Department of Labor Office of Administrative Law Judges

800 K Street, NW

Washington, DC 20001-8002

(202) 693-7300

(202)6e3-736s (FAx)

OALJ

OSHA

2019-CFP-OOOO1

5-0460-18-125

F{+ocl{ B

Issue Date: 26 June2020

In the Matter

KENNETH DEL SIGNORE,

Complainant,

V,

NOKIA CORPORATION OF AMERICA,I

Respondent.

DECISION AND ORDER DISMISSING CASE FOR LACK OF

JURISDICTION

Complainant brings this case based upon the Consumer Financial

Protection Act of 2010 (the *CFPA"), Section L057 of the Dodd-Frank Wall

Street Reform and Consumer Protection Act of 2010, L2 U.S.C. 5 556; 29

C.F.R. Part 1985; and the Sarbanes-Oxley Act, 1B U.S.C. 5 1514A (the *SOX

Act" or *SOX") (Section 806 of the Corporate and Criminal Fraud

Accountability Act of 2002),29 C.F.R. Part 1980; and Illinois state law. For

each of these bases, there are jurisdictional defects that require this case to

be dismissed.

RELEVANT FACTS2 AND PROCEDURAL HISTORY

On September 26,2018, Complainant filed a complaint with the United

States Department of Labor Occupation al Safety and Health Administration

(*OSHA"). Complainant detailed his factual allegations about Respondent

and mentions the SOX Act and the CFPA. Regarding the referenced law,

1 Previous captions in this case identify Respondent as "Nokia," which is consistent with

Complainant's filings. In its cross motion for summary decision, Respondent indicates its

proper name is Nokia Corporation of America, which this caption now reflects.

2 The factual allegations by Complainant that make up the substance of his claims are quite

voluminous. But, they will not be discussed in much detail here because the critical facts

for this decision rest on jurisdictional grounds.

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Complainant states "I am requesting a [SOX] kick out in order to file a

federal whistleblower harassment suit. I believe I am protected under the

provisions of the Dodd Frank/SOX laws because the telecom companies act

as'custodians of public monies' when they collect the USF fee and held it on

account." Complainant later quotes the SOX Act, 18 U.S.C. S 1519, a

criminal statute; Complainant concluded that corporate officers of

Respondent could be prosecuted under that statute. After explaining that

Respondent's internal investigation concluded that Complainant's allegations

were not substantiated, Complainant states:

Following this message, I determined to file an OSHA complaint

and proceed with a SOX harassment suit. I requested of my

manager, the IRespondent attorney], and [a human resource

representativel if my laptop could be turned on so that I could

fully document my complaint, also telling them that I considered

my activity to be a protected activity under SOX. My request

was denied by [the Respondent Attorney] . . . .

At the end of his complaint, Complainant states "At this time, I request to

file a Whistleblower Complaint under CPFA."

On November 7, 2018, OSHA issued its findings on the CFPA claim and

did not mention the SOX Act. OSHA concluded that Respondent and

Complainant were covered under the CFPA but did not elaborate why. OSHA

also concluded that Complainant did not establish a prima facie complaint

and there was no cause to believe that Respondent violated the CFPA.

In a letter dated November 15, 2OlB, Complainant objected to and

requested review of OSHA's findings. In its entirety, Complainant stated

I wish to file this notice of contest to the OSHA finding issued on

Nov 7, 2018, a copy of which is attached. I believe this matter

exposes an anti-trust scheme that has far reaching ramification

in the telecom sector, including the possible misappropriation of

$1.SBlyear in federal telecom subsidies. I believe there also

may be corporate officers that face criminal liability under [the

SOX Act, 1B U.S.C. 5 15191, as detailed in my original

complaint.

On January 7,20L9, January 22,2019, and February 21,20t9,

Claimant filed what appear to be different drafts of documents that outline

Complainant's case with attached exhibits. These documents are more

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substantive than a complaint3 and include exhibits but do not request

dispositive relief like a motion for summary decision. I interpret these

documents as a memorialization of Complainant's understanding of his case

at that time. Paragraph thirteen of these documents describe that

Complainant filed a SOX whistleblower complaint with OSHA on October 10,

2018. Complainant then asserts that the complaint was denied on

November 7, 20L8, which "led to this complaint."

In paragraphs thirteen to twenty two of these documents, Complainant

asserts his standing under the SOX Act, the CFPA, and Illinois whistleblower

statutes. Complainant argues he has standing under the SOX Act because

Respondent purpoftedly committed secret conspiratorial wrongdoing in

violation of the SOX Act that defrauded shareholders among other things.

