Dickerson v. Iteris, Inc. (agency decision, September 17, 2024)

Plain-English summary

Michael Dickerson, an experienced accounting professional, alleged that Iteris fired him for reporting financial irregularities. The Board found his appellate brief inadequate because it did not identify supported errors in the judge's decision, but it nevertheless reviewed the ruling because he was unrepresented. It held that substantial evidence supported the finding that none of Dickerson's four cited events reflected a subjectively held and objectively reasonable belief in a covered SOX violation. Iteris adopted his recommendation in one accounting dispute, another accounting-method difference was immaterial, a workplace-treatment complaint was a human-resources matter, and concerns about a colleague rested on hypothetical future problems. Because Dickerson did not establish protected activity, the Board affirmed denial of the complaint.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 49 U.S.C. § 42121; 29 C.F.R. § 1980.110(a)
• Outcome: Denial of the SOX complaint affirmed for failure to establish protected activity.
• Key point: An accounting expert's disagreement or hypothetical concern is not protected unless the employee actually and reasonably connects it to a covered SOX violation.

Full text (DOL official public release)

    U.S. Department of Labor          Administrative Review Board
                                      200 Constitution Ave. NW
                                      Washington, DC 20210-0001

    IN THE MATTER OF:


    MICHAEL DICKERSON,                            ARB CASE NO. 2023-0026

                COMPLAINANT,                      ALJ CASE NO. 2019-SOX-00009
                                                  ALJ STEVEN B. BERLIN
         v.
                                                  DATE: September 17, 2024
    ITERIS, INC.,

                RESPONDENT.

Appearances:

For the Complainant:
      Michael Dickerson; Pro Se; San Juan Capistrano, California

For the Respondent:
      Kevin D. Holden, Esq.; Jackson Lewis, P.C.; Richmond, Virginia

Before THOMPSON and ROLFE, Administrative Appeals Judges


                               DECISION AND ORDER

ROLFE, Administrative Appeals Judge:

       This complaint arises under the Sarbanes-Oxley Act (SOX or Act), as
amended, and its implementing regulations.1 Complainant Michael Dickerson
alleges that Respondent, Iteris, Inc., unlawfully terminated his employment under
the Act in retaliation for reporting financial irregularities. On March 21, 2023, ALJ
Steven Berlin issued a decision holding that Dickerson did not engage in protected
activity under the Act because he determined that Dickerson did not subjectively
believe, nor was it objectively reasonable for him to believe, that he had reported
SOX-related violations prior to his termination. He thus denied Dickerson’s claim,
and Dickerson appealed.


1       18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2024).
                                               2


      Because substantial evidence supports the ALJ’s decision, we affirm.

                                       BACKGROUND

       Iteris is a publicly traded company focusing on the application of information
and technology to solve problems in transportation and agriculture, among other
things.2 In 2014, in response to an independent auditor’s report finding that it did
not use appropriate controls for recording revenue from its consulting contracts,
Iteris began changing its processes related to evaluating and recording revenue,
including creating a Director of Revenue Recognition position to guide the transition
process.3

        In 2016, Iteris hired Dickerson as the second person to hold that position,
with the ultimate responsibility of “oversee[ing] the proper revenue recognition for
Iteris’s customer contracts.”4 Dickerson is (and was at the relevant time) a seasoned
accountant with a bachelor’s degree in business administration and accounting with
experience in both public and private accounting firms, as well as in-house
experience at large corporations, including Pacific Life Insurance Company.5

       Iteris insists it never intended Dickerson’s position to be permanent. Rather,
it claims it created the position as a stopgap measure it hoped would become
unnecessary once it implemented the missing internal revenue controls its outside
auditors identified.6

       Iteris alleges that by September 2017, enough progress had been made that
the Director position, in fact, largely became redundant.7 Facing a significant
budget shortfall, it therefore eliminated the position and separated Dickerson as a
part of an alleged company-wide effort to reorganize operations and cut unnecessary
costs. Iteris thus terminated Dickerson’s employment on February 16, 2018 -- one of
21 such layoffs made during the alleged reorganization.8

      Dickerson, conversely, maintains that Iteris did not terminate him for the
business reasons it claims, but rather (at least in part) as retaliation for his


2     Decision and Order Denying Claim (D. & O.) at 2.
3     Id. at 3-4; Iteris Brief on Appeal (Iteris Br.) at 21-25.
4     D. & O. at 5.
5     Id. at 3.
6     Iteris Br. at 22-23.
7     Id.
8     Id.; D. & O. at 2.
                                            3


reporting of SOX-related financial irregularities.9 Notably, Dickerson is
unrepresented by counsel on appeal, as he was before the ALJ.10 His briefs below
and before us are disjointed and his arguments difficult to understand.

