U.S. Department of Labor
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U.S. Department of Labor
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
DAVID GEMOLL,
ARB CASE NO. 2025-0016
COMPLAINANT,
ALJ CASE NO. 2024-SOX-00001
ALJ WILLIAM P. FARLEY
v.
DATE: May 14, 2026
MICROSOFT CORPORATION,
RESPONDENT.
Before KAPLAN, BURRELL, and KIKO, Administrative Appeals Judges;
KAPLAN, Concurring
DECISION AND ORDER
This case arises under the employee protection provisions of Section 806 of
the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the
Sarbanes-Oxley Act (SOX)1 and Section 1057 of the Consumer Financial Protection
Act of 2010 (CFPA).2 On June 1, 2022, Respondent Microsoft Corp. terminated
Complainant David Gemoll’s employment.3 On August 2, 2023, Complainant filed a
complaint with the Occupational Safety and Health Administration (OSHA),
alleging that he had been retaliated against in violation of SOX and the CFPA.4
OSHA dismissed the claim as untimely. Complainant filed objections and requested
a hearing before the Office of Administrative Law Judges (OALJ). Respondent filed
a Motion for Summary Judgment, which the Administrative Law Judge (ALJ)
granted on the basis that the complaint was not timely filed and equitable
1
18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2025).
12 U.S.C. § 5567; 29 C.F.R. Part 1985 (2025). The CFPA is Title X of the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act).
2
3
Order Granting Motion for Summary Judgment (ALJ Order) at 3.
4
ALJ Order at 1.
2
modification was not warranted. Complainant appealed to the Administrative
Review Board (ARB or Board). For the following reasons, we affirm.
BACKGROUND
Prior to filing his complaint with OSHA, Complainant contacted the Federal
Bureau of Investigation (FBI) on October 28, 2022, to report numerous allegations,
including that Respondent had: (i) significantly misreported revenue; (ii) stolen
intellectual property; (iii) engaged in “whistleblower retaliation” against
Complainant; and (iv) required Complainant and others to work weekly hours
“in excess of 80 and maxing at 120+.”5
On September 18, 2023, OSHA dismissed Complainant’s complaint, finding
that it was not filed within the 180-day period prescribed by SOX and the CFPA,
and Complainant’s explanation as to why he did not timely file the complaint did
not justify the application of equitable tolling.6 On October 18, 2023, Complainant
objected to OSHA’s findings and requested a hearing before an ALJ.
On October 14, 2024, Respondent filed a Motion for Summary Judgment.7
After briefing by the parties, the ALJ issued an Order Granting Motion for
Summary Judgment, finding that Complainant’s complaint to OSHA was untimely
and the circumstances did not warrant the application of equitable tolling.
Specifically, the ALJ found that Gemoll believed Respondent was blacklisting him
by February 2022 and Respondent terminated him on or around June 1, 2022, but
he did not file a complaint with OSHA until August 2023.8 The ALJ also rejected
Complainant’s argument that his report to the FBI in October 2022, constituted the
precise statutory claim filed in the wrong forum, which is a well-established basis
5
Exhibit (Ex.) 1 to Gemoll Declaration (Decl.) at 1.
6
See 18 U.S.C. § 1514A(b)(2)(D); 12 U.S.C. § 5567(c)(1)(A).
Respondent’s motion was styled as a Motion for Summary Judgment and the ALJ’s
Order was titled “ORDER GRANTING MOTION FOR SUMMARY JUDGMENT.”
Under the OALJ Rules of Practice and Procedure, the motion is properly styled as a Motion
for Summary Decision. See 29 C.F.R. § 18.72.
7
ALJ Order at 7. The ALJ also noted that Complainant alleged to OSHA that “on or
around April 5, 2023 . . . Respondent blacklisted him from future employment
opportunities.” ALJ Order at 6. Complainant did not identify this issue in his Petition for
Review, nor has he argued it before the Board. It is therefore waived. See 29 C.F.R.
§ 1980.110(a) (“The parties should identify in their petitions for review the legal conclusions
or orders to which they object, or the objections may be deemed waived.”).
8
3
for courts and administrative agencies to equitably toll a filing deadline or statute
of limitations.9 On November 27, 2024, Complaint timely filed a petition for review
with the Administrative Review Board.
DISCUSSION
1. Complainant’s Communications with the FBI
In late October 2022, nearly five months after Respondent terminated his
employment, Complainant reached out to the FBI and was put in touch with a
special agent working in the Seattle office’s Complex Financial Crimes Division.10
Complainant would later explain to OSHA:
There is an obvious connection between the Sarbanes
Oxley Act and the Securities and Exchange Commission. .
..
The FBI handles a majority of investigations for the SEC.
...
I was referred to an ex-FBI manager by my attorneys who
put me in contact with the FBI Seattle White Collar
Crimes Division.11
The FBI interviewed Complainant on November 8, 2022.12 In advance of
being interviewed, Complainant sent the FBI special agent an email in which he
included what he described as “a fairly detailed timeline and a ‘synopsis’” of his
allegations, both of which were “kind of focused on the retaliation crime
committed against me.”13
See, e.g., Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981)
(hereinafter “Allentown”); Komatsu v. NTT Data, Inc., ARB No. 2016-0069, ALJ No. 2016SOX-00024, slip op. at 3 (ARB Mar. 13, 2018) (recognizing that, in “determining whether
the Board should toll a statute of limitations, we have been guided by the discussion of
equitable modification of statutory time limits in [Allentown].”).
9
10
Ex. 5 to Doherty Decl. (hereinafter “OSHA Email”) at 8 (emphasis added).
11
Id.
The date of the interview has been given as both November 8, 2022, and November
3, 2022. We use the date stated in the ALJ Order. See ALJ Order at 1.
12
13
Ex. 1 to Gemoll Decl. at 1 (emphasis added).
