Walker v. Aramark Corp., 2003-SOX-22 (ALJ Aug. 26, 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: 26 August 2003

Case No.: 2003-SOX-22

In the Matter of

PAUL A. WALKER
    Complainant

    v.

ARAMARK CORPORATION
    Respondent

   This case arises under the employee protective provisions of the Sarbanes-Oxley Act of 2002, P.L. 107-204, §806 (to be codified at 18 U.S.C.§1514A). The matter is set for formal hearing on October 8, 2003; however, Respondent has filed a Motion for Summary Judgment with four exhibits attached, and pro se Complainant has responded with 19 attachments to his reply.

   Respondent's exhibit 3 is a letter from Complainant to OSHA dated April 25, 2003, confessing to a late filing of his complaint. "I understand that I may have passed the 90 day statute of limitation. As you can see by the letter, I have spent too much time trying to resolve this internally with ARAMARK."

   Respondent's exhibit 1 is an April 29, 2003, determination letter from OSHA apprising Complainant as follows and also notifying him he had 30 days within which to request a hearing concerning the determination:

You were terminated on January 7, 2003. You made first contact with OSHA on April 23, 2003, which was 105 days after the alleged adverse action. The Investigator informed you that you filed after the 90 day time frame afforded by the Act.

Furthermore, you indicated there were no extenuating circumstances which would warrant equitable tolling in this matter. With this information, the case must be dismissed because it was not timely filed.

   Respondent's Exhibit 4 is an appeal letter from Complainant to the Office of Administrative Law Judges dated May 25, 2003, containing, for the first time, the following accusation:

   Concerning the 90 day statue of limitation, Aramark further retaliated after terminating my employment on January 7, 2003 when I refused to sign the severance letter which would waive my legal rights to all claims surrounding my termination. For example, on 2/19/03 I received a call from Debbie Lapinski at the Illinois Unemployment Office. Ms. Lapinski stated that Aramark was contesting my unemployment benefits stating that I had quit my position. This false information delayed my benefits. On 2/19/03 I notified Mr. James Wells, Aramark Associate General Counsel, of this further retaliatory conduct via US Certified Mail and E-mail. This retaliatory conduct falls within the 90-day time frame of my charge with OSHA.

   Respondent's Motion for Summary Judgment is brought on the following grounds:

   1. Respondent is not a "company" within the meaning of the Act inasmuch as it is not required under Section 12 of the Securities Exchange Act of 1934 to file reports under Section 15(d) because it has no class of securities registered under Section 12.

   2. That Complainant is time barred because his complaint was not filed within 90 days of any alleged violation.

   3. That Complainant's claim of retaliation concerning his application for unemployment benefits fails to state a claim because he received the benefits he requested.¹

   Complainant filed his appeal on May 25, 2003. (RX 4). Apparently realizing his claim was time barred, Complainant, for the first time, raised a new allegation in hopes of reviving his complaint. Specifically, Complainant raised for the first time the allegation that Respondent had retaliated against him after terminating his employment by contesting his application for unemployment benefits, which he admittedly became aware of 95 days earlier on February 19, 2003, but had not mentioned to anyone at OSHA. (RX 4, CX 10, 11, 12).²

   Complainant's defense to his belated complaint appears to be that Respondent's alleged continuous conduct toward him after he was terminated on January 7, 2003, tolls the 90 day statute. His argument is misplaced for two reasons.

   First and foremost, Complainant's allegations in his appeal of May 25, 2003, that Respondent had interfered with his gaining unemployment benefits, was itself untimely filed. Complainant had admittedly learned as early as January 30, 2003, or certainly as late as February 19, 2003, that there was an objection raised by Respondent to his unemployment compensation application. At the least, 95 days lapsed from this awareness until any reference was made to that event. Consequently, while I question whether making the complaint for the first time on appeal to the Office of Administrative Law Judges is in compliance with the Act, still and all his complaint was untimely.

   As to the continuing nature of Respondent's alleged behavior tolling the time requirements of the Act, this issue was addressed by the United States Supreme Court in National Railroad Passenger Corporation v. Morgan, 122 S.Ct. 2061 (2002). There the Supreme Court held that separate or distinct ("discrete") discriminatory acts are not actionable if time barred, for each act has its own filing clock. In other words, outside of hostile work environment claims, the Court ended the continuing violation theory developed by the lower Courts to bootstrap adverse employment actions into the presumptive period. Thus, discrete retaliatory acts are not actionable if time barred.

   In this instance, even if Complainant's most recent allegation of discrimination (challenged unemployment compensation) had not been time barred, it would not have revived any action he had under the Act for his January 7, 2003, termination, inasmuch as any action for the termination was in and of itself previously time barred by his late filing. Each "discrete" act constitutes a separate actionable event or practice. The act occurs on the day it happens and a charge must be filed within 90 days of that happening. That as not done by Complainant as to either of these unrelated acts.

   In sum, I find Complainant's complaint to be time barred as to all issues raised, and I GRANT Respondent's Motion for Summary Judgment in that regard.³ Complainant's complaint stands DISMISSED as untimely and the formal hearing scheduled in this matter for October 8, 2003, is CANCELLED.

   So ORDERED this 26th day of August, 2003, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge

CRA:kw

NOTICE OF APPEAL RIGHTS: This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. §§ 1980.110, 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, and within 30 days of the filing of the petition, the ARB issues an order notifying the parties that the case has been accepted for review. The petition for review must specifically identify the findings, conclusions or orders to which exception is taken. Any exception not specifically urged ordinarily shall be deemed to have been waived by the parties. To be effective, a petition must be filed within ten business days of the date of the decision of the administrative law judge. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the Board. 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. §§§§ 1980.109(c) and 1980.110(a) and (b), as found OSHA, Procedures for the Handling of Discrimination Complaints Under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002; Interim Rule, 68 Fed. Reg. 31860 (May 29, 2003).

¹Respondent's Exhibit 2"A" is a letter dated March 4, 2003, from the Department of Employment Security finding Complainant eligible for benefits.

² Actually, Complainant's Exhibit 12 shows that by letter dated January 30, 2003, Complainant was notified by the unemployment office that "a question has been raised regarding your eligibility for unemployment insurance benefits for the period beginning 01-26-2003."

³ My findings eliminate the need to discuss the remaining grounds upon which Respondent has brought it's Motion for Summary Judgment.