Update on SEC whistleblower retaliation case for AT&T

Mr. Macias:

At this point, I have reviewed all the available evidence submitted by
you and AT&T.  For a whistleblower retaliation complaint to be
validated, it must meet ALL 4 of the following elements:
1) Complainant (employee) must have engaged in protected activity;
2) Respondent (employer) must have employer knowledge of the protected
activity;
3) Complainant suffered adverse action (e.g., termination);  AND
4) Nexus or a causal connection must exist between 1) and 3)--the
adverse action must be due to the protected activity, not due to some
other reason (e.g., employee misconduct).
If any ONE of these elements should fail (not supported by the
evidence), then the whistleblower retaliation complaint as a whole would
fail in its entirety.
In addition, the burden of proof for these elements is on the
Complainant (employee).  If a company provides evidence that any of
these 4 elements is insufficiently supported, then the complaint would
be dismissed.

In your case, element 4 (nexus) in particular appears to lack sufficient
evidence.  The current evidence indicates that you were terminated for
using your company cell phone (COU) to transmit prohibited or
inappropriate messages or images that violate company policy, which AT&T
discovered during the course of an investigation into a sexual
harassment complaint filed against you by another employee unrelated to
your protected activity.  Furthermore, because AT&T had disciplined or
terminated other employees who misused their COU equipment in similar
situations, you were not singled out for termination.

Unless you can rebut the evidence regarding the lack of nexus--that you
were terminated due to violating company policy regarding the use of COU
equipment (cell phone)--your OSHA complaint filed under the Sarbanes
Oxley Act (SOX) will be dismissed due to lack of nexus evidence.  Keep
in mind that the OSHA complaint is only the first preliminary step of
the administrative process in a SOX whistleblower complaint.  In the
event of an OSHA dismissal, you can appeal the OSHA dismissal to the
Office of Administrative Law Judges (OALJ), which will conduct its own
hearing/trial for you if you comply with its filing requirements and
deadlines.  The OALJ does not have to abide by or consider OSHA's
determination (dismissal), and has the authority to make an independent
("de novo") decision regarding the merits of your complaint.

Alternatively, you could choose to withdraw your OSHA/SOX complaint.
Withdrawal will waive your right to appeal to the OALJ, however (i.e.,
you can't appeal or continue your complaint with the OALJ if you
withdraw your OSHA complaint).  If you wish to withdraw rather than
receive the dismissal decision from OSHA with appeals rights, please let
me know.

If you have any questions, please contact me.  Please submit any other
rebuttal information on the nexus issue to me no later than COB
Thursday, September 19, 2013.  In the event of an OSHA dismissal due to
insufficient evidence of nexus, OSHA will send you the official
determination via a Secretary's Findings letter, which will also contain
information on how to appeal the OSHA dismissal to the OALJ if you so
choose.


Blake C. Wu
U.S. Department of Labor-OSHA
Region 9 Whistleblower Investigations Program
90 7th Street, #18-100
San Francisco, CA 94103
(415) 625-2533
(415) 625-2534  (fax)
wu.blake@dol.gov