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Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

MICHAEL BROOKS,

COMPLAINANT,

ARB CASE NO.

2017-0033

ALJ CASE NO.

2016-SOX-00037

DATE:

MAR 2 5 2019

AGATE RESOURCES, LLC,

RESPONDENT.

Appearances:

For the Complainant:

Michael Brooks; pro se; Coburg, Oregon; and Marianne Dugan, Esq.;

Eugene, Oregon

For the Respondent:

Carolyn D. Walker, Esq.; Reilley D. Keating, Esq.; and Brianne L.

Bridegum, Esq.; Stoel Rives LLP; Portland, Oregon

Before: William T. Barto, Chief Administrative Appeals Judge; Jame s A.

Hay nes and Daniel T. Gresh, Administrative Appeals Judges

FINAL DECISION AND ORDER

PER CURIAM. The Complaina n t, Michael Brooks, filed a retaliation

complaint under Section 806 of the Cor porate a nd Crimina l Fraud Accountability

Act of 2002, Title VIII of t he Sarbanes-Oxley Act, 18 U.S.C. § 1514A (20 10) (SOX)

and its implement ing regulations, 29 C.F.R. P a rt 1980 (2018). Complainant alleged

that his former employer, Agate Resources, LLC, violated t he SOX whistleblowe r

protection provisions by disch arging him on September 27, 201 3, because he

engaged in protected activity and by engaging in post-termination threats against

him and his son.

Complainant filed his initial complaint of unlawful retaliation with the

United States Department of Labor's Occupational Safety and Health

Administration on April 4, 2016. On March 6, 2017, the ALJ granted Respondent's

motion for summary decision, holding that Complainant failed to file a timely

complaint and that equitable tolling of the untimely complaint did not apply.

Complainant filed a petition requesting that the Administrative Review Board

(ARB or the Board) review the ALJ's order. We affirm.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board his authority to act on

appeal from ALJ decisions arising under the SOX and issue final agency decisions

in those matters. 1 The ARB reviews an ALJ's grant of summary decision de nova

under the same standard the ALJ applies. Summary decision is permitted where

"there is no genuine dispute as to any material fact and the movant is entitled to

decision as a matter oflaw." 29 C.F.R. § 18.72(a) (2018). On summary decision, we

review the record on the whole in the light most favorable to the non-moving party.

Micallef v. Harrah's Ricon Casino & Resort, ARB No. 2016-0095, ALJ No. 2015SOX-00025, slip op. at 3 (ARB July 5, 2018).

CONCLUSION

The ALJ's decision is in accordance with law. For the reasons stated by the

ALJ, there is no genuine issue of material fact that Brooks's complaint was

untimely and that equitable tolling does not apply. Accordingly, we adopt the ALJ's

well-reasoned Order Granting Summary Decision on Reconsideration and attach a

copy hereto.

SO ORDERED.

Secretary's Order No. 02-2012 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 77 FR 69378-01 (Nov. 16, 2012).

U.S. Department of Labor

Office of Administrative Law Judges

90 Seventh Street, Suite 4-800

San Francisco, CA 94103-1516

(415) 625-2200

(415) 625-2201 (FAX)

Issue Date: 06 March 2017

CASE NO. 2016-SOX-00037

In the Matter of

MICHAEL BROOKS,

Complainant,

AGATE RESOURCES, LLC,

Respondent. .

Appearances:

Marianne Dugan

for Complainant

Carolyn D. Walker

Reilley D. Keating

Brianne L. Bridegum

for Respondent

Before:

Steven B. Berlin

Administrative Law Judge

ORDER GRANTING SUMMARY DECISION

ON RECONSIDERATION

This case arises under the ~histleblower protection provisions of the Affordable Care Act 1 and

the Sarbanes-Oxley Act. 2 Complainant alleges that Respondent retaliated against him for his

protected activity when it terminated the employment on September 27, 2013. Complainant filed

a whistleblower retaliation complaint with the Occupational Safety & Health Administration by

telephone on April 4, 2016. 3 Nine days later, on April 13, 2016, OSHA issued "Secretary's

Findings," dismissing the complaint as untimely filed. Complainant objected and requested a

hearing before an administrative law judge. Until recently Complainant has been selfrepresented before the administrative law judge.

