UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TIMOTHY C. DIETZ, an individual, 

 Plaintiff - Appellee/Cross Appellant, 

v. 

CYPRESS SEMICONDUCTOR 

CORPORATION, a California corporation, 

 Defendant - Appellant/Cross 

 Appellee. 

––––––––––––––––––––––––––––––––––– 

CYPRESS SEMICONDUCTOR 

CORPORATION, 

 Petitioner, 

v. 

ADMINISTRATIVE REVIEW BOARD, 

UNITED STATES DEPARTMENT OF 

LABOR, 

 Respondent. 

------------------------------ 

TIMOTHY C. DIETZ, 

 Intervenor. 

––––––––––––––––––––––––––––––––––– 

Nos. 16-1209 & 16-1249 

(D.C. No. 1:16-CV-00832-LTB) 

(D. Colo.) 

Nos. 16-9523 & 16-9534 

(LABR No. 15-017) 

(Department of Labor (except OSHA)) 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 17, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

CYPRESS SEMICONDUCTOR 

CORPORATION, 

 Petitioner, 

v. 

ADMINISTRATIVE REVIEW BOARD, 

U.S. DEPARTMENT OF LABOR, 

 Respondent. 

------------------------------ 

TIMOTHY C. DIETZ, 

 Intervenor. 

No. 16-9529 

(LABR No. 15-047) 

(Department of Labor (except OSHA)) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ and EBEL, Circuit Judges.1

________________________________ 

Section 806 of the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) protects 

whistleblowers from retaliation when they inform their company about conduct 

which they reasonably believe violates any one of certain enumerated federal laws, 

 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 The Honorable Neil Gorsuch participated in the oral argument but not in the 

decision in this case. The practice of this Court permits the remaining two panel judges, 

if in agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see 

also United States v. Wiles, 106 F.3d 1516, 1516, n.* (10th Cir. 1997) (noting that this 

Court allows remaining panel judges to act as a quorum to resolve an appeal). In this 

case, the two remaining panel members are in agreement. 
3 

including mail fraud and wire fraud. 18 U.S.C. § 1514A. In this case, Timothy Dietz 

complained to his employer Cypress Semiconductor Corporation (Cypress) that it 

concealed a peculiar compensation scheme from new employees when they joined the 

company, which Dietz believed amounted to federal mail fraud and wire fraud. He 

then allegedly suffered retaliation in the form of disciplinary action and constructive 

discharge. The question presented is whether Dietz’s whistleblower complaint 

constituted protected activity under Sarbanes-Oxley. We hold that it did not. 

I. BACKGROUND 

A. Cypress and the Bonus Plan 

Dietz was working for Ramtron International Corporation (Ramtron) when 

Cypress acquired Ramtron in November 2012. Cypress extended offers to some 

former Ramtron employees, including Dietz, inviting them to join the new company. 

The offer letters outlined the basic terms and conditions of employment, including 

expected salary and that the employment with Cypress would be at-will. Cypress 

also stated it would honor the Ramtron severance package if the employee chose to 

leave Cypress within one year. In other words, working for Cypress and quitting 

within one year would entitle the employee to the same benefits as if he turned down 

employment with Cypress in the first instance. Dietz accepted the offer to become a 

program manager at Cypress. 

The Cypress offer letters, however, omitted one important term of employment 

which is the focus of this lawsuit. Cypress did not reference or explain that some of 
4 

the former Ramtron employees would be subject to a unique compensation scheme 

called the Design Bonus Plan (Bonus Plan) created by one of Cypress’s cofounders. 

This Bonus Plan involved a mandatory wage deduction under which certain 

employees working on certain projects would forfeit ten percent of their salary until 

six weeks after the close of each quarter, at which time they would receive a bonus 

based on a review of their projects’ performance. If a qualifying project was behind 

schedule, then every eligible employee on the team would receive a bonus that was 

less than the initial deduction, resulting in a net loss in salary for that quarter; but if a 

project was ahead of schedule, the bonus would normally exceed the initial 

deduction—sometimes by a substantial margin—resulting in a net gain for the 

employees on the team. On average, bonus-eligible employees received a net salary 

that was twenty-seven percent higher than their pre-bonus salaries, although some 

employees ultimately lost money in certain quarters due to their projects’ 

underperformance. Further, the potential bonus was subject to forfeiture if an 

employee left before a quarterly payout. 