       Nevertheless, he presented four “key events” to the ALJ that he continues to
maintain constitute protected activity under the Act: an accounting dispute where
Iteris adopted his advice; an accounting method Iteris used prior to his tenure that
he disapproved of but that he ultimately conceded was “immaterial;” an HR dispute
in which he alleges an executive harshly treated his subordinate; and his own
concern that a colleague’s alleged inexperience could eventually lead to future
violations.11

       After a four-day trial, and considering the parties’ post-hearing briefs, the
ALJ held that Dickerson’s four key events did not constitute protected activity
because he found Dickerson did not subjectively believe, nor would it have been
objectively reasonable for him to believe, that he had reported SOX violations prior
to his termination.12

       The ALJ first found that Dickerson legitimately “held himself out as an
expert on securities regulation and controls (and related accounting practices)” and
that “he was hired as an expert[.]”13 He then generally concluded the facts
established even Dickerson subjectively considered the key events “too hypothetical”
with only the “potential” to create violations for him to truly believe they were
actual violations or were likely to become violations.14 The ALJ (for similar reasons)
generally found that “others with [his] level of expertise” also would not objectively
“have concluded that a violation of a SOX-related legal requirement had occurred or
was likely to occur” from any of the events.15

Key Event 1 - Iteris adopts Dickerson’s recommendation on how to record revenue on
an incrementally-funded contract.

      In February 2017, Iteris entered into a contract with the Orange County
Transit Authority valued at a total of $5.5 million that was drafted so that the work
would proceed incrementally on a task order basis. A dispute arose over whether

9     Dickerson Brief on Appeal (Dickerson Br.) at 25.
10    D. & O. at 1.
11    Id. at 6-11.
12    Id. at 1, 20.
13    Id. at 17.
14    Id. at 14.
15    Id. at 17.
                                          4


Iteris could enter in its accounting software the value of the whole contract upfront
or whether it had to enter the value of individual task orders as they came in.16

       At the time it arose, the only executed task order was for $1.5 million.
Dickerson maintained that he could not approve an entry for the full amount of the
contract and wanted Iteris to recognize only the value of the executed task order.
Others disagreed. Iteris then held a meeting about how to record the revenue, and
in the end, the attendees agreed with Dickerson’s assessment.17

       Dickerson now characterizes the dispute as a “control environment issue.”
But the company’s vice president and controller -- despite agreeing with Dickerson
on the numbers -- testified the dispute was actually a nonissue when it arose that
became contentious only because Dickerson was overly argumentative: “[I]t was just
a very simple issue of just look at the contract; it’s incrementally-funded; it should
be $1.5 million. I think it could have been resolved in a simple 10-minute
meeting.”18

       The ALJ considered Iteris’s adoption of Dickerson’s advice “crucial” in finding
no protected activity.19 Since Iteris followed his explicit direction, the ALJ
determined Dickerson logically “had no reason to think a violation was likely to
occur.”20 He also considered any potential SEC-related violation to be entirely too
hypothetical because -- even under Dickerson’s own account of the event -- no one
approved an improper accounting practice on the contract or reasonably would be
expected to approve one in the future.21 As an expert in the field, the ALJ thus
concluded that Dickerson had neither a subjective belief a violation had occurred or
was likely to occur, nor would it have been objectively reasonable for him to hold
such beliefs.22

Key Event 2 - Dickerson identifies a past accounting practice he disapproved of but
admitted was inconsequential.