Complainant argues he has standing under the CFPA because Respondent

receives money from the "Universal Service Fund," which is funded by a fee

added to consumer phone bills for the purpose of expansion and

maintenance of cellular data and phone service in rural areas. Complainant

asserts that use of this fund qualifies as a consumer financial product or

service under 12 U.S.C. 5 5481(15XAXiv). Complainant argues he has

standing under Illinois 740 Ill. Comp. Stat. L74/15 because Respondent

purportedly violates the statute's prohibition of retaliation against employees

who disclose violations of state of federal law.

In paragraph twenty six, Complainant describes his job as a computer

scientist who worked in big data analysis and software development.

On July t6, 20L9, Complainant submitted a document titled

"Memorandum in support of (forthcoming) Motion for Summary Decision."

This document identifies seven specific instances of alleged protected

activity and which statutes purportedly cover that activity. On January L7,

2020, Complainant filed his motion for summary decision, which quotes the

whistleblower protections of the SOX Act and CFPA and applies his facts to

them.

On January 2L,2020, Respondent filed its cross motion for summary

decision, which concludes that the evidence does not support Complainant's

claims. Respondent also asserts Complainant has no standing under the

CFPA for these claims because Respondent is not a "covered person" and

Complainant is not a "covered employee."

3 Complaints are not required to initiate whistleblower cases before OAU under the Sox Act

or the CFPA. 29 C.F.R. 55 1980.106, 1985.106. Objections to OSHA's findings take the

place of a complaint in describing the claim and initiating litigation at the OAU level,

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On February 3, 2020, Complainant filed a response to Respondent's

cross motion for summary decision. In response to standing under the

CFPA, Complainant argues that Respondent is a "covered person" because it

collects public funds, Respondent is a service provider because it provides

equipment to telecommunications companies, and Complainant is a covered

employee because he was an employee of Respondent. On February 19,

2020, Complainant filed a second response to Respondent's cross motion for

summary decision. Complainant argues that because he was an employee

of a contractor to a telecommunications corporation, he has standing under

the SOX Act and the CFPA. Complainant then makes additional arguments,

which were substantive to his claims.

This case was scheduled for a hearing on April 2L-23,2020, but was

suspended by Chief Judge Henley's March L9, 2020 Administrative Order and

Notice. In Re Suspension of Hearing and Procedural Deadlines Due to Covid79 National Emergency, No. 2020-MIS-00006.

DISCUSSION

Complainant makes several claims before OAU, claims based upon

Illinois whistleblower law, the SOX Act, and the CFPA. Complainant also

cites a few criminal statutes in his filings. All of these claims fail here for

lack of jurisdiction.

I. Jurisdiction of Claims

A. Subject Matter Jurisdiction

The Office of Administrative Law Judges (*OAU") is a court that may

only hear claims if it has subject matter jurisdiction over them. This means

OAU must be specifically empowered by law to hear specific types of cases.

This court may not hear all cases actionable by law, like state courts that

enjoy general jurisdiction.

Complainant makes claims under Illinois whistleblower law and a few

criminal statutes. Complainant does not provide an explanation of why OAU

has the subject matter jurisdiction to hear Illinois whistleblower or criminal

claims. The referenced Illinois and criminal statutes also do not confer a

right of review before OAU in their text. Violations of these statutes might

be probative evidence or an element of a proper claim before OAU but

cannot be brought as claims themselves here. Accordingly, these Illinois law

and criminal claims lack subject matter jurisdiction and must be dismissed.

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B. Administrative Remedy Exhaustion

When a party raises a claim before a court, it must first exhaust any

administrative remedies required by law. A complainant must first file a

SOX complaint with OSHA. 29 C.F.R. 5 1980.103. Then, upon OSHA issuing

its findings, o pafty may object to the findings and request a hearing before

OAU. [d.55 1980.105-.106. Filing a complaint for review by OSHA is an

administrative remedy that must be exhausted before OAU can review a

SOX claim.

Here, OSHA's findings to which Complainant objected did not cover the

SOX Act; the findings only referenced the CFPA. Complainant's OSHA

complaint quoted criminal sections of the SOX Act, mentioned an internal

filing of a SOX claim with Respondent, and requests a SOX "kick out"-

whose meaning is unclear. Complainant's OSHA complaint does explicitly

request a whistleblower complaint under the CFPA. Complainant's objection

and request for review also does not indicate an objection to the OSHA

findings being limited to the CFPA. Complainant's early document filings

before OAU indicate a whistleblower complaint under the SOX Act may have

been made with OSHA on October 10, 2018. So, if Complainant filed a SOX

whistleblower complaint with OSHA, it appears to be separate from the CFPA

complaint. No further evidence of the October 10, 2018 SOX complaint was

provided for this case, and my records do not indicate any objection to OSHA

filings based upon an October 10, 2018 SOX complaint.

