Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 28 May 2004
CASE NO.: 2004 SOX 20
In the Matter of
COLIN M. HARVEY
Complainant
v.
THE HOME DEPOT, INC.
Respondent
Appearances:
Mr. Colin M. Harvey
Pro Se
Ms. Leslie M. Turner, Attorney
For the Respondent
Before:
Richard T. Stansell-Gamm
Administrative Law Judge
INITIAL DECISION AND ORDER-
DISMISSAL OF UNTIMELY DISCRIMINATION COMPLAINT
In his November 21, 2003 SOX complaint, Mr. Harvey alleged Home Depot terminated his employment on August 14, 2002 in retaliation for activities protected under Section 806 of the Sarbanes-Oxley Act of 2002, (Public Law 107-204), 18 U.S.C.§ 1514A, ("Act" or "SOX") as implemented by 29 C.F.R. Part 1980 (Interim Final Rule, 68 Fed. Reg. 31860, May 28, 2003). According to the statute of limitations in 18 U.S.C. § 1514A (b) (2) (D), as implemented by 29 C.F.R. § 1980.103 (d), a complaint "shall commence not later than 90 days after the date on which the violation occurs." After receiving the Respondent's request that Mr. Harvey's complaint be dismissed as untimely, I issued a Show Cause Order on February 5, 2004, directing the parties to address several issues relating to whether Mr. Harvey's SOX discrimination complaint should be dismissed as untimely. Both parties have subsequently replied to the order.
Background
Procedural History
On November 24, 2003, the Regional Administrator, U.S. Department of Labor, ("DOL"), received Mr. Harvey's November 21, 2003 SOX complaint. On December 19, 2003, after consideration by the Occupational Safety and Health Administration ("OSHA"), the Regional Administrator advised Mr. Harvey that his SOX complaint was untimely because he did not file it within 90 days of his discharge from Home Depot as required by the Act. He also informed Mr. Harvey that the June 28, 2002 Notice of Discharge he received from Home Depot occurred prior to enactment of SOX.
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:
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."
[Page 16]
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.
Summary
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.
Equitable Relief
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.
1 The appeal was received by OALJ on January 15, 2004.
2 As highlighted by the Regional Administrator, if Mr. Harvey's termination in mid-August 2002 was initiated by this alleged June 28, 2002 termination notice, then SOX protection would not be available. Usually, the notice of an intended separation, rather than the actual separation, is considered the adverse action for purposes of the statute of limitations. See Watson v. Eastman Kodak Co., 235 F.3d 851, 855 (3d Cir. 2000), citing Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) ('[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful'). Thus, if the June 28, 2002 notice was directly linked to the August 2002 termination, Mr. Harvey's complaint would fail since SOX did not become effective until July 30 2002. However, since Home Depot based Mr. Harvey's August 14, 2002 termination on his alleged abandonment of his job, I am proceeding with the adjudication of this dismissal motion on the premise that the June 28, 2002 notice did not precipitate, and was not directly related to, the August 14, 2002 separation action.
3 Mr. Harvey has submitted 27 exhibits (marked "A" through "Z" plus one document labeled "1") as part of his pre-hearing submission. In response to the Show Cause Order, Mr. Harvey has presented another 15 documents (marked "A-1" through "O-1"). I will identify references to Mr. Harvey's exhibits, as CX (complainant exhibit). In response to the Notice of Hearing, counsel for Home Depot attached two documents marked "A" and "B." In counsel's Show Cause response, she attached another document marked "A." I will label this exhibit as "C." The prefix for three Home Depot submissions will be RX (respondent exhibit).
4 Unless otherwise indicated, the letters submitted to me by Mr. Harvey are unsigned copies.
5 Mr. Harvey also wrote another letter to the Board of Directors, dated August 14, 2002, objecting to the contents in the vice president's August 9, 2002 response (CX I and CX M). He also charged that several members of the Board of Directors were not in compliance with the company's ethics code. I have not included that document in this summarization because the termination notice was completed on August 14, 2002. Consequently, this additional letter to the Board was not a contributing factor to the alleged August 14, 2002 adverse action.