4
In the email, Complainant stated that he had identified for Respondent’s
leadership and its internal Office of Legal Compliance (OLC) four categories of
issues related to allegations of: (i) significant revenue inconsistencies; (ii) theft of
intellectual property from the Renault-Nissan-Mitsubishi Alliance (RNMA);
(iii) whistleblower retaliation; and (iv) working more than 80 hours per week.14
Complainant next provided two separate summaries of his allegations, one with six
numbered items and the other with ten numbered items. This was followed by a
section on “interesting facts,” which contained roughly fifteen bullet points. The
first summary is as follows:
The 100K foot story boils down to these few points:
l.
MSFT Azure Engineering creates GTM product on
stolen IP from an enterprise customer
2.
MSFT mis-report revenue internally/externally . . .
in direct violation of SOX/Dodd-Frank
3.
MSFT Leaders secure larger budgets based on
phantom revenue created by generating dual invoices, and
increase their own salaries and bonuses as a result . . . in
direct violation of SOX/Dodd-Frank
4.
MSFT Leaders prevent sending enterprise customer
to collections for non-payment of manual invoices, while
continuing to report phantom revenue generated by
automatic invoices as actual revenue . . . in direct violation
of SOX/Dodd-Frank
5.
7+ MSFT Leaders threaten and retaliate
against the Whistleblower . . . in direct violation of
SOX/Dodd-Frank
6.
MSFT Operations (HR, OLC, Compliance and
Senior Leaders) fail to intervene to protect a
financial Whistleblower in direct violation of
SOX/Dodd-Frank[.][15]
The only reference to whistleblower retaliation comes in the fifth and sixth
entries where Complainant refers to “the Whistleblower” and “a financial
14
Id.
15
Id. at 1-2 (emphasis added).
5
Whistleblower” in the third person. Complainant then lists ten additional items,
which he calls a “50K feet” summary. Only the final item mentions whistleblower
retaliation, and it contains no specific information, stating only “Whistleblower
retaliation (2020-2022).”16
The list as a whole, as supplemented by his explanations, appears to be
related to activity that is criminal in nature. In a later filing with OSHA explaining
why he originally filed with the FBI, Complainant repeatedly emphasized the
perceived criminal nature of Respondent’s conduct. Referencing the categories he
included in his email to the FBI (including the categories of whistleblower
retaliation and hours worked) Complainant described the issues as “underlying
criminal conduct” which should have been known to Respondent and OLC.17
Complainant expressly listed Respondent’s “likely criminal conduct” under each
category, which broadly corresponded to the categories he laid out in his email to
the FBI special agent:
•
•
Category C: Harassment, intimidation, and threatening working
environment.
o Likely criminal conduct:
▪ Whistleblower retaliation in violation of Sarbanes Oxley
and other
▪ Shareholder fraud
▪ Discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended
▪ Obstruction of Justice
▪ Conspiracy
▪ Negligence
▪ Failure to prevent criminal acts
Category D: Unsafe working conditions.
o Likely criminal conduct:
▪ Discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended
▪ Whistleblower retaliation in violation of Sarbanes Oxley
and other[.]18
16
Id. at 2.
17
OSHA Email at 2.
18
Id. at 3.
6
As evidenced by the email itself, as well as Complainant’s later explanation of the
email, his communication to the FBI consisted entirely of perceived criminal
wrongdoing.
2. Equitable Tolling
Respondent terminated Complainant’s employment on or about June 1, 2022.
Complainant filed his complaint with OSHA over a year later on August 1, 2023.
Both SOX and CFPA have a 180-day deadline prescribed by statute.19 Thus, on its
face, the complaint filed 426 days after his termination was untimely.20 The ARB
has explained that whistleblower statutes of limitation are not jurisdictional and
thus are subject to equitable modification including equitable tolling.21
In determining whether to toll a limitations period, the Board has recognized
several principal situations in which equitable tolling may be warranted. Those
include: “(1) when the movant has raised the precise statutory claim in issue but
has done so in the wrong forum; (2) when the movant has in some extraordinary
way been prevented from filing; and (3) when the movant has some excusable
ignorance of the respondent’s discriminatory act.”22 These principal situations are
generally referred to as the Allentown factors after the Third Circuit decision in
which they were articulated.23 The Board has held “that the foregoing
19
See 18 U.S.C. § 1514A(b)(2)(D); 12 U.S.C. § 5567(c)(1)(A).
Complainant did not describe in his correspondence with OSHA or in his briefing
before the Board when or how he learned that the FBI was not the proper forum for his
claim and that OSHA was the proper forum.
20
See, e.g. Turin v. Amtrust Fin. Servs., Inc., ARB No. 2011-0062, ALJ No. 2010-SOX00018, slip op. at 8 (ARB Mar. 29, 2013) (recognizing that SOX’s “limitations period is not
jurisdictional, and therefore it is subject to equitable modification, i.e., equitable tolling and
equitable estoppel.”) (citing Halpern v. XL Cap., Ltd., ARB No. 2004-0120, ALJ No. 2004SOX-00054, slip op. at 4 (ARB Aug. 31, 2005)); see also Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145, 154 (2013) (“[W]e have repeatedly held that filing deadlines ordinarily are not
jurisdictional; indeed, we have described them as quintessential claim-processing rules.”)
(internal citations omitted).
21
Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001,
slip op. at 9 (ARB June 8, 2023) (internal citations omitted).
22
23
See Allentown, 657 F.2d at 19-20.
7
circumstances are not exclusive, and a complainant’s inability to satisfy one is not
necessarily fatal for [his or] her untimely appeal.”24
Complainant does not argue that he was in some extraordinary way
prevented from filing or that he had some excusable ignorance of Respondent’s
discriminatory act. Accordingly, we only consider whether the precise claim in the
wrong forum factor is applicable.
A. The ALJ’s Analysis of Complainant’s Wrong Forum Argument
To be entitled to equitable tolling under the wrong forum factor, Complainant
must demonstrate that he raised the precise statutory claim but mistakenly did so
in the wrong forum.25 The ALJ concluded that Complainant did not make this
showing. Although we agree with the ALJ’s conclusion, we reach it for different
reasons.