       In October 2015, five months before it hired Dickerson, Iteris signed a
contract to build and service an Interactive Voice Response System, commonly
referred to as a 511 system, with the Metropolitan Transit Commission of the San

16    D. & O. at 6.
17    Id. at 6-7.
18    Id. at 7.
19    Id. at 15.
20    Id.
21    Id.
22    Id. at 17.
                                           5


Francisco Bay area. A debate arose about the proper accounting method for the
project given the dual nature of the services it covered. After consultation with its
outside auditors, Iteris adopted a proportional performance method, which is
typically used on service contracts, given Iteris characterized the contract as
primarily concerning services rather than construction.23

       In October 2016, seven months after his hiring, Dickerson discovered a
discrepancy between the accounting methods reflected in Iteris’s financial software,
which showed the proportional performance method, and another internal
document used to record the chosen accounting treatment for the project.24 The
financial software reflected the proportional performance method, while the other
document showed construction accounting.25 Dickerson told an accountant on the
project that he thought a construction accounting method should have been used at
the outset of the project instead of the proportional performance method. At
Dickerson’s request, the project accountant then recalculated revenue using both
accounting methods as a safeguard.26

       Even Dickerson acknowledged that those results showed the distinction made
no difference: given the results under both methods were roughly the same, he told
the manager “it looks like we’re good” and thanked him for his quick turnaround.27
While Dickerson would raise the issue on at least two other occasions, both times he
again explicitly accepted Iteris’s justification for using the method stating, for
example, “it’s fine” and that the projects “were already established prior to my hire
date -- you had already made the call.”28 Ultimately, at the October 2019 hearing,
Dickerson again unequivocally confirmed that he had “instructed the project
accountant to run an analysis to see if there was a difference . . . and it was, indeed,
immaterial.”29

       The ALJ thus held Dickerson “did no more than comment on how a matter
had been handled before he arrived and state that he’d handle it differently if it
ever crossed his desk, which it never did.”30 The ALJ further noted Dickerson’s
repeated acknowledgements that the distinction was immaterial before concluding
the facts thus do not “establish by a preponderance [of the evidence] that

23    D. & O. at 8.
24    Id.
25    Id.
26    Id.
27    Id.
28    Id. at 8-9.
29    Id. at 9 (emphasis added).
30    Id. at 15.
                                          6


[Dickerson] believed a violation occurred or was likely to occur[.]”31 And he likewise
determined that “even if [they] did” that belief necessarily would not be “objectively
reasonable” under the circumstances.32

Key Event 3 - Dickerson objects to the way an executive treated Dickerson’s
subordinate.

       In August 2017, in response to an email request about accounting methods,
an Iteris vice president expressed frustration to one of Dickerson’s subordinates
about a project. Dickerson subsequently complained about the treatment to the
executive, who explained, “The tone and content of my prior email reflects a
complete and utter sense of frustration that arises from interactions on [this
project] and others.”33 Dickerson and the executive thereafter agreed on the
accounting method to use going forward, and Dickerson responded that he
“appreciate[ed] the feedback.”34 Dickerson nevertheless contacted human resources
about the incident even after their reconciliation.35

        Given the nature of the complaint, the ALJ deemed it a garden variety HR
matter and not SOX-related in any way. He accurately reasoned that nothing in the
matter “involves a rejection of [Dickerson’s] views on an accounting issue;” instead,
it is exclusively “a human resources problem.”36 And while Dickerson speculated at
the hearing that a “chain reaction” of hypothetical future events could conceivably
transform the HR issue into an accounting issue, the ALJ reasonably found such
rank speculation “no more than conjecture about a hypothetical circumstance that
never occurred.”37 He therefore rejected Dickerson’s claim that he held an
objectively reasonable belief in a violation or potential violation based on the
event.38




31    D. & O. at 15.
32    Id.
33    Id. at 10.
34    Id.
35    Id.
36    Id. at 15.
37    Id. at 16.
38    Id. at 15-16.
                                           7


Key Event 4 - Dickerson expresses concern over a colleague’s alleged inexperience.

       Iteris hired Stephen “Ziggy” Yasbek in July 2017, to provide finance and IT
consulting services.39 Yasbek, experienced with finance in publicly traded
companies, became involved with the same project Dickerson was working on,
which the company needed to complete on time in order to meet an SEC regulatory
deadline. The company repeatedly assured Dickerson that Yasbek’s role was limited
to providing simple oversight and that Dickerson remained in charge of the
technical accounting aspects of the project.40

      Yet Dickerson nevertheless complained to his supervisors that Yasbek was
taking too much of his time because he was posing questions they were already
“addressing.”41 Two months later, Dickerson complained about Yasbek’s “fluency”
with accounting concepts and said he was concerned that Yasbek was not able to
properly assess revenue recognition issues.42

       The CEO, who received both of Dickerson’s complaints, worked with human
resources and Dickerson’s supervisor in response to further clarify Yasbek’s limited
oversight role to Dickerson. Dickerson nevertheless complained about Yasbek to his
supervisors a third time in February 2018, stating: “At some point, the auditors are
going to question management’s competence. This is not the first time I’ve emailed
both of you with such concerns. If I don’t hear back from either of you -- my next
email will be to the company’s audit chair.”43 The ALJ found no evidence that
Dickerson’s supervisors responded or that Dickerson took any further action before
his termination, however.