Taking these facts into account, I conclude that Complainant did not

successfully or intentionally file a SOX whistleblower complaint with OSHA on

September 28, 2018. I also conclude there is no evidence that Complainant

objected to OSHA's findings for a SOX whistleblower case. Claimant may not

raise these claims before OAU without exhausting its administrative

remedies; for that reason, Complainant's SOX whistleblower claims must be

dismissed.

II. Standing

Under the CFPA, Complainant adequately filed a complaint with OSHA

and properly filed an objection to OSHA's findings for review by OAU. But,

to have standing, Respondent must be "covered person" and Complainant

must be a "covered employee" as defined by the CFPA. 12 U.S.C.

$ ss67(a).

"Covered person" means "any person that engages in offering or

providing a consumer financial product or service" and affiliates.that are

service providers to such a "covered person." t2 U.S.C. 5 5481(6); 29

C.F.R. 51985.101(j). "Covered employee" means "any individual

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performing tasks related to the offering or provision of a consumer financial

product or service." L2 U.S.C. 5 5567(b); 29 C.F.R. 5 1985.101(i). The

CFPA enumerates the many financial products and derivative services that

qualify as a "consumer financial product and service." 12 u.s.c. 5 5481(5),

( 1s).

Here, Complainant argues Respondent's receipt of money from the

Universal Service Fund for the benefit of consumers qualifies as a consumer

financial product or service under L2 U.S.C. 5 5481(15)(A)(iv).4

Complainant also asserts that Respondent provides equipment to

telecommunications companies, which qualifies as a financial product or

service. I disagree. Collecting a fee to spend on rural consumers is

significantly different than the banking activity described in 12 U.S.C.

g 5481(1sXA)(iv). Interpreting "financial product or service" as broadly as

Complainant argues would capture any business that charges fees and uses

those fees for consumers in some way. That interpretation is contrary to the

CFPA scheme and contrary to the plain reading of the statutory language.

Similarly, Respondent providing equipment to telecommunications

companies also does not make it a "covered person."

complainant does not explain why he is a t'covered employee" under

the CFPA beyond being an employee of Respondent, which he concludes is a

"covered person." Not all employees of "covered persons" are "covered

employees" under 12 U.S.C. 5 5567; there is a requirement that a "covered

employee" perform tasks related to offering a consumer financial product

and service. Complainant is a self-described computer scientist who worked

in big data analysis and software development, which cannot be interpreted

to include performing tasks relating to a consumer financial product and

service.

I conclude that Respondent is not a "covered person," and

Complainant is not a "covered employee" under the CFPA. Based upon both

conclusions, either of which is sufficient to defeat standing, I conclude that

Complainant does not have standing under the CFPA, and the respective

claims must be dismissed.

III. Conclusion

Complainant's allegation of Respondent's violation of criminal and

Illinois statutes are not actionable before OAU for lack of subject matter

jurisdiction. Complainant's SOX whistleblower claim cannot be raised now

4 "Financial product or service" includes "engaging in deposit-taking activities, transmitting

or exchanging funds, or otherwise acting as a custodian of funds or any financial instrument

for use by or on behalf of a consumer" t2 U.S.C. 5 5481(15)(A)(iv).

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before OALI because Complainant did not exhaust his administrative

remedies before OSHA. Complainant does not have standing to bring a

CFPA whistleblower case because Respondent is not a "covered person" and

Complainant is not a "covered employee." Accordingly, al! of Complainant's

claims must be dismissed for lack of jurisdiction.

ORDER

Accordingly, it is ORDERED that that all claims in this case are

dismissed for lack of jurisdiction.

SO ORDERED.

Washington, D.C.

WSC/aje

Digitaly signed by WLLIAM COLI iELL

DN: CN=WLLIAM COLWELL,

OU=ADMINISTRATIVE LAW JUOGE,

O=US DOL Offi@ ofAdminiskalive Law

Judges, L=Washington, S=DC, C=US

Lo€tion: Washingion DC

WILLIAM S. COLWELL

Associate Chief Ad ministrative Law Judge

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NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for

Review ("Petition") with the Administrative Review Board ("Board") within

fourteen (14) days of the date of issuance of the administrative law judge's

decision. The Board's address is: Administrative Review Board, U.S.

Department of Labor, Suite 5-5220,200 Constitution Avenue, NW,

Washington DC 202t0, for traditional paper filing. Alternatively, the Board

offers an Electronic Flle and Service Request (EFSR) system. The EFSR for

electronic filing (eFile) permits the submission of forms and documents to

the Board through the Internet instead of using postal mail and fax. The

EFSR portal allows pafties to file new appeals electronically, receive

electronic service of Board issuances, file briefs and motions electronically,

and check the status of existing appeals via a web-based interface accessible

24 hours every day. No paper copies need be filed.