In determining that Complainant did not raise the precise statutory claim in
the wrong forum, the ALJ focused on how the FBI relates to the field of
whistleblower protection, noting that “the FBI does not have jurisdiction in the field
of whistleblowing protections for an employee of a publicly traded company” and
“the FBI does not have overlapping missions with OSHA.”26 The ALJ concluded that
[t]here is no evidence of a whistleblowing complaint by Gemoll filed in any other
forum that has anything to do with recovery for an employee whistleblower.”27
This analysis misses the mark as neither the SOX/CFPA regulations nor Board
See, e.g., Smith v. Franciscan Physician Network, ARB No. 2022-0065, ALJ No.
2020-ACA-00004, slip op. at 4 (ARB Jan. 13, 2023) (Order Denying Motion to Dismiss and
Reestablishing Briefing Schedule) (citations omitted); Mazenko v. Pegasus Aircraft Mgmt.,
LLC., ARB No. 2021-0032, ALJ No. 2019-AIR-00001, slip op. at 3 (ARB Sept. 7, 2021)
(Order Accepting Complainant’s Appeal and Setting Briefing Schedule) (internal citation
omitted).
24
See, e.g., Carbon v. Shire Pharms., ARB No. 2018-0064, ALJ No. 2018-SOX-00009,
slip op. at 3 (ARB May 5, 2020) (Order Dismissing Complainant’s Petition as Untimely)
(stating that complainant “bears the burden of justifying the application of equitable tolling
principles”); Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050,
-00051, -00052, slip op. at 5 (ARB Feb. 20, 2026) (same) (citing Martin, ARB No. 2022-0058,
slip op. at 9).
25
26
ALJ Order at 7.
27
Id.
8
precedent contain a requirement that the wrong forum have jurisdiction over
whistleblower claims or have overlapping jurisdiction with OSHA.28
On appeal, both parties focus their briefing on the issue of whether OSHA
and the FBI work together to enforce the employee protection provisions of SOX and
the CFPA.29 Respondent and Complainant both quote from OSHA’s Whistleblower
Investigations Manual in order to demonstrate that the FBI either was or was not
an “appropriate” wrong forum.30 Specifically, Complainant argues that because the
FBI cannot provide him with personal remedies, his complaint to the FBI should be
treated as one raised in the wrong forum and his claim should be equitably tolled.31
Respondent, on the other hand, argues that equitable tolling under the wrong forum
factor is only available when a complaint is mistakenly filed with an OSHA partner
agency and “the partner agency has sent OSHA a referral rather than a courtesy
copy” of the complaint.32 As we have already stated, neither the SOX/CFPA
regulations nor Board precedent require, as a prerequisite to applying equitable
tolling principles under the wrong forum factor, that a specific partner agency
formally refer to OSHA a complaint that has been mistakenly filed with the other
agency. Thus, our analysis must focus not on whether the FBI was an “appropriate”
wrong forum but on whether Complainant’s raised the precise statutory claim when
he complained to the FBI.
See 29 C.F.R. § 1980.103(d) (“The time for filing a complaint may be tolled for
reasons warranted by applicable case law. For example, OSHA may consider the time for
filing a complaint equitably tolled if a complainant mistakenly files a complaint with
another agency instead of OSHA within 180 days after becoming aware of the alleged
violation.”); 29 C.F.R. § 1985.103(d) (same).
28
Complainant cited OSHA’s Whistleblower Investigations Manual in his argument
responding to Respondent’s motion for summary decision. Complainant’s (Comp.) Response
to Mot. for Summ. Dec. at 9-10.
29
OSHA’s whistleblower Investigations Manual,
https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03-011.pdf.
30
31
Comp. Brief (Br.) at 13.
32
Respondent’s (Resp.) Br. at 9.
9
B. Complainant Did Not Raise the Precise Statutory Claim in the Wrong
Forum
Whether an earlier filed complaint raises the precise statutory claim is factspecific and varies from case to case.33 When looking at Complainant’s email to the
FBI, we are not persuaded that it constitutes mistakenly raising the precise
statutory claim in the wrong forum. As noted above, the email is a collection of
roughly 50 list items and bullet points, most of which appear to be about criminal
matters. A few bullet points mention retaliation claims and cite SOX and DoddFrank, but there is ambiguity when viewing these in light of the overall tenor of the
email, as well as Complainant’s subsequent explanation to OSHA. In the FBI email,
for example, Complainant clearly stated that Respondent had engaged in a
“retaliation crime against me.” In his later description of the email to an OSHA
representative, he expressly states that each of the categories in the email
contained criminal wrongdoing, including the references to “retaliation” “in
violation of SOX/Dodd-Frank.”34 Complainant reached out to the FBI because he
wanted the FBI to investigate Respondent over what he believed to be criminal
misconduct relating to perceived wire fraud, shareholder fraud, embezzlement,
conspiracy, racketeering, among other allegations of criminal misconduct.35 He also
wanted the FBI to investigate Respondent for perceived crimes of retaliation,
discrimination, and wage and hour violations. There is no indication that he was
pursuing an OSHA-type anti-retaliation claim for employment-based remedies
under Section 806 of SOX or Section 1057 of the Dodd-Frank Act (CFPA).
While corresponding with OSHA, Complainant stated he wanted to go to the
FBI because he believed the matter would end up with the FBI, regardless of
whether he first reported the criminal conduct to the FBI or the SEC, so he might
as well “kill[] two birds with one stone” by filing with the FBI:
Due to the fact the SEC focuses more acutely on securities
crimes and refers other crimes to the FBI, and the
FBI generally handles the investigations for the
For this reason, there is a risk to relying too heavily on precedent regarding raising
the precise statutory claim in the wrong forum because each case depends heavily on the
precise language used in the respective complaints, letters, and emails specific to those
cases.
33
34
OSHA Email at 2-3.
35
Id.
10
SEC, it seemed like contacting the FBI directly was
“killing two birds with one stone.”
