In October 1993, Mr. Harvey started working as an employee of Home Depot in Maryland. After failing to receive a promotion, Mr. Harvey filed a complaint of racial discrimination with the Equal Employment Opportunity Commission ("EEOC") in April 2000. About a year later, in April 2001, Mr. Harvey entered into a settlement contract with Home Depot regarding his discrimination complaint (CX R). As part of the arrangement, Mr. Harvey received some stock options and a promotion to the Atlanta Store Support Center ("SSC") (CX J-1).

    After about one year in Atlanta, Mr. Harvey claims he was "subject to activity and treatment in a derogatory manner" which he "felt was because of [his] race." In particular, Mr. Harvey informed the Executive Vice President for Human Resources that he had been offended by a managing director's e-mail to two other managers referencing Mr. Harvey in a statement, "who does this guy belong to?" (CX A). In his correspondence to the vice president, Mr. Harvey stated, "I am also highly offended by the fact that because of my Ethnicity I am now rendered as property by the statement ‘belongs to.' I am a human being and a Home Depot employee, not someone's property." (emphasis in the original) (CX A). Mr. Harvey added that he had presented his concerns to other supervisors and persons in the legal department. He wanted to discuss this incident and several other situations with company executives.

    On February 27, 2002, due to stress and depression related health issues, Mr. Harvey's doctor placed him on medical leave (CX D-1, CX E-1, and CX L-1). According to Mr. Harvey, at the end of April 2002, his doctor informed Home Depot officials that Mr. Harvey could return to work in about a month but his continued employment in the SSC would be detrimental to him and the company due to his previous treatment at the SSC (CX B).

    On July 10, 2002, the company presented Mr. Harvey with a separation agreement and an offer of $7,000 in exchange for an agreement not to sue. However, when he reviewed the separation document, he discovered it contained outdated references, had a suspicious signature, and did not include relocation expenses (CX D and CX J-1). As a result, he did not sign the agreement and continued to ask questions about its contents.

    On July 14, 2002, Mr. Harvey again corresponded with the Home Depot Board of Directors (CX D), complaining about the "poor, incomplete and botched" investigation of his concerns set out in his earlier May 3, 2002 letter to the Board. He charged that "Executive Level and Board of Directors are culpable with respect to these violations because after informing everyone about it, nothing happened for two months and now I am being forced out of the company." He recounted his various exchanges with company officials since the end of June 2002 concerning his reemployment and separation agreement. Mr. Harvey emphasized that the company's 2001 proxy statement proclaimed Home Depot did not tolerate disrespectful treatment, discrimination or harassment of any associate. The company indicated that it was developing and implementing programs to promote diversity. Mr. Harvey informed the Board that he had not seen such programs. He concluded by claiming his experience demonstrated an "atmosphere of malfeasance at the highest levels of Home Depot."

    In another, undated, letter to the Board, Mr. Harvey reiterated his frustrations mentioned in the July 14, 2002 letter (CX E). He then informed the Board of his intention to file charges with the EEOC, DOL, U.S. Justice Department, and the Georgia State Attorney Office. Mr. Harvey was upset that six months after he raised his complaints about the company's violations and infractions of its code of ethics and his rights, he can't return to his SSC job or relocate to DC. Instead, he was presented with an outdated separation agreement. As a shareholder, Mr. Harvey also intended to tell his story to institutional shareholders, introduce a proposal to replace members of the Board, and then petition the new Board to replace some associates in senior positions.

