Lockheed Martin Retaliated, 10th Circuit Says

     (CN) – The 10th Circuit affirmed a ruling for a former Lockheed Martin employee who was forced to resign after complaining about a coworker she suspected of using a company expense account to fund liaisons with soldiers.
     Andrea Brown told the U.S. Department of Labor she was booted from her job as communications director at Lockheed in Colorado Springs after she lodged a May 2006 ethics complaint against vice president of communications Wendy Owen.
     Brown complained to human resources after hearing from a coworker that Owen was sending sex toys to soldiers in Iraq, bought a laptop for a solider, and reserved expensive hotel rooms to meet military men after they returned home.
     Owen supposedly communicated with soldiers through a Lockheed pen pal program for employees.
     Brown reasoned that because Owen’s and Lockheed expenses were passed on to customers, the U.S. government would ultimately foot the bill.
     “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,” the three-judge panel of the 10th Circuit wrote, sitting in Denver.
     After investigating, Lockheed shutdown the pen pal program, but allowed Owen to continue in her executive position.
     Brown claimed that Owen used her influence over other Lockheed executives to force Brown out of the company.
     An incoming director of communications, allegedly on good terms with Owen, told Brown her position at Lockheed was uncertain, Brown claimed.
     She said she lost her office and leadership position, and was told to work in a storage room or at home.
     After Brown quit in early 2008, a federal administrative law judge found that Lockheed constructively discharged her for activity protected under the Sarbanes-Oxley Act.
     The 10th Circuit agreed. Writing for the court, Judge Michael Murphy rejected the notion that Lockheed did not retaliate against Brown under Sarbanes-Oxley, finding her complaint “clearly amounted to a claim that Owen had converted company money to her own use.”
     “There was thus substantial evidence supporting the ALJ and board’s findings that Brown reasonably believed Owen had committed fraud and that she definitely and specifically communicated that belief to her superiors,” Murphy wrote.
     The judge found that Brown’s “working conditions became objectively intolerable,” leaving her with little choice but to quit.
     “After her complaint, Brown received lower performance ratings. A position with an identical job description to the job Brown had been performing for the previous five years was posted on Lockheed’s website,” Murphy wrote.
     Brown wanted to apply for the position but was “lambasted” by senior vice president of communications Judy Gan, with whom Owen worked closely, Murphy wrote.
     Brown claimed that Owen had called her after the job was posted and taunted her, telling her to “get her resume together,” Murphy wrote in the opinion.
     After the position was filled, Brown “lost her title, office, supervisory responsibilities” and “was made to work from home or out of the visitor’s office, which doubled as a storage room,” the judge wrote.
     “Most importantly, Brown was told she would be one of two employees considered for a layoff and kept in a constant state of uncertainty as to whether she would continue to have a job and, if so, what her job would be. That uncertainty continued when, after taking medical leave due to the stress and uncertainty regarding her job situation, she received no response to her inquiries as to whether she was laid off,” Murphy found.
     The 10th Circuit upheld a finding that Brown’s allegations contributed to her resignation.
     Just months after the close of the investigation, Owen called Brown several times to ask who was behind the probe, since the ethics complaint did not identify Brown by name, according to the 10th Circuit.
     When Brown acknowledged that she had talked to human resources, “Brown’s constructive termination – her lower performance ratings, Gan’s harsh treatment of her, and the loss of her privileges and responsibilities as Director of Communications – began,” Murphy wrote.
     The 10th Circuit remanded to the administrative law judge to re-examine a $75,000 award in back pay, medical expenses and attorney fees, and the finding that Brown should get her job back – even though her old position no longer exists.
     Judges William Holloway and Terrence O’Brien joined in the unanimous decision.

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