28 U.S.C. § 208c, and its implementing regulations at 29 C.F.R. Part 1984.

18 U.S.C. § 1514A, and its implementing regulations at 29 C.F.R. Part 1980.

See "Secretary's Findings," issued April 13, 2016, where OSHA's Acting Assistant Regional Administrator finds

that Complainant filed his complaint on April 4, 2016. No party disputes that this is the date of filing with OSHA.

On August 23, 2016, Respondent filed a "motion to dismiss," which I construed as for summary

decision. Respondent argued that Complainant's claims were time-barred because he filed his

administrative complaint with OSHA after the 180-day filing deadline applicable to the

whistleblower protection provisions of both the Affordable Care Act and the Sarbanes-Oxley

Act.

I issued an order to show cause directed to Complainant. I explained motions for summary

decision in general and what Complainant needed to do to oppose the motion. I advised him of

his right to retain counsel and that it could well be to his advantage to do so.

Continuing to represent himself, Complainant filed an opposition with supporting

documentation.

On October 26, 2016, I denied summary decision. Viewing the evidence in the light most

favorable to Complainant as the non-moving party, I found a genuine issue as to whether

equitable tolling rescued Complainant's otherwise late-filed OSHA complaint. There was no

dispute that both statutes (ACA and SOX) require a complaining person to file a complaint with

OSHA and that the filing occur within 180 days after the complainant learned of the alleged

retaliatory act that violated the statute. There was no dispute that Complainant filed his OSHA

complaint long after the 180 days had run.

The issue as to equitable tolling arose because - viewing the evidence in the light most favorable

to him - Complainant had shown that he had timely filed his whistleblower complaint but with

the wrong agencies. There was evidence that, within the 180-day filing period, he had made at

least one call to the Department of Labor's Wage & Hour Division in which he complained

about a whistleblower violation, at least two calls to the Oregon Bureau of Labor and Industries

about a whistleblower claim, and at least one call to the U.S. Department of Justice. Although it

was possible that, on a full record after a hearing, I might find that Complainant was not entitled

to equitable tolling, I could not make that determination on summary decision.

On November 8, 2016, Respondent moved for reconsideration. Relying on an exhibit that

Complainant submitted in his opposition to summary decision, Respondent asserted that

Complainant had the assistance of counsel to advise him about his rights related to the

termination from employment. The exhibit documented that Complainant had the assistance of

counsel no later than October 3, 2013, more than two years before he filed his OSHA complaint.

Respondent argued that, as a matter of law, equitable tolling was unavailable to Complainant

after that date because: "[O]nce a claimant retains counsel, tolling ceases because she has gained

the means of knowledge of her rights and can be charged with constructive knowledge of the

law's requirements," citing Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010)

(affirming dismissal of Sarbanes-Oxley retaliation claim as untimely filed with OSHA).

On November 10, 2016, I issued a Second Order to Show Cause directed to Complainant. I

explained Respondent's motion for reconsideration, and I required Complainant to file an

Ninth Circuit law is controlling in this Oregon-based case.

opposition on or before November 30, 2016, or risk having the motion granted and his case

dismissed. Complainant moved for additional time to find counsel, and I allowed him an

extension.

On December 23, 2016, Complainant- now represented by counsel- filed a timely opposition.

He argues that: (1) although he retained counsel in 2013, the representation did not concern the

present whistleblower claims; and (2) that it was only after the Supreme Court's 2014 decision in

Lawson v. FMR LLC, 134 S.Ct. 1158 (2014) that the protections of Sarbanes-Oxley were

extended to the Affordable Care Act. In addition, Complainant raised a new argument in a reply

brief: that a complaint he filed with the Oregon Bureau of Labor and Industries met the

regulatory requirement that whistleblower complaints under the ACA and SOX be filed with

OSHA. This is not an argument for equitable tolling; it is an argument that Complainant does

not need equitable tolling because he filed a timely complaint with Oregon state agency. 5

Reviewing the record on the motion, I discovered that Complainant had filed related claims in

the U.S. District Court for the District of Oregon. On February 1, 2017, I notified the parties that

I would take official notice of twelve documents on file in those cases. See 29 C.F.R. § 18.84.6 I

gave the parties an opportunity to submit evidence and argument to refute the materials being

noticed. Id. Both parties filed responses. Although Complainant contends that the federal court

filings are irrelevant, neither party disputes that all of the documents involved are appropriate for

official notice. Accordingly, the twelve documents are admitted to the record as ALJ Exhibits 112. 7

Complainant raised this third argument (for the first time) in a surreply. I granted his motion to file the surreply

and allowed Respondent a response, which Respondent filed.