    In a July 19, 2002 letter to the Home Depot Board of Directors, Mr. Harvey discussed several provisions of the Home Depot ethics guide (CX G). Under the heading, "Shareholders," the guide indicates employees are to conduct themselves in a manner to "enhance and preserve the reputation of the company and will strive to provide" the company shareholders "a fair return on their investments." Mr. Harvey charged that the treatment he has received from Home Depot has immensely tarnished the company's reputation. The ethics code also states individuals who violate its provisions will be disciplined and includes supervisors and executives who condone violations or do not take appropriate measures to correct the problems brought to their attention. In light of that provision, Mr. Harvey asserted the individual who retaliated against him should be disciplined. Mr. Harvey again threatened to write letters to DOL, the Justice Department and the SEC. In the SEC complaint, Mr. Harvey planned to allege that the Board of Directors and Executive Level had engaged in "bad corporate governance" because "of the decisions or lack thereof that led to the retaliation against [him]." This problem "ultimately becomes a fiscal matter because in the end it is going to become a substantial financial liability for the company." In his complaint to the Attorney General for the state of Georgia, Mr. Harvey would allege violations of his constitutional and civil rights, which included racial profiling and treatment as a criminal. According to Mr. Harvey, this "all occurred because I complained about racial and employment discrimination at the Home Depot." Mr. Harvey also summarized the handling of his leave of absence and the failure of a company supervisor to comply with the Family Medical Leave Act. "This is another issue I am going to inform Labor Secretary Elaine Chao about." Finally, after reiterating his intention to obtain a change in the membership of the Board of Directors, Mr. Harvey promised to take his story to the major newspapers.

    Around this time frame, Mr. Harvey attempted to exercise a mediation clause in his April 2001 settlement contract and complained to a vice president for human resources (CX F and CX J-1). Eventually, on August 30, 2002, the vice president responded that his allegations had been investigated and were not substantiated (CX K-1).

    Mr. Harvey initiated his SOX complaint against Home Depot within 90 days of his August 14, 2002 termination. After the initiation of a SOX action, the statute does not preclude the filing of additional complaints of fraud against the shareholders or violations of other federal laws as an extension or amendment of the original action.

    His August 31, 2002 letter to the Secretary of Labor ("Secretary"), constitutes a timely SOX complaint. The statute does not require any specific form for a SOX complaint. Instead, a complainant only needs to present facts which would support his complaint. Mr. Harvey's correspondence satisfies that requirement because he attached multiple documents to the Secretary's letter. Those enclosures provided "detailed issues of fraud and corporate misconduct." He included in his SOX complaint a specific concern about the Family Medical Leave Act. By presenting his letter, Mr. Harvey was informing the Secretary of his "complaints against the board of directors and executives" and requesting the Secretary take action under Federal Labor Law which includes SOX.

   Mr. Harvey's November 21, 2003 SOX complaint is untimely. The alleged adverse personnel action occurred on August 14, 2002. Under the SOX employee protection provisions, a complaint must be filed within 90 days of the adverse personnel action. Mr. Harvey failed to comply with that statutory requirement.

   Although Mr. Harvey filed a complaint with the Secretary on August 31, 2002, his correspondence did not constitute a SOX complaint. In that letter, his stated concern was alleged racial and employment discrimination by Home Depot associated with his discharge and application of the Family Medical Leave Act. His race-based discrimination complaint is not a subject for consideration under the SOX employee protection provisions.

   The various other documents Mr. Harvey sent to other agencies including DOL do not constitute constructive service on the Secretary. Most of that correspondence was presented more than 90 days after his discharge. The documents submitted to DOL representative filed within 90 days do not contain allegations of employee discrimination prohibited by SOX.

   Likewise, the numerous documents that Mr. Harvey sent to other federal agencies within 90 days of his August 14, 2002 termination do not constitute the filing of a proper SOX complaint with an incorrect forum. Significantly, in the correspondence that he presented within 90 days to the various agencies, Mr. Harvey complained about racial discrimination and not retaliation for SOX protected activities. His post-discharge complaints of corporate fraud and misconduct were unrelated to his employment status at Home Depot and his employment termination.

   Finally, equitable tolling of the complaint filing requirement is not appropriate in Mr. Harvey's case. Mr. Harvey has failed to present any facts or circumstances to warrant such equitable relief. As evidenced by his extensive correspondence, Mr. Harvey was well aware of the details surrounding the end of his employment with Home Depot. Additionally, since Mr. Harvey's complaint is essentially based on alleged racial discrimination, he is unable to establish a prima facie case of a SOX violation. Consequently, "there is no legal ground to equitably toll the limitations period. . ."

