Lutzeier v. Citigroup, Inc. et al

Filing 133

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants' Defendants' Motion for Clarification of the Court's March 2, 2015 Memorandum and Order (ECF No. 131) and Partial Motion to Dismiss the First Amended Complaint and Motion to Strike (ECF No. 46) are GRANTED. Signed by District Judge Ronnie L. White on 3/9/15. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FRED E. LUTZEIER,

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Plaintiff,
vs.
CITIGROUP, INC., et al.,
Defendants.

Case No. 4:14CV183 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Clarification of the Court's
March 2, 2015 Memorandum and Order (ECF No. 131) and Partial Motion to Dismiss the First
Amended Complaint and Motion to Strike (ECF No. 46) 1 as to Defendant Steve Champney with
respect to claims under the Sarbanes-Oxley Act. Both sides cite to non-controlling case law in
support of their positions regarding whether a plaintiff must name each defendant as a respondent
in a complaint to the Department of Labor to properly exhaust his administrative remedies prior to
filing a Sarbanes-Oxley action in federal court.
On July 24, 2014, Lutzeier filed a Sarbanes-Oxley retaliation claim with OSHA. Under
Sarbanes-Oxley,
A person who alleges discharge or other discrimination by any person in violation
of subsection (a) may seek relief under subsection (c), by(A) filing a complaint with the Secretary of Labor; or
(B) if the Secretary has not issued a final decision within 180 days of the filing of
the complaint and there is no showing that such delay is due to the bad faith of the
claimant, bringing an action at law or equity for de novo review in the appropriate
district court of the United States, which shall have jurisdiction over such an action
without regard to the amount in controversy.

1

This Court previously ruled on this Motion but omitted the discussion regarding Defendant
Champney as to the Sarbanes-Oxley claim. See ECF No. 131.
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18 U.S.C. § 1514A(b)(l); Genberg v. Porter, 935 F. Supp. 2d 1094, 1103 (D. Colo. 2013)
(dismissing claims under F3d.R.Civ.P. 12(b)(l) for failure to exhaust administrative remedies).
Defendants contend that a plaintiff must name an individual in his OSHA complaint to exhaust his
administrative remedies against the individual. See ECF No. 27 at 9-10 (citing Genberg, 935 F.
Supp. 2d at 1104; Bridges v. McDonald's Corp., No. 09-CV-1880, 2009 WL 5126962, at *3 (N.D.
Ill. Dec. 21, 2009)("While the regulations implementing SOX may provide for individual liability,
Bridges still is obligated to exhaust her administrative remedies for each claim that she seeks to
assert against each defendant."); Thanedar v. Time Warner, Inc. , No. CIV.A. H-06-2139, 2008
WL 8886544, at *14 (S.D. Tex. Oct. 7, 2008)("A party who is not named in an administrative
charge may not later be sued in federal court."). Defendant claims that merely naming Champney
in the letter was not sufficient, but that he had to be either named as a respondent in the heading of
the OSHA complaint or otherwise specifically identified as a party against whom the complaints is
brought. (ECF No. 27 at 10-ll)(citing Smith v. Corning Inc., No. 06-CV-6516 CJS, 2007 WL
2120375, at *2 (W.D.N.Y. July 23, 2007)("it is not sufficient to merely mention an individual in
the body of the administrative complaint"); Bozeman v. Per-Se Technologies, Inc., 456 F. Supp. 2d
1282, 1358 (N.D. Ga. 2006)("merely mentioning the individual defendant in the body of the
administrative complaint as an actor, rather than naming him in the heading of the administrative
complaint, is insufficient, and failed to afford OSHA the opportunity to resolve the plaintiffs
allegations through the administrative process")(citing Hanna v. WCI Communities, Inc., No.
04-80595-CIV, 2004 WL 6072492, at *1 (S.D. Fla. Nov. 29, 2004)); cf Jones v. Southpeak

Interactive Corp., No. 3:12CV443, 2013 WL 1155566, at *4 (E.D. Va. Mar. 19, 2013)("in her
filing with OSHA, [plaintiff] specifically identified the individual defendants under the heading:
persons 'who the complaint is being filed against"').