During my interview with the FBI, [the Senior Special
Agent] explained how the FBI handles investigations for
many other Federal agencies and those investigations can
be triggered from either the requesting agency side or the
FBI side. The way I understood his description was the
agencies and the FBI worked closely together and kept
each other informed when appropriate. I assumed the FBI
would make the appropriate agencies aware of the
complaint(s) and the investigation(s).”36
In other words, Complainant reached out to the FBI with the hope that doing
so might kick off a criminal investigation or an SEC investigation against his
employer’s alleged “securities crimes” and “other crimes.” As noted above,
included in this list is the “retaliation crime.”37 It goes without saying that these
crimes are not the precise statutory claim that Complainant now attempts to raise.
In fact, not only is this not a case of a “precise claim in the wrong forum,” but there
does not appear to be a “wrong forum” at issue here. He contacted the FBI White
Collar Crime Division to report criminal contact and seek possible SEC involvement
regarding perceived securities crimes by Respondent.
This criminal focus is confirmed by the fact that nowhere in the email did
Complainant mention, let alone ask for, make-whole remedies such as back pay,
reinstatement, or any other remedy associated with the employee protection
provisions of SOX and the CFPA. Failing to ask for personal remedies might not be
necessary in a specific context when it is unambiguously implied that this is what is
being requested. However, the failure to ask for personal remedies combined with
36
Id. at 7-8.
In the FBI email, Complainant references his claim of retaliation as a “retaliation
crime.” In Complainant’s response to the Motion for Summary Judgment, Complainant
argued that “the language of § 1514A [SOX’s employee protection provision] is broad
enough to cover retaliation against an employee for making a complaint about financial
fraud to the FBI.” Comp. Response to Mot. for Summ. Dec. at 8. Congress provided at
18 U.S.C. § 1513(e), a criminal anti-retaliation provision, that it is an offense for a person to
retaliate against a witness for contacting law enforcement. The prohibited criminal
retaliation may include employment-based retaliation such as termination and other
adverse actions. Complainant does not aver that he communicated to law enforcement
before his alleged retaliation, but this defect is no greater than any of the other deficiencies
that he asks us to overlook to support his claim for equitable modification.
37
11
the references to criminal enforcement reinforces the criminal nature of the email’s
allegations in this case.
Corroborating the fact that Complainant did not contact the FBI for personal
remedies, but did so seeking criminal enforcement is the fact that the FBI email
does not include any details about his termination and the supposed nexus between
any protected activity (we note that Complainant did not specify in the FBI email
what protected activity he allegedly engaged in) and Complainant’s termination or
any other retaliation.
Reviewing the email in its totality makes clear that Complainant’s purpose
when making his complaint with the FBI was to report what Complainant believed
to be criminal misconduct. The email reads less like a whistleblower complaint,
and more like an airing of criminal grievances.38 In this sense, Complainant’s email
to the FBI bears similarity to the complaints that had been filed in Xanthopoulos v.
Marsh & McClennan.39 In that case, the Board held that a complainant’s multiple
submissions through the SEC’s “tips, complaints and referrals” form (TCR Form)
did not constitute the precise statutory claim. There, we stated:
While Complainant informed the SEC as a part of his
ongoing filings that he had been fired, his filings do not
constitute the “precise statutory claim” “mistakenly” filed
in the wrong forum. Specifically, Complainant’s filings
with the SEC do not set forth a SOX retaliation or
discrimination claim seeking SOX remedies. Some of his
filings do not mention his termination. In other filings,
Complainant claims that his termination was retaliatory
Cf. Butler v. Anadarko Petroleum Corp., ARB No. 2009-0047, ALJ No. 2009-SOX00001, slip op. at 4 (ARB Feb. 17, 2011) (finding that a complainant did not raise the
precise statutory claim in the wrong forum where the “communication itself does not
contain a whistleblower complaint, but rather a timeline of the events surrounding [the
complainant’s] grievance. For example, instead of concluding with a request for
reinstatement and damages, [complainant] concludes that ‘I am forwarding this to you, the
FBI, because I believe this is a violation against the IRS, the SEC and the stockholders of
Anadarko Corporation.’ Testimony at 5. We agree with the ALJ and Anadarko that the FBI
communication does not contain a valid SOX complaint to equitably toll Butler’s filing
requirement.”).
38
Xanthopoulos v. Marsh & McClennan Cos. Inc., ARB No. 2019-0045, ALJ No. 2019SOX-00008 (ARB June 29, 2020).
39
12
but he did not seek employee-based remedies such as
reinstatement, back pay, or other damages associated with
the termination. Instead, Complainant makes a vague
reference to serving the interest of the investing
public.2 The only monetary remedy mentioned in the
filings relates to seeking a monetary award through the
SEC's Whistleblower Program.[40]
We concluded that “[i]t is clear from Complainant’s filings that he wanted the
SEC to address the underlying problems Complainant identified.”41 The Seventh
Circuit upheld this decision and added that:
[T]he Board concluded that Xanthopoulos did not qualify
for equitable tolling because the TCR Forms did not
contain “the precise statutory claim,” the Sarbanes-Oxley
claims, alleged in his Complaint. In the Board’s view, the
“primary purpose” of the TCR Forms that Xanthopoulos
submitted “was to right the underlying wrong” of fraud, not
investigate retaliation. The Board reasoned Xanthopoulos
“did not seek employee-based remedies such as
reinstatement, back pay, or other damages associated with
the termination.” Nor did he later “indicate[ ] that [he]
sought or wanted the SEC to investigate his discharge or
restore his employment or wages to him.” Finally, the
Board noted that Xanthopoulos’s statement that he was
investigating filing suit for the sexual harassment case
“concedes [his] awareness (1) that he must seek further
legal action . . . in some forum other than the SEC and
(2) that the SEC is not investigating these matters.” Stated
another way, the Board concluded that Xanthopoulos used
the SEC’s website to blow the whistle on Mercer’s corporate
securities fraud, not on Mercer’s retaliation against
Xanthopoulos.[42]
40
Id. at 3.