   At this stage of the proceedings, the Respondent's timeliness objection to Mr. Harvey's November 21, 2003 SOX complaint and other correspondence represents a motion to dismiss for lack of subject matter jurisdiction. To invoke the investigative and adjudicative processes in the SOX employee protection provisions, a complainant must file his allegation of a violation of the SOX whistleblower protections within 90 days of the adverse personnel action. Absent any equitable relief, failure to meet the statutory filing deadline precludes consideration of the SOX complaint. See Roberts v. Rivas Environmental Consultants, Inc., 96 CER 1 (ARB Sept. 17, 1997), slip op. at 3-4 (the parties treated the complainant's presentation as a CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) whistleblower complaint because the Complainant worked at a CERCLA Superfund site. However, the nature of the complaints were not environmental. As a result, the Administrative Review Board ("ARB") concluded that "[u]nder CERCLA, there can be no adjudication on the merits if an alleged discriminatee has failed to submit a complaint alleging CERCLA employee protection violations to the Department of Labor for investigation within the prescribed time period. 42 U.S.C. §9610(b) (1994) and 29 C.F.R. §24.3(c) (1995)." Because the complainant had not satisfied this jurisdictional requirement the ARB declined to review the complaint).

   On November 21, 2003, Mr. Harvey sent the Regional Administrator, DOL, a letter to "file a complaint under the Corporate Accountability Act of 2002 (Sarbanes-Oxley) against my former employer the Home Depot, Inc. and as a current stockholder about issues with the enclosed SEC Schedule 14A Definitive Proxy Statement." In this complaint, he expressed some concerns about the Board of Directors and presented one specific complaint about lawyers representing the company.

   Concerning his Board of Director issues, Mr. Harvey first objected to the company's practice of reimbursing spouses of the directors who attend corporate functions. Since the stockholders had not elected the spouses, Mr. Harvey questioned the propriety of their being compensated by the company. According to Mr. Harvey, this reimbursement practice constituted "poor corporate governance, chicanery, and malfeasance." Next, Mr. Harvey questioned whether the Board had the capacity and commitment to govern itself. He was particularly troubled by a responsibility/liability disclaimer for the directors set out in corporate documents. He also expressed his doubt that the Home Depot Board of Directors was capable of ensuring the integrity of the company's financials.

   Between August 14, 2002 and November 13, 2002, Mr. Harvey sent three letters to the Secretary. Since that correspondence was submitted within 90 days of his termination, Mr. Harvey will have satisfied the jurisdictional time filing requirement if one, or more, of those letters constitutes a complaint under SOX. In evaluating whether his correspondence with the Secretary represented a complaint under SOX, I first note that the implementing regulation, 20 C.F.R. § 1980.103 (b) states that no particular form is required for a SOX complaint. However, the written complaint must contain a "full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violations." See also Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (the substance of the complaint determines whether activity is protected under the particular statute at issue) and Wilkinson v. Texas Utilities, 92-ERA-16 (Sec'y July 13, 1993) (when the complainant did not raise any safety issues concerning the respondent's operation of a nuclear power plant, but rather insisted that the employer had discriminated against her on the basis of her sex, the complainant failed to state a violation of the ERA's employee protection provision). Thus, to determine whether an alleged violation relates to SOX and constitutes a viable SOX complaint, a review of the SOX statute and the behavior it regulates is necessary.

   Subsection 1514A (a) of the Act and 29 C.F.R. § 1980.102 of the implementing interim regulations prohibit a company with either a class of securities registered under section 12 of the Securities Exchange Act of 1934, 15 U.S.C. § 781, or that is required to file reports under section 15 (d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78 o (d)) from discharging, demoting, suspending, threatening, harassing or in any manner discriminating against an employee in the terms and conditions of employment because an employee engaged in any lawful act to provide information, cause information to be provided, or otherwise assist in an investigation, regarding any conduct the employee reasonably believes constitutes a violation of 18 U.S.C. §§ 1341 (mail fraud and swindle), 1343 (fraud by wire, radio, or television), 1344 (bank fraud), or 1348 (security fraud), or any rule or regulation of the Securities and Exchange Commission or any provision of federal law relating to fraud against shareholders, when the information is provided to a federal regulatory or law enforcement agency, any member of congress, or a person with supervisory authority over the employee.

