Petition for Review (appeal) to Administrative Review Board re: SOX 806 whistleblower retaliation...

7/26/2019 Petition for Review (appeal) to Administrative Review Board re: SOX 806 whistleblower retaliation complaint again…

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UNITED STATES DEPARTMENT OF LABORADMINISTRATIVE REVIEW BOARD

In the Matter of:

[redacted], ALJ Case No.: 2016-SOX-00024

Complainant,

-against-

NTT Data, Inc., Credit Suisse

Respondents.

PETITION FOR REVIEW

Complainant, [redacted], in accordance with 29 C.F.R. § 1980.110(a), hereby submits a

Petition for Review of the attached order, dated May 27, 2016, issued by Administrative Law

Judge Adele Odegard of the United States Department of Labor as follows:

Material Background Information that Applies to this Petition for Review

The following table lists abbreviations for how I will refer to various entities and other

things throughout the remainder of this Petition for Review:

# Name Abbreviation

1 The Wage and Hour Division of the United StatesDepartment of Labor

WHD

2 The Occupational Safety Health Administration of the

United States Department of Labor

OSHA

3 NTT Data, Inc. NTT

4 Credit Suisse CS

5 [redacted] [redacted]

6 Sarbanes-Oxley Act SOX

7 Fair Labor Standards Act FLSA8 Freedom of Information Act FOIA

9 The contract NTT issued to [redacted] The Contract

10 The complaints I reported to WHD on October 10, 2012 My WHD complaint



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Throughout this Petition for Review, the Wage and Hour Division of the United States

Department of Labor will hereinafter be referred to as “WHD.”The Contract was issued to

[redacted] on January 13, 2012 by a subsidiary of NTT named M.I.S.I. Co., Ltd. that NTT fully

acquired. On March 19, 2001, the Inspector General Office of Audit of the United States

Department of Labor issued a report entitled “The Wage and Hour Division’s Administration of

Special Minimum Wages for Workers with Disabilities” that was assigned the audit report

number of 05-01-002-04-420. That report is presently available from that agency’s web site at

the following Internet address:

http://www.oig.dol.gov/public/reports/oa/2001/05-01-002-04-420.pdf

The last sentence shown in the following excerpt that seems to be from page 9 of that report, but

is actually from page 16 of that report, clearly indicates that WHD has a track record of

inaccurately entering information into databases it uses:

Eight years after that report was issued, the United States Government Accountability

Office released a report on June 23, 2009 that was assigned the identification code of GAO-09-

629 and is entitled, “Wage and Hour Division Needs Improved Investigative Processes and

Ability to Suspend Statute of Limitations to Better Protect Workers Against Wage Theft.” That

report is presently available from that agency’s web site at the following Internet address:

http://www.gao.gov/new.items/d09629.pdf

http://www.gao.gov/new.items/d09629.pdf

http://www.oig.dol.gov/public/reports/oa/2001/05-01-002-04-420.pdf



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The following excerpt from page 22 of that report clearly indicates that the United States

Government Accountability Office also determined from an audit it conducted of WHD’s

practices that WHD has a track record of inaccurately recording information:

While working at CS between January of 2012 and April 27, 2012 as a result of a

contract NTT issued to [redacted] for the purpose of having me or a different employee of

[redacted] perform production support work to CS on an outsourcing basis through NTT, I

regularly completed timesheets for the hours that I worked at CS, then submitted those

timesheets to Sheldon Samlal of CS and Pierre Newman of CS for review and approval. Upon

having those timesheets approved, I would then send those timesheets with an invoice to NTT

for the purpose of having NTT issue payments to [redacted] for the hours that I worked at CS.

The two timesheets shown on the following page that were sent by me via e-mail to NTT on

February 23, 2012 at 7:54 am from the e-mail address of !"#$%&'#$( are examples of timesheets

from that period that confirm I worked more than 40 hours per week at CS and constitute time

records that CS approved for the hours I worked at CS in 2012 that were being kept by me, CS,

and NTT in 2012 prior to, on, and after October 10, 2012, when I filed complaints against

Respondents that were subject to both the FLSA and SOX:



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The following is the second page of WHD’s records that reflect how it recorded my

WHD complaint, the actions it took in regards to my complaint, and confirms on its right side

beneath the “Payroll Information” heading that it recorded that time records were not kept for the

hours that I worked at CS in 2012:



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I received WHD’s records of how it recorded my WHD complaint on October 23, 2015

via e-mail from Ellenjayne R. MacPherson of the United States Department of Labor in response

to a FOIA request I submitted on October 1, 2015 for those records by sending an e-mail

message to the e-mail address of [email protected]. In addition to receiving WHD’s records

on October 23, 2015 of my WHD complaint from Ms. MacPherson, I also received the following

a letter from her on that date. The last sentence that appears in the following excerpt from the

first page of that letter indicates that no investigation was conducted in regards to my WHD

complaint. No information in that letter states why WHD did not investigate my WHD

complaint. In addition, the statements expressed in the first two sentences of that letter conflict

with one another:



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On April 30, 2015 and after CS pled guilty to a felony, I sent a letter via certified mail

that was assigned the certified mail tracking number of 7014015000011583 and addressed to the

current Secretary of the United States Department of Labor to strongly urge him to deny CS an

exemption it sought from his agency that would enable it to continue to manage pension funds.

In that letter, I also strongly urged him to conduct a thorough audit of the business practices of

Respondents to determine whether they misclassified people as independent contractors and

subject Respondents to the harshest penalties permissible in the event that a determination is

reached that Respondents had done so. After sending that letter and in response to it, I received a

letter dated December 1, 2015 from Derrick Witherspoon of the United States Department of

Labor. A copy of Mr. Witherspoon’s letter to me appears on the following two pages. Nothing in

his letter acknowledges my WHD complaint nor states why WHD did not investigate my WHD

complaint.



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The following are a set of excerpts from the contract NTT issued to [redacted] that

describe how NTT would be required to issue payments to [redacted] for the work I performed at

CS in 2012, whether NTT and CS could control, supervise, discipline, fire, and set the hours and

working conditions of [redacted]’s employees:

The provision shown above appears on page 1 of the Contract and confirms that I was to

be paid an hourly rate for the work I performed at CS in 2012.



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The following is an excerpt from the “Exhibit A” that is referred to in the Contract and

confirms that I was to be paid an hourly rate of $59.75 that was to be calculated from a daily rate

of $478 for the work I performed at CS in 2012:

The following provision appears on page 2 of the Contract and confirms that neither NTT

nor CS was authorized to control, fire, supervise, and set the hours and working conditions of

[redacted]’s employees:

The following provision appears on page 3 of the Contract and confirms that NTT

claimed in the Contract that I would work as an independent contractor while working at CS in

2012:



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The following provision appears on page 2 of the Contract and confirms that NTT was

required to notify [redacted] at least 2 weeks before making a decision on its own to terminate

the Contract:

While working at CS between January of 2012 and April 27, 2012, I made several valid

complaints to NTT and CS about practices of NTT and CS that constituted breaches of the

Contract. The following e-mail messages that I sent to and received from Ed Epstein, Keith

Backer, and Sharin Newman of NTT in April of 2012 concern requests I submitted to NTT to

modify the Contract in a way that would include penalties that would take effect in the event that

NTT were to continue to breach the Contract, a complaint I reported to Mr. Backer that CS was

improperly setting the number of hours that I worked in breach of the Contract, and a complaint

that I shared with Ms. Newman that concerned the fact that she had fraudulently misrepresented

the terms of the Contract in an e-mail message she sent to me on April 25, 2012:



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The significance of the three e-mail messages from April 10, 2012 that were just shown

above and were between Ed Epstein of NTT and I is that those e-mail messages confirm that I

sought to have penalties added to the Contract and I clearly expressed to Mr. Epstein on April



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10, 2012 that I was considering having legal action commenced against NTT in the event that

NTT or CS were to continue breaching the Contract.