       The ALJ thus concluded that Iteris hired Yasbek only to provide oversight
and that Dickerson unquestionably knew as much. He thus held Dickerson “did not
subjectively believe what he reported as Yasbek’s lack of fluency was likely to lead
to a violation of relevant law” but held instead that Dickerson found Yasbek’s
oversight “annoying, intrusive, and time-consuming,” and that “he wanted Yasbek
to back off.”44 Given Yasbek’s limited role, the ALJ further held an objective
“reasonable technical accounting expert” such as Dickerson should realize Yasbek’s
involvement would “not result in the failure of control or violation of a covered legal



39    D. & O. at 10.
40    Id.
41    Id.
42    Id. at 11.
43    Id.
44    Id. at 16.
                                            8


requirement.”45 Instead, he would understand Yasbek helped ensure “an accurate
and timely adoption of the new accounting standards,” which the same expert
should also recognize as further safeguarded through Iteris’s outside auditors’
review of their internal work.46

       Given that Dickerson did not meet his threshold burden to establish he
engaged in protected activity during any of his key events, the ALJ denied
Dickerson’s claim outright without reaching any of the remaining elements.47 On
appeal, Dickerson ostensibly argues that the ALJ did not correctly apply the law to
the facts, but he does not coherently support his argument by pointing to any error
the ALJ made in his decision, opting instead to essentially resubmit the post-
hearing brief he filed below.48

       Iteris counters that Dickerson has thus failed to sufficiently brief his appeal
and that it should be rejected on that basis alone. Regardless, it further contends
that substantial evidence supports the ALJ’s findings on protected activity, and
that, even if it did not, the company still established below by clear and convincing
evidence that it would have legitimately terminated Dickerson’s employment in the
absence of protected activity, preserving an argument the ALJ did not have to reach
because of his dispositive finding on protected activity.49

                       JURISDICTION AND STANDARD OF REVIEW

      The Secretary of Labor has delegated authority to the Administrative Review
Board to review ALJ decisions under SOX.50 The ARB reviews questions of law de
novo but is bound by the ALJ’s factual determinations that are supported by
substantial evidence.51 “Substantial evidence” is “such relevant evidence as a




45    D. & O. at 19.
46    Id.
47    Id. at 20.
48    See generally Dickerson Br. at 2.
49    Iteris Br. at 4-5, 21-24.
50     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. 13,186 (Mar. 6, 2020).
51     Cerny v. Triumph Aerostructures-Vought Aircraft Div., ARB No. 2019-0025, ALJ No.
2016-AIR-00003, slip op. at 5 (ARB Oct. 31, 2019) (citing 29 C.F.R. § 1979.110(b) (2022));
see Leviege v. Vodafone US, Inc., ARB No. 2019-0058, ALJ No. 2016-SOX-00001, slip op. at
3 (ARB Mar. 19, 2021) (citations omitted).
                                               9


reasonable mind might accept as adequate to support a conclusion.”52 Because an
ALJ observes all witnesses throughout a hearing, the Board will defer to an ALJ’s
credibility determinations unless they are “inherently incredible or patently
unreasonable.”53

                                        DISCUSSION

1. Dickerson has failed to meet his burden to adequately brief his appeal.

       As a threshold matter, a petition for the Board’s review must identify “the
legal conclusions or orders to which [a petitioner] object[s].”54 Further, once the
Board accepts the appeal, the parties in their briefs must establish the factual basis
of their claims and defenses with citations to the record and relevant legal authority
in support of the relief they request. Where a party completely fails to meet these
minimum briefing requirements, and instead relies upon bare conclusions, the party
forfeits its position on appeal.55 And while the Board enforces relaxed briefing
standards for unrepresented litigants such as Dickerson, those standards are not
nonexistent: “Despite the fact that pro se filings are construed liberally, the Board
must be able to discern cogent arguments[.]”56