An e-Filer must register as a user, by filing an online registration form. To

register, the e-Filer must have a valid e-mail address. The Board must

validate the e-Filer before he or she may file any e-Filed document. After the

Board has accepted an e-Filing, it is handled just as it would be had it been

filed in a more traditional manner. e-Filers wil! also have access to electronic

service (eService), which is simply a way to receive documents, issued by

the Board, through the Internet instead of mailing paper notices/documents.

Information regarding registration for access to the EFSR system, as well as

a step by step user guide and FAQs can be found at: https:/ldolappeals.entellitrak.com. If you have any questions or comments, please

contact: Boards-EFSR- Hel p@dol. gov

Your Petition is considered filed on the date of its postmark, facsimile

transmittal, or e-filing; but if you file it in person, by hand-delivery or other

means, it is filed when the Board receives it. See 29 C.F.R.5 1985.110(a).

Your Petition must specifically identify the findings, conclusions or orders to

which you object. You may be found to have waived any objections you do

not raise specifically. See 29 C.F.R. 5 1985.110(a).

At the time you file the Petition with the Board, you must serve it on all

parties as well as the Chief Administrative Law Judge, U.S. Department of

Labor, Office of Administrative Law Judges, 800 K Street, NW, Suite 400-

North, Washington, DC 20001-8002. You must also serve the Assistant

Secretary, Occupational Safety and Health Administration and, in cases in

which the Assistant Secretary is a party, on the Associate Solicitor for

Occupational Safety and Health. See 29 C.F.R. 5 1985.110(a).

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If filing paper copies, you must file an original and four copies of the petition

for review with the Board, together with one copy of this decision. In

addition, within 30 calendar days of filing the petition for review you must

file with the Board an original and four copies of a supporting legal brief of

points and authorities, not to exceed thirty double-spaced typed pages, and

you may file an appendix (one copy only) consisting of relevant excerpts of

the record of the proceedings from which the appeal is taken, upon which

you rely in support of your petition for review. If you e-File your petition and

opening brief, only one copy need be uploaded.

Any response in opposition to a petition for review must be filed with the

Board within 30 calendar days from the date of filing of the petitioning

party$s supporting legal brief of points and authorities. The response in

opposition to the petition for review must include an original and four copies

of the responding party5s legal brief of points and authorities in opposition

to the petition, not to exceed thirty double-spaced typed pages, and may

include an appendix (one copy only) consisting of relevant excerpts of the

record of the proceedings from which appeal has been taken, upon which the

responding party relies. If you e-File your responsive brief, only one copy

need be uploaded.

Upon receipt of a legal brief filed in opposition to a petition for review, the

petitioning party may file a reply brief (original and four copies), not to

exceed ten double-spaced typed pages, within such time period as may be

ordered by the Board. If you e-File your reply brief, only one copy need be

uploaded.

If no Petition is timely filed, the administrative law judge's decision becomes

the final order of the secretary of Labor pursuant to zg c.F.R. Sg 1985.109(e) and 1985.110(b). Even if a Petition is timely filed, the

administrative law judge's decision becomes the final order of the Secretary

of Labor unless the Board issues an order within thirty (30) days of the date

the Petition is filed notifying the parties that it has accepted the case for

review. See 29 C.F.R. 5 1985.110(b).

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SERVICE SHEET

CASE NAMe: DET SIGNORE_KENNETH-v_NOKIA_

Case Number: 2019CFP00001

Document Title: DECISION AND ORDER DISMISSING CASE F'oR LACK oF

JURISDICTION

I hereby certify that a copy of the above-referenced document was sent to the following this 26th

day ofJune,2020:

Digiblly signed by BRENDA O. WLLIAMS

DN: CN=BRENDA D. WLLIAMS,

OU=LEGAL ASSISTANT, O=US DOL Offi@

oI Adminisbalive Law Judges,

L=Washinsbn, s!Dc, c=us

Locdion: Wa8hingtun DC

BRENDA D. WILLIAMS

LEGAL ASSISTANT

Director

Directorate of Whistleblower Protection Programs

U S Department of Labor, OSHA

Room N 4618 FPB

2OO CONSTITUTION AVENW

WASHINGTON DC 20210

{Electronic - Regular Email}

Regional Administrator

Region 5

Room 3244

230 South Dearborn Street

CHICAGO IL 60604

{Electronic - Regular Email}

Kenneth Del Signore

kendelsignore@gmail. com

{Electronic - Regular Email}

Benson E Pope, Esq

bpope@littler.com

{Electronic - Regular Email}

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