverse action in the
absence of any protected activity.157 Under Board precedent, it is not enough for an
employer to show that it could have taken the same adverse action; it must show
Id. at 9 (citing Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014)
(other citations omitted)).
151
152
D. & O. at 6-8, 11, 15, 18, 40-41 (citing performance problems in reviews).
153
Id.
154
Id.
155
Id. at 38.
156
Id. at 39-45.
157
29 C.F.R. § 1980.109(b); 18 U.S.C. § 1514A(b)(2)(A) (citing 49 U.S.C. § 42121(b)).
24
that it would have done so even in the absence of protected activity.158 The ALJ
must be persuaded that “it is highly probable that the employer would have taken
the same adverse action in the absence of the protected activity.”159
Here, we affirm all of the ALJ’s affirmative defense findings as supported by
substantial evidence.
A. Menon’s Email to Rothman
The ALJ found that Respondent avoided liability for Menon’s email to
Rothman because, based on an assessment under the Third Restatement of Agency,
Menon was not acting as an agent of the company when she sent it.160 The ALJ
highlighted how “Menon testified that she sent this email in her personal capacity,
from her personal email address, not speaking on behalf of Respondent nor as an
official response to an inquiry about a former employee, as company procedures
would control that.”161 In addition, the ALJ “consider[ed] Menon’s testimony and the
close friend/mentor relationship Menon and Rothman maintained.”162
The ALJ further held that, even assuming Menon had been acting as an
agent, she still provided an “unambiguous and highly probable explanation” for
sending the communication that does not relate to Complainant’s protected activity
and noted that “the text of the email aligns with Complainant’s work record.”163
See, e.g., Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, ALJ No. 2014-FRS00154, slip op. at 57 (ARB Sept. 30, 2016, reissued with full dissent Jan. 4, 2017) (citing
Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA-00006,
slip op. at 11 (ARB Apr. 25, 2014)). For example, the Board has recognized that an
employer cannot carry its burden by showing that it might have taken the same adverse
action against an employee. Douglas v. Skywest Airlines, Inc., ARB Nos. 2008-0070, -0074,
ALJ No. 2006-AIR-00014, slip op. at 17 n.108 (ARB Sept. 30, 2009).
158
159
Palmer, ARB No. 2016-0035, slip op. at 52-53.
160
D. & O. at 43-44.
161
Id.
162
Id. at 44.
163
Id. at 43-44.
25
i. Was Menon an Agent for Respondent?
We first address agency. Under the Third Restatement of Agency, there are a
few bases connecting the acts of agent to principal, including the actual authority of
the agent and the doctrine of respondeat superior.164 Under actual authority, the
“focal point for determining whether an agent acted with actual authority is the
agent’s reasonable understanding at the time the agent takes action.”165 Under
respondeat superior, an employer may be liable for the agent employee’s “acts or
omissions” committed within “the scope of employment.”166 “An employee acts
within the scope of employment when performing work assigned by the employer or
engaging in a course of conduct subject to the employer’s control,” while “[a]n
employee’s act is not within the scope of employment when it occurs within an
independent course of conduct not intended by the employee to serve any purpose of
the employer.”167 “If an employee undertakes a course of work-related conduct for
the sole purpose of furthering the employee’s interests or those of a third party, the
employee’s conduct will often lie beyond the employer’s effective control.”168
Complainant argues that the ALJ erred in finding that Menon was not acting
as an agent of Respondent when she emailed Rothman and in “finding that eBay
has avoided liability for Menon’s behavior under actual authority of an agent
because more controlling than an agency law analysis is the text of the SOX statute
itself” because SOX forbids an “agent from retaliating against an employee for SOXprotected activity.”169 It is clear that an agent is prohibited from retaliating against
an employee for SOX-protected activity. However, the relevant first question is
whether “Menon was acting as an agent of Respondent at the time of the email.”170
164
Restatement (Third) of Agency Intro. (2006).
Id. § 2.01 cmt. c. The ALJ highlighted how the “ARB has followed the general law of
agency in determining if such relationship exists.” D. & O. at 44 (citing Klopfenstein v. PCC
Flow Tech. Holdings, Inc., ARB No. 2004-0149, ALJ No. 2004-SOX-00011, slip op. at 14
(ARB May 31, 2006)).
165
166
Restatement (Third) of Agency § 2.04 cmt. b.
167
Id. § 7.07.
168
Id. § 7.07 cmt. b.
169
Comp. Br. at 30-32.
