ARB CASE NO. 06-128
ALJ CASE NO. 2004-SOX-00049
DATE: August 25, 2006
In the Matter of:
L. THOMAS RICHARDS,
COMPLAINANT,
v.
LEXMARK INTERNATIONAL, INC.,
RESPONDENT.
BEFORE: THE
ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioner:
Larry A.
Sykes, Esq., Lizbeth Ann Tully, Esq., Stoll Keenon Ogden PLLC, Lexington, Kentucky
FINAL ORDER
APPROVING WITHDRAWAL OF RESPONDENT'S
PETITION FOR
REVIEW AND DISMISSING APPEAL
This case arose under the Corporate and
Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act
of 2002 (SOX), and its implementing regulations
when the Complainant, L. Thomas Richards, filed a complaint with the United
States Department of Labor's Occupational Safety and Health Administration
(OSHA) alleging that the Respondent terminated
his employment in violation of Section 806, SOX's employee protection
provision. OSHA denied the complaint. Richards objected to OSHA's findings
and requested a hearing before a Department of Labor Administrative Law Judge
(ALJ).
On
June 20, 2006, the ALJ issued a Recommended Decision and Order Dismissing Claim
(R. D. & O.). The ALJ found that
Complainant's
complaint was timely filed but the claim must be dismissed because Complainant
has failed to establish the requisite elements for a cause of action under the
Act by a preponderance of the evidence. Specifically, he has failed to establish
that he engaged in protected activity within the meaning of the Act or that
there was a causal relationship between his alleged protected activity and his
termination.
On July 5, 2006, Lexmark filed a protective petition for review of the R. D. & O. with
the Administrative Review Board.
Lexmark stated that it took exception to several of the ALJ's findings but
that it filed the petition for "the purpose of preserving Lexmark's
exceptions in the event that the Complainant seeks and is granted review of the
June 20, 2006 Recommended Decision and Order Dismissing Claim."
Richards did not file a petition asking the Board to review the ALJ's R. D.
& O.
On August 2, 2006, Lexmark filed a Withdrawal of Respondent's Petition for Review. In
support of the withdrawal Lexmark stated,
Respondent
filed a Petition for Review strictly for the purpose of preserving Lexmark's
exceptions in the event that the Complainant sought review of the
Administrative Law Judge's Recommended Decision and Order Dismissing the
Claim. Since Complainant did not file a Petition for Review, Respondent's
Petition for Review is now moot and Respondent requests that its Petition be
withdrawn.
Accordingly, we GRANT
Lexmark's request to withdraw its Petition for Review, and we DISMISS
its appeal.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeal Judge
A. LOUISE OLIVER
Administrative Appeals Judge