6 In this portion of his show cause response, Mr. Harvey did not discuss the October 6, 2002 letter to the Assistant Secretary, Employment Standards Administration (CX L-1). He subsequently mentioned this letter in his discussion of correspondence to other federal government agencies. In his letter to the Assistant Secretary, Mr. Harvey explains that after he raised concerns about racial and employment discrimination at Home Depot, he was suspended and then terminated. He also objected to Home Depot's denial of his rights under the Family Medical Leave Act. Mr. Harvey believed Home Depot's actions were illegal.
7 On October 2, 2002, a representative of the SEC acknowledged receipt of his correspondence (CX F-1).
8 DOJ acknowledged receipt of these letters on October 4, 2002 and October 23, 2002 (CX I-1).
9See Ohio National Life Insurance Co. v. United States, 922 F.2d 320 (6th Cir. 1990).
10 Mr. Harvey subsequently filed another SOX complaint concerning this issue. That SOX complaint is also before me as 2004 SOX 36.
11 Significantly, since Mr. Harvey also failed to present any adverse employment action in retaliation for alleged protected activity under SOX, the complaint also facially fails to state a cause of action and is subject to dismissal under Fed. R. Civ. p. 12 (b) (6).
13 Although not pertinent in consideration of the Motion to Dismiss, I note that in the actual adjudication of a SOX complaint, even if the complainant proves that his protected activity was a contributing factor in the unfavorable personnel action, 49 U.S.C. § 42121 (b) (2) (B) (iv) and 29 C.F.R. § 1980.109 (a) state no relief is available to the complainant if the respondent proves by clear and convincing evidence that it would have taken the same unfavorable personnel action even in the absence of any protected activity.
14 Fraud is defined as "false representation of a matter of fact. . .which is intended to deceive another so that he will act upon it to his legal injury." Black's law dictionary 788 (4th ed. 1968).
15 This criminal provision was added by Section 807 of the Sarbanes-Oxley Act (2002).
16 Again, as previously discussed, I have concluded in this case that Mr. Harvey's two examples of company-wide discrimination were not viable complaints of systemic discrimination. Likewise, his complaints in that area did not involve Home Depot's failure to report these situations to shareholders.
17 The other letters to various DOL entities including the Assistant Secretary of Labor (CX B-1), OSHA (CX C-1 and CX E-1), and the Regional Administrator (CX D-1) were sent by Mr. Harvey after November 13, 2002.
18 Because Mr. Harvey presented the following letters after the expiration of the 90 day time limit, I have not included the correspondence in this discussion: January 6, 2003 letter to the Chairman, New York Stock Exchange (CX M-1) and January 21, 2003 letter to the chairman of a congressional committee (CX O-1).
19 On September 25, 2002, Mr. Harvey sent a letter to the SEC Complaint Center because he had recently learned that the company's CEO was purchasing expensive cars for several executives (CX G-1). I have not included this correspondence since it did not involve a complaint Mr. Harvey made while he was working for Home Depot. Also, I have not included Mr. Harvey's November 30, 2002 follow-up letter and additional exhibits submitted to the SEC because the documents are primarily untimely (CX H-1). In this letter, he raised new allegations about Chairman of the New York Stock Exchange who also sat on the Home Depot Board of Directors and charged the Home Depot legal department with "thievery, skullduggery, and issuance of fraudulent documents." I have omitted Mr. Harvey's December 12, 2002 complaint regarding a November 2002 SEC filing by Home Depot and September 12, 2003 complaint about an April 2003 SEC filing since those events occurred after the termination of his employment with Home Depot (CX H-1 and CX N-1).
20 I have not included the following three letters Mr. Harvey submitted after November 13, 2002 to the United States Attorney for the Northern District of Georgia: December 6, 2002, January 2, 2003, and January 21, 2003 (CX J-1). Also, for the same reason discussed in footnote 19, I have not included Mr. Harvey's September 23, 2002 complaint about the executives' expensive cars (DX I-1).
21 I have already discussed the third possibility and determined it is not available since Mr. Harvey's complaints to SEC and DOJ did not contain SOX violations.