41
Id. at 4.
42
Xanthopolous, v. U.S. Dep’t of Lab., 991 F.3d 823, 833 (7th Cir. 2021).
13
We have long recognized that, when a complainant seeks equitable tolling on
the basis of the wrong forum factor, it is not enough to merely detail individual
components of the claim in the wrong forum.43 Indeed, that a complaint lodged with
an entity other than OSHA “involve[s] activity that may be relevant to a
[whistleblower] claim,” does not mean that the complaint is the precise statutory
claim later raised with OSHA.44 As the Supreme Court has recognized, “[o]nly
where there is complete identity of the causes of action will the protections
suggested by petitioner necessarily exist and will the courts have an opportunity to
assess the influence of the policy of repose inherent in a limitation period.”45
While each case is context-specific, it is not necessarily dispositive that a
complainant mentions retaliation in a letter or email to other agencies, whether it
be the FBI, SEC, or the Environmental Protection Agency (EPA). It is common in
these cases that complainants provide a narrative of grievances against the
Respondent, and retaliation may be a background fact.46 Allentown, the pivotal case
cited frequently for equitable modification, is an illustrative example. In Allentown,
a schoolteacher wrote a letter to the EPA in which he described his efforts to
determine the presence of asbestos hazards in the school buildings. He also alleged
retaliation by the School District and requested help or advice from the EPA.47 The
See, e.g. Lewis v. McKenzie Tank Lines, Inc., ALJ. No 1992-STA-00020 (Sec’y Nov.
24, 1992) (citation omitted) (finding that even though an EEOC complaint referenced a
protected activity and an adverse action, the “EEOC complaint was not asserted under the
STAA and thus did not involve the precise claim mistakenly raised in the wrong forum”).
43
Udofot v. NASA/Goddard Space Ctr., ARB No. 2010-0027, ALJ No. 2009-CAA00007, slip op. at 7 (ARB Dec. 20, 2011) (finding that equitable tolling was not warranted
because the “claims filed with the EEOC and MSPB were clearly intended to address”
statutes other than the Clean Air Act, even though they involved activity relevant to a
Clean Air Act claim).
44
Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 467 n.14 (1975); see also
Xanthopoulos, 991 F.3d at 833 (requiring there to be a complete identity of the causes of
action to warrant equitably tolling under the wrong forum Allentown factor).
45
See Xanthopoulos, ARB No. 2019-0045, slip op. at 3 (finding that complainant’s
filings with the SEC did not constitute the precise statutory claim where the complainant,
in the filings, did not “did not seek employee-based remedies such as reinstatement,
back pay, or other damages associated with the termination.”), aff’d sub nom.
Xanthopoulos, 991 F.3d 823; but see Sawyers v. Baldwin Union Free Sch. Dist., ALJ No.
1985-TSC-00001, slip op at 1 (Sec’y Oct. 5, 1988), 1998 WL 524371 (reversing an ALJ’s
dismissal on timeliness grounds because “[n]either the statute nor the regulations requires
a complaint to include a prayer for relief.”).
46
Hanna v. Sch. Dist. of Allentown, ALJ No. 1979-TSC-00001, slip op. at 3 (Sec’y July
28, 1980).
47
14
ALJ assigned to the case concluded that the letter was not a claim under the Toxic
Substances Control Act. The Secretary of Labor disagreed and concluded that the
letter was timely as a complaint under the Act.48 On appeal, the Third Circuit noted
that whether the letter to the EPA constituted a complaint was not defended on
appeal but “having read the letter to the EPA, we would hold that it does not
constitute a complaint.”49 The fact that the complainant in the case mentioned
retaliation was not enough to make it a precise claim in the wrong forum.
Context matters and cases in which complainants seek to avail themselves of
equitable tolling on the basis of filing in the wrong forum have to be evaluated on a
case-by-case basis.
The ARB has stated on prior occasions that when “the claim is filed in the
wrong forum, it should be measured against the same standards under which an
OSHA complaint is measured for timeliness.”50 This language, however, is a
starting point rather than an ending point. Although we do not impose more
stringent pleading requirements on complainants who file in the wrong forum
relative to those who properly file their complaints with OSHA, there are
nonetheless necessary differences in how we—or an ALJ in the first instance—must
evaluate such complaints. We evaluate the complaint purportedly filed in the wrong
forum with the additional consideration of the equitable nature of what we are
being asked to do. As the Court stated in Xanthopolous, equitable tolling is a rare
occurrence and “[f]ederal courts have typically extended equitable relief only
sparingly.”51 The statute of limitations was set by Congress with purpose,
48
Id. at 3-4.
49
Allentown, 657 F.2d at 19.
Butler, ARB No. 2009-0047, slip op. at 5; see also Mehra v. W. Va. Univ., ARB No.
2017-0058, ALJ No. 2017-LCA-00002, slip op. at 5 n.2 (ARB Nov. 21, 2019) (agreeing that a
complaint initially filed in the wrong forum “is measured using the standards normally
used to evaluate aggrieved party complaints which are informal, filed for the purpose of
initiating an investigation, and are only required to set forth sufficient facts for the
Administrator to determine whether there is cause to believe that a violation has been
committed.”).
50
Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990); Madison v. U.S. Dep’t of Lab.,
924 F.3d 941, 947 (7th Cir. 2019) (citing Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir.
2007)) (“Given the compelling showing that is required to successfully invoke equitable
tolling and to show that an agency abused its discretion, it will be the rare case in which we
will find that an agency’s refusal to equitably toll a time limit was out of bounds.”); see, e.g.,
Jahanbin v. The Boeing Co., ARB No. 2024-0035, ALJ No. 2023-AIR-00023, slip op. at 9
(ARB Mar. 13, 2025) (quoting Martin, ARB No. 2022-0058, slip op at 9) (“Equitable tolling
is a rare and ‘extraordinary measure that applies only when plaintiff is prevented from
51
15
considering respective values for both complainants and respondents.52 The
complainant “bears the burden of showing he ‘diligently’ pursued the claim and
‘some extraordinary circumstances’ prevented him from filing his complaint within
the statute of limitations.”53 Complementing these points is the goal of limiting
open-ended searches by the Department to determine if emails, letters, and
complaints filed long ago with other agencies can be fashioned into OSHA claims.
