Gryga v. Henkels & McCoy, Inc. (agency decision, July 3, 2019)

Plain-English summary

Nick Gryga alleged that Henkels & McCoy retaliated against him in violation of the Sarbanes-Oxley Act. OSHA and an ALJ dismissed the complaint, and Gryga petitioned the Board for review. Before the Board ruled, he filed a de novo action in the Northern District of Illinois but did not provide the Board with the required file-stamped copy. The employer notified the Board of the court action four months later. The Board held that it no longer had jurisdiction and dismissed the petition and underlying complaint without further briefing.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. § 1980.114
• Outcome: Review petition and underlying SOX complaint dismissed after a de novo district-court action was filed.
• Key point: Filing a qualifying de novo SOX action in federal court ends the Board's jurisdiction even when counsel fails to notify the Board as required.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  NICK GRYGA,                                ARB CASE NO. 2018-0017

                  COMPLAINANT,               ALJ CASE NO. 2017-SOX-00049

         v.                                  DATE: July 3, 2019

  HENKELS & MCCOY, INC.,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Joseph Y. Ahmad, Esq.; Ahmad, Zavitsanos, Anaipakos, Alavi &
        Mensing, P.C.; Houston, Texas

  For the Respondent:
        Sarah E. Bouchard, Esq.; and Vishal H. Shah, Esq.; Morgan,
        Lewis & Bockius LLP; Philadelphia, Pennsylvania

                      ORDER DISMISSING COMPLAINT

         On June 20, 2017, the Complainant, Nick Gryga, filed a complaint
  with the United States Department of Labor’s Occupational Safety and
  Health Administration (OSHA) alleging that the Respondent, Henkels &
  McCoy, Inc., retaliated against him in violation of the employee protection
  provisions of the Sarbanes-Oxley Act of 2002 (SOX) 1 and its implementing

  1
         18 U.S.C. § 1514A (2010).



  regulations. 2 OSHA dismissed the complaint after investigation because
  neither the Respondent nor Gryga is covered under the SOX, and that there
  was no reasonable cause to believe that the Respondent violated the SOX.
  Gryga requested review of OSHA’s determination before a departmental
  Administrative Law Judge (ALJ), who subsequently granted the
  Respondent’s motion to dismiss the matter on December 11, 2017.

        On December 26, 2017, Gryga filed a petition for review with the
  Administrative Review Board, which the Board accepted for review on
  January 9, 2018. 3 Before the Board had issued a final decision in this matter,
  Gryga apparently filed an action on February 20, 2019, for de novo review of
  the matter in a United States district court 4 as authorized by statute and
  regulation. 5 The Board only learned of this filing four months later when, on
  June 18, 2019, counsel for the Respondent informed the Board of the filing
  and provided file-stamped copies of the initial and amended complaints.

        Notwithstanding the failure of the Complainant’s counsel to comply
  with the regulatory requirement to file “a copy of the file-stamped complaint”
  with the ARB, 6 it is evident that the Board no longer has jurisdiction to
  adjudicate this appeal. Accordingly, we hereby DISMISS Gryga’s petition for




  2      29 C.F.R. Part 1980 (2016).

  3      The Secretary of Labor has delegated to the Board authority to issue final
  agency decisions under the SOX. Secretary’s Order 01-2019 (Delegation of Authority
  and Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg.
  13072 (Apr. 3, 2019).

  4      The Board takes official notice that Gryga filed his complaint on February 20,
  2019, in the United States District Court for the Northern District of Illinois. Gryga
  v. Henkels & McCoy Group, Inc., et al, Case No. 1:19-cv-01276 (N.D. Ill.).

  5      18 U.S.C. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114.

  6      29 C.F.R. § 1980.114(c).




  review and underlying complaint without benefit of further briefs in this
  matter.

  FOR THE ADMINISTRATIVE REVIEW BOARD:

  William T. Barto
  Chief Administrative Law Judge

  Note: Questions regarding any case pending before the Board should be directed
  to the Board’s staff. Telephone: (202) 693-6200, Facsimile: (202) 693-6220