Marchand v. AM Southbank, 2003-SOX-3 (ALJ Apr. 24, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 24 April 2003

Case No.: 2003-SOX-00003

In the Matter of

MICHAEL MARCHAND
    Complainant

    v.

AM SOUTH BANK
    Respondent

   This case arises under the employee protective provisions of the Sarbanes-Oxley Act of 2002, P.L. 107-204, §806 (Act). Complainant filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging adverse actions were taken against him by the Respondent in violation of Section 806 of the Act.

   Following an investigation of that complaint by OSHA, the Complainant was advised by letter dated January 15, 2003, that his complaint was dismissed because he did not establish that he engaged in activity protected by the Act.

   In response to OSHA's denial, Complainant appealed the determination and the matter was assigned to the Office of Administrative Law Judges. After a telephonic conference with counsel for both parties, the case was set for hearing on April 8, 2003, and, by agreement, later reset for May 14, 2003. Now, however, Complainant has moved to dismiss his complaint, and Respondent has no objection.

   Specifically, in a telephonic conference held on April 16, 2003, Complainant's counsel, with Complainant present, announced that it was in his client's best interest to seek a remedy for Respondent's alleged actions in State Court. Claimant's counsel further advised that he would file a written request for dismissal, and Respondent's counsel stated there was no objection.

   In furtherance of that conference, now by motion filed April 23, 2003, Complainant, through counsel, requests dismissal of his complaint with prejudice in order to pursue his claim in a Louisiana State Court pursuant to LSA-R.S.23:967, which he states provides a better remedy for Complainant's allegations concerning Respondent's alleged unlawful personnel conduct.

   Being advised of no reason to the contrary, Complainant's Motion to Dismiss this matter with prejudice is APPROVED and GRANTED.

   So ORDERED this 24th day of April, 2003, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge

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NOTICE: Regulations have not yet been promulgated by the Department of Labor detailing the process for review by the Administrative Review Board of decisions by Administrative Law Judges under the employee protection provision of the Sarbanes-Oxley Act. Consequently, as agreed by the parties at the outset of this matter, the applicable regulations for this particular case shall be as set out in AIR 1 regulations set forth in 29 CFR 1979. The process for review under those regulations is as follows:

This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110 (2002), unless a petition for review is timely filed with the Administrative Review Board ("Board"), US Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210. Any party desiring to seek review, including judicial review, of a decision of the administrative law judge must file a written petition for review with the Board, which has been delegated the authority to act for the Secretary and issue final decisions under 29 C.F.R. Part 1979. To be effective, a petition must be received by the Board within 15 days of the date of the decision of the administrative law judge. The petition must be served on all parties and on the Chief Administrative Law Judge. If a timely petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Board issues an order adopting the decision, except that a preliminary order of reinstatement shall be effective while review is conducted by the Board. The Board will specify the terms under which any briefs are to be filed. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b).