Foss v. Celestica, Inc., 2004-SOX-4 (ALJ Jan. 8, 2004)

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Foss v. Celestica, Inc., 2004-SOX-4 (ALJ Jan. 8, 2004)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Issue Date: 08 January 2004

Case No.: 2004-SOX-4

In the Matter of

WALTER E. FOSS,
Complainant,

CELESTICA, INC.,
Respondent.

Appearances:
Walter Foss
Pro Se

    Jay W. Waks, Esquire
    Jordan Schwartz, Esquire
    For Respondent

Before:
JOHN M. VITTONE
Chief Administrative Law Judge

DECISION & ORDER GRANTING MOTION TO DISMISS

This case arises out a complaint of discrimination filed pursuant to the employee protection provisions of § 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A ("the Act"), enacted on July 30, 2002. The Act prohibits retaliatory or discriminatory actions by publicly-traded companies against their employees who provide information to their employers, a federal agency, or Congress that alleges violations of 18 U.S.C. §§ 1341, 1343, 1344 or 1348, or any provision of Federal law related to fraud against shareholders. 18 U.S.C. § 1514A(a).

Procedural History

On February 4, 2003¹ , Walter Foss ("Complainant") filed a complaint before the Occupational Safety and Health Administration of the U.S. Department of Labor ("OSHA"), alleging that his employer, Celestica, Inc. ("Employer" or "Respondent") terminated him in violation of the Act. OSHA conducted an investigation into the complaint and issued a finding on October 2, 2003 that the complaint was not timely filed. On October 30, 2003, Complainant filed an appeal of that determination with the Office of Administrative Law Judges. The case was subsequently assigned to the undersigned.

[Page 2]

A telephone conference was conducted with the undersigned and the parties on November 14, 2003. During this conference, the parties agreed that Respondent would file a Motion to Dismiss by December 5, 2003 and that Complainant would file a Response to this Motion by December 19, 2003. These dates were memorialized in a Memorandum of Conference Call and Order Establishing Dates issued by the undersigned on November 19, 2003 and served upon all parties. Respondent filed the Motion to Dismiss, postmarked on December 5, 2003 and received on December 8, 2003, based on the ground that the complaint was not timely filed. Complainant failed to file a Response to the Motion, as set forth in the November 19, 2003 Order.

Issue

Whether the complaint was timely filed in accordance with § 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

Discussion

Under the Sarbanes-Oxley Act, an employer is prohibited from retaliating against an employee for reporting conduct that the employee reasonably believed constituted a violation of the securities law of any other federal law relating to fraud against shareholders. The Act requires that a complaint be filed within ninety (90) days of the alleged retaliation. 18 U.S.C. § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(d). The only issue is whether Complainant complied with the ninety day statutory filing period.

In October 2002, Complainant was employed by Celestica, Inc. in Salem, New Hampshire. When Complainant reported for work on October 21, 2002, Celestica management attempted to serve him with paperwork notifying him that he had been terminated. Complainant refused to take the paperwork and instead left the property and did not return to work. On October 24, 2002, Complainant received the notice of termination via Federal Express. See Complainant's Letter to William Pearson, Exh. A to Respondent's Motion to Dismiss. Complainant argued that the date of termination was October 24, 2002, the date that he received the notice of termination via Federal Express. Respondent argues that the date of termination was October 21, 2002, the date that Respondent attempted to notify Complainant in person that he had been terminated.

The Act requires filing "within ninety days of the alleged violation of the Act." 29 C.F.R. § 1980.103(d). A complaint is not timely unless filed within the ninety day statutory period. See Walker v. Aramark Corp., 2003-SOX-22 (ALJ Aug. 26, 2003); see also Moldauer v. Canandaigua Wine Co., 2003-SOX-26 (ALJ Nov. 14, 2003). The date of the violation occurs "when the discriminatory decision has been both made and communicated to the complainant." 29 C.F.R. § 1980.103(d). Therefore, assuming that Complainant did not know that he was being terminated until he received the notice, the date of the alleged violation would be October 24, 2002.

[Page 3]

As discussed earlier, Complainant's written complaint was filed on February 4, 2003; there is a question as to whether the complaint was filed on January 27, 2003, based on Complainant's phone call to OSHA. However, because the regulations specify that the complaint must be in writing,² the letter sent by Complainant on February 4, 2003 establishes the filing date of the complaint.

In order to be considered timely, the written complaint must have been filed within ninety day of the alleged action, in this case, Complainant's termination. Regardless of when the termination occurred (October 21 or October 24, 2002), Complainant did not file timely. Assuming that Complainant did not become aware of his termination until October 24, 2002 and that the Complainant filed a written complaint on February 4, 2003, the complaint was filed 102 days after Complainant was terminated. Furthermore, assuming, arguendo, that Complainant did not become aware of his termination until October 24, 2002 and that Complainant's telephone inquiry on January 27, 2003 met the statutory requirements for the filing of a complaint, the complaint would still not have been timely filed, as it would have been filed ninety-five days after the termination.

Complainant previously argued that the statute of limitations should be tolled based on "the handling of this by [my] employer." See Complainant's Letter to William Pearson, Exh. A to Respondent's Motion to Dismiss. However, as noted by Respondent, Complainant has not identified any specific actions of Celestica that would give rise to a tolling of the statutory period. Complainant was aware of his termination on October 24, 2002, yet failed to file a complaint until February 4, 2003. This falls outside the proscribed period of ninety days. There is no indication that Celestica prevented Complainant from filing during this time period. Complainant failed to identify any action by Celestica that prevented him from filing timely and Complainant failed to present any argument or response to the Motion to Dismiss. Complainant has not argued that he was unaware of the whistleblower protection provision of the Act or that he was unable to file during the ninety day period. As such, the complaint was not timely filed and Respondent's Motion to Dismiss is hereby granted.

SO ORDERED.

JOHN M. VITTONE
Chief Administrative Law Judge

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).

[ENDNOTES]

¹ There is some dispute as to the date of filing. Twenty-nine C.F.R. § 1980.103(b) provides that "[n]o particular form of complaint is required, except that a complaint must be in writing." Further, the "date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the complaint is filed in person, by hand-delivery, or other means, the complaint is filed upon receipt." 29 C.F.R. § 1980.103(d). Complainant argued that the complaint was filed via telephone call to OSHA investigator William Pearson on January 27, 2003, memorialized in an email sent by Pearson that same day. Respondent argued that this telephone call failed to satisfy the requirement that the complaint be in writing and that the letter sent by Complainant to Pearson on February 4, 2003 is the correct date of filing.

² See 18 U.S.C. § 1514A(b)(2)(A); 29 C.F.R. § 1980.103(b).