This scheme was not described in the offer letters given to Ramtron 

employees. A Cypress executive justified the omission on the ground that there was 

“no way of knowing which employees would be” subject to the Bonus Plan at the 

time Cypress acquired Ramtron. AR 1215. The Bonus Plan only applied to certain 

employees, normally design engineers, associated with certain launch projects. And 

because of what Cypress perceived as a lack of “management rigor” at Ramtron, 

Cypress was unable to clearly define at the time of acquisition which existing 
5 

projects at Ramtron would eventually be eligible for the Bonus Plan. Id. For this 

reason, it did not include the Bonus Plan details in the Ramtron offer letters. 

Nevertheless, Cypress did not start making deductions from the former 

Ramtron employees’ paychecks until August 2013—approximately nine months after 

the Ramtron employees came on board. That is because the first Bonus Plan-eligible 

project on which they would work did not launch until late March 2013, and 

Cypress’s policy was to pay the employees’ first 18 weeks’ contributions before 

beginning deductions from their paychecks. 

Before Cypress began making these compulsory deductions, it attempted to 

apprise Ramtron employees of the Bonus Plan’s details. In December 2012, a Design 

Center Manager named David Still met with them and explained the Bonus Plan. 

Then, in April 2013, the Design Bonus Administrator, Ryan Wellsman, conducted a 

training session for the Ramtron employees regarding the Bonus Plan. Further, at all 

relevant times Cypress described the Bonus Plan in detail on the company’s intranet, 

which was accessible by all employees. 

Cypress also required that any employee participating in a launched project 

acknowledge they have read a document known internally as the Design Governing 

Spec, which includes a discussion of the Bonus Plan. Then, as a condition of 

participating in a Bonus-Plan eligible project, each qualifying employee was required 

to write a memo acknowledging the aspects of the Bonus Plan that were relevant to 

the project team. All of this was done with respect to the Ramtron employees’ first 
6 

eligible project, the TR-20005, before Cypress started deducting anything from their 

paychecks around August 2013. 

B. Dietz’s Whistleblower Complaint

On April 12, 2013, after one of the Bonus Plan training sessions, Dietz emailed his supervisor, James Nulty, expressing concern about the legality of the 

Bonus Plan under California and Colorado wage laws. On April 22, 2013, Dietz had 

a follow-up phone conversation with Cypress’s General Counsel, Victoria Valenzuela 

during which he made the same assertion—that the Bonus Plan violated state wage 

laws. In addition to his state-law complaint, Dietz told Valenzuela that the Bonus 

Plan took the Ramtron employees by surprise. He said that the Ramtron offer letters 

conveyed to employees “what their salary [was] going to be and then you change the 

game.” AR 1307 (emphasis added). Valenzuela assured Dietz that there was no 

legal problem with the Bonus Plan itself and that Ramtron employees had been 

properly apprised of the scheme. 

C. Cypress’s Alleged Retaliation

Shortly after his conversation with Valenzuela, Dietz began having trouble 

with his supervisor Nulty. In late May 2013, Nulty arranged a phone meeting with 

Dietz and others to go over some recent concerns about Dietz’s performance. In 

particular, Nulty was troubled by three observations: (1) Dietz had updated his 

project schedule to show a three-week delay for an important milestone that was 
7 

fourteen weeks away, (2) Dietz did not immediately notify a supervisor when another 

manager pulled one of Dietz’s employees off of Dietz’s project, and (3) Dietz 

neglected to update the project-management computer system for too long a period. 

On June 4, 2013, after the teleconference, Nulty memorialized these concerns in a 

written memo to be placed indefinitely in Dietz’s personnel file. The memo 

instructed Dietz to prepare a memo explaining what he did wrong and stating that 

“[a]ny future infractions will result in further disciplinary action, up to and including 

termination.” AR 1401. The ALJ characterized this memo as “career ending.” AR 

2230. 

On June 5, 2013, Dietz responded with a letter disputing the disciplinary 

allegations. He claimed that Nulty’s memo was “unlawful retaliation” for Dietz’s 

complaint regarding the Bonus Plan. AR 1412-13. Then, instead of admitting 

wrongdoing as Nulty’s letter instructed, Dietz countered: 

I will do no such thing, because I have done nothing 

wrong, and this requirement is nothing more than bullying 

with legal implications. Therefore, my response is that I 

am terminating my employment at Cypress. I will agree to 

stay onboard through July 1 as a professional courtesy to 

my fellow Cypress employees in Colorado Springs, and to 

keep the TR20005 project stable while executing an 

orderly turnover, unless Cypress chooses to terminate my 

employment sooner. 

