Turner v. CNF Service Co., 2004-SOX-34 (ALJ Apr. 30, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Issue Date: 30 April 2004

CASE NO.: 2004-SOX-00034

In the Matter of

MELISSA TURNER,
   Complainant

    v.

CNF SERVICE COMPANY,
   Respondent.

   This case arises out of a complaint of discrimination filed pursuant to the employee protection provisions of section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002, 18 USC 1514A ("the Act"). The Act affords protection from employment discrimination to employees of companies with a class of securities registered under section 12 of the Securities Exchange Act of 1934, 15 USC 781, and companies required to file reports under section 15(d) of the Securities Exchange Act of 1934. Specifically, the law protects "whistleblower" employees from retaliatory or discriminatory actions by the employer because the employees provided information to their employer, a federal agency, or Congress relating to alleged violations of 18 USC 1341, 1343, 1344, 1348, or any provision of federal law relating to fraud against shareholders.

   On August 21, 2003, Melissa Turner ("Complainant") filed a complaint under the Act against CNF SERVICE COMPANY ("Respondent"). In a February 10, 2004, decision, the Regional Administrator for the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor in Seattle, Washington, on behalf of the Secretary of Labor, denied the complaint finding that the complaint was not timely filed. Complainant appealed the Regional Administrator's decision in a March 10, 2004 objection to the Secretary's findings and requested a formal hearing before the Office of Administrative Law Judges. The case was assigned to me, and, on April 1, 2004, I conducted a telephone conference with the parties' counsel and scheduled a hearing for September 20-22, 2004 in Portland, Oregon.

   The Act gives Complainant the right to bring an action for de novo review of her complaint in the appropriate federal district court if the Secretary of Labor has not issued a final decision within 180 days of the filing of her complaint. My review of the case reveals that more than 180 days have passed since Complainant filed her complaint and that Complainant is not responsible for this delay. In fact, 180 days had passed from the filing of the complaint in this case (August 21, 2003) to the time that the case was first assigned on appeal to the Office of Administrative Law Judges (March 11, 2004).

   On April 23, 2004, Complainant filed Complainant's Withdrawal of Objection to the Secretary's Findings seeking my approval, pursuant to 29 Code of Federal Regulations' (C.F.R.) section 1980.111(c), of her withdrawal of objection to the Regional Administrator's decision. Complainant wishes to pursue alternative avenues of redress. My review of the case reveals that a final order has not been issued, and a formal hearing has not taken place. Respondent's counsel has no objection to the request to withdraw the objection to the Regional Administrator's decision. Therefore, I will approve Complainant's request to withdraw her objection to the Secretary's findings.

   IT IS ORDERED that Complainant's withdrawal of her objection to the Regional Administrator's decision, issued February 10, 2004, is APPROVED. The formal hearing of this case scheduled for September 20-22, 2004, is hereby CANCELLED.

       GERALD M. ETCHINGHAM
       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, 68 Fed. Reg. 31860 (May 29, 2003).

GME/dmr