Stone v. Duke Energy Corp., 2003-SOX-12 (ALJ June 19, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002 (856) 486-3800

Issue Date: 19 June 2003

CASE NO.: 2003-SOX-00012

In the Matter of

F. BARRON STONE
    Complainant

    v.

DUKE ENERGY CORPORATION,
DUKE ENERGY BUSINESS SERVICES
(DEBS)
    Respondents

   This case arises out of a complaint of discrimination filed pursuant to the employee protection provisions of Public Law 107-204, Section 806 of the Corporate and Criminal Fraud Accountability act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. §1514A (Sarbanes-Oxley) enacted on July 30, 2002. 18 U.S.C. §1515A(b)(2)(B) provides that an action under Section 806 of Sarbanes-Oxley will be governed by 49 U.S.C. §42121(b). Sarbanes-Oxley affords protection from employment discrimination to employees of companies with a class of securities registered under section 12 of the Security Exchange Act of 1935 (15 U.S.C. 781) and companies required to file reports under section 15(d) of the Securities Exchange Act of 1934. Specifically, the law protects so-called "whistleblower" employees from retaliatory or discriminatory actions by the employer, because the employee provides information to their employer or a federal agency or Congress relating to alleged violations of 18 U.S.C. §§1341, 1343, 1344 or 1348, or any provision of Federal law relating to fraud against shareholders.

   F. Barron Stone, Complainant, filed an appeal with the Office of Administrative Law Judges on April 3, 2003, from an March 3, 2003 denial of his complaint by the Occupational Safety and Health Administration, U. S. Department of Labor. Complainant was served with a Notice of Hearing dated April 22, 2003, scheduling a hearing for June 18, 2003. By letter dated May 21, 2003, Claimant informed this Court of his intent to remove this matter from Department of Labor proceedings and pursue his claim in the United States Federal District Court for the Western District of North Carolina. Claimant asserted this right based on his interpretation of the Act as affording him this option following the passage of 180 days from the time he filed his initial complaint with the Department of Labor. On May 29, 2003, Respondent filed a Motion to Dismiss or Alternatively for Summary Judgment.

   By Order, received via fascimile on June 11, 2003, dated June 10, 2003, the United States District Court, Western District of North Carolina, Charlotte Division, filed their Order, 3:03-CV0256, stating that Plaintiff has filed a complaint invoking the jurisdiction of that Court. The order further stated that Plaintiff now seeks an Order staying the Department of Labor proceeding. Chief United States District Judge Graham M. Mullen ordered that Plaintiff's motion to stay proceedings before the Secretary of Labor be granted.

   Accordingly, the United States District Court for the Western District of North Carolina has assumed jurisdiction and this case is no longer before the Office of Administrative Law Judges.

SO ORDERED.

       PAUL H. TEITLER
       Administrative Law Judge

Cherry Hill, New Jersey

NOTICE: Pursuant to ¶4.c.(43) of the Secretary's Order 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002), authority and assigned responsibility to act for the Secretary of labor has been delegated to the Administrative Review Board ("ARB")_ in review or an appeal of cases arising under the Sarbanes-Oxley Act of 2002, 18 U.S.C. §1514A. The Sarbanes-Oxley Act employee protection provision provides that complaints filed with the Secretary of Labor shall be governed by the rules and procedures set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. §42121(b). Regulations directly governing Sarbanes-Oxley Act whistleblower complaints, however, have not yet been promulgated by the Department of Labor. In light of the absence of clearly governing regulations, the parties are advised that they should preserve their rights of appeal by filing in writing with the ARB, within ten business days of the date of this Decision and Order, any petition for review by the ARB. The Arb's address is Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, Washington, DC, 20210. The petition should be served on all parties and on the Chief Administrative Law Judge.