Specifically, Portes contends that in Wyeth's response to his OSHA complaint,
the company “disparaged [his] reputation and character” by “falsely claiming
that he had demeaned his supervisor and co-workers and ‘generally damaged
relationships with key internal clients of his department.” ’ (Compl.¶ 183.)
Section 1514A(b)(1) requires that allegations of violations of § 1514A(a) first be
presented by filing a complaint with the Department of Labor. Section
1514A(b)(1)(B) empowers a federal district court to hear only those claims for
which this administrative remedy has been exhausted. “The administrative scheme
underlying [SOX] is judicial in nature, and designed to resolve the controversy
on its merits.” Willis, 2004 WL 1774575, at *5. While Portes' claim that
he was harassed in response to his OSHA complaint could not have been included
in his original complaint, he does not allege that he amended it or otherwise
reported his retaliation claim to OSHA. Accordingly, Portes cannot assert the
claim in federal court. See Willis, 2004 WL 1774575, at *6
(dismissing a plaintiff's SOX claim where he had failed to amend an OSHA
complaint to allege retaliation).
[Page 11]
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss is granted. Plaintiff's
retaliation claim under SOX concerning his filing of a complaint with OSHA is
dismissed with leave to replead within fourteen days of the date of this
Memorandum and Order. The remainder of Plaintiff's claims are dismissed with
prejudice. The Clerk of the Court is directed to mark this case closed.
Dated: August 20, 2007
New York, New York
SO ORDERED:
WILLIAM H. PAULEY III
U.S.D.J.
Counsel of Record:
Michael Shen, Esq.
Michael Shen & Associates, P.C.
212 Broadway, Suite 1215
New York, NY 10007-3000
Counsel for Plaintiff
Michael Delikat, Esq.
Orrick, Herrington, & Sutcliffe LLP
666 Fifth Avenue
New York, NY 10103-0001
Counsel for Defendant
[ENDNOTES]
1 According to the Complaint, the
Barr Mandate arose from United States v.
Barr Labs., Inc. and prohibits the averaging of test data in drug
manufacturing. 812 F.Supp. 458 (D.N.J.1993). (Compl. ¶ 94 n.1.) The federal
regulations cited by Portes are 21 C.F.R. § 210 (Current Good Manufacturing
Practice in Manufacturing, Processing, Packing, or Holding of Drugs; General),
21 C.F.R. § 211 (Current Good Manufacturing Practice for for Finished
Pharmaceuticals), and 21 C.F.R. § 600 (detailing general regulations for
biological products). (Compl.¶ 94.) Portes does not refer to specific EU
regulations, but rather to the European Medicines Agency (EMEA) and its drug
manufacturing rules. (Compl.¶¶ 83, 94, 100, 117.)
2 The Secretary of Labor has delegated
responsibility for administrative complaints to OSHA. See 29 C.F.R. § 1980.103(c) (2006).
3 Defendant also contends that SOX
does not protect disclosures made by an
employee in the course of his routine job duties. However, because the Court
concludes that Portes has failed to state a claim for other reasons, it need
not address this argument.
4 Given the relative scarcity of caselaw
interpreting SOX, courts also “look to
caselaw applying provisions of other federal whistleblower statutes for
guidance.... The [SOX] Regulations [state expressly] that consideration was
given to the regulations implementing the whistleblower provisions of the
Wendell H. Ford Aviation Investment Reform Act for the 21st Century ... the
Surface Transportation Assistance Act ... and the Energy Reorganization Act.” Collins,
334 F.Supp.2d at 1374.
5
Section 1514A(a) prohibits retaliatory action against any “employee.” Although
Portes was no longer employed by Wyeth when he filed his complaint with OSHA,
29 C.F.R. § 1980.101 defines “employee” to include “an individual presently or
formerly working for a company.” See also Robinson v. Shell Oil Co.,
519 U.S. 337 (1997) (holding in the Title VII context that an employee may sue
in the event of retaliation against him for filing an administrative
complaint).