   In light of these various provisions, a SOX complainant must provide sufficient facts to at least minimally raise the possibility that a) the complainant engaged in a protected activity involving one of the specified violations identified in SOX; b) the employer was aware of the protected activity; and, c) the complaint suffered an adverse personnel action. Clearly, Mr. Harvey's loss of employment on August 14, 2002 represents an adverse personnel action. Additionally, Mr. Harvey's statements indicate almost all of his reports of violations and concerns were known by his supervisors, Home Depot executives, and the Board of Directors.

   In regards to protected activities, a fundamental protected activity under SOX, and the activity most relevant in Mr. Harvey's case, involves an employee providing information to supervisory authority based on a reasonable belief that a SOX violation has occurred. Under the statute, 18 U.S.C. § 1514A (a) (1), a SOX violation must relate to at least one of the following specific categories:

   On August 31, 2002, Mr. Harvey wrote a letter to the Secretary of Labor, with a courtesy copy to the Assistant Secretary, alleging that Home Depot had committed violations of "Federal Labor Laws, as well as constitutional, first amendment, civil rights and Title VII. . ." (RX B). First, after sending a letter of complaint to the CEO, Board of Directors, and other executives about the company's "racial and employment discriminatory practices," Mr. Harvey was suspended from work and told that he would be terminated. Second, Mr. Harvey suspected an executive's signature on a separation agreement given to him was fraudulent. Third, the separation agreement offered Mr. Harvey $7,000 in exchange for his right to sue under Title VII. Fourth, on at least one occasion, when he was attempting to resolve his employment situation, the company executives in July 2002 made Mr. Harvey wait outside the office building in the heat. Fifth, Home Depot improperly handled his application under the Family Medical Leave Act. Mr. Harvey believed that his complaint to an executive about his leave problem was partially the cause for his eventual termination from employment. Sixth, Mr. Harvey complained about Home Depot requiring individuals to take vacation and personal time to help reduce weekly payrolls. Seventh, Home Depot terminated Mr. Harvey even though he attempted to comply with a vice president's request to clarify his employment intentions by a certain date. In closing, Mr. Harvey explained the purpose of his letter was to inform the Secretary how minority associates, such as himself, were being treated by Home Depot for voicing their concerns to company executives and the Board of Directors.

   In reviewing Mr. Harvey's letter, I first note that his general allegation of federal labor law violations, absent specific details, does not establish a viable complaint relating to the employee protection provisions of SOX even though SOX may be considered a federal labor law. Mr. Harvey establishes a SOX complaint with this letter only if the specific factual allegations may reasonably be considered to fall within the six SOX specified categories of protected activities. In that regard, clearly none of Mr. Harvey's specific allegations relate to mail fraud, wire fraud, bank fraud or securities fraud. Likewise, his allegations do not point to violations of SEC rules and regulations, which regulate the issuance of, and transactions involving, the securities of publicly traded corporations.

   With the elimination of the other SOX violation types, the sole remaining SOX violation category concerns federal law relating to fraud against shareholders. For the following reasons, I conclude each of Mr. Harvey's specific allegations fail to reasonably demonstrate that Mr. Harvey had reported this type of violation to Home Depot officials thereby engaging in a SOX protected activity.

   In his May 2002 complaint to the Board of Directors, Mr. Harvey presented concerns about two types of racial discrimination, systemic and individual. In regards to Home Depot in general, Mr. Harvey suggested that that racial discrimination may be broad based and provided two examples. First, he recounted how the low percentages of minority store managers in the Maryland area had raised the potential for a significant law suit. However, he noted the situation was resolved when Home Depot investigated the situation and entered into settlements with the parties. Second, Mr. Harvey expressed his concern that only three minorities had achieved the position of vice president within the company.

   In terms of a federal law concerning fraud against shareholders, the first example does not represent a complaint at all. Although a discrimination problem may have existed in Maryland at one time, Mr. Harvey essentially recounted to the Board of Directors that Home Depot responded and resolved the situation. In regards to his second example, Mr. Harvey's observation about the low number of minority vice presidents, absent any other information, did not represent a reasonable belief that Home Depot had systematically discriminated against minorities seeking vice president positions. Consequently, I find neither example was a reasonable complaint of systemic racial discrimination.