       As Iteris points out, Dickerson has submitted a disjointed brief, little of which
appears to relate to the ALJ’s decision, and most of which appears to be entirely
identical to his original post-hearing brief. Dickerson does not cogently support any

52     Cerny, ARB No. 2019-0025, slip op. at 5 (quoting Biestek v. Berryhill, 587 U.S. 97,
103 (2019) (quotation marks and additional citations omitted).
53      Mizusawa v. United Parcel Serv., ARB No. 2011-0009, ALJ No. 2010-AIR-00011, slip
op. at 3 (ARB June 15, 2012), aff’d No. 12-9563 (10th Cir. 2013) (quoting Jeter v. Avior
Tech. Ops., Inc., ARB No. 2006-0035, ALJ No. 2004-AIR-00030, slip op. at 13 (ARB Feb. 29,
2008)); see also Negron v. Vieques Air Link, Inc., ARB No. 2004-0021, ALJ No. 2003-AIR-
00010, slip op. at 5 (ARB Dec. 30, 2004), aff’d No. 05-1278 (1st Cir. 2006).
54     29 C.F.R. § 1980.110(a).
55      Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015, slip op.
at 8 (ARB Aug. 22, 2022); Pajany v. Capgemini, Inc., ARB No. 2019-0071, ALJ No. 2019-
LCA-00015, slip op. at 3 (ARB Jan. 25, 2021); Hasan v. Sargent & Lundy, ARB No. 2005-
0099, ALJ No. 2002-ERA-00032, slip op. at 8-9, 9 n.39 (ARB Aug. 31, 2007) (quoting Cruz v.
Am. Airlines, Inc., 356 F.3d 320, 333-34 (D.C. Cir. 2004) (citations omitted)) (“Although we
may discern a hint of such an argument after a close reading of plaintiff’s reply brief (albeit
not a hint supported by both citations to authority and argument, as is required by Federal
Rule[s] of Appellate Procedure 28(a)(9)), plaintiff was required to present, argue, and
support this claim in his opening brief for us to consider it. We are not ‘self-directed boards
of legal inquiry and research, but essentially . . . arbiters of legal questions presented and
argued by the parties.”’).
56     Hasan, ARB No. 2005-0099, slip op. at 8 (citations omitted).
                                              10


assertions of error with citation to record evidence or relevant legal authority
regarding the ALJ’s dispositive protected activity finding. Dickerson’s pleadings
thus are per se insufficient to support his burden to demonstrate that the ALJ
erred. Nevertheless, given his unrepresented status, the Board in this case will
independently review the ALJ’s decision to determine whether it is supported by
substantial evidence and accords with the law.

     For the following reasons, we find that it is and that it does.

2. Substantial evidence supports the ALJ’s decision Dickerson did not
   engage in protected activity.

   Section 806 of SOX protects employees who provide information to a covered
employer 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 SEC (including
regulations governing financial statements), or any provision of Federal law
relating to fraud against shareholders.57

       To prevail under the Act’s shifting burdens, a complainant must first
establish by a preponderance of the evidence that: (1) they engaged in activity or
conduct that SOX protects; (2) the respondent took unfavorable personnel action
against them; and (3) the protected activity was a contributing factor in the adverse
personnel action.58 Failure to establish any of these elements by a preponderance of
the evidence ends the whistleblowing inquiry without the need to go further.59

       This appeal thus concerns only the first element relating to protected activity
that the ALJ decided against Dickerson that required him to first establish a
subjective and objective belief of a violation of a SOX-related rule or regulation.




57    18 U.S.C. § 1514A; see also 17 C.F.R. Part 210 (2005), Form and Content of the
Requirements for Financial Statements.
58      49 U.S.C. § 42121; see also 18 U.S.C. § 1514A(b)(2)(C).
59      Turin v. Maiden Holdings, Ltd., ARB No. 2021-0066, ALJ No. 2010-SOX-00018, slip
op. at 9 (ARB June 29, 2023) (rejecting complainant’s claim on failure to establish protected
activity alone because “[b]ecause a complainant’s failure to prove any one of the
aforementioned three elements necessarily requires dismissal of her whistleblower claim.”)
(citation omitted).
                                             11


       A.     The ALJ rationally determined Dickerson did not establish
              that he held either a subjective or objectively reasonable belief
              a SOX-related violation had occurred or was likely to occur.

