Those materials present claims pursuant to ERISA and Section 11(c) of the Occupational Safety and Health Act. They do not contain any allegation that TWC committed an act that constituted a violation of the SOX.
The record before us indicates that Shelton did not file a complaint alleging that TWC violated the SOX until October 28, 2005, which is more than 90 days after his discharge. We therefore agree with the ALJ's conclusion that TWC is entitled to summary decision because Shelton failed to file a timely SOX complaint.
Conclusion
Shelton's October 28, 2005 complaint is time-barred, and he did not, prior to that date, file a complaint accusing TWC of violating the SOX. We therefore concur with the
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ALJ's conclusion that TWC is entitled to summary decision. Accordingly, we AFFIRM the ALJ's R. D. & O. and DENY Shelton's complaint.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514A (West 2006).
2 29 C.F.R. Part 1980 (2007).
3 Complainant's Response in Opposition to Respondent Time Warner Cable's Motion to Dismiss Complaint (Complainant's Response), Exhibit (Ex.) 6.
4 "ERISA" is the Employee Retirement Income Security Act of 1974, 29 U.S.C.A § 1001 et seq. (West 1999 & Supp. 2007).
5 Secretary's Findings at 1.
6 Id. The EBSA and IRS letters are not included in the record before us.
7 OSHA states that Shelton filed his SOX complaint on October 15, 2006. Secretary's Findings at 1. We agree with the ALJ's finding that Shelton filed the complaint on October 28, 2005. See R. D. & O. at 4, n.3 (citing a copy of the "original complaint" forwarded by the Deputy Regional Administrator).
8 Motion to Dismiss at 2-4.
9 R. D. & O. at 7-8.
10 Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1980.110(a).
11 29 C.F.R. § 18.40 (2006).
12 Fed. R. Civ. P. 56(c); 29 C.F.R. § 18.40(d); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
13 18 U.S.C.A. § 1514A(a); 68 Fed. Reg. 31,864 (May 28, 2003).
14 29 C.F.R. § 1980.103(c).
15 18 U.S.C.A. § 1514A(b)(2)(D) ("An action … shall be commenced not later than 90 days after the date on which the violation occurs."); 29 C.F.R. § 1980.103(d) ("Within 90 days after an alleged violation of the Act occurs (i.e., when the discriminatory decision has been both made and communicated to the complainant), an employee who believes that he or she has been discriminated against in violation of the Act may file, or have filed by any person on the employee's behalf, a complaint alleging such discrimination.").
16 29 C.F.R. § 1980.103(b).
17 Motion to Dismiss at 4.
18 18 U.S.C.A. § 1514A.
19 R. D. & O. at 8-9.
20 See, e.g., Complainant's Response, Ex. 15 (excerpt from Time Warner Cable's Standards of Business Conduct Manual).
21 Shelton does not argue before us that his letters to EBSA and the IRS constitute SOX complaints.