   The second type of employment and racial discrimination problem Mr. Harvey presented to the Board of Directors, and clearly his principal concern, concerned individual discrimination, including several personal experiences. In determining whether these alleged violations of individual employment rights involve a federal law related to fraud against shareholders, an implicit argument may be made that a company which permits discriminatory practices despite its public policy of equal opportunity is acting contrary to the best interests of its share holders. While that argument has understandable appeal, a SOX protected activity must involve an alleged violation of a federal law directly related to fraud against share holders. In this case, the federal law actually prohibiting individual employment discriminatory practices, Title VII, is based on individual rights and establishes procedures to address illegal employment discrimination; it was not enacted to preclude fraud against shareholders. In contrast, a federal law directly linked to the prevention of fraud against shareholders is the SOX statute itself. As set out in the SOX preamble, Congress imposed additional, specific legal requirements and standards on corporations, directors, senior financial officers, lawyers, and accountants to protect shareholders by improving the accuracy and reliability of corporate disclosures made pursuant to securities laws and for other purposes. For example, SOX includes Section 302 (corporate officer certification that a financial disclosure is accurate and does not contain any untrue statement of material fact), Section 401 (enhanced disclosure requirements for mandated financial reports), and Section 406 (code of ethics for senior financial officers).

   I have also considered another reasonable argument that since SOX mandates the accuracy of corporate disclosures, a reported incident of racial discrimination within a publicly traded company that represents itself to be non-discriminatory may amount to violation of a SOX disclosure requirement and thus involve a federal law related to fraud against shareholders. That is, although the racial discrimination is prohibited by a different federal law, its existence may also adversely affects the accuracy of corporate disclosures mandated by SOX, which is a federal law concerning fraud against shareholders.

   In conclusion, while Mr. Harvey may have presented several labor law concerns to the Secretary, particularly in the area of employment discrimination practices, his August 14, 2002 letter did not contain sufficient facts to establish the incidents were related to one of the six SOX violations such that he had engaged in a protected activity under SOX. As a result, Mr. Harvey's August 31, 2002 correspondence to the Secretary was not a SOX complaint.

   On September 20, 2002, Mr. Harvey sent the Secretary a second letter containing a wage and hour complaint (CX L-1). Specifically, Mr. Harvey alleged that over the course of years, while working in Maryland, he was aware of Home Depot's practice in certain areas to ask workers to work more than 8 hours a day but then have them reduce their hours later in the week to cut the overtime hours. He recently discovered the practice was continuing and believed it was illegal.

   Although Mr. Harvey's complaint may involve federal wage and hours laws, Home Depot's alleged overtime practice does not involve a violation in any of the six SOX categories. Additionally, in this particular letter, Mr. Harvey did not allege that he presented this concern to Home Depot while employed in Atlanta or that it was a contributing factor to his termination. Accordingly, Mr. Harvey's second letter to the Secretary was not a SOX complaint.

   In his November 1, 2002 letter to the Secretary, Mr. Harvey expressed his frustration with the response he had just received from the Employment Standards Administration ("ESA"), Wage and Hour Division, DOL, concerning his earlier Family Medical Leave Act complaint (CX L-1). He had been advised that DOL did not know the specifics of his complaint. ESA instructed Mr. Harvey to contact the Baltimore District Office if he still believed his leave rights had been denied. Mr. Harvey stressed that since the Act required the Secretary to investigate these issues, he had sent everything to her. He objected to having to start over. Mr. Harvey emphasized the DOL should be made aware of Home Depot's "kind of racially discriminatory activity and employment discrimination practices." He again asked the Secretary to investigate the numerous violations of federal labor laws and take the necessary action.

   Since this letter did not raise any new complaints, and based on previous comments concerning the two earlier letters, Mr. Harvey's November 2, 2002 correspondence to the Secretary is not a SOX complaint.

   In summary, none of the three letters Mr. Harvey submitted to the Secretary during the 90 days following his termination of his employment on August 14, 2002 contained specific factual allegations of violations relating to the six specific categories established by SOX as the subjects for protected activity. Consequently, the three letters to the Secretary during this period were not SOX complaints.