2

In response, Lutzeier contends that Champney should not be dismissed. Lutzeier notes
that there is no particular form required when filling a complaint with OSHA for purposes of the
Sarbanes Oxley Act.

(ECF No. 34 at 11 (citing Morrison v. MacDermid, Inc., No. CIV.A

07-CV-01535-WY, 2008 WL 4293655, at *3 (D. Colo. Sept. 16, 2008)). Lutzeier maintains that
the question is simply whether Plaintiffs complaint "afforded OSHA the opportunity to perform
an adequate investigation as to [Defendant Champney' s] role in Plaintiffs termination]." (ECF
No. 34 at 11 (citing Morrison, 2008 WL 4293655, at *3). Lutzeier states "[g]iven that no form is
required for purposes of submitting a complaint to OSHA, that the complaint tendered by Plaintiff
to OSHA in the within case was an 11 page letter signed by Plaintiff, that the letter detailed
Defendant Champney's involvement and role in Plaintiffs termination, and the letter mentions
Defendant Champney no less than 25 times, this Court can and should find that Plaintiffs
complaint afforded OSHA the opportunity to perform an adequate investigation as to Defendant
Champney's role in Plaintiffs termination for purposes of the exhaustion requirement." (ECF
No. 34 at 11). Citing the Title VII case law, Lutzeier further contends that administrative charges
should be construed liberally. (ECF No. 34 at 12).
The Court finds that Lutzeier failed to exhaust his claims against Champney because he
was not named as a respondent in Lutzeier's OSHA complaint. It is undisputed that the
Sarbanes-Oxley Act requires a plaintiff to exhaust his administrative remedies before commencing
an action in federal court. See, 18 U.S.C. § 1514A(b). The Court does not believe that it is
sufficient for Champney to be named in the body of the administrative company (although,
admittedly rather extensively). Smith, 2007 WL 2120375, at *2; Bozeman, 456 F.Supp.2d at
1357. Rather, the administrative regulations require that a defendant be listed as a "named"
respondent who is alleged to have violated the Act. See 29 C.R.F. 1980.101(5)("Respondent
means the person named in the complaint who is alleged to have violated the Act."); 29 C.R.F.
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1980.104(a)("Upon receipt of a complaint in the investigating office, the Assistant Secretary will
notify the respondent of the filing of the complaint by providing a copy of the complaint[.]").
While Champney is named as an actor in Lutzeier' s complaint, there is no indication that Lutzeier
is bringing his action against Champney as a respondent. Rather, Lutzeier clearly names his
"former employer, CITIGROUP MANAGEMENT CORP. and its parent, subsidiary and affiliated
companies" as the respondent. (ECF No. 27-1 at 2). In his conclusion, Lutzeier alleges that
"Citigroup discharged me from my employment" and that "Citigroup' s failure and ·refusal to hire
me for .the multiple positions for which I have applied since my February 25 , 2013 termination for
which I am qualified is further indicia of Citigroup's retaliation against me[.]" (ECF No. 27-1 at
12). There is no indication that "OSHA [had] the opportunity to resolve ... plaintiffs allegations
[against Champney] through the administrative process." Bridges, 2009 WL 5126962, at *3 .
Because Champney was not named as a respondent in the heading of the OSHA complaint nor
otherwise specifically identified as a party against whom the complaints is brought, the
Sarbanes-Oxley claim against Champney is dismissed.

Accordingly,

IT IS HEREBY ORDERED that Defendants' Defendants' Motion for Clarification of the
Court's March 2, 2015 Memorandum and Order (ECF No. 131) and Partial Motion to Dismiss
the First Amended Complaint and Motion to Strike (ECF No. 46) are GRANTED.
Dated this 9th day of March, 2015.

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~!EL.WHITE

UNITED STATES DISTRICT JUDGE

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