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Issue Date: 14 November 2003
CASE NO. 2003-SOX-00026
In the Matter of:
EDWIN MOLDAUER, Complainant,
vs.
CANANDAIGUA WINE CO., Respondent.
ORDER GRANTING MOTION FOR SUMMARY DECISION
This matter arises out of a complaint of discrimination filed under the whistleblower protection provisions of Section 806 of the Sarbanes-Oxley Act (hereinafter "the Act"). 18 U.S.C. § 1514A. Complainant Edwin Moldauer alleges that Respondent Canandaigua Wine Company terminated him on October 7, 2002 in violation of the Act.
Complaints under Section 806 of the Act are governed by 49 U.S.C. § 42121(b), which are the procedural regulations governing the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. 18 U.S.C. § 1514A(b)(2)(B). 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 any Federal law relating to fraud against shareholders.
Respondent alleges the following facts in its motion for summary decision. Because Mr. Moldauer has not disputed any of these facts, they are assumed to be accurate. On November 1, 2002, Mr. Moldauer, with the advice of an attorney, signed a severance agreement with Respondent. Among other things, Mr. Moldauer agreed to release any discrimination claims he might have under state and federal law against Respondent in exchange for his severance package. Resp. Motn. Ex. 6. Notwithstanding this agreement, Mr. Moldauer met with a representative of the California Department of Fair Employment and Housing ("DFEH") on November 19, 2002 to lodge a complaint against respondent based on alleged discrimination and harassment in the workplace. Resp. Motn. Ex. 20. According to Respondent's counsel, Mr. Moldauer also met with an FBI agent in November, 2002 to report alleged accounting irregularities by the Respondent. Resp. Motn. Decl. D at ¶E. In his objections to the Regional Administrator's findings dismissing his complaint under the Act, Mr. Moldauer declared that he also filed a complaint against Respondent with the Securities and Exchange Commission (SEC).1
1 In addition to the facts necessary to decide whether summary decision is appropriate, Respondent alleges numerous facts that it feels are necessary to place Mr. Moldauer's complaint in its proper context. Respondent alleges that Mr. Moldauer has engaged in numerous actions designed to harm its reputation since he accepted his severance package. Specifically, Respondent alleges that Mr. Moldauer has stolen its trade secrets, disclosed its trade secrets to a competitor, and made defamatory postings about its accounting practices on the internet. See Resp. Motn. at pp. 5-8. Respondent declares that it has filed a criminal complaint against Mr. Moldauer with the Madera County District Attorney (which resulted in criminal charges by the Madera County District Attorney), applied for a temporary restraining order with the United States District Court, and filed a federal lawsuit against Mr. Moldauer that alleges theft of trade secrets and defamation. Resp. Motn. at pp. 5:2-6:17 and 9:12-10:11; see also Resp. Motn. Ex. 12(Madera County Sheriff's Seized Evidence Report), Ex. 13 (Madera County District Attorney's Criminal Complaint), Ex. 22 (civil complaint filed in U.S. District Court (E.D. Cal.), and Ex. 23 (Temporary Restraining Order issued by U.S. District Court (E.D. Cal.). Mr. Moldauer views Respondent's actions as indicative of its animosity towards him. Moldauer Opp. at pp. 3:28-4:9. For the purposes of this motion, only facts bearing on the timeliness of the complaint and the applicability of equitable estoppel and equitable tolling will be considered.