The regulation on official notice provides: "On motion of a party or on the judge's own, official notice may be

taken of any adjudicative fact or other matter subject to judicial notice. The parties must be given an adequate

opportunity to show the contrary of the matter noticed."

The twelve documents are:

ALJ

Exhibit

No.

District Oregon Case Name

District Oregon Case

No.

Document Title

Date Filed

Brooks v. State of Oregon;

Agate Resources

6:14-cv-01412 TC

Complaint

Sept. 2, 2014

Plaintiffs Notice of

Voluntary

Dismissal

Nov. 18, 2014

Judgment

Nov. 24, 2014

Complaint

Sept. 3, 2014

Pro Bono

Appointment

Response Form

July 7, 2015

First Amended

Complaint

Oct. 19, 2015

U.S. ex rel. Brooks v. Trilliam

Community Health Plan and

Agate Resources, Inc.

6:14-cv-01424 AA

I will grant summary decision on reconsideration.

On September 16, 2013, Respondent placed Complainant on administrative leave pending an

investigation into "serious allegations" about his behavior toward Analytics Group Supervisor

Amanda Cobb. 9 Respondent required Complainant to write a statement about his "relationship"

with Ms. Cobb. He stated that he liked her but had no non-work-related relationship with her

and did not intend to. 10 When Human Resources Director Nanette Woods asked if he had any

"feelings" for Cobb, Complainant expressed concern that Ms. Cobb had made "sexually

suggestive remarks" and had a "nearly bipolar relationship with [Complainant]." 11 He reported

that, in the week before Respondent put him on administrative leave, Cobb "kept calling [him]

'honey' and 'sweetheart' in the oftice." 12

On September 27, 2013, Woods called Complainant and informed him that he was terminated

because of sexual harassment.

Six days later, on October 3, 2013, attorney Michael Arnold faxed and emailed a letter to

Respondent's Director of Human Resources. C.Opp.Br., Exh. 3. Mr. Arnold wrote:

Defendants'

Corporate

Disclosure

Statement

Dec. 14, 2015

Opinion and Order

Apr. 29, 2016

Notice of

Substitution of

Counsel

Oct. 28, 2016

Second Amended

Complaint

Oct. 28, 2016

Complaint for

Employment

Discrimination

June 4, 2015

Notice of

Representation

Sept. 29, 2015

Brooks v. Agate Resources

6:15-cv-00983 TC

On summary decision, I view the facts in the light most favorable to the non-moving party, here Complainant. I

draw all reasonable inferences in his favor. Accordingly, the facts recited in the text above are for purposes of this

motion only.

Letter from Complainant, filed May 10, 2016, at 9.

Id.

12 Id.

Our office represents Mr. Brooks regarding his termination from employment. I

am writing to request that you preserve all electronic and written records that

pertain to Mr. Brooks, including but not limited to complaints he made regarding

sexual harassment by another.

Id.

Continuing in the letter, attorney Arnold warns Respondent that its failure to preserve these

documents "may constitute spoliation of evidence which may subject [Agate] to legal claims for

damages and/or evidentiary and monetary sanctions." Id. Mr. Arnold requests a copy of

Complainant's personnel file. Id. At some point, Respondent provided Mr. Arnold with

documents from Complainant's personnel file. C.Opp.Br. at 9 (asserting that other copies of the

same documents showed different dates, indicating that they had been altered).

In his opposition to Respondent's initial motion for summary decision, Complainant stated that

he hired the Arnold firm to appeal an Oregon state agency's denial of unemployment

compensation. C.Opp.Br. at 15. In a declaration filed with his surreply on the current motion,

Complainant states that he hired Mr. Arnold and his firm - not to "handle any sort of

employment discrimination, retaliation, or whistleblower claim against Agate Resources" - but

to "defend [himself] against false allegations of workplace sexual harassment at Agate, and

attempts to obtain coverage for medical treatment for illnesses and injuries that stemmed [from]

work at Agate." He states that the Arnold firm "never told [him] they would represent [him] on

an employment discrimination, retaliation, or whistleblower claim." C.Decl., filed Dec. 23,

2016.

Mr. Arnold's fee statement for part of the month of December 2013 appears to concern an

unemployment compensation hearing, 13 but Complainant did not submit the fee statements from

the beginning of the representation (in or around September or October 2013 ). 14 The fee

statement thus does not establish whether Mr. Arnold discussed with or advised Complainant

about potential termination-related claims he might assert against Agate, such as for sex

harassment, wrongful termination, or whistleblower retaliation.