AR 1413 (emphasis in original). This response “stunned” Cypress managers. AR 

1067. But according to Dietz, he was not intending to resign at all—rather, he was 

triggering a specific employee-retention policy at Cypress called the “Turnaround 

Process.” AR 1249. Under that policy, Cypress would react quickly to a valued 
8 

employee’s notice of resignation and attempt to persuade that employee to remain at 

Cypress. 

 Cypress’s response, however, was not immediate. The next day, June 6, 2013, 

Nulty responded with an invitation for Dietz to attend a meeting for the following 

day—an invitation with no attached agenda, which Dietz believed was unusual at 

Cypress. Dietz called Nulty about the upcoming meeting but could not reach him. 

Because Nulty had waited a full day to respond to the resignation notice, because the 

invitation had no agenda, and because he could not get in touch with Nulty, Dietz 

concluded that Cypress was not adhering to its turnaround process and was planning 

to terminate him. Dietz believed the writing was on the wall and the axe was about 

to fall. Thus, on June 7, 2013, before the scheduled meeting he notified Cypress that 

his resignation was effective immediately. That was his last day at Cypress. 

D. Procedural History

In August 2013, Dietz filed this lawsuit for unlawful retaliation with the 

Occupational Safety and Health Administration (OSHA), which investigates and 

adjudicates complaints on behalf of the Department of Labor (DOL). The Regional 

Administrator of OSHA denied Dietz’s claim for relief. Dietz appealed to an 

administrative law judge (ALJ) who found in his favor. The ALJ awarded Dietz 

$654,906.00 in front pay, $220,105.85 in back pay, $31,199.08 in back benefits, 

immediate vesting of 3,512 shares of Cypress stock and 2,041 shares of Cypress 

stock options, interest, costs, and attorneys’ fees. 
9 

Cypress then appealed to the Administrative Review Board (the Board), which 

affirmed the ALJ’s decision and awarded relief to Dietz in March 2016. Cypress 

now petitions this Court for review of the Board’s merits decision. Appeal No. 16-

9523. Subsequently the Board affirmed the ALJ’s decision awarding Dietz attorney 

fees and costs incurred before the ALJ, and then awarded attorney fees and costs for 

litigation before the Board. Cypress petitions this Court for review of those orders as 

well. Appeal Nos. 16-9529, 16-9534. 

Having won his case before the Board, Dietz filed a civil action in the district 

court to enforce the Board’s orders against Cypress. In May 2016, the district court 

entered judgment for Dietz, and Cypress timely appealed to this Court. Appeal No. 

16-1209. When Cypress appealed the case, it posted a supersedeas bond, which the 

district court treated as an automatic stay under Fed. R. Civ. P. 62. Dietz then crossappealed on that issue, arguing that the district court lacked jurisdiction to stay the 

judgment against Cypress. Appeal No. 16-1249. 

 In December 2016, we consolidated the petitions for review, Nos. 16-9523 

(merits), 16-9529 (fees and costs before the ALJ), 16-9534 (fees and costs before the 

Board), with the appeals from the district court, Nos. 16-1209 (appeal), 16-1249 

(cross-appeal). 

II. STANDARD OF REVIEW 

“The Board’s factual determinations may be set aside only if they are 

‘unsupported by substantial evidence.’” Lockheed Martin Corp. v. Admin. Rev. Bd., 
10 

717 F.3d 1121, 1129 (10th Cir. 2013) (quoting 5 U.S.C. § 706(2)(E)). This standard 

“requires more than a scintilla but less than a preponderance of the evidence” for the 

Board’s decision to be upheld. Id. As for legal determinations, this Court affords 

administrative deference to the Board’s statutory interpretations, as expressed in 

formal adjudications, under Chevron, U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 844 (1984). See Lockheed Martin Corp., 717 F.3d at 

1131. 

III. DISCUSSION 

A. Applicable Law

Congress enacted Sarbanes-Oxley “[t]o safeguard investors in public 

companies and restore trust in the financial markets following the collapse of Enron 

Corporation[.]” Lawson v. FMR LLC, 134 S. Ct. 1158, 1161 (2014) (citation 

omitted). To do this, Section 806 encourages employees of publicly traded 

companies to report corporate fraud and securities violations by sheltering those 

employees from retaliation. 18 U.S.C. § 1514A. It provides: 

No [publicly traded] company . . . may discharge, demote, 

suspend, threaten, harass, or in any other manner 

discriminate against an employee in the terms and 

conditions of employment because of any lawful act done 

by the employee . . . to provide information, cause 

information to be provided, or otherwise assist in an 

investigation regarding any conduct which the employee 

reasonably believes constitutes a violation of section 1341 

[mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 

[securities fraud], any rule or regulation of the Securities 

and Exchange Commission, or any provision of Federal 
11 

law relating to fraud against shareholders, when the 

information or assistance is provided to . . . a person with 

supervisory authority over the employee . . . .2

Id. § 1514A(a)-(a)(1) (emphasis added). Under its plain terms, Sarbanes-Oxley 

protects whistleblower activity only when the employee reasonably believes the 

company has engaged in certain enumerated federal offenses. See Id. § 1514A(a). 