Such a process would undercut both Congress’ determination as to how such claims
should be filed and processed and the goal of “promot[ing] justice by preventing
surprises through the revival of claims that have been allowed to slumber until
evidence has been lost, memories have faded, and witnesses have disappeared” 54
In sum, Complainant’s email to the FBI agent: (i) has significant overtones of
criminal misconduct, (ii) does not clearly indicate the protected activity that
Complainant claims to have engaged in, (iii) does not unambiguously specify an
adverse employment action that Respondent took against him, (iv) does not
explicitly allege a causal connection between a protected activity and a specific
adverse action against him, and (v) does not include any request for reinstatement,
backpay, or similar make-whole remedies that indicate Complainant is making an
employment-type claim. Many of these missing details are central to a complaint of
retaliation in violation of the employee protection provisions of SOX and the CFPA.
Moreover, Complainant indicated that he went to the FBI for an investigation into
criminal misconduct involving securities law violations, it was his belief that “the
FBI generally handles investigations for the SEC,” and there is “an obvious
connection between the [SOX] and the [SEC]”.55 In the subsequent communications,
he prefaced all of the conduct that he complained of, including the purported
retaliation, as “likely criminal conduct.” Taken together, these attributes are fatal
to Complainant’s claim that he raised the precise statutory claim in the wrong
forum when he emailed the FBI in October 2022.
filing despite exercising that level of diligence which could reasonably be expected in the
circumstances.’”).
See Ry. Express Agency, Inc., 421 U.S. at 463-64 (“[a]lthough any statute of
limitations is necessarily arbitrary, the length of the period . . . reflects a value judgment
concerning the point at which the interests in favor of protecting valid claims are
outweighed by the interests in prohibiting the prosecution of stale ones.”).
52
Sparre v. U.S. Dep’t of Lab., Admin. Rev. Bd., 924 F.3d 398, 402-03 (7th Cir. 2019)
(quoting Blanche v. United States, 811 F.3d 953, 962 (7th Cir. 2016)).
53
54
Ord. of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49 (1944).
55
See supra note 11 (citing to OSHA Email at 8).
16
Complainant may have been confused about what the FBI can or cannot
remedy. Ignorance of law is not generally considered a basis for equitable tolling.56
A trained attorney may look at his email and conclude that these are civil
allegations not criminal, but this requires not only supplementing his
communications with what he did not say but striking out what he did say. It is
indisputable that Complainant was seeking criminal enforcement action as he has
expressly stated that was his purpose, even for the retaliation claims under
SOX/Dodd-Frank. Complainant later told both OSHA and the ALJ that he
“assumed the FBI would make the appropriate agencies aware of the complaint(s)
and the investigation(s).”57 Even now, Complainant states in his brief to the Board:
“Sarbanes-Oxley includes both criminal and civil remedies for the same conduct.
It is unclear why the FBI would be unable to forward complaints to the SEC or
OSHA.”58 These points acknowledge that the FBI email itself was not a civil
complaint but, according to Complainant, ought to have been referred to other
agencies for other remedies known or unknown.
Komatsu, ARB No. 2016-0069, slip op. at 4; see also, e.g., Wakefield v. R.R. Ret. Bd.,
131 F.3d 967, 970 (11th Cir. 1997) (“Ignorance of the law usually is not a factor that can
warrant equitable tolling.”); Gatewood v. R.R. Ret. Bd., 88 F.3d 886, 890 (10th Cir. 1996)
(“[W]e are aware of no authority . . . which suggests that ignorance of the law should
warrant equitable tolling of a statute of limitations.”); Felder v. Johnson, 204 F.3d 168, 172
(5th Cir. 2000) (“[M]ere ignorance of the law or lack of knowledge of filing deadlines does
not justify equitable tolling . . . .”) (citing Fisher v. Johnson, 174 F.3d 710, 714 n.13 (5th Cir.
1999)).
56
57
Comp. Response to Mot. for Summ. Dec. at 10; Comp. Br. at 12-13. OSHA email
at 7-8.
58
Comp. Br. at 14.
17
CONCLUSION
For the foregoing reasons we conclude that Complainant’s claim of retaliation
in violation of SOX and the CFPA’s employee protection provisions was not timely
filed and Complainant has not established circumstances justifying the application
of equitable tolling. The ALJ’s Order Granting Motion for Summary Judgment
is AFFIRMED, and the complaint is DISMISSED.
SO ORDERED.
THOMAS H. BURRELL
Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge
18
Judge Kaplan, Concurring
I concur in my colleagues’ decision affirming the ALJ Order and dismissing
the complaint due to its untimeliness. I reach this conclusion for different reasons
than the Majority and write separately to emphasize a few points regarding the
application of equitable tolling under the Allentown “wrong forum” factor.
1. The Precise Statutory Claim
As an initial matter, I am mindful that a complaint filed in the wrong forum
“is measured using the standards normally used to evaluate aggrieved party
complaints[.]”59 The Majority acknowledges this precedent but asserts “there are
nonetheless necessary differences in how we—or an ALJ in the first instance—must
evaluate such complaints.”60 The Majority adds that complaints initially raised in
the wrong forum must be evaluated with the “additional consideration of the
equitable nature of what we are being asked to do.”61 What this additional equitable
consideration looks like in practice is unclear and the Majority notes that the
“complainant ‘bears the burden of showing he ‘diligently’ pursued the claim and
‘some extraordinary circumstances’ prevented him from filing his complaint within
the statute of limitations.’”62 This, of course, is generally true of those who seek
equitable tolling of a limitations period and should not be used as a backdoor
through which to apply a heightened pleading standard or to require something
different from complainants who initially file their complaint in the wrong forum.
