Conclusion
Rollins has failed to demonstrate any genuine question of material fact relevant to the issue whether his complaint was timely filed. We therefore GRANT summary dismissal for American and DENY the complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514A (West Supp. 2005).
2 49 U.S.C.A. § 42121(a) (West Supp. 2005).
3 The SOX protects employees who provide information to a covered employer or a Federal agency or Congress relating to alleged violations of the federal mail, wire, radio, TV, bank, and securities fraud statutes (18 U.S.C.A. §§ 1341, 1343, 1344, and 1348) any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. 18 U.S.C.A. § 1514A (a). The legal burdens of proof set forth in 49 U.S.C.A. § 42121(b), the employee protection provisions AIR 21, govern SOX actions. 18 U.S.C.A. § 1514A(b)(2)(C).
AIR 21 protects employees who provide information to a covered employer or a Federal agency relating to alleged violations of the orders, regulations, or standards of the Federal Aviation Administration relating to air carrier safety or any provision of Federal law relating to air carrier safety. 49 U.S.C.A. § 42121 (a).
4 Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. §§ 1980.110(a), 1979.110(a).
5 See 29 C.F.R. §§ 18.40, 18.41 (2006).
6 49 U.S.C.A. § 42121(b)(1); 18 U.S.C.A. § 1514A(b)(2)(D).
7 See, e.g., Halpern v. XL Capital, Ltd., ARB No. 04-120, ALJ No. 2004-SOX-00054, slip op. at 3 (ARB Aug. 31, 2005).
8 Id.
9 See Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (proper focus contemplates the time the employee receives notification of the discriminatory act, not the point at which the consequences of the act become apparent); Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (limitations period began to run when the tenure decision was made and communicated rather than on the date his employment terminated).
10 See English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), rev'd on other grounds, 496 U.S. 72 (1990) (possibility of avoiding effects of an adverse decision does not render the decision equivocal where decision itself is not negated); see also Wagerle v. The Hosp. of the Univ. of Pa., No. 93-ERA-1, slip op. at 3-6 (Sec'y Mar. 17, 1995) (statute of limitations begins to run on date complainant receives a "final and unequivocal" notice of the alleged adverse actions rather than at the time complainant ultimately experiences the effects of the actions.).
11 For the first time on appeal, Rollins argues that he filed a timely oral complaint on December 16, 2002. Under our well-established precedent, we decline to consider an argument that a party raises for the first time on appeal. Carter v. Champion Bus, Inc., ARB No. 05-076, ALJ No. 2005-SOX-23, slip op. at 7 (ARB Sept. 29, 2006).