By sending the e-mail message just shown above to Keith Backer of NTT on April 23,

2012, my intent at that time was to discreetly make NTT aware of the fact that it had fraudulently

misrepresented the terms of the contract it issued to [redacted] because one of those terms clearly

indicated that neither NTT nor CS would set the working hours of [redacted]’s employees and to

compel NTT to act immediately and decisively to enable me to independently determine the

number of hours I worked at CS per day without anyone else’s interference.



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When I expressed the complaint on April 25, 2012 at 11:09 am to Ms. Newman that

appears in the first of the two e-mail messages just shown above, I discreetly suggested that she

had fraudulently misrepresented the terms of the Contract in her remarks that appear in the

second e-mail message just shown above. By making a fraudulent misrepresentation in an e-mail

message she sent to me, I firmly believed that she and NTT had committed wire fraud and I

clearly sought to gather additional evidence in writing from NTT that may constitute additional

acts of fraud by it.

Both while I was making valid complaints to NTT on April 10, 2012 and making my

WHD complaint, NTT concealed from me that NTT was actively conspiring to directly fire me

from my job at CS in 2012 in flagrant violation of the Contract. It was not until after I made my

WHD complaint that I discovered this fact and the fact that NTT executed its conspiracy to



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directly terminate me on April 27, 2012. The following set of e-mail messages that were sent

between Mr. Epstein and Ms. Newman on April 10, 2012 discuss how they conspired to

terminate me, confirm that Ms. Newman fraudulently misrepresented the terms of the Contract to

Mr. Epstein, indicate that my manager at CS loved me and that I hadn’t bashed NTT in any way,

and confirm that NTT directly terminated my job at CS without CS having asked NTT to do so:



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With regards to the last e-mail message shown above, Diana Cousins was an employee of

CS on April 27, 2012.

As I stated earlier in this Petition for Review, I also made complaints to CS against NTT

while I worked at CS in 2012. Two of the complaints that I reported to CS during that period

concerned the fact that NTT had repeatedly breached the Contract by not issuing payments to

[redacted] by deadlines NTT established for having those payments made and the fact that NTT



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was not paying me overtime pay for the overtime work CS consistently required me to perform

and caused me to average 50-hour workweeks while I worked at CS in 2012. While making

those verbal complaints to Sheldon Samlal of CS, I specifically asked him if he could find out if

there was a way I could continue to work at CS through one of CS’ other suppliers instead of

continuing to work there through NTT.

After NTT terminated my job on April 27, 2012 without giving me or [redacted] any

advance notice in violation of the Contract, I sent a letter to Pierre Schreiber of CS to file a

whistleblower complaint against both NTT and CS in accordance with CS’ written whistleblower

policy. A copy of that letter appears on the following two pages:



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In addition, after filing my SOX complaint with Achieng Warambo of OSHA against

Respondents on October 29, 2015, I sent the following e-mail message to Ms. Warambo on

November 11, 2015 to inform her about a Memorandum of Understanding agreement that has



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existed between OSHA and WHD for the purpose of referring complaints between those

agencies when appropriate:

From: [redacted]

Subject: Re: Referral agreement between OSHA and Wage & Hour Division of the Departmentof LaborDate: November 11, 2015 at 10:48:07 AM ESTTo: "Warambo, Achieng - OSHA" <[email protected]>

Dear Ms. Warambo,

While conducting additional research, I came across the following web page on OSHA’s website that seems to indicate that there has been a formal agreement in place since at least 1991 thatwould cause complaints that were filed with various divisions of the United States Department ofLabor to be referred to other divisions of the United States Department of Labor:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=1664

In regards to this and if this is indeed the case, then it appears that the complaint that I filed withthe United States Department of Labor on or about October 10, 2012 should have been referredto OSHA’s division that handles whistleblower retaliation complaints that are submitted and are based upon fraud committed by an employer.

Can you confirm that such a referral program was in place in 2012 that should have caused such

a complaint to have been referred to OSHA?

Regards,

[redacted]

Furthermore, after filing my SOX complaint with OSHA, OSHA failed to issue written

preliminary findings about my complaint that it was required to issue within 60 days from the

date I filed that complaint with it. In addition, when OSHA issued its preliminary findings on

February 11, 2016, it sent those findings to me at a former address of mine in spite of the fact

that I had provided OSHA with the appropriate mailing address long before it issued those

findings. Moreover, after Administrative Law Judge Adele Odegard directed me to provide her





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with the OSHA’s records of my SOX complaint against Respondents, Terri M. Wigger of OSHA

sent me a CD-Rom disk with a letter dated April 1, 2016 in response to a Freedom of

Information Act request I submitted to OSHA on March 24, 2016 for its records of the SOX

complaint I reported to it. However, the CD-Rom disk OSHA sent to me on April 1, 2016

contains 20 pages of entirely confidential information about someone named

and constitutes a violation by OSHA of the Privacy Act of 1974 at Ms. ’s expense. The

following is an excerpt from one of the 20 pages of entirely confidential documents about Ms.

I received from OSHA on April 1, 2016 and used immediately strictly to responsibly

inform Ms. about this fact:



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Findings Expressed Within the Attached Order, Dated May 27, 2016, Issued by Judge

Odegard to Which I Object:

A. Judge Odegard’s assertion expressed within the second paragraph of the first page of her

May 27, 2016 Order that both Respondents eliminated my job at CS on April 27, 2012.

Contrary to Judge Odegard’s assertion in regards to this point, the following statement

appears in the second paragraph shown on the first page of the letter dated February 11, 2016

that I received from OSHA:

“Respondent eliminated Complainant’s position on April 27, 2012.”

Although the statement above does not identify which of the Respondents “eliminated

Complainant’s position on April 27, 2012,” it nonetheless indicates that only one of the

Respondents did so.

B. Judge Odegard’s assertions expressed throughout her May 27, 2016 Order that I did not

report claims against Respondents on October 10, 2012 and within 180 days of the adverse

action that occurred on April 27, 2012 to WHD that are identical to claims I reported to

OSHA on October 29, 2015 while filing a complaint with OSHA against Respondents

pursuant to SOX and 18 U.S.C. § 1514A.

C. Judge Odegard’s assertion that appears within the footnote section on page 3 of her May 27,

2016 Order that mischaracterized my need to secure legal counsel as something that I have

felt has been a debilitating illness or injury. Contrary to her assertion, the following set of

factors have been the primary debilitating injury I incurred and from which additional

debilitating injuries grew:



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1. The willful and unlawful refusal by NTT to issue all payments it was required to

make to [redacted] for all of the regular hours and overtime hours I worked at CS.

2. NTT’s termination of my job at CS in New York City in 2012, and

3. NTT’s willful and unlawful refusal to issue a severance payment to [redacted]

covering a ten-day period in lieu of NTT’s willful and unlawful decision to violate its

contractual obligation to [redacted] to provide [redacted] with at least ten days of

prior notice before it could terminate its contract with [redacted].

D. Judge Odegard’s glaring omission within the table that appears on page 5 of her May 27,

2016 Order of the material fact that within the letter dated May 7, 2012 that I sent to Pierre

Schreiber of CS, I made the following statements to allege that NTT had committed

retaliation and fraud against me:

1. “I am sending you this letter to formally file a grievance with Credit Suisse on the basis of having been retaliated against by unknown members of your firm and arecruiting firm that your firm does business with.”

2. “The retaliation I was subjected to wrongfully terminated a 12-month contract on

April 27, 2012 that I was issued in January 2012 to work at Credit Suisse in NewYork on an I.T. support team for the Fixed Income division that is managed bySheldon Samlal. I have enclosed a copy of that contract with this letter for yourreview.”

3. “Furthermore, though nothing that was written into my contract nor expressed to meverbally prior to starting my contract at Credit Suisse in New York City served toinform me that I would be asked to work an hour longer every day than the permanentemployees of Credit Suisse that were on my same team and performing roughlyidentical job functions, the first time I tried to leave the office at the end of the day atthe same time as a colleague on the same team that was a permanent employee ofCredit Suisse and began his shift that day at the same time as me, Mr. Samlal told methat I would have to work an hour longer than the firm’s permanent employees andwithout explaining why.”