   On October 6, 2002, Mr. Harvey sent the Assistant Secretary of Labor, ESA, a letter containing several allegations against Home Depot which had recently entered into a National Business Partnership Program Agreement (CX L-1). Mr. Harvey wanted DOL to know that the Home Depot Board of Directors and Executive Level had condoned and permitted numerous violations of Federal labor laws. Mr. Harvey charged that after presenting his concerns about racial and employment discrimination to the Board of Directors, he was suspended. To establish his complaint, Mr. Harvey attached his May 2, 2002 letter to the Board of Directors. Additionally, Mr. Harvey expressed his concerns over the terms of the proposed separation agreement and the authenticity of an executive's signature; he enclosed a copy of the agreement. Next, Mr. Harvey alleged violations of the Family Medical Leave Act. He attached the related leave forms. Next, Mr. Harvey objected to his treatment by executives in July 2002, which led to his standing outside the office building in the heat. Then, Mr. Harvey recounted the discriminatory wage and hour issues that had led to his April 2001 contract settlement with Home Depot and expressed his belief that the practices continued. Finally, Mr. Harvey stated that he had been terminated on August 14, 2002, even though he had tried to comply with the vice president's August 9, 2002 instructions.

   The contents of this letter parallel Mr. Harvey's earlier August 31, 2002 letter to the Secretary. Consequently, my previous determinations concerning the racial discrimination, treatment by the executives in July 2002, the inability to contact the vice president as instructed, the settlement agreement issues, wage and hour concerns, and his Family Medical Leave Act complaints, also apply to this letter. These complaints do not involve SOX protected activities.

   Since the October 6, 2002 letter to the Assistant Secretary did not contain incidents involving the six SOX violations, it does not establish constructive service on the Secretary of a timely SOX complaint.

   As Mr. Harvey explained, since SOX was a new statute in the late summer of 2002, he believed the SEC and DOJ were the lead agencies in handling SOX complaints. In light of that representation, his correspondence to those two agencies may serve as a timely SOX complaint.

   On September 16, 2002, Mr. Harvey sent a letter to the SEC alleging corporate malfeasance and incompetent corporate governance by the Home Depot's Board of Directors (CX F-1). Mr. Harvey reviewed the April 2001 discrimination settlement and summarized his subsequent complaints of racial and employment discrimination to his supervisors and the Board of Directors and described the circumstances of his termination. He expressed his concerns about the separation agreement; the executive's signature; and the company's overtime practices. According to Mr. Harvey, Home Depot's negligent and incompetent handling of its legal responsibilities represented a severe liability for the company. Mr. Harvey then claimed a published June 2002 interview with the company's CEO raised disclosure issues and ethical concerns for the Board of Directors. Finally, Mr. Harvey charged that the 2001 proxy document contained false statements because in his nine years with Home Depot, he had never heard of a diversity program. To further support his charge, Mr. Harvey observed the lack of minorities at all management levels. Prior to taking his concerns to the company's shareholders, Mr. Harvey asked the SEC to "take whatever action permissible under new and existing corporate governance rules and laws of the SEC."

   I have previously addressed most of Mr. Harvey's stated concerns in this letter and found them to be unconnected to the six areas of SOX violations. In regards to the CEO interview, Mr. Harvey did not raise that issue to his supervisors or the Board of Director prior to his separation, thus his concern about the interview did not play a role in his employment termination. Consequently, Mr. Harvey's September 16, 2002 letter to the SEC was not a timely complaint of a violation of the SOX employee protection provisions.

   On August 28, 2002, Mr. Harvey sent a letter to the Deputy Attorney General asserting Home Depot had violated his "constitutional, civil, first amendment, and Title VII rights. . ." (CX I-1). Mr. Harvey attached his May 2002 complaint of racial and employment discrimination to the Board of Directors and described the circumstances of his employment termination. Mr. Harvey highlighted concerns about the separation agreement, his treatment in July 2002 outside the office building, and his inability to contact the vice president prior to termination. He also attached two other letters to the Board of Directors. He requested action be taken under appropriate "federal, corporate fraud, and civil rights laws. . ."

   Again, based on my previous determinations, Mr. Harvey's letter to the Deputy Attorney General does not represent a timely SOX complaint.