It is also worth noting that under the SOX and CFPA regulations, OSHA
“has a duty, if appropriate, to interview the complainant to supplement a complaint
that lacked a prima facie claim.”63 Other agencies do not have a similar duty.
Mehra, ARB No. 2017-0058, slip op. at 5 n.2 (finding that complaint raised the
precise statutory claim even though his complaint in the wrong forum cited the H-2A
regulations instead of the H-1E regulations); see also Butler, ARB No. 2009-0047, slip op. at
4 (“When the claim is filed in the wrong forum, it should be measured against the same
standards under which an OSHA complaint is measured for timeliness.”).
59
60
See supra at 14.
61
Id.
62
Id. at 14-15.
Sylvester v. Parexel Int’l LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039,
-00042, slip op. at 12 (ARB May 25, 2011); see also 29 C.F.R. § 1980.104(e)(3); 29 C.F.R.
§ 1985.104(e)(3).
63
19
The practical effect of this is that a complainant who mistakenly files their
complaint in the wrong forum is already disadvantaged relative to a complainant
who properly files a complaint with OSHA and obtains the benefits of OSHA’s preinvestigation supplementation. 64 To evaluate wrong forum complaints under a
more exacting standard than that under which OSHA complaints are evaluated
would be a break from our precedent and would needlessly work a further
disadvantage on litigants, many of whom are attempting to navigate the
administrative process without the benefit of counsel.
So what exactly is required of complainants alleging violations of the
employee protection provisions of SOX and the CFPA? Under both sets of
regulations, “no particular form of complaint is required.”65 This language was
adopted in 2011 when the Department of Labor promulgated an Interim Final Rule
(IFR) revising the SOX regulations.66 Prior to 2011, the SOX regulations stated that
“[n]o particular form of complaint is required, except that a complaint must be in
writing and should include a full statement of the acts and omissions, with
pertinent dates, which are believed to constitute the violations.”67 In the 2011 IFR,
the Department noted that this change “complement[ed] the ARB’s decision in
Sylvester v. Parexel International, LLC,” a decision in which we expressly
repudiated the idea that the pleading standards articulated in Twombly and Iqbal
apply to SOX whistleblower complaints filed with OSHA.68 This language was
carried forward when the Department promulgated a Final Rule in 2015.69
Similarly, when the CFPA regulations were first promulgated, the Department
noted that “a complaint of retaliation filed with OSHA under CFPA is not a formal
document and need not conform to the pleading standards for complaints filed in
The same is true for a complainant who, rather than going first to OSHA, makes the
mistake of filing his complaint in federal court, where a plaintiff’s complaint is subject to
the pleading standards of Rule 8, and a defendant “may immediately challenge the
sufficiency of the pleadings through Rule 12, without waiting for any supplementation.”
Sylvester, ARB No. 2007-0123, slip op. at 12.
64
65
29 C.F.R. § 1980.103(b); 29 C.F.R. § 1985.103(b).
Procedures for the Handling of Retaliation Complaints Under Section 806 of the
Sarbanes-Oxley Act of 2002, as Amended, 76 Fed. Reg. 68084 (Nov. 3, 2011).
66
67
29 C.F.R. § 1980.103(b) (2004).
Procedures for the Handling of Retaliation Complaints Under Section 806 of the
Sarbanes-Oxley Act of 2002, as Amended, 76 Fed. Reg. 68084 (Nov. 3, 2011).
68
Procedures for the Handling of Retaliation Complaints Under Section 806 of the
Sarbanes-Oxley Act of 2002, as Amended, 80 Fed. Reg. 11865 (Mar. 5, 2015).
69
20
federal district court articulated in [Twombley] and [Iqbal].”70 That this is true for
complainants who properly file their complaints with OSHA is undisputed. To the
extent that the Majority suggests that something more is required of complainants
who first lodge a complaint in the wrong forum, I disagree.
Because no particular form of complaint is required, even for complainants
who mistakenly file in the wrong forum, there is no talismanic word or phrase that
must be included in a misfiled complaint in order for the Board to conclude that it
constitutes the precise statutory claim.71 The Majority acknowledge as much and
describes the inquiry into whether an earlier filed complaint raises the precise
statutory claim as “fact-specific” and “var[ying] from case to case.”72 I agree and, as
a result, would not fault Complainant for not requesting reinstatement, backpay, or
other make-whole remedies in his initial email to the FBI special agent.73 After all,
our precedent is clear: a complaint filed in the wrong forum or with the wrong
agency need not include a request for any particular remedy in order to constitute
the precise statutory claim.74
Even in the forgiving light of this standard, Complainant’s email to the FBI
is arguably deficient. As the Majority points out, Complainant refers to “the
Whistleblower” and “a financial Whistleblower” in the third person, does not specify
what protected activity he allegedly engaged in, and does not state that Respondent
Procedures for Handling Retaliation Complaints Under the Employee Protection
Provision of the Consumer Financial Protection Act of 2010, 81 Fed. Reg. 14374, 14377
(Mar. 17, 2016).
70
See Butler, ARB No. 2009-0047, slip op. at 5 (“When the claim is filed in the wrong
forum, it should be measured against the same standards under which an OSHA complaint
is measured for timeliness.”).
71
72
See supra at 8.
73
See supra at 10, 15.
Sawyers, ALJ No. 1985-TSC-00001, slip op. at 1 (in which the Secretary reversed an
ALJ’s dismissal on timeliness grounds because “[n]either the statute nor the regulations
requires a complaint to include a prayer for relief.”). In Xanthopoulos, although the Board
noted that the complainant had not requested reinstatement, back pay, or other damages
associated with termination, we did not hold that such a request was a requirement or that
failure to make it was dispositive. Additionally, unlike Mr. Gemoll, the complainant in
Xanthopoulos expressly conceded his “awareness (1) that he must seek further legal action,
including [on] the whistleblower complaint, in some forum other than the SEC and (2) that
the SEC is not investigating these matters.” Xanthopoulos, ARB No. 2019-0045, slip op. at
4.