E. Judge Odegard’s assertion that I “presented a parallel argument” that was ostensibly raised in

Jones v. First Horizon Nat’l Corp., ARB No. 09-005, ALJ No. 2008-SOX-060 (ARB Sept.



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30, 2010). Her assertion in regards to this appears in the second complete paragraph shown

on page 6 of her May 27, 2016 Order. Contrary to her assertion, it's not parallel because the

complainant she compares me to was represented by an attorney, whereas I have not been

represented by an attorney. In addition, though Judge Odegard expressed the following

additional claims within that same paragraph, those claims are without merit because there is

no reason to believe from the remarks Judge Odegard made about Jones v. First Horizon

Nat’l Corp. that an official Memorandum of Understanding existed between the agencies that

matter concerned:

“However, Jones very clearly stands for the proposition that a complainant cannot rely on

an agency’s failure to inform the complainant of his right to file under OSHA to justify

equitable tolling. Similarly, the Complainant here cannot rely on such lapses by these

three agencies to toll his claims as they relate to SOX.”

As I somewhat discussed between pages 19 and 20 in this Petition for Review, a

memorandum of understanding agreement has existed since 1990 between OSHA and WHD

for the purpose of exchanging information and referring complaints between those agencies.

The following report from OSHA’s web site confirms this:

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=235&p_table=MOU

F. Judge Odegard’s assertion that the letter dated December 1, 2015 that I received from

Derrick Witherspoon of WHD appeared to address my overtime wage complaint and her

utterly erroneous presumption that Mr. Witherspoon’s letter was in response to my WHD

complaint. Judge Odegard’s assertion and presumption in regards to this appear in the third

complete paragraph shown on page 6 of her May 27, 2016 Order. Her assertion and

presumption are clearly proven false by the copy of the letter from Mr. Witherspoon that

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=235&p_table=MOU



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appears on page 8 of this Petition for Review. At this juncture in this Petition for Review, I

believe that it is imperative to keep in mind how Judge Odegard’s remarks in her May 27,

2016 Order clearly confirm she has exhibited an inexcusable lack of attention to details and

made baseless assumptions.

G. Judge Odegard’s assertion that appears on page 7 and in paragraph 3 of her May 27, 2016

Order that WHD didn't actively deceive me into believing that the only way to pursue my

SOX claim was through a private action because I didn't invoke the SOX whistleblower

provision in my WHD complaint in the first place. It's clear that Judge Odegard didn't

consider the following strong circumstantial evidence that it is reasonable to believe would

lead an independent and impartial observer to conclude that I made complaints to WHD on

October 10, 2012 that included claims about wire fraud and retaliation by NTT:

1. The following e-mail message Pierre Newman of CS sent to me on February 21, 2012

at 6:54 pm and contains a statement constituting an attempt by CS to exercise control

and supervision over me in breach of the Contract.



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2. The e-mail message I sent to Keith Backer of NTT on April 23, 2012 at 9:56 am that

is shown and discussed on page 13 of this Petition for Review.

3. The second e-mail message shown on page 14 of this Petition for Review and was

sent to me by Sharin Newman of NTT.

4. The first e-mail message shown on page 14 of this Petition for Review and was sent

by me to Sharin Newman of NTT.

5. A telephone call that I had with Ed Epstein of NTT on April 27, 2012 in which he

fraudulently claimed that CS had directed NTT to terminate my job at CS.

6.

The letter dated May 7, 2012 that I sent to Pierre Schreiber of CS that appears on

pages 18 and 19 of this Petition for Review and effectively confirmed for all practical

intents and purposes that NTT committed fraud by having claimed in that contract

that neither it nor CS would control the number of hours [redacted]’s employees

worked.

It's equally clear that Judge Odegard didn't consider the fact that the complaint that I filed

with the Civil Court of the City of New York on November 21, 2102 to commence a lawsuit

against NTT clearly indicated that the grounds for the lawsuit consisted of NTT’s failure to

pay wages and NTT’s breach of contract. This point is significant because breach of contract

claims are closely intertwined with fraud. For this reason, it would be entirely without merit

to believe that I hadn’t expressed to a representative of WHD I met with on October 10, 2012

that NTT had breached its contract with [redacted] and committed fraud in the process.

H. Judge Odegard’s assertion that I “did not provide any correspondence from the New York

State Department of Labor or the NLRB indicating they provided similar advice.” This

assertion by her appears next to footnote number 6 at the bottom of page 7 of her May 27,



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2016 Order. Since I visited the offices of the New York State Department of Labor and the

NLRB in New York City in 2012 and had face-to-face conversations with their

representatives about NTT and CS instead of engaging in correspondence with them, there

understandably wasn’t any correspondence between us. Instead, when I met with those

agencies, they informed me that they could not help me.

I. Judge Odegard’s assertion that “the Memorandum of Understanding is not included in the

record, even though the Complainant referenced it in his Initial Statement.” This assertion by

Judge Odegard appears in the footnote section shown at the bottom of page 7 of her May 27,

2012 Order. Based upon the e-mail message that I sent to Ms. Warambo of OSHA on

November 11, 2015 and included on page 20 of this Petition for Review, Judge Odegard’s

assertion should be false in regards to this point. The fact that the following e-mail message I

sent to Ms. Warambo of OSHA on November 11, 2015 was not included in the records

OSHA provided to me in response to the Freedom of Information Act request I submitted to

OSHA on March 24, 2016 at the behest of Judge Odegard for all of OSHA’s records

pertaining to the SOX complaint that I filed with OSHA against Respondents strongly

suggests that OSHA negligently does not record all pertinent information that is reported to it

by complainants.

J. Judge Odegard’s assertion that my complaint to WHD on October 10, 2012 didn't implicate

the SOX whistleblower provision. This assertion by her appears in paragraph 3 of page 7 of

her May 27, 2016 Order. Since all of the following statements are entirely true and because

of parts of the foregoing discussion, it's clear that I gave WHD sufficient information on

October 10, 2012 about wire fraud and retaliation by NTT that implicate the SOX

whistleblower provision:



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1. The information that WHD recorded in its WHISARD system about the complaints

that I reported to WHD against Respondents confirms that I complained to WHD on

October 10, 2012 that NTT hadn't paid me overtime I was owed.

2. NTT’s contract with [redacted] required NTT to pay [redacted] for the hours I worked

at CS in 2012 according to an hourly rate that was to be calculated from a daily rate

of $478 that is shown in the Exhibit A that was included with that contract.

3. Keith Backer of NTT sent me that contract in an e-mail message on January 17, 2012.

4. As I mentioned earlier in this Petition for Review, Sharin Newman made the

following fraudulent statement on behalf of NTT in the e-mail message that she sent

to me on April 25, 2012 at 11:05 am:

“What do you mean by pro-day? That is not written into the contract that I was

issued.”

5. Fraud that is committed through the transmission of e-mail messages constitutes wire

fraud.

K.

Judge Odegard’s assertion that my complaint to WHD on October 10, 2012 discussed a

failure by Respondents to compensate me for overtime wages, but did not indicate that NTT

retaliated against me for reporting that NTT had engaged in the type of fraudulent conduct

that SOX seeks to prevent. This assertion by Judge Odegard appears in paragraph 5 of page 7

of her May 27, 2016 Order. I object to this particular finding by her because she improperly

relied exclusively upon WHD’s inaccurate and incomplete record from its WHISARD

system of the actual complaints I reported to WHD on October 10, 2012 against Respondents

that included retaliation and fraud claims regulated by both the FLSA and SOX. Although

Judge Odegard stated the following in her May 27, 2016 Order, she outrageously failed to



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acknowledge in that same Order that WHD’s records of how it recorded my WHD complaint

falsely indicates that time records were not kept for the hours that I worked at CS in 2012:

“Nothing in his WHD complaint indicated the Respondent retaliated against the

Complainant for reporting that the Respondent had engaged in the type of fraudulentconduct that SOX seeks to prevent.”