This reasonable-belief standard “include[s] both a subjective and an objective 

component; an employee must actually believe in the unlawfulness of the employer’s 

actions and that belief must be objectively reasonable.” Lockheed Martin Corp., 717 

F.3d at 1132. At issue in this case is whether it was reasonable for Dietz to believe 

that Cypress committed mail fraud or wire fraud when it did not disclose the Bonus 

Plan to the Ramtron employees in their initial offer letters. 

The federal mail fraud and wire fraud statutes require: “(1) a scheme or artifice 

to defraud or obtain property by means of false or fraudulent pretenses, 

representations, or promises, (2) an intent to defraud, and (3) use of the mails [or 

wires] to execute the scheme.” United States v. Welch, 327 F.3d 1081, 1104 (10th 

Cir. 2003) (citing 18 U.S.C. §§ 1341, 1343). For the commission of either offense, a 

person must actually harbor the intent to deprive a victim of property or honest 

 

2

 We use the term “publicly traded” company as shorthand for the statute’s 

reference to companies that either have “a class of securities registered under section 

12 of the Securities Exchange Act of 1934,” or that are “‘required to file reports 

under section 15(d)” of that Act. § 1514A(a); see also Lawson, 134 S. Ct. at 1164. 
12 

services.3

 Id. at 1105 (“[T]he intent to defraud under §§ 1341 and 1343 is akin to the 

intent to deceive in order to deprive one of property . . . .” (emphasis added)); see 

also Cleveland v. United States, 531 U.S. 12, 26 (2000) (“We conclude that § 1341 

requires the object of the fraud to be ‘property’ in the victim’s hands . . . .”); 

Pasquantino v. United States, 544 U.S. 349, 355 n.2 (2005) (suggesting that 

Cleveland’s construction of the § 1341 (mail fraud) applies equally to § 1343 (wire 

fraud)). In other words, it is not enough merely to fraudulently induce a victim to 

take some action—there must be a conscious objective to deprive the victim of 

property.4

Turning to the case before us, the question is whether Dietz reasonably 

believed that Cypress intended to deprive Ramtron employees of their property when 

it did not disclose the Bonus Plan in their offer letters.5

 If Dietz could not have 

 

3

 Honest-services fraud is not at issue in this case because it is limited to 

bribery or kickback schemes. See Skilling v. United States, 561 U.S. 358, 408-09 

(2010). With that understanding, for convenience this order refers only to property 

deprivation as the requisite intent of the fraud. 

4

 We stress that this intent-to-deprive requirement is not a feature of Sarbanes 

Oxley itself, but rather is an element of the mail fraud and wire fraud statutes, which 

are referenced as enumerated offenses in Sarbanes Oxley. 

5

 In Sylvester v. Parexel International LLC, No. 07-123, 2011 WL 2165854, at 

*17-19 (Admin. Rev. Bd. May 25, 2011), the Board indicated that a whistleblower 

claimant under Sarbanes-Oxley—at least in the context of a securities-fraud complaint to 

his employer—need not prove or allege the specific elements of the crime he believes 

that his employer committed. We interpret this to mean that the whistleblower need not 

show the elements of the crime were actually satisfied; but that does not absolve the 

claimant from showing that he made his whistleblower complaint with the reasonable 

belief that an enumerated offense occurred or was occurring. If the facts known to the 

claimant could not even reasonably be squared with the elements of a crime referenced in 
13 

formed such a reasonable belief, then his whistleblower complaint was not protected 

by Sarbanes-Oxley. 