      As the ALJ recognized, in order to establish protected activity, a complainant
must establish a “reasonable belief” that they disclosed illegal activity, which has
both a subjective and objective component.60 To satisfy the subjective component,
the employee must actually have believed that the conduct constituted a violation of
relevant law or was likely to.61 An objectively reasonable belief, in turn, is measured
“based on the knowledge available to a reasonable person in the same factual
circumstances with the same training and experience as the aggrieved employee.”62

       As a threshold matter, we agree with the ALJ’s determination that
Dickerson, a sophisticated professional with extensive accounting knowledge,
qualified as an expert with respect to the reasonable belief standard. Given
Dickerson’s education and experience, the ALJ aptly reasoned Dickerson
appropriately held himself out as an expert on securities regulation and controls
and that he was ultimately hired as an expert. Dickerson further testified at length
regarding his background and knowledge about key financial controls, financial
statements, and revenue recognition.63 That testimony logically supports the ALJ’s
conclusion that Dickerson was an expert on these matters. Moreover, Dickerson on
appeal does not dispute the finding. We therefore affirm the ALJ’s finding as both
supported by substantial evidence and unchallenged on appeal.

       Substantial evidence also supports the ALJ’s overarching conclusion that
even Dickerson considered his key events too “hypothetical” for him to truly believe
they were actual violations or were likely to become violations. Critically, Dickerson
has never coherently discussed any SEC-related rule or regulation in detailing any
of his key events, as would be expected of an accounting expert in these
circumstances. Instead, as the ALJ correctly held, “nothing in the record suggests
that Complainant brought to Iteris’ attention any completed or ongoing conduct




60     Sylvester v. Paraxel Int’l, LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039,
-00042, slip op. at 14 (ARB May 25, 2011) (citing Melendez v. Exxon Chems., ARB No. 1996-
0051, ALJ No. 1993-ERA-00006, slip op. at 28 (ARB July 14, 2000)). The ALJ noted in his
decision that while the Ninth Circuit had not yet revisited the SOX-protected activity issue,
he concluded that the Ninth Circuit would apply Sylvester. D. & O. at 13 n.14.
61     Sylvester, ARB No. 2007-0123, slip op. at 14 (citing Harp v. Charter Commc’ns, 558
F.3d 722, 723 (7th Cir. 2009)).
62     Sylvester, ARB No. 2007-0123, slip op. at 15 (citing Harp, 558 F.3d at 723).
63     D. & O. at 17.
                                             12


that he believed violated any of the statutes, regulations, rules, or other law listed
in the Act.”64

       And that fundamental omission is dispositive. To satisfy the subjective
component of the “reasonable belief” test, the employee must actually have believed
that the conduct he complained of constituted a violation of the six enumerated
categories of law under Section 806; general assertions of wrongdoing not tied to the
Section 806 categories are not protected.65 Given Dickerson’s failure to identify
anything beyond the most vague (and at times incomprehensible) allusions to
highly technical accounting practices in discussing his key events, the ALJ
permissibly concluded that he could not have truly believed he reported either a
past violation or an imminent future violation.66

       Similarly, it inherently follows that another objective expert in the same
circumstances also would not perceive either a past or future violation of an SEC
rule or regulation. Both findings -- which are well within the ALJ’s discretion as the
factfinder -- are independently fatal to Dickerson’s complaint.67 Regardless,
substantial evidence likewise supports the ALJ’s determinations regarding each of
the individual key events.

       It remains undisputed that Iteris followed Dickerson’s recommended course
of action during his first event.68 The ALJ found that fact material, concluding it
necessarily follows that “[n]o reasonable person with [Dickerson’s] training and
experience, if presented with the facts here, would think anything more than that
accounting professionals and executives discussed an issue and came to a
reasonable judgment that, if implemented, would not violate any of the statutes,
regulations, rules, or other law to which the SOX refers.”69 We agree.

