Cunningham v. Washington Gas Light Co., 2004-SOX-14 (ALJ Apr. 2, 2004)

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Cunningham v. Washington Gas Light Co., 2004-SOX-14 (ALJ Apr. 2, 2004)

U.S. Department of Labor Office of Administrative Law Judges
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Pittsburgh, PA 15220
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Issue Date: 02 April 2004
CASE NO.: 2004-SOX-14

In the Matter of:

WILLIAM MICHAEL CUNNINGHAM,
Complainant

WASHINGTON GAS LIGHT COMPANY,
Respondent

RECOMMENDED DECISION AND ORDER
DISMISSING CLAIM

This case arises out of a complaint of discrimination filed pursuant to the employee protection provisions of § 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, enacted on July 30, 2002 (hereinafter "Act"). 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 18 U.S.C. §§ 1341, 1343, 1344 or 1348, or any provision of Federal law related to fraud against shareholders. 18 U.S.C. § 1514A(a).

On November 10, 2003, William Michael Cunningham filed a complaint before the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA), alleging that his employer, Washington Gas Light Company, terminated him in violation of the Act. OSHA issued a finding on November 21, 2003 that the complaint was not timely filed. On December 5, 2003, Complainant filed an appeal of the OSHA determination with the Office of Administrative Law Judges. The case was assigned to me on December 12, 2003.

On December 24, 2003, I issued a Notice of Hearing and required the parties to show cause why the petition should not be dismissed for a lack of timely filing. On February 12, 2004, the Respondent answered the Court's order. Respondent argued that the claim should be dismissed as untimely. Respondent also stated that the claim should be dismissed because "the Complainant has filed a claim under a statute that did not exist at the time of the circumstances that gives rise to his allegations." On March 14, 2004, Complainant answered the Court and requested that the claim not be dismissed.¹ He wrote, "[t]he petitioner, via affidavit, makes a prima facie showing that retaliatory conduct has occurred. He contends that there are genuine issues of material fact precluding summary judgment."

[Page 2]

The Act requires that a complaint be field within ninety (90) days of the alleged retaliation. 18 U.S.C. § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(d). Complainant's alleged protected activity occurred in 1999. He was terminated by Washington Gas Light Company in August 1999. Complainant did not file a complaint with OSHA until November 10, 2003, over four years after his termination. In order to be considered timely, the written complaint must have been filed within ninety days of the alleged action, in this case, Complainant's termination. Complainant did not timely file.

ORDER

IT IS HEREBY ORDERED that the above-captioned matter is DIMISSED for lack of a timely filing. It is further ORDERED that the hearing scheduled for May 4, 2004, in Alexandria, Virginia, is CANCELLED.

RICHARD A. MORGAN
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; Interim Rule, 68 Fed.

[ENDNOTES]

¹ Complainant attached to his answer a Motion for Leave to File out of Time. Briefs were due on March 12, 2004. Complainant stated that he is pro-se and did not receive the documents necessary for his answer until March 13, 2004. Complainant's Motion for Leave to File out of Time is hereby granted.