   Neither his correspondence to the SEC nor DOJ contained allegations that involved the six SOX violations. Therefore, Mr. Harvey did not present a timely SOX complaint to either agency.

   Because I have determined Mr. Harvey's submissions to DOL, SEC and DOJ, albeit timely, did not address the six specified SOX violations, and thus are not SOX complaints, Mr. Harvey may avoid dismissal of his remaining November 13, 2003 SOX complaint only if some equitable reason exists to relieve Mr. Harvey of the 90 day time limit for filing a SOX complaint.

   With these principles, in mind I turn to Mr. Harvey's response to the Show Cause Order which offers three possible equitable considerations. First, Mr. Harvey believed he had complied with the SOX statute of limitations by submission of letters to the SEC, DOL, and DOJ. However, his incorrect belief that these letters constituted SOX complaints doesn't warrant a waiver of the 90 day time limit for the November 21, 2003 formal SOX complaint.

   Second, and closely related, Mr. Harvey asserts that his November 21, 2003 SOX complaint should be considered because it is merely a continuation of the SOX action he initiated in a timely manner following his August 14, 2002 employment termination. Contrary to Mr. Harvey's position, I have determined his correspondence during the 90 day period after his termination did not initiate a SOX action. Consequently, his November 21, 2003 SOX complaint stands alone and the earlier filings do not justify waiving the statute of limitations for this last complaint.

   Third, Mr. Harvey claims that he filed the formal November 21, 2003 SOX complaint at the request of the OSHA investigator. As a result, his otherwise timely submissions to the Secretary of Labor, SEC, and DOJ should not be negated because he also subsequently filed an untimely formal SOX complaint in November 2003. I determined that the earlier submissions were not SOX complaints based on their respective content and did not base the decision on Mr. Harvey's subsequent untimely filing of the November 21, 2003 complaint.

   In his response, Mr. Harvey did not allege that Home Depot either mislead him or precluded him from filing a timely SOX complaint. Accordingly, no permissible equitable grounds exist to waive the SOX complaint 90 day statute of limitations.

   In light of Mr. Harvey's pre-hearing submission, I believe one other comment is warranted. Mr. Harvey indicated that he intended to pursue numerous issues at the hearing. The extensive list of issues included: whether the Home Depot Board of Directors committed fraud by reimbursing the travel expenses of the director's spouses to attend official company functions and visit company stores; whether the Board of Directors is capable of ensuring the integrity of company financials; whether the Board of Directors bribed a political organization to endorse Home Depot as a choice for minorities; whether certain SEC forms were actually signed by the indicated executive; whether the vice president designated as the reporting person has the competence to practice before the SEC; and, whether the various committee meetings were held separate from the Board of Directors' meeting, as required. I simply note that had the Motion to Dismiss not been granted, the hearing before me would have only addressed Mr. Harvey's employment relationship with Home Depot and whether any SOX protected activity contributed to the severance of that relationship. The proceedings would only tangentially consider his extensive corporate malfeasance allegations to the extent necessary to determine whether Mr. Harvey's complaints to supervisors and the Board of Directors were based on a reasonable belief that a violation of one, or more of the SOX violation categories had occurred.

   Facially, since he did not file the complaint within 90 days of his August 14, 2002 separation from Home Depot, Mr. Harvey's November 21, 2003 SOX complaint is untimely. Because the referenced incidents in his correspondence to the Secretary of Labor and other entities within DOL did not relate to the six specific SOX violations, his submissions between August 14, 2002 and November 13, 2002 were not SOX complaints. For the same reasons, Mr. Harvey's correspondence to the SEC and DOJ within the same time frame were not SOX complaints. Finally, Mr. Harvey has not presented sufficient facts to warrant an equitable suspension of the 90 day complaint filing requirement. Since Mr. Harvey failed to file a viable complaint within the time frame mandated by 18 U.S.C. § 1514 A (b) (2) (D), his complaint of a violation of the Sarbanes-Oxley Act's employee protection provision must be dismissed.

   Accordingly, Mr. Harvey's November 21, 2003 SOX complaint is DISMISSED.

SO ORDERED:

       RICHARD T. STANSELL-GAMM
       Administrative Law Judge

Date Signed: May 27, 2004
Washington, D.C.

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).