170
D. & O. at 44.
26
The record shows that Menon’s understanding was that she was acting in a
personal capacity at the time of the email. Menon sent the email from her personal
email, not a work email, and Menon also credibly testified that she “was writing
individually at a personal level,”171 that she did not speak with anyone at eBay
about Rothman’s request before she responded,172 and that “we had met
professionally, but he was like a mentor to me . . . a friend and a mentor.”173
Respondent had a neutral reference policy and Menon made no attempt to follow
that policy. Complainant counters that “there is no indication in the record that
eBay’s neutral reference policy did not apply to non-official [i.e. personal] requests
for references.”174
ii. Even assuming Menon was an agent, Menon’s communication does not
relate to Complainant’s protected activity
We need not reach a resolution of Menon’s status as an agent at the time of
the email to Rothman. Even if Menon were acting as an agent, we find that
substantial evidence supports the ALJ’s finding that “Respondent has offered
unambiguous and highly probable explanations for the response unrelated to the
protected activity.”175
We agree with the ALJ that Menon’s email “aligns with Complainant’s work
record.”176 First, Menon positively stated in the email, “Anson knows parts in and
out. He understands parts more than sellers, knows how ecommerce works.”177
Next, Menon explained “[b]ut the cons are that his social skills are very low.
He always finds issues with things which is great from a risk mitigation
perspective, but teams find it hard to function with that kind of attitude.”178
Finally, Menon noted what roles Complainant would be well suited for: “If it is an
[individual contributor] role with not much influence to do but more [subject matter
171
Hearing Transcript at 842.
172
Id.
173
Id. at 841.
174
Comp. Br. at 31-32.
175
Id. at 44.
176
Id.
177
Id. at 18.
178
Id.
27
expert] requirement, it would work.”179 Complainant disputes that the description
in the email was accurate,180 but, as detailed elsewhere, the record is clear that
Complainant had received feedback related to his managerial and communication
skills, including from Kroeker, Leeb, and Murphy. The record supports that Menon
would have sent this email in the absence of any protected activity.
Complainant argues that Menon “could have told Rothman of [eBay’s]
neutral reference policy.”181 While it is true that Menon could have told Rothman
about the neutral reference policy, the ALJ noted, “Menon testified that she chose to
answer the email rather than ignore it, for fear that no response would leave a
negative impression for Complainant that Menon did not want to relay.”182 We have
already affirmed the ALJ’s credibility determination and agree with the ALJ’s
assessment here.
In sum, we agree with the ALJ that Complainant provided “unambiguous
and highly probable explanations for the response unrelated to the protected
activity.”183 Respondent has proven by clear and convincing evidence that Menon
would have sent the email in the absence of any of Complainant’s protected activity.
Thus, we affirm the ALJ’s affirmative defense finding.184
179
Id. at 18-19.
Comp. Reply Br. at 6. Complainant also argues that even if accurate, SOX prohibits
retaliation “for SOX-protected activity” and the “statute does not carve out an exception for
communications that are truthful or accurate.” Id. Complainant has provided no evidence
that Menon responded to the email because of protected activity. Respondent has provided
abundant evidence that Menon would have sent the same response absent protected
activity. Menon did not randomly volunteer negative information in a retaliatory manner.
Menon responded to Rothman’s question accurately. Given the abundant evidence of
Complainant’s performance history, including evidence of his strengths and weaknesses,
Menon’s response was logical and reasonable. Menon was also a credible witness.
Substantial evidence supports the ALJ’s finding.
180
181
Comp. Br. at 29.
182
D. & O. at 44.
183
Id.
Complainant also argued that the “ALJ failed to acknowledge important evidence in
the record that pointed to blacklisting” because “Jet enthusiastically pursued hiring Tse,
but abruptly changed its mind when Hilton received negative feedback about Tse from a Jet
venture capitalist.” Comp. Br. at 28. Even if this negative feedback somehow related to
Menon’s email, we have already found Menon’s email was not related to protected activity
and was reflective of Complainant’s work record.
184
28
B. Performance Reviews, Termination of Employment by RIF, and Hiring of
Menon
Complainant also contests the ALJ’s affirmative defense rulings that
Respondent proved by clear and convincing evidence it would have taken the same
action absent protected activity regarding Complainant’s performance reviews,
Complainant’s termination by RIF, and Respondent’s hiring of Menon. We disagree
and affirm the ALJ’s rulings.
First, Complainant argues that “substantial evidence does not establish that
Tse was a poor performer.”185 We disagree. The record contains abundant evidence
concerning Complainant’s performance.
Date /
Review
Period
Supervisor
Summary of Evaluation / Feedback
/ Source
Kroeker noted that Complainant could “exude a negative
attitude” and urged Complainant to focus on “bringing
ideas and finding solutions rather than primarily
pointing out problems.”186
2008 MidYear
Review
Curtis
Kroeker
2010 MidYear and
Year-End
Reviews
Rainer Leeb expressed that “occasionally
[Complainant’s] communication style [was] too strong”
Rainer Leeb and “demotivating” towards his team members and that
he should be “more cautious with the style of
communication” he used.187
2011 MidYear
Review
Leeb noted Complainant’s “limited potential as a people
Rainer Leeb manager unless he [changed] his leadership and
communication style.”188
2011 Year- Famous
End Review Rhodes
185
Comp. Br. at 42.
186
D. & O. at 6; JX 4.
187
D. & O. at 6.
188
Id.
189
Id. at 7.