But Complainant offers an inconsistent record on the scope of Mr. Arnold's representation. A

fair reading of the Mr. Arnold's letter quoted above is that Mr. Arnold was threatening- or at

least suggesting as possible - a complaint against Agate, asserting that it was Complainant who

was sexually harassed at Agate and that the termination was wrongful. After all, Mr. Arnold

demands that Agate preserve records of Complainant's complaining that he is being sexually

harassed; Arnold says nothing explicit about records of complaints that others made against

Complainant. In addition, Mr. Arnold holds himself out to Agate as representing Complainant

Oregon officials denied Complainant's claim for unemployment compensation because they found that he was

terminated for sex harassment, which is "cause" within the meaning of the Oregon workers' compensation statute.

Complainant alleges in a federal court complaint that he hired an attorney immediately after Agate put him on

administrative leave on September 16, 2013. Assuming that Complainant did not have an attorney other than Mr.

Arnold, he must have hired Mr. Arnold before the termination. If Complainant was referring to another attorney

whom he hired at that time, it would potentially weaken his position on this motion, but there is no evidence of a

second attorney in September 2013.

"regarding his termination from employment." Mr. Arnold did not write that the representation

was on Complainant's unemployment insurance or workers' compensation claim. Instead, he

wrote broadly that he represented Complainant "regarding his termination from employment."

There's more. In other litigation, Complainant makes statements that in September 2013, he had

email exchanges with "his attorney" about his whistleblowing activity, emails that he alleges

Agate likely hacked. In another case, Complainant represented to a federal court that he hired an

attorney who wrote a "spoliation letter" on October 3, 2013 (apparently Mr. Arnold and the letter

quoted above) for the precise reason that Complainant was a "whistleblower" concerned about

Sarbanes-Oxley violations at Agate. I discuss all this below; it suggests - inconsistent with

Complainant's current contentions -that Complainant hired Mr. Arnold (if not some other

lawyer) in September or October 2013 for reasons that include whistleblowing claims, such as

claims under the Sarbanes-Oxley Act.

Meanwhile, Complainant states that, on the day before the termination, September 26, 2013, he

called the Equal Employment Opportunity Commission regarding "harassment and possible

termination for being a whistleblower and for on-the-job injuries that his employer refused to

cover [and] violations ofFMLA." 15

EEOC accepts and processes complaints alleging retaliation for ( 1) filing charges of violations of

the statutes it enforces or (2) opposing practices made unlawful under those statutes. The

statutes within EEOC's responsibility are Title VII of the Civil Rights Act of 1964, the Age

Discrimination in Employment Act, Title V of the Americans with Disabilities Act, section 501

of the Rehabilitation Act of 1973, the Equal Pay Act, and Title II of the Genetic Information

Nondiscrimination Act. 16 Whistleblower retaliation complaints under Sarbanes-Oxley or the

Affordable Care Act are not among the EEOC's responsibilities.

EEOC referred the matter to a local EEOC district office (apparently Seattle), and Complainant

states that he spoke with the EEOC Seattle office the same day. Complainant states that,

ultimately, EEOC deferred to an Oregon state agency (Oregon Bureau of Labor and Industries

Civil Rights Division) to investigate Complainant's charge. This is consistent with the EEOC's

practice under work-sharing agreements with state fair employment practice agencies, whereby

EEOC and the state agencies each accept complaints as an agent for the other ("cross-filing"),

and then one of the agencies (not both) investigates the complaint. 17 But again, this case

processing is limited to complaints within EEOC's jurisdiction and does not include

whistleblower claims under the Sarbanes-Oxley Act or the Affordable Care Act.

Complainant asserts that, once Agate terminated the employment, "he telephoned and attempted

to lodge [complaints] concerning FFLA, Whistleblower Retaliation, and other unlawful acts

It appears that Complainant anticipated that a termination was possible because he had been put on an

administrative leave pending investigation.

Of course, EEOC accepts complaints of employment discrimination based on race, sex, national origin, religion,

disability, age, and certain other factors not relevant here. The discussion in the text above concerns EEOC's

responsibility on retaliation claims.

See 42 U.S.C. § 2000e-5(e); https:!iwww.eeoc.gov/employees/fepa_wsa_20l2.cfm.

directed at him with the EEOC, HHS-Civil Rights Division, and Oregon's Bureau of Labor and

Industries."