B. Dietz’s Complaint Was Not Protected By Sarbanes-Oxley

Dietz could not have reasonably believed that Cypress was engaged in mail or 

wire fraud, so his complaint was not protected by Sarbanes-Oxley. There simply was 

not enough evidence to conclude reasonably that Cypress intended to deprive the 

Ramtron employees of their property by nondisclosure of the Bonus Plan in their 

offer letters. At the outset, Cypress offered at least a plausible, non-nefarious 

explanation for the omission: because the Bonus Plan would only apply to certain 

employees on certain launched projects, Cypress had “no way of knowing which 

employees would be” subject to the Bonus Plan at the time of the Ramtron 

acquisition. AR 1215. But even assuming that excuse is insufficient—perhaps 

because Cypress could have included a disclaimer in the offer letters warning that the 

employees might be subject to the Bonus Plan—the evidence is still woefully 

inadequate to support any belief that Cypress committed a fraud in order to deprive 

the employees of their property. 

The Ramtron recruits were at-will employees, meaning they could quit for any 

reason or no reason at all. Moreover, they could resign within one year of joining 

Cypress and likely receive the same benefits package they would have gotten had 

 

Sarbanes-Oxley, then the whistleblower cannot be said to have formed a reasonable 

belief necessary to trigger protection under the statute.
14 

they declined to join Cypress in the first instance. And most importantly, Cypress 

did not start making compulsory deductions under the Bonus Plan until around nine 

months after they signed their offer letters. 

During that nine-month period, Cypress made sure they were aware of and 

understood the Bonus Plan. The company held two training sessions, explained the 

Bonus Plan on the corporate intranet, and required all qualifying employees to 

acknowledge the Design Governing Spec (which included the Bonus Plan details) 

before launching a project governed by the Bonus Plan. In other words, an employee 

who did not want to participate in the Bonus Plan after learning about it would still 

have time to decide whether to continue working at Cypress knowing the Bonus Plan 

would eventually kick in, or to jump ship and get the same severance package it 

would have received from Ramtron. Putting all this together, Dietz could not 

reasonably believe that Cypress was engaged in a scheme to cheat Ramtron 

employees out of their money. 

To be sure, there might be some evidence to support the Board’s conclusion 

that Cypress concealed a material fact in order to lure Ramtron employees to work 

under false pretenses. But as we have said, mail fraud and wire fraud require more 

than merely fraudulent inducement—there must be a scheme designed to deprive the 

victims of their property. The evidence here does not remotely support the 

conclusion that Cypress harbored that intent. Therefore, lacking any reasonable 

belief that Cypress was engaged in one of the enumerated offenses in 18 U.S.C. 

§ 1514A(a)(1), Dietz’s whistleblower complaint was not protected by Sarbanes-
15 

Oxley. Thus any subsequent adverse employment action against Dietz is not 

actionable under § 1514A.6

IV. CONCLUSION

Sarbanes-Oxley does not protect Dietz’s whistleblower complaint because he 

did not reasonably believe that Cypress engaged in any of the enumerated offenses in 

18 U.S.C. § 1514(a)(1). Accordingly, we GRANT Cypress’s petitions for review, 

Nos. 16-9523, 16-9529, 16-9534, and VACATE the Board’s awards for Dietz on the 

merits and for attorneys’ fees and costs. 

As for the district court order enforcing the Board’s merits award to Dietz, that 

order is VACATED as moot, as there is nothing now left to enforce. Thus, Appeal 

 

6

 This conclusion obviates the need to address the other difficult issues in the 

case, including whether Dietz reasonably believed the criminal fraud involved the 

mail or wires, whether Dietz adequately communicated his complaint to Cypress in 

terms that were specific enough to alert the company that he was alleging federal 

mail fraud or wire fraud, whether even such a specificity requirement exists in 

Sarbanes-Oxley, whether Dietz’s resignation was a constructive discharge or instead 

a voluntarily departure from the company, and whether Nulty’s June 4, 2013 

disciplinary memo was an independent adverse employment action. We rest our 

disposition solely on the ground that Dietz’s complaint was not protected by 

Sarbanes Oxley because it is logically antecedent to these other issues—he could not 

reasonably believe that Cypress was engaged in mail fraud or wire fraud so his 

whistleblower complaint was not protected by Sarbanes-Oxley at all. Nevertheless, 

although we do not reach the issue, we note our skepticism about Dietz’s 

constructive-discharge argument—the evidence strongly suggests that Dietz 

voluntarily resigned from Cypress with no unlawful coercion or ultimatum by his 

supervisors. 
16 

Nos. 16-1209 and 16-1249 are DISMISSED.7

 

Entered for the Court 

David M. Ebel 

Circuit Judge 

 

7 The Department of Labor’s Consent Motion to File Under Seal Documents 

Subject to Protective Order is hereby GRANTED.