Rhodes noted that Complainant “clearly contributed to
the phenomenal growth rate in the business.”189 Rhodes
also compiled peer feedback reflecting “continued
29
communication challenges,” which described
Complainant as “condescending in his communication
and management style,” an approach that could “damage
relationships and perceptions long term.”190
2012 MidYear
Review
Kristine
Chin
Chin complimented Complainant’s “exceptional”
performance and “automotive expertise,” while also
noting that Complainant needed to “develop the group”
and “empower some of his team” because they needed
“more guidance.”191
2012
eBay
Emerging
leadership
Leadership
program
Program
Respondent placed Complainant in the “Emerging
Leadership Program,” which was “a program for very
promising individuals” to assess leadership potential.192
In the ELP feedback, Complainant received his lowest
ratings in “Developing Direct Reports and Others,”
“Building Effective Teams,” and “Listening.”193
2012 Year- Kristine
End Review Chin
Chin assigned Complainant a favorable overall
evaluation, rating him “Exceeds Some.”194
2013 Year- Bryan
End Review Murphy
Murphy noted three areas for development: “[m]anaging
team to deliver results, [o]perating across the
organization to deliver results, [m]oving from problem
identification to solution.”195
2014 MidYear
Review
Menon provided feedback about his “people management
skills,” explaining that he needed to “figure out how to
communicate” about issues “without sounding like he
Sree Menon
[was] being overtly critical” and advising him to be “able
to take a tough situation and see it [as] a challenge to
surmount versus seeing it as an [unsolvable] issue.”196
190
Id.
191
Id. at 8.
192
Id.
193
Id.
194
Id.
195
Id. at 11.
196
Id. at 15.
30
Menon assigned Complainant a “Does Not Meet” rating
and noted that“[h]is 360 feedback is mostly that he has
2014 YearSree Menon
huge domain experti[se],” but he was “unable to drive
End Review
change and projects and initiative[s] forward.”197
Murphy and Menon identified areas for improvement—including
communication, leadership, and problem-solving—that were consistent with
concerns previously documented by Kroeker, Leeb, and Rhodes, including some
feedback before the relevant protected activity. And even though Kristine Chin
provided positive feedback of Complainant, she still noted that Complainant needed
to “develop the group” and “empower some of his team” because they needed “more
guidance.”198 Similarly, in the ELP, Complainant received his lowest ratings in
“Developing Direct Reports and Others,” “Building Effective Teams,” and
“Listening.”199
Although the performance reviews were not treated as timely adverse
actions, the performance reviews were relevant to certain timely adverse actions,
including “the denial of the 2014 bonus due to a ‘Does Not Meet’ rating in his 2014
year-end review”200 and Menon’s email to Rothman highlighting some of
Complainant’s performance. The performance reviews are centered on nonretaliatory perceptions of Complainant’s communication skills. Substantial evidence
supports the ALJ’s findings that the Respondent would have taken the same action
absent protected activity regarding those actions.
Next, Complainant argues that substantial evidence does not support the
ALJ’s finding Respondent would have selected Complainant for the RIF absent his
protected activity.201 We disagree. Substantial evidence substantiates the ALJ’s
ruling that “Respondent has established, with clear and convincing evidence, that
the decision in removing the senior management, level 27 position from the [P&A]
team had legitimate business reasons behind it and Complainant’s protected
activity, known or unknown, would not have changed their decision.”202 Here, the
197
JX 3; see also D. & O. at 18, 41.
198
D. & O. at 8.
199
Id.
200
Id. at 35.
201
Comp. Br. at 41-43, 49.
202
D. & O. at 43.
31
record supports the ALJ’s finding. The RIF was widespread, impacting 2,400 people
at eBay, including 41 roles in verticals and two of the six employees in P&A.203
As the ALJ noted, Respondent “demonstrated in testimony that the selection
process focused on eliminating positions for business efficiency.”204 Somers and
Skubovius identified a legitimate business reason to include Complainant in the
RIF and they would have done so even if Complainant had not engaged in protected
activity. Respondent explained that “P&A was a small business unit that did not
need two senior employees,” and they therefore “chose to eliminate Complainant’s
position, as the less senior of the two employees.”205 Accordingly, the ALJ’s findings
are supported by substantial evidence and we affirm them.
Finally, Complainant argues that “the ALJ erroneously found that eBay
proved by clear and convincing evidence that it would have hired Menon despite
Tse’s protected activity.”206 We first note that Respondent’s decision to hire Menon
instead of Complainant was already deemed an untimely adverse action by the
ALJ—a determination we have affirmed. Thus, it cannot form the basis of SOX
liability. In any event, we affirm the ALJ’s ruling as supported by substantial
evidence that Respondent would have hired Menon in the absence of any protected
activity. As discussed above, the record shows Respondent had concerns with
Complainant’s management abilities, and Somers prioritized candidates with
leadership capability.
203
Id. at 18, 42.
204
Id. at 42.
205
Id.
Comp. Br. at 49. To the extent Complainant has raised other arguments not
specifically addressed herein, the remainder of Complainant’s arguments and contentions
on appeal are deemed moot given our conclusions affirming the ALJ’s factual findings as
supported by substantial evidence and conclusions of law as legally sound.
206
32
CONCLUSION
Accordingly, we AFFIRM the ALJ’s D. & O.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.