Wausau Window and Wall Systems, Apogee Enterprises and other companies under the Apogee umbrella motioned to dismiss a complaint filed against it by a former Wausau employee in a Wisconsin U.S. District Court. Last week, Wausau filed the motion due to plaintiff Michael Opela Sr.’s “lack of a subject-matter jurisdiction and for failure to state a claim upon which relief can be granted,” according to court documents.

In February, Opela sued the company, alleging it supplied products using “non-compliant materials” to multiple projects, and that Wausau fired him for raising the concern with management. Opela, who was employed by Wausau from late 2013 through most of 2014 as a structural engineer manager, said in the complaint that during his employment he “became aware that Wausau Window had been using materials in its window frames and bolts that did not meet the required specification pertaining to material strengths, specifically alloys and temper.” He claims the “non-compliant materials created a significant safety risk to the end-user, as the materials did not meet code required loads.”

Opela’s two-count complaint seeks to assert a claim under the Consumer Product Safety Improvement Act (CPSIA) and the Sarbanes-Oxley Act (SOX). In Wausau’s memorandum to support its motion to dismiss, it says the complaint “is jurisdictionally defective in several ways.”

In 2014, Opela filed an Occupational Safety and Health Administration (OSHA) complaint seeking relief for the companies’ alleged violation of CPSIA’s whistleblower provision and violations of SOX, which were rejected by OSHA in 2016. He then appealed that determination to the Department of Labor’s Office of Administrative Law Judges (OALJ), which dismissed five of Opela’s six claims. It later dismissed the sixth, which remained against Wausau, when Opela filed the most recent complaint in the U.S. District Court.

Wausau says Opela improperly seeks to litigate claims in the federal district court that the OALJ rejected. “That decision, by operation of law, became the ‘final order’ of the Secretary. Federal district courts lack jurisdiction to re-adjudicate such claims because Congress has determined that judicial review of “final orders” is available only in the Courts of Appeals,” the memorandum reads.

The company also notes that the court lacks jurisdiction to entertain Opela’s CPSIA claim because his alleged whistleblowing activities do not involve a “consumer product” under the CPSIA. Additionally, Wausau says the complaint doesn’t show he “exhausted administrative remedies or complied with the detailed procedures in either CPSIA or SOX” before attempting to invoke the federal district court’s jurisdiction.

“Even if the Court concluded that Plaintiff had carried his burden to establish the Court’s jurisdiction, Plaintiff’s Complaint should be dismissed for failure to state a claim upon which relief can be granted,” the memorandum reads. “First, the CPSIA permits employees to sue their employers for alleged retaliation for certain protected activities, but Plaintiff seeks to assert a CPSIA claim against numerous Defendants that he freely acknowledges were not his employer. Second, Plaintiff’s CPSIA allegations are formulaic, unadorned, and fail to even suggest what law or regulation enforced by the Consumer Product Safety Commission is implicated by his alleged whistleblowing. Third, Plaintiff’s SOX claim does not pertain to any of six-specific types of conduct that constitute protected activity under SOX and fails to contain well-pleaded allegations that SOX was violated.”

Stay tuned to USGNN.com™ as this case unfolds.