74
21
took any specific adverse action against him.75 With all of these missing elements,
Complainant’s FBI email is best understood as an inchoate airing of grievances in
which an ALJ could have determined constituted the precise statutory claim but not
one in which the ALJ erred when she did not find that it contained the precise
statutory claim.76
2. Complainant’s Mistake in Choice of Forum
Assuming for the sake of argument that Complainant’s October 2022 email to
the FBI constituted raising the precise statutory claim in the wrong forum, I would
nonetheless affirm the ALJ Order. This is because equitable tolling under the
Allentown wrong forum factor is available only when “the plaintiff has raised the
precise statutory claim in issue but has mistakenly done so in the wrong forum.”77
Complainant has not demonstrated that his decision to file a complaint with the
FBI was a mistake rather than a strategic choice.
In response to the OSHA investigator asking Complainant why he believed
his complaint should be equitably tolled, Complainant provided multiple reasons
including that Respondent’s acts or omissions lulled him into foregoing prompt
action to vindicate his rights.78 Complainant elaborated on this by stating that he,
In contrast to his use of third person when speaking to the FBI, when Complainant
later communicated with OSHA, he made clear that he was the whistleblower, stating
“[t]here were four key categories in which I reported issues to OLC in accordance with SEC
and/or SOX regulations to report internally first.” See OSHA Email at 1. Additionally, to be
the precise statutory claim, the complaint made with the FBI must be the same claim
Complainant now raises, as “distinguished from every other.” See Webster’s Third New Int’l
Dictionary (1993). The Complainant’s use of the third person and lack of specificity makes
reaching this conclusion that much harder.
75
It should not go unmentioned that the record does not contain any material related
to the meeting between Complainant and the FBI special agent, nor does it contain any
subsequent communications between Complainant and the FBI. It is possible that this
material would provide insight into Complainant’s motivations and the exact nature of his
complaint. Of course, Complainant bears the burden of producing these documents.
76
Allentown, 657 F.2d at 20 (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102,
109 (2d Cir. 1978)).
77
OSHA Email at 8. Although Complainant provided this as a circumstance that
would justify the application of equitable tolling, if true it would justify the application of
equitable estoppel, a different and distinct doctrine used to modify a filing deadline.
See Martin, ARB No. 2022-0058, slip op. at 8 (“Equitable tolling focuses on the [employeecomplainant’s] excusable ignorance of the employer’s discriminatory act. Equitable
78
22
while still employed by Respondent, engaged counsel in order to “protect my
employment and ensure the board of directors or executive leadership were fully
aware of the scale and scope of the issues.”79 Complainant sought mediation with
Respondent but later came to view the promises of mediation as a “tactic to stall
any formal complaints [by Complainant] to government agencies.”80 Complainant
told the OSHA investigator that:
It is clear the promises of mediation were a tactic to stall
any formal complaints to government agencies. My lawyers
stated Microsoft would view any official complaint(s) as a
hostile act and one that did NOT demonstrate my honest
desire to protect my employment, mediate the personal
financial issues and ensure the corporate criminal conduct
was ended and cleaned up appropriately and legally.
Approximately 300 days after termination, Microsoft is no
longer interested in mediation.” This is not a coincidence.
In addition, I’ve since learned the manager who terminated
me was also laid off or terminated April 2023 . . . again,
approximately 300 days after my termination [81]
Respondent points to this statement as evidence that Complainant’s email to
the FBI was not a case of mistakenly selecting the wrong forum but a “strategic
choice made in consultation with [Complainant’s] counsel.”82 Complainant has
countered this by alleging that his prior counsel’s advice not to file a complaint was
a reference to an EEOC charge that Complainant contemplated filing against
Respondent.83 Even if we accept Complainant’s claim that he considered filing an
EEOC charge but refrained from doing so on the advice of counsel, that would not
estoppel, in contrast, examines the [employer or other] defendant’s conduct and the extent
to which the [complainant] has been induced to refrain from exercising his rights.”).
79
OSHA Email at 8.
80
Id.
81
Id.
82
Resp. Br. at 8.
83
Comp. Reply Br. at 3.
23
rebut Respondent’s argument.84 After all, Complainant’s statement to OSHA was
that his then-counsel advised him against filing “any official complaint(s)[.]”85
Complainant’s actions are not those of a litigant who put Respondent
“on notice ‘within the period set by the statute of limitations,’” but of one who made
a strategic decision to forego a specific avenue of vindicating his rights under the
employee protection provisions of SOX and the CFPA in the hopes that doing so
would procure a better outcome by encouraging his former employer to participate
in mediation.86 Dissatisfied with the results of that choice, Complainant cannot now
recast the strategic decision to refrain from filing a formal complaint with OSHA
while instead pursuing an informal process with the FBI, as a case of mistakenly
filing in the wrong forum.
3. Conclusion
A litigant sitting on his claims as he seeks to bring his former employer to the
mediation table is a strategy that may or may not work out. What I can say with
certainty, however, is that such a strategy is far from an “extraordinary
circumstance” that “prevented timely filing” and warrants equitable intervention.87
Complainant had legal avenues through which to vindicate his rights. Having
foregone those, he cannot now turn to equitable avenues instead.
ELLIOT M. KAPLAN
Administrative Appeals Judge
I note that when asked by the OSHA investigator whether he had experienced any
adverse actions that would fall within the 180-day SOX and CFPA limitations periods,
Complainant responded: “My employment attorneys did not file the EEOC complaint as
instructed, or the other complaints as instructed. I am attempting to understand why,
as I discovered this yesterday.” OSHA Email at 8 (emphasis added).
84
85
Resp. Br. at 8.
Turgeau v. U.S. Dep’t of Lab., Admin. Rev. Bd., 446 F.3d 1052, 1059 (10th Cir. 2006)
(quoting Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 555 (1974)).
86
See Holland v. Florida, 560 U.S. 631, 649 (2010) (recognizing that “a petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing) (internal marks omitted).
87
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.