The timesheets that I included on page 4 of this Petition for Review unequivocally confirm

that WHD falsely and erroneously recorded in its WHISARD system that time records were

not kept for the hours that I worked at CS in 2012.

L. Judge Odegard’s assertions that appear in the first paragraph of page 8 of her May 27, 2012

Order that the following statements are true about the letter dated December 1, 2015 that I

received from Derrick Witherspoon of the United States Department of Labor:

1. The letter dated December 1, 2015 from Mr. Witherspoon contains statements

indicating that WHD investigated the complaints that I reported to WHD on October

10, 2012.

2. The letter dated December 1, 2015 from Mr. Witherspoon contains reasons why

WHD rejected the complaints that I reported to WHD on October 10, 2012.

3. The letter dated December 1, 2015 from Mr. Witherspoon referred me to steps I could

take if I wanted to pursue a whistleblower claim pursuant to the FLSA or a private

cause of action.

Contrary to Judge Odegard’s reckless imagination, the letter dated December 1, 2015 that I

received from Derrick Witherspoon of the United States Department of Labor did not: a)

contain statements indicating that WHD investigated the complaints that I reported to WHD

on October 10, 2012; b) contains reasons why WHD rejected the complaints that I reported

to WHD on October 10, 2012; and c) refer me to steps I could take if I wanted to pursue a



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whistleblower claim pursuant to the FLSA or a private cause of action. As a result of the

foregoing irrefutable facts and circumstances, contrary to Judge Odegard’s claims, my

assertion that WHD’s mishandling of the complaints that I reported to it against Respondents

in-person on October 10, 2012 at its office located in New York City should allow for

equitable tolling is entirely warranted and substantiated.

M. Judge Odegard’s assertion that I had constructive knowledge within the 6 months that

followed NTT’s termination of my job at CS on April 27, 2012 that I had 180 days from

April 27, 2012 to file a SOX complaint with OSHA against Respondents and that I “could

have researched the SOX filing deadlines.” This assertion by Judge Odegard appears in

paragraph 3 on page 8 of her May 27, 2012 Order. Judge Odegard’s assertion in regards to

this is baseless and irrelevant to a degree for the following reasons:

1. While working at CS in 2012, CS periodically required me to complete online

compliance training programs that it provided to me and described the Sarbanes-

Oxley Act as a set of regulations that pertained to securities fraud. Since a diligent

review of the content of the compliance training programs that CS provided to me and

required me to complete will confirm that the content of those programs emphasized

that the Sarbanes-Oxley Act pertained to securities fraud without ever referring to the

following things that the Sarbanes-Oxley Act also covers, CS lulled and misled me

into believing that the Sarbanes-Oxley Act’s protections were limited to matters

pertaining to securities fraud that warrants the application of equitable estoppel to my

SOX complaint against Respondents:

a. Fraudulent compensation schemes against workers devised by publicly-traded

firms



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b. Fraudulent compensation schemes against workers devised or otherwise

carried out by contractors and subcontractors doing business with publicly-

traded firms.

2. Although I was acutely aware in April of 2012 of the fact that NTT fraudulently

misrepresented the terms of the contract that it issued to [redacted] and that NTT had

committed such fraud by communicating fraudulent misrepresentations to me in e-

mail messages and telephone calls that I received from NTT’s representatives

between January of 2012 and April of 2012, it was not until after 2012 that I became

aware of the fact that such misrepresentations by NTT and the manner in which it

committed such fraud constituted acts of wire fraud that were subject to SOX and

RICO.

3. The following applicable court decisions had not been issued prior to 2013 that

further made it not possible for me to have constructive knowledge of the fact that

SOX could be used to address acts of wire fraud and retaliation that NTT committed

against me in 2012:

a. It was not until June 4, 2013 that the United States Tenth Circuit Court of

Appeals issued its opinion in the case of Lockheed Martin Corp. v. Admin.

Review Bd., (U.S. Dep’t of Labor, 11-9524, 2013 WL 2398691 (10th Cir. June

4, 2013)) in which it essentially ruled that any fraud will do as far as SOX 806

actions are concerned.

b. Similarly, it was not until March 4, 2014 that the United States Supreme Court

issued its decision in the case of Lawson v. FMR LLC , (134 S. Ct. 1158, 188

L. Ed. 2d 158, 571 U.S. (2014)) in which it ruled that workers of privately-



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held contractors and subcontractors that perform work for publicly-traded

organizations are protected by the Sarbanes-Oxley Act's Section 806

provisions.

c. Furthermore, it was not until 2016 that the United States Department of

Labor’s Administrative Review Board issued findings in the matter of Dietz v.

Cypress Semiconductor Corp., (ARB No. 15-017, 3/30/16 (released 4/6/16))

that compensation complaints may serve as the basis for SOX 806 actions

involving fraud.

4.

Although I could have ostensibly engaged in research prior to October 28, 2012 to

determine what the deadlines were for filing a SOX complaint with OSHA, this fact

is irrelevant primarily because there is no reason to believe that I would have known

or could have learned through additional diligent research prior to October 28, 2012

that SOX could be used to address acts of wire fraud NTT committed against me in

2012 as part of a fraudulent compensation scheme it carried out against me.

N.

Judge Odegard’s assertion that the crux of my original complaint against NTT centered on

my overtime and misclassification claims against it and that my complaint was not related to

wire fraud. This assertion by Judge Odegard appears in paragraph 3 on page 8 of her May 27,

2012 Order. Contrary to Judge Odegard’s assertion, the crux of my original complaint

against NTT was based upon wire fraud, retaliation, overtime, and misclassification claims.

For this reason, the complete sense this makes is that I unknowingly asserted claims

regulated by the SOX whistleblower provision while meeting with the WHD on October 10,

2012 and reporting to it that NTT retaliated against me by terminating my job at CS on April

27, 2012 in response to complaints I had made to it about the fact that it fraudulently



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misrepresented the terms of the contract it issued to [redacted] in e-mail messages that I

received from NTT that constitute wire fraud and violated its contractual obligation to issue

overtime payments to [redacted] for overtime hours CS ordered me to work in 2012. My

overtime and misclassification claims against NTT were preceded by and a direct

consequence of multiple acts of wire fraud NTT committed against me in 2012 by using e-

mail messages its representatives sent me and a telephone call I had with Ed Epstein of NTT

on April 27, 2012 to fraudulently misrepresent the terms of the contract that NTT issued to

[redacted] and whether it was NTT or CS that was responsible for the termination of my job

at CS in 2012. By fraudulently misrepresenting the terms of the contract NTT issued to

[redacted], NTT misclassified me as an independent contractor instead of properly

classifying me as the joint-employee of CS and NTT that I subsequently became as a result

of control that both Respondents unlawfully and otherwise wrongfully exercised over me

after I began working at CS in 2012. By transforming from an independent contractor to a

common-law joint-employee of Respondents as a direct result of Respondents’ acts, I

became entitled to receive various benefits (such as medical insurance) from both

Respondents and legal protections that are available to employees. For example, though the

contract NTT issued to [redacted] clearly expressed that neither NTT nor CS would have a

right to determine the number of hours I worked at CS and control, supervise, discipline,

assign, set the working conditions, and fire [redacted]’s employees, the following facts

confirm that NTT and CS controlled me and violated the terms of that contract:

1. CS determined the number of hours I worked at CS in 2012 by requiring me to

consistently work overtime for its benefit,



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2. CS closely supervised the method, manner, and sequence in which I performed my

work at CS in 2012. This point is confirmed by the e-mail message I received from

Pierre Newman on February 21, 2012 and included on page 25 of this Petition for

Review.

3. NTT tried to exercise control over me by setting my working conditions at CS in

2012 and in a way that was not expressed within the Contract. This point is confirmed

by fraudulent statements Sharin Newman expressed in the e-mail message she sent to

me on April 25, 2012 that I included as the second e-mail message shown on page 14

of this Petition for Review.

