[co-author: Julia Hollreiser] On December 17, 2020, the Administrative Review Board (“ARB”) of the U.S. Department of Labor affirmed the dismissal of a former employee’s whistleblower retaliation claim under Section 806 of SOX. The ARB concluded that the Complainant did not engage in protected activity, noting that his complaints regarding a lack of what he characterized as “internal controls” were inadequate. The ARB also concluded that the Respondent showed it would have terminated Complainant’s employment even in the absence of his alleged protected activity. Background Complainant worked for Respondent as a Senior Estimator, with responsibility for evaluating contractors’ requests for additional payments. When Complainant’s supervisor cancelled the licenses for certain estimating software, he escalated concerns to management because he believed the software was essential for reviewing payment requests. After Complainant successfully negotiated a lower license rate, Respondent renewed the software. Throughout the following several months, Complainant’s supervisors brought numerous performance issues to his attention, issued him three levels of coaching under Respondent’s progressive discipline policy, and notified him that his employment was subject to termination if issues continued. Later that year, Complainant raised concerns that a contractor’s payment request was deficient, resulting in a contentious telephone conversation with the contractor. This incident prompted an automatic third-strike-and-out termination of Complainant’s employment.