       Indeed, even Dickerson acknowledged that the event itself did not violate a
SOX-related rule or regulation, only that it revealed the “potential” for Iteris to
change course in the future and that such a hypothetical future course could
conceivably lead to a violation. That plainly is not enough: while a whistleblowing

64     Id. at 14.
65     Leviege, ARB No. 2019-0058, slip op. at 4 (citing Welch v. Chao, 536 F.3d 269, 276-
77, 279 (4th Cir. 2008); Day v. Staples, Inc., 555 F.3d 42, 55 (1st Cir. 2009)).
66     See Sylvester, ARB No. 2007-0123, slip op. at 14 (citing Harp, 558 F.3d at 723).
67    See Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at
9 (ARB Jan. 17, 2023) (affirming the ALJ’s finding that complainant failed to establish that
he engaged in protected activity on the complainant’s failure to establish an objectively
reasonable belief alone).
68     D. & O. at 15.
69     Id. at 17.
                                             13


complaint may concern a future violation that an employee reasonably believes is
likely to happen, a complainant must do more than “speculate, argue theoretical
scenarios, or share mere beliefs that some corporate activity is wrong and may
theoretically affect the corporation’s financial statements and its shareholders.”70
Dickerson’s first theory (admittedly) is pure speculation anchored to a foundation of
overtly hypothetical future events. The ALJ thus acted well within his discretion in
finding Dickerson did not actually hold an objectively reasonable belief in a
violation under the applicable law concerning event one.71 Substantial evidence
supports the ALJ’s finding.

       Similarly, Dickerson’s testimony (when taken at its word) unequivocally
establishes he did not believe the second event even reached the point of a
theoretical violation. While he may have sincerely preferred another accounting
method, he repeatedly and indisputably explained his preferred method would not
have led to a different outcome and the prior method caused no harm. The ALJ thus
accurately concluded that Dickerson “did nothing more than comment on how a
matter had been handled before he arrived” and therefore did not subjectively
believe that he was reporting a current or future SOX-protected activity.72 We again
agree. To the extent Dickerson intends to imply the practice could hypothetically
lead to some sort of violation in different circumstances, the argument would suffer
the same fatal flaws as his first event.

       We further agree that event three was a garden variety HR issue and not
something SOX is designed to protect. The dispute, at its core, simply concerned
how Dickerson’s employee was treated by a superior. Notably, the plain text of SOX
limits the Act’s reach to the reporting of fraud or the violation of “any rule or
regulation of the Securities and Exchange Commission, or any provision of Federal
law relating to fraud against shareholders.”73 SOX thus is not a general remedy for
simple employment grievances unrelated to corporate fraud, as the Board
repeatedly has held with similar whistleblower statutes it administers.74 Indeed,
the ALJ correctly noted that Dickerson took his complaints to human resources,
establishing even Dickerson definitively knew this was not an issue with Iteris’s

70     Leviege, ARB No. 2019-0058, slip op. at 4 (citing Livingston v. Wyeth, Inc., 520 F.3d
344, 355 (4th Cir. 2008)); see also Sylvester, ARB No. 2007-0123, slip op. at 16
(“A whistleblower complaint concerning a violation about to be committed is protected as
long as the employee reasonably believes that the violation is likely to happen.”).
71     Leviege, ARB No. 2019-0058, slip op. at 4.
72     D. & O. at 15.
73     18 U.S.C. § 1514A.
74      See e.g. Forrand v. Fedex Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016,
slip op. at 3 n.8 (ARB Jan. 4, 2021) (AIR21 “is not a general remedy for employment
grievances unrelated to air safety.”).
                                          14


financial statements or SEC compliance. So too would any objective accounting
expert with his experience. Substantial evidence thus supports the ALJ’s finding on
event three.

      Finally, we affirm the ALJ on event four for similar reasons. It was well
within the ALJ’s wide discretion in evaluating witness testimony to determine that
Dickerson “did not subjectively believe what he reported as Yasbek’s lack of fluency
was likely to lead to a violation of relevant law” but to find instead that Dickerson
found Yasbek’s oversight “annoying, intrusive, and time-consuming.”75 Given the
ALJ’s credibility determination is not “patently unreasonable” (when put in the
context of this case) we affirm his credibility finding.76 And whatever one thinks of
the burden of putting up with an annoying co-worker, it is not something covered by
the umbrella of SOX. Nor are hypothetical future violations based on speculation
regarding that employee’s alleged incompetency. Substantial evidence thus
supports the ALJ’s protected activity determination regarding event four.

                                    CONCLUSION

      Because Dickerson did not establish that he engaged in protected activity, we
affirm the ALJ’s decision and order.

      SO ORDERED.




                                        ____________________________________
                                        JONATHAN ROLFE
                                        Administrative Appeals Judge




                                        ____________________________________
                                        ANGELA W. THOMPSON
                                        Administrative Appeals Judge




75    D. & O. at 16.
76    Mizusawa, ARB No. 2011-0009, slip op. at 3.