4. NTT exercised control over me while also flagrantly violating the contract it issued to

[redacted] by directly firing me from my job at CS in 2012 instead of terminating its

contract with [redacted]. This fact is confirmed by the statement appearing in the e-

mail message Sharin Newman of NTT sent to Diana Cousins of CS on April 27, 2012

at 10:08 am that I included on page 16 of this Petition for Review.

O.

Judge Odegard’s assertion that though I have shown myself capable on dates she failed to

specify to do at least a modicum of legal research, prepare thorough pleadings featuring a

number of case citations, and consult with a law firm and various legal aid organizations,

those factors do not excuse my ignorance of the requirement under SOX to file a SOX

complaint with OSHA within 180 days of an act constituting a violation of 18 U.S.C. §

1514A. This assertion by Judge Odegard appears in the last paragraph shown on page 8 of

her May 27, 2016 Order. Several of my objections to this assertion by Judge Odegard have

been discussed earlier and in detail within this Petition for Review. Nevertheless, my

capability to do legal research and prepare pleadings with case citations is something that



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improved over time in a manner that is somewhat comparable to how case law that is

applicable to the Sarbanes-Oxley Act has evolved and also improved over time. I am much

more adept at doing legal research and preparing pleadings now than I was in 2012. Judge

Odegard’s assumption that I was sufficiently adept at engaging in legal research and

preparing thorough pleadings with case citations during the 180 days that followed April 27,

2012 is significantly discredited by the simplicity of the complaint that I filed with the Civil

Court of the City of New York on November 21, 2012 to commence a lawsuit against NTT.

The complaint that I filed with that court on that date to commence that lawsuit against NTT

lacked case citations and was not thoroughly pled. Instead, that complaint merely listed the

following information:

“The nature and substance of the plaintiffs cause of action is as follows: Other for$25,000.00 with interest from 02/10/2012FAILURE TO PAY FOR WAGES. BREACH OF CONTRACT”

In addition, the following facts excused my ignorance of the requirement under SOX to file a

SOX complaint with OSHA within 180 days of April 27, 2012:

1.

I was dealing with severe stress and distractions between April of 2012 and October

of 2012 caused by my in

April of 2012. The following excerpt from an e-mail message that I sent to a friend of

mine on April 18, 2012 at 8:59 pm confirms this:

“Things just reached a new stress level recently. I don't know if you recall what Itold you about , but is in an extraordinarily difficult situationnow...

”

2. I was dealing with workplace disputes in September of 2012 at the Bank of Tokyo-

Mitsubishi, which is the company where I worked after NTT terminated my job with



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CS in 2012. Those disputes distracted me from engaging in legal research about SOX.

The following excerpt from an e-mail message that I sent to Lydia Trainor of OSHA

on September 23, 2012 at 11:53 pm about a workplace accident that happened to me

in the offices of the Bank of Tokyo-Mitsubishi confirms this:

“Dear Ms. Trainor,

Thank you for the information that you provided during our phone call lastTuesday about the negligent maintenance of a toilet seat dispenser in a men'srestroom located on the 5th floor of the Bank of Tokyo-Mitsubishi's office inJersey City that caused its metal frame to come crashing against my head on thesame date that I called you when I pulled its lever to release a seat cover.

Attached is a photo that I took of the toilet seat dispenser that crashed against myhead within 15 minutes after the incident happened.

The following is the address of the Bank of Tokyo-Mitsubishi's office in JerseyCity:

Bank of Tokyo-Mitsubishi34 Exchange Pl.Jersey City, NJ 07302”

P. Judge Odegard’s assertion that “unlike in Andrews," I "was not confronted with a maze of

regulatory appeals." This assertion by Judge Odegard appears in paragraph 1 on page 9 of her

May 27, 2012 Order. With regards to the context in which Judge Odegard made that

assertion, she falsely suggested that I was not equally besieged by an overwhelming amount

of litigation between 2012 and October of 2015 that subjected me to a maze of appeals I had

to contend with. Contrary to Judge Odegard’s suggestion, I was, in fact, besieged by more

than 15 sets of litigation between 2012 and October of 2015 that overwhelmed me and

subjected me to a maze of appeals. The overwhelming majority of those sets of litigation

undeniably diverted my attention away my legal disputes with Respondents. In addition,

though Judge Odegard claimed in the first complete paragraph shown on page 8 of her May



of 55

27, 2016 Order that I “did not attribute” my “missed deadline to actions by the Respondent”

with regards to filing a SOX complaint with OSHA within 180 days following April 27,

2012, that claim is utterly baseless because I have repeatedly and clearly emphasized that

Respondents unlawful and willful refusal to pay for work I performed at CS in 2012 and

NTT’s unlawful termination of my job at CS in 2012 effectively and unfairly prevented me

from having sufficient finances with which to retain an attorney that could reasonably be

expected to be quite knowledgeable about what the Sarbanes-Oxley Act covers and its filing

requirements. On balance and with respect to the Andrews factors, the following facts and

circumstances that pertain to me unequivocally confirm that I can establish that I am entitled

to equitable tolling:

1. I had no actual notice of the requirements for filing SOX complaints with OSHA until

long after 2012.

2. Two reasons why I lacked constructive knowledge of the requirements for filing SOX

complaints with OSHA to have my legal disputes against Respondents addressed

were because NTT unlawfully and willfully effectively deprived me of having

sufficient finances with which to retain an attorney and CS required me to complete

compliance training programs it provided to me while I worked in its offices in 2012

that materially misled me about the types of violations that the Sarbanes-Oxley Act

covers.

3. I clearly exhibited diligence in pursuing my rights against Respondents as early as

February of 2012 and consistently thereafter. This assertion is substantiated by the

following text message I sent from my cell phone to Keith Backer of NTT at 6:09 pm



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on February 16, 2012 that concerned having NTT issue a payment for work I

performed at CS in 2012:

“That's not acceptable at all. We reached an agreement, I abided by its terms,

expect your side to abide by them, and have bills that must be paid this weekendthat were based on having your side follow-thru properly. The bottom line is thatthe funds neeed to be available to me by noon.”

The text message shown above that I sent was in response to the following text

message Mr. Backer sent to me at 6:03 pm on February 16, 2012 from the telephone

number of 516-642-4709:

“Hi [redacted]. I was just speaking with Rebecca about getting you the funds as

quickly as possible. Payroll is located in Philadelphia so it is unlikely we can physically get a check to NY by noon. I'm going to see if we can get it sent to youvia Fed Ex by Saturday at the latest.”

Moreover, as Judge Odegard confirmed in remarks she made in her May 27, 2012

Order, I continued being diligent in pursuing my rights against Respondents by

meeting with a law firm on May 14, 2012 that specialized in employment law for a

free consultation about my disputes with Respondents, filing my WHD complaint on

October 10, 2012, and meeting with representatives of both the New York State

Department of Labor and the National Labor Relations Board at their offices in New

York City prior to October 28, 2012 to discuss my legal disputes against

Respondents.

4.

If I were to be granted equitable tolling with regards to my SOX complaint against

Respondents, any claim that Respondents would be prejudiced by tolling is

tremendously outweighed by the fact that Respondents’ unlawful actions against me

are the underlying reason why equitable tolling is necessary and Respondents

benefited from the unlawful acts they committed against me. By concealing the



of 55

unlawful acts NTT committed against me in 2012 and continue to commit, NTT

likely has been able to be issued new and keep existing government contracts that it

would unlikely have been able to be issued and keep if NTT had revealed to the issuer

of such government contracts that it committed unlawful acts against me that include

retaliation in the form of wrongful termination and blacklisting against a United

States Navy veteran. Similarly, by concealing the unlawful acts CS committed against

me in 2012 and continue to commit by having benefited from work I performed at its

request in 2012 that was outside of the scope of the contract NTT issued to [redacted]

and for which I have yet to be paid, CS likely made it easier for CS’ application

number D-11819 for a prohibited transaction exemption under the Employee

Retirement Income Security Act (ERISA) to be granted by the United States

Department of Labor that enables CS to continue to manage pension funds.

