July 2009
SARBANES-OXLEY ACT SANCTIONS FOR FAILURE TO TIMELY PRODUCE MEDICAL RECORDS
In Skidmore v. ACI Worldwide, Inc. , No. 8:08CV1 (D.Neb. July 8, 2009), an action for wrongful discharge unde the Sarbanes-Oxley Act, the court affirmed the order of the Magistrate Judge granting the Defendant's motion for reasonable attorneys fees and costs in connection with a motion to compel production of the Plaintiff's medical records. The court found that the Magistrate had acted within his discretion and that the Plaintiff had not shown that the Magistrate's findings were clearly erroneous or contrary to law.
According to the Magistrate's order, Skidmore v. ACI Worldwide, Inc. , No. 8:08-cv-00001 (May 8, 2009), the Defendant had sought the medical records prior to a scheduled deposition of the Plaintiff. After several months of communication, counsel conferred and agreed that the records were relevant and would be produced. However, the Plaintiff sought to obtain the records himself. The records were not produced until several months later, on the very day the Defendant filed a motion to compel. The Defendant filed a motion for costs under FRCP 37(a). The Magistrate noted that under this rule, sanctions were required unless a specific exception existed. The Magistrate found that the Defendant had made good faith attempts to obtain the discovery without court action, and that the Plaintiff's explanation for the delay (busy schedules of both the Plaintiff and his counsel) did not substantially justify the failure to produce. See also Skidmore v. ACI Worldwide, Inc. , No. 8:08-cv-00001 (Apr. 30, 2009) (magistrate's order granting motion to compel discovery).
DECLARATORY JUDGMENT DENIED WHERE MATTER WAS STILL PENDING BEFORE DOL
UNDECIDED ISSUE OF RECOUPMENT OF WAGES PAID UNDER REINSTATEMENT ORDER WHERE EMPLOYER SUCCESSFULLY DEFENDS CLAIM OR REINSTATEMENT ORDER
In Competitive Technologies, Inc. v. Bechtel , No. 3:08-CV-1339 (D.Conn. July 6, 2009), the Plaintiff had filed an action seeking a declaratory judgment that it had not violated the whistleblower provision of the SOX in not selecting the Defendant's employer to provide consultancy services. The Plaintiff also sought reimbursement of wages and benefits paid to the Defendant in compliance with a court order enforcing a DOL reinstatement order that had been subsequently vacated on appeal. The court granted the Defendant's motion to dismiss, without prejudice, as to both counts.
The request for declaratory judgment arose out of the Defendant's filing with OSHA of a SOX complaint alleging that the Plaintiff had blacklisted him by not awarding a contract to his new employer in retaliation for his filing of an earlier SOX complaint. Eventually the complaint was re-filed in federal district court, upon which the Plaintiff filed its motion for declaratory judgment. The Defendant then filed a motion to dismiss the second SOX complaint with the ALJ, and the Plaintiff decided not to oppose the Defendant's motion to dismiss the Plaintiff's claim for a declaratory judgment. The Defendant, however, later filed a third SOX complaint with OSHA alleging that he had been coerced into dismissing the second SOX complaint. In response, the Plaintiff filed with the district court a supplemental response to the motion to dismiss the declaratory judgment action, renewing its request for declaratory judgment.
The court found that the Defendant had not sought to revive his SOX complaint before the court. In regard to the third SOX complaint, it was still pending before DOL, and therefore the affirmative relief sought by the Plaintiff would be denied without prejudice.
In regard to the second count, which was based on a state unjust enrichment law, the court found it premature to rule because the question of whether a company that has successfully defended against a SOX retaliatory discharge claim or a related preliminary reinstatement order may recoup wages paid in compliance with that order was still a live issue before DOL. The court, therefore, declined to entangle itself in an already complex legal matter.
NUCLEAR AND ENVIRONMENTAL LAWS [Nuclear and Environmental Whistleblower Digest XI A 2 a]
CONTRIBUTING FACTOR; HURDLE IS LOWER FOR ERA WHISTLEBLOWER COMPLAINTS THAN IN OTHER DISCRIMINATION LAWS, BUT COMPLAINANT MUST STILL ESTABLISH FACTOR BY PREPONDERANCE OF THE EVIDENCEIn Addis v. Dept. of Labor , No. 08-1009 (7th Cir. July 30, 2009), the Complainant resigned from her job as Operations Supervisor at a nuclear power station after an argument with her supervisor over the company's requirement that managers make regular entries in the files of the employees that they supervised. The Complainant's supervisor felt that her file entries were not timely and not sufficiently critical, while the Complainant thought the requirement was pointless at best, and at worst detrimental to her ability to focus on plant security. After her resignation, but during her two weeks' notice, the Complainant filed an internal complaint asserting that the reporting requirement threatened plant safety. Then, prior to the date the resignation was to become effective, the Complainant conveyed a desire to rescind the resignation. The Respondent declined to accept the attempt to rescind the resignation. The Complainant filed an ERA whistleblower complaint OSHA and the ALJ found that the Complainant failed to carry her burden of proof. On appeal, the ARB affirmed the ALJ solely on the ground that the Complainant failed to sustain the burden of proving that her protected activity was a contributing factor in her termination. Because the ARB adopted the ALJ's findings on this issue in their entirety, the Seventh Circuit referred to the ALJ's decision in its discussion.
The Seventh Circuit noted that the ERA "contributing factor" standard is a lower hurdle to clear than the bar set by other employment statutes; it requires something less than a substantial or motivating factor. However, a complainant must prove the contributing factor by a preponderance of the evidence. In the instant case, conducting APA review of agency action, the Court found that substantial evidence supported the ALJ's decision, and that the ALJ had captured a sensible middle ground of reality that lied between the parties' contentions. The court found that the Complainant's resignation differentiated the her from other managers, some of whom also opposed the working file requirement, but none of whom resigned. The court found that "[t]he ALJ was entitled on the record before him to find that while management was continually frustrated by Addis's performance, her angry resignation was the straw that broke the camel's back, prompting the company to part ways with her." Slip op. at 10-11.