5. My having been besieged by more than 15 sets of litigation since 2012, my

continuing inability to have sufficient finances with which to retain an attorney

because of Respondents continuing unlawful acts against me, and the fact that I was

dealing with the severe stress and distraction caused by my mother being

involuntarily admitted into a psychiatric facility in April of 2012 are just three of the

reasons why it is understandable and reasonable that I remained unaware of the notice

requirement for filing a SOX complaint with OSHA until 2015.

Q. Judge Odegard’s assertion that I attached a summary of the complaint that I reported to

WHD against Respondents on October 10, 2012. This assertion by Judge Odegard appears in

the second complete paragraph on page 9 of her May 27, 2012 Order. Contrary to her

assertion, the summary that I attached was a record from WHD’s WHISARD system of how



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WHD inaccurately and incompletely recorded the actual complaints that I reported to it

against Respondents on October 10, 2012.

R. Judge Odegard’s assertion that nothing in the narrative of WHD’s record of how it recorded

the complaints that I reported to it on October 10, 2012 indicates or suggests that the

complaints that I reported to WHD on October 10, 2012 in any way implicates SOX. This

assertion by Judge Odegard appears in the last paragraph on page 9 of her May 27, 2012

Order. As I confirmed on page 4 of this Petition for Review, though time records were being

kept prior to, following, and while I met with WHD on October 10, 2012 by Respondents

and I for the hours I worked at CS in 2012, WHD’s record of the complaints I reported to it

on October 10, 2012 indicate that time records were not kept for those hours. This clear and

material discrepancy confirms that WHD failed to accurately and completely record all of the

information that I reported to it on October 10, 2012. Also, prior to my meeting with WHD

on October 10, 2012, the following set of facts describe how I submitted complaints to NTT

and CS in February, April, and May of 2012 that discreetly implicated violations of SOX by

NTT:

1. NTT’s overtime violations stemmed from fraudulent misrepresentations it expressed

in the contract it issued to [redacted] that I was to be paid according to an hourly rate

that would be calculated from the daily rate of $478 and the following remark that

appears in an e-mail message that I received from Keith Backer of NTT at 7:14 pm on

December 20, 2011 that concerned working at CS in 2012:

“Ability to work flexible hours and varying shifts including a willingness to

work overtime and be available for weekend work when required.” (emphasisadded)



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2. By using e-mail on January 17, 2012 to send me its contract with [redacted] that

contained fraudulent misrepresentations of its terms, NTT committed an act of wire

fraud in violation of 18 U.S.C. § 1343. The provisions of 18 U.S.C. § 1514A confirm

that a violation of 18 U.S.C. § 1343 can serve as the basis for filing a SOX complaint.

3. NTT also sent me an e-mail message in 2012 that contained a copy of its payroll

schedule to inform me of the dates when it would issue payments to [redacted] for the

hours that I worked at CS in 2012. In regards to this point, the fact that NTT willfully

and unlawfully did not issue payments to [redacted] by the deadlines listed in NTT’s

payroll schedule for all of the hours that I worked at CS in 2012 and for which CS

approved my timesheets shows how NTT committed an additional act of wire fraud at

my expense. As I stated previously in this Petition for Review, I filed a complaint

with NTT on February 16, 2012 about the fact that NTT had not issued a payment for

hours I worked at CS in 2012 by an applicable deadline set forth within NTT’s

payroll schedule. After making that complaint to NTT on that date, I continued to file

similar complaints with NTT about additional late payments by it for work I

performed at CS as NTT continued to willfully and unlawfully refuse to issue

payments to [redacted] for all of the hours that I worked at CS in 2012. Moreover, the

statements I expressed and e-mail messages that I included on pages 11 and 12 within

this Petition for Review also apply here.

4. The content shown on page 13 within this Petition for Review also applies here.

5. The content shown on page 14 within this Petition for Review also applies here.

6. The content shown on pages 17 thru 19 within this Petition for Review also applies

here.



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The preponderance of the facts and circumstances I just discussed unequivocally

establish that though I wasn’t aware in 2012 that my legal disputes against NTT were

within the scope of matters that SOX covers, I asserted claims against NTT covered by

SOX while making complaints to NTT and CS prior to October 10, 2012. Unfortunately,

Judge Odegard seemed to have improperly adopted a superficial perspective with regards

to the complaints that I reported to WHD on October 10, 2012 by baselessly claiming that

the “face” of the complaints I reported to WHD on that date against Respondents

concerned only a claim for overtime wages. By making such a claim, she disregarded the

fact that prior to meeting with WHD on October 10, 2012, I engaged in the behavior that

I just discussed in detail that implicated violations of SOX by NTT and the fact that I had

no reason whatsoever not to disclose that same information to WHD on October 10,

2012.

S. Judge Odegard’s baseless and extraordinarily asinine assertion that my "WHD claim for

overtime wages and alleged misclassification as an independent contractor does not further

the goals of SOX." This assertion by Judge Odegard appears in paragraph 2 on page 10 of

her May 27, 2012 Order. Unfortunately for Judge Odegard, the findings that were issued by

the Administrative Review Board of the United States Department of Labor *+,$+,-. +, '/#

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http://src.bna.com/dU3



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http://www.huffingtonpost.com/2012/01/05/walmart-blacklist-abp-pension-fund_n_1186384.html





of 55

In addition and with regards to the points I just discussed, NTT and its affiliated companies

have been recipients of a large number of lucrative contracts issued by agencies of the United

States federal government and states agencies. The following are some of the government

agencies that have issued contracts to NTT and its affiliated companies:

1. The United States Department of Labor.

2. The Office of the New York State Attorney General.

3. The Office of the New York State Comptroller.

4. The United States Department of Justice

5. The United States Securities and Exchange Commission.

6. The United States Department of Defense.

7. The United States Department of Homeland Security.

The information shown above about the agencies that have issued contracts to NTT and

its affiliated companies was obtained from information that is available from the

following web sites:

a. https://www.usaspending.gov

b. http://wwe2.osc.state.ny.us/transparency/contracts/contractresults.cfm?ID=1353774

bF"'/#"01"#2 '/1F-/ GF$-# H$#-%"$ %A.1 %..#"'#$ +, /#" N%E O=2 O<9@ H"$#" '/%'

WHD’s inaccurate and incomplete record from its WHISARD system of the actual

complaints I reported to WHD on October 10, 2012 against Respondents “does not invoke

concern over any kind of fraud” that NTT may have perpetrated, NTT's willful refusal to

defy its contractual obligation to ensure that I was paid according to the hourly rate described

in the contract NTT issued to [redacted] constitutes fraud. The fact that WHD negligently

http://wwe2.osc.state.ny.us/transparency/contracts/contractresults.cfm?ID=1353774

http://wwe2.osc.state.ny.us/transparency/contracts/contractresults.cfm?ID=1353774

https://www.usaspending.gov/



of 55

failed to accurately and fully record all of the complaints that I reported to it on October 10,

2012 was and remains an atrocious failure by WHD instead of a failure by me to clearly

communicate concerns to WHD on October 10, 2012 about fraud and retaliation NTT

committed against me. In addition, Judge Odegard’s claim that appears in the first paragraph

on page 10 of her May 27, 2016 Order that I used an e-mail message I sent to Achieng

Warambo of OSHA at 7:26 am on November 3, 2015 to seek a full copy of the complaint

that I filed with WHD on October 10, 2012 under the Freedom of Information Act is utterly

baseless. Contrary to Judge Odegard’s claim in regards to this, I sent an e-mail message at

5:43 am on October 1, 2015 to the e-mail address of [email protected] to request a full

copy of the complaint that I filed with WHD on October 10, 2012 under the Freedom of

Information Act. The following assertion by Judge Odegard that is stated at the end of the

first paragraph on page 10 of her May 27, 2016 Order is baseless, contradicted by written

correspondence of complaints that I submitted to NTT and CS on multiple dates prior to

meeting WHD on October 10, 2012 and the substance of the complaint that I filed with the

Civil Court of the City of New York on November 21, 2012 to commence a lawsuit against

NTT:

“I find that the record reflects that the first time that the Complainant attempted to draw alink to SOX was through his OSHA complaint, filed on October 29, 2015, three and ahalf years after his 2012 termination.”

Also, though Judge Odegard has made it perfectly clear that she based the findings that she

issued in her May 27, 2012 Order on how WHD recorded the complaints I reported to WHD

on October 10, 2012, it is equally clear that she failed to take into consideration the material

findings about WHD’s track record of inaccurately recording information that are expressed

within the following two reports that I discussed on pages 2 and 3 of this Petition for Review:

mailto:[email protected]



of 55

1. “Wage and Hour Division Needs Improved Investigative Processes and Ability to

Suspend Statute of Limitations to Better Protect Workers Against Wage Theft” and

2. “The Wage and Hour Division’s Administration of Special Minimum Wages for

Workers with Disabilities”

T. Judge Odegard’s suggestion that that the complaints I filed with WHD on October 10, 2012

were merely personal to me instead of implicating similar, if not identical, unfair labor

practices constituting fraud that Respondents may have been perpetrating against other

workers. In regards to this point, prior to being unlawfully terminated from my job at CS in

2012, someone named Salahuddin Ilyas who I worked with at CS in 2012 and was a

contractor at CS told me that he was also being ordered by CS to work overtime for which he

was not being compensated and that one of our coworkers named Asif Ansari had also been

ordered by CS to work overtime for which he was not compensated while he previously had

been a contractor at CS. Given these facts and circumstances, the complaints that I reported

to WHD against Respondents on October 10, 2012 clearly were not about fraudulent labor

practices that Respondents subjected just me to. Moreover, Judge Odegard’s claim that I

asserted that “the Respondent’s actions impacted only him” is both baseless and insulting. I

have never claimed that the unlawful acts that Respondents perpetrated against me impacted

only me, as opposed to also impacting others, such as my mother of whom I am a legal

guardian and requires tremendous assistance from me following debilitating strokes,

Respondents’ shareholders, business partners, and employees of Respondents that may not

wish to work for firms that engage in fraudulent labor practices. Moreover, since two

different independent government agencies confirmed in reports they issued in 2001 and

2009 that WHD has a track record of inaccurately recording information in computer systems



of 55

WHD uses and it is undeniable that WHD yet again inaccurately recorded information in its

WHISARD computer system on October 10, 2012 by claiming that time records were not

kept for the hours that I worked at CS in 2012, sufficient grounds exists that would enable an

independent and impartial observer not affiliated with the United States Department of

Labor, Respondents, and I to reach the conclusion that WHD failed to accurately and fully

record the complaints that I reported to it on October 10, 2012. For this reason and all that I

have discussed in this Petition for Review thus far, sufficient grounds exists to reach the

conclusion that I unknowingly invoked SOX in complaints I made to Respondents in 2012

prior to October 10, 2012, the complaints that I reported to WHD on October 10, 2012, and

in the complaint that I filed with the Civil Court of the City of New York on November 21,

2012 to commence a lawsuit against NTT. Moreover, since a diligent review of the

underlying set of facts pertaining to the complaints I made against Respondents between

February of 2012 and October 10, 2012 confirms that they invoked SOX, the complaints that

I made against Respondents during that period amounted to precise statutory claims against

Respondents that are subject to SOX. As a result, it must be immediately acknowledged that

the complaints that I reported to WHD on October 10, 2012 against Respondents

encompassed claims that were and remain subject to both SOX and the Fair Labor Standards

Act. For this reason, the aspects of the complaints that I reported to WHD on October 10,

2012 against Respondents that pertain to SOX can and must be equitably tolled without

delay.

U. Judge Odegard’s assertion that it cannot be said that I have either a subjective or objective

belief that NTT engaged in practices that violate SOX. This utterly baseless assertion by

Judge Odegard appears in the second paragraph on page 11 of her May 27, 2012 Order. Since



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NTT communicated material misrepresentations in e-mail messages its representatives sent

to me about the contract NTT issued to [redacted], those misrepresentations by NTT and its

use of e-mail to communicate them constituted acts of wire fraud in violation of 18 U.S.C.

1343. Moreover, since the United States Tenth Circuit Court of Appeals issued the following

findings in a decision it issued on June 4, 2013 in the case of Lockheed Martin Corp. v.

Administrative Review Bd., 717 F.3d 1121 (10th Cir. 2013), the nature of the fraudulent acts I

have believed since February of 2012 that Respondents committed against me and continue

to commit against me are subject to the Sarbanes-Oxley Act:

“Congress could have accomplished the more limited purpose attributed to it byLockheed by limiting whistleblower protection under Sarbanes-Oxley only to anemployee who reports conduct “the employee reasonably believes constitutes a violationof any provision of Federal law relating to fraud against shareholders.” Because Congressdid not so phrase the statute, the proper interpretation of § 1514A(a) gives each phrasedistinct meaning and holds a claimant who reports violations of 18 U.S.C. §§ 1341, 1343,1344, or 1348 need not also establish such violations relate to fraud against shareholdersto be protected from retaliation under the Act.”

V. Judge Odegard’s assertion that there was no evidence in WHD’s records of how it recorded

the actual complaints that I reported to it on October 10, 2012 that suggested that I “actually

believed the Respondent to have violated a SOX provision.” This assertion by Judge Odegard

also appears in the second paragraph on page 11 of her May 27, 2012 Order. As I clearly

discussed and substantiated in detail earlier within this Petition for Review, the sole reason

why no such evidence existed in WHD’s records is because WHD negligently failed to

record the complaints that I reported to it on October 10, 2012 both accurately and

completely that is proven by the fact that WHD falsely claimed time records were not being

kept for the hours that I worked at CS in 2012. This irrefutable fact that Judge Odegard

negligently failed to acknowledge severely taints the validity of the information stored within

WHD’s records of how it recorded the complaints that I reported to WHD on October 10,



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2012 to such a degree as to effectively render those records entirely unreliable. Similarly, this

fact and numerous utterly baseless assertions Judge Odegard made in her May 27, 2016

Order that I clearly identified and discredited in this Petition for Review severely taint the

validity of material findings she expressed in her May 27, 2012 Order to such a degree as to

effectively render the bulk of the material findings and legal conclusions she expressed in her

May 27, 2012 Order unreliable. Judge Odegard’s assertion that I limited the complaint that I

reported to WHD on October 10, 2012 “to a personal overtime discrepancy and made no

mention of mail, wire, bank, or securities fraud or any other SEC regulation” is utterly false

and insulting. In addition, Judge Odegard’s assertion that I didn’t have an objectively

reasonable belief that SOX was at issue when I reported complaints to WHD against

Respondents on October 10, 2012 because the complaints that I reported to WHD on that

date didn’t assert that NTT’s “practice constituted harm to shareholders or put the company

at risk is some way” negligently disregards the fact courts have ruled that burden was not

mine to bear and the fact that Judge Odegard expressed the following on pages 10 and 11 in

her May 27, 2016 Order that supports this contention:

1. “Subsequent ARB case law clarified the definition of an objectively reasonable belief.In a later case, the Board definitively stated that a complainant may be afforded protection for complaints regarding infractions beyond the scope of those relating toshareholder fraud. Zinn v. American Commercial Lines, ARB No. 10-029, ALJ No.2009-SOX-025, slip. op. at 8 (ARB May 28, 2012)”

2.

“In addition, Zinn held that a complainant need not establish the elements required ina securities fraud statute or describe an actual violation of law to demonstrate areasonable belief that an employer engaged in SOX-related activity, even if thecomplainant is mistaken in either instance. Id. at 9-10.”

While I do not disagree with Judge Odegard’s contention that I am now “relatively

sophisticated in my ability to articulate violations of the law by Respondents, that

sophistication developed over time. In contrast to the sophistication Judge Odegard attributes



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to me, representatives of three different divisions of the United States Department of Labor

that I have dealt with since October 10, 2012 in regards to my legal disputes against

Respondents have repeatedly made grave and material mistakes to my detriment that are

arguably indicative of incompetence by them. The following timeline identifies the

representatives of the United States Department of Labor that committed grave and material

mistakes to my detriment since October 10, 2012, the dates when those mistakes were made,

and the nature of those mistakes:



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Timeline of Mistakes by the United States Department of Labor:

# Date Name Division Mistake

1 10/10/12 Unknown Wage andHour Division

WHD falsely records in its WHISARD systemthat time records were not kept for the hours I

worked at CS in 2012, doesn’t record all of theclaims that I reported to it againstRespondents, does not investigate thecomplaints, does not refer my complaints that pertain to SOX to OSHA, and closes mycomplaints on the same date that I reportedthem to WHD.

2 11/11/15 Unknown OSHA OSHA does not include an e-mail message thatI sent to Achieng Warambo on this date thatconcerned a Memorandum of Understandingagreement between OSHA and WHD to its

records of the SOX complaint that I reported toit against Respondents on October 29, 2015.

3 12/1/15 DerrickWitherspoon

Wage andHour Division

Mr. Witherspoon fails to acknowledge the factthat I filed a complaint with WHD on October10, 2012 about violations of the FLSA by NTTthat also implicated CS, that complaint wasmade within the statute of limitations thatapply to the FLSA, WHD committed errors inhow it recorded my complaint on that date, andWHD did not investigate my complaint priorto closing it on that date.

4 12/9/15 Unknown OSHA OSHA failed to comply with a 60-day deadlinethat expired on this date and applies to having preliminary written findings issued about SOXcomplaints

5 2/11/16 Terri M. Wigger OSHA OSHA mails its notice of its preliminarydismissal of my SOX complaint to my formerold mailing address instead of the updatedmailing address I subsequently provided toAchieng Warambo of OSHA before OSHAsent out its mailing

6 4/1/16 Terri M. Wigger OSHA OSHA sends me a CD-Rom disk in response

to a Freedom of Information Act request Isubmitted to it on 3/24/16 for its records of theSOX complaint I reported to it. However, theCD-Rom disk it sent to me contains 20 pagesof entirely confidential information aboutsomeone named andconstitutes a violation of the Privacy Act of1974 at Ms. expense.



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# Date Name Division Mistake

7 3/9/16 Unknown Office ofAdministrativeLaw Judges

A representative of Judge Odegard’s officeerroneously mails the Initial Order JudgeOdegard issues on that date in relation to thismatter to my old mailing address in spite of the

fact that Judge Odegard’s office had my present mailing address at that time

8 5/27/16 Judge Odegard Office ofAdministrativeLaw Judges

Judge Odegard issues a preliminary orderdismissing my SOX complaint in which she:

a) Fails to acknowledge that WHDinaccurately claimed in its records ofhow it recorded the complaints that Ireported to it on 10/10/12 againstRespondents that time records were notkept for the hours I worked at CS in2012,

b) Baselessly suggests that complaints that Ifiled with Respondents in 2012 prior to10/10/12 and the complaint that I filedwith the Civil Court of the City of NewYork on 11/21/12 to commence a lawsuitagainst NTT did not invoke SOX,

c) Baselessly suggests that the 12/1/15 letterI received from Derrick Witherspoon ofWHD was in response to a Freedom ofInformation Act request I submitted and

that he explained in his letter why WHDdid not investigate the complaints Ireported to it on 10/10/12, and

d) Negligently fails to acknowledge the factthat the findings that were issued in thematter of Dietz v. Cypress SemiconductorCorp., ARB No. 15-017, 3/30/16(released 4/6/16) that I previously brought to her attention validates theSOX complaint that I filed with OSHAagainst Respondents.

W. Judge Odegard’s baseless assertion that even if someone was to assume that I “had an

objectively reasonable belief that” NTT “violated SOX”, my “complaint does not constitute

protected activity under the Sylvester test because there is no indication that, at the requisite



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time,” I held a subjective belief that NTT “engaged in conduct that breached SOX.” This

assertion by Judge Odegard appears in the last sentence of the second paragraph on page 11

of her May 27, 2012 Order. Contrary to Judge Odegard’s assertion and with respect to the

statements expressed within the e-mail messages I received from and sent to Sharin Newman

of NTT on April 25, 2012 and included on page 14 of this Petition for Review, there is ample

reason to firmly believe that I held both an objectively reasonable and subjective belief that

NTT engaged in conduct that breached SOX at 11:09 am on April 25, 2012 and thereafter

because Ms. Newman had expressed in an e-mail message she sent to me at 11:05 am on

April 25, 2012 a statement that I immediately knew was a fraudulent statement associated

with a fraudulent compensation scheme.

Legal Conclusions Expressed Within the Attached Order, Dated May 27, 2016, Issued by

Judge Odegard to Which I Object:

A. Judge Odegard’s baseless legal conclusion that I “first invoked the SOX whistleblower

provision on October 29, 2015, 1,280 days after” NTT’s termination of my job at CS on

April 27, 2012.” This baseless conclusion by Judge Odegard appears in the third paragraph

on page 11 of her May 27, 2012 Order. Contrary to this baseless legal conclusion by Judge

Odegard, I invoked the SOX whistleblower provision against Respondents on October 10,

2012 while reporting complaints to WHD against Respondents that were subject to both the

FLSA and SOX.

B. Judge Odegard’s baseless legal conclusion that my “arguments that my “SOX claim should

be equitably tolled must be rejected.” This baseless conclusion by Judge Odegard appears in

the third paragraph on page 11 of her May 27, 2012 Order. Contrary to this baseless legal

conclusion by Judge Odegard, the arguments that I presented to Judge Odegard in support of



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my contention that my SOX claim must be equitably tolled were both entirely substantiated

and valid.

C. Judge Odegard’s baseless legal conclusion that my “SOX complaint was untimely.” This

baseless conclusion by Judge Odegard appears in the last sentence of the third paragraph on

page 11 of her May 27, 2012 Order. Contrary to this baseless legal conclusion by Judge

Odegard, since I reported my SOX complaint against Respondents to WHD on October 10,

2012, that complaint was filed with WHD within 180 days of the adverse retaliatory action

NTT committed against me on April 27, 2012 and is subject to equitable tolling that applies

to complaints that are mistakenly filed in the wrong legal forum of the United States

Department of Labor, particularly since a Memorandum of Understanding that was assigned

the directive number of CPL 02-00-092 has existed between WHD and OSHA for the

purpose of referring complaints to one another when circumstances warrant.

Orders Expressed Within the Attached Order, Dated May 27, 2016, Issued by Judge

Odegard to Which I Object:

A. Judge Odegard’s baseless order to dismiss the complaint for whistleblower protection under

the Sarbanes-Oxley Act that I filed with OSHA on October 29, 2015 on the grounds that my

SOX complaint was untimely filed with OSHA. This baseless order by Judge Odegard

appears in the last paragraph on page 11 of her May 27, 2012 Order.



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CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of June, 2016, I caused a copy of the foregoing

Petition for Review to be served by certified mail on the following:

Administrative Review BoardU.S. Department of Labor200 Constitution Ave., N.W.Ste. S-5220Washington, DC 20210

(via EFSR system)

Chief Administrative Law Judge

U.S. Department of LaborOffice of Administrative Law Judges800 K Street, N.W., Ste. 400-NorthWashington, DC 20001-8002

(hard copy – certified mail)

U.S. Department of LaborOffice of the Assistant SecretaryOccupational Safety and Heath Administration200 Constitution Ave., Rm. S2315Washington, DC 20210


Associate SolicitorDivision of Fair Labor Standards200 Constitution Ave., N.W.Rm. N-2716Washington, DC 20210


Todd Parker

Moskowitz & Book LLP345 Seventh Ave., 21st Fl. NY, NY 10001


Stephen KramarskyDewey Pegno & Kramarsky LLP777 Third Ave., 3

rd Fl.

NY, NY 10017(hard copy – certified mail)

Petition for Review (appeal) to Administrative Review Board re: SOX 806 whistleblower retaliation...

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