Complainant does not contend (or offer any evidence) that he contacted the Occupational Safety

& Health Administration at this time. But he came close. He states that, on October 2, 2013, he

called the U.S. Department of Labor in Portland, Oregon, "to lodge a complaint for termination

due to injuries sustained on the job, FMLA violations, and retaliation for whistleblowing." The

phone number that he called is for the Department's Wage & Hour Division. Complainant does

not state that DOL (or Wage & Hour) accepted a complaint; he states only that he was referred to

the Oregon Bureau of Labor and Industries (BOU). That is the same agency to which the EEOC

deferred.

Oregon BOLi focuses on complaints of employment discrimination, wage and hour violations

(including, for example, overtime, child labor, and various leave laws), and protection of

whistleblowers reporting about safety and health violations or violations of certain federal or

state laws. See 2015 ORS§ 659A.885. This would include, for example, investigation of

employment discrimination (sex, race, national origin, etc.) initially filed with BOLi or with

EEOC, if EEOC defers to the state agency. It would include alleged retaliation for filing a state

worker's compensation claim. It would include whistleblower complaints related to

occupational health and safety, parallel to the employee protection ("whistleblower") provision

of the Occupational Safety & Health Act of 1970, section 1 l(c). 29 U.S.C. § 660(c); see 29

C.F.R. §§ 1977.23, 1902.4(c)(2)(v). But BOLi's responsibilities do not include investigation or

enforcement of the whistleblower protection provisions in the Affordable Care Act or the

Sarbanes-Oxley Act; there is no cross-filing arrangement or work-sharing agreement between

federal OSHA and state agencies to investigate such complaints.

Complainant states that, after the Department of Labor referred him to Oregon BOLi, he phoned

BOLi the same day (October 2, 2013). Curiously, he says that he "was led to believe that he was

talking with an HHS-Civil Rights Division [employee]." He states that he reported

'"everything,' including whistleblowing activities going back to 2006, records of Medicare and

Medicaid fraud kept, monies (payoffs) given to Oregon agency employees, etc." C.Opp.Br. Ex.

at 5. Complainant does not state how Oregon BOLi (or HHS) responded. He does not state that

anyone accepted a complaint.

Instead, he states that he was concerned that BOLi had "misled/misinformed him" so he called

another phone number at the Department of Labor. This was another office at Wage & Hour

Division. He said the phone call was 65 minutes long, but he does not say what either he or the

Wage & Hour representative stated. He concludes: "That lodged a formal complaint," but he

does not explain how, nor does he state what the complaint was about or that it was under the

Affordable Care Act or the Sarbanes-Oxley Act.

Complainant states that, about two weeks later, on October 17, 2013, he "tried to lodge claims of

unlawful termination under FMLA and whistleblower retaliation, medical redlining and ACA"

with the Department of Health & Human Services (Seattle District Office).

The Office of Civil Rights at DHHS accepts complaints of discrimination based on race, color,

national origin, disability, age, sex, or religion in programs or activities that HHS directly

operates or to which HHS provides federal financial assistance. That would include, for

example, complaints of race or sex discrimination in the provision of Medicare or Medicaid

benefits, but it does not include whistleblower protection under the Affordable Care Act or the

Sarbanes-Oxley Act. DHHS referred Complainant to the EEOC, which again referred him to

Oregon BOLL

Complainant contacted Oregon BOLI (again) and spoke with intake clerk Monica Mosely. She

asked him to write up his complaint. See C.Opp.Br. Exh. 1.

Complainant has submitted for the record a copy of his written BOLI complaint. Id. He invokes

the Americans with Disabilities Act, asserting that he was disabled because he had difficulty

walking, needed eye surgery, and was depressed after learning that he had a growth in a lung.

He states that the eye injury was at the workplace, but he did not file a workers' compensation

claim because Respondent had threatened him. He states that he observed and reported

violations ofHIPAA, Medicare and Medicaid fraud, kickbacks and bribes, and accounting

irregularities. He says he had reported these to the Oregon attorney general, the Centers for

Medicare and Medicaid Services, and the U.S. Department of Health & Human Services. More

crucially, he states that he reported these to a "private attorney." He adds a statement that he

believes Agate began hacking his private email account in September 2013, and that this

included opening "emails from my private attorney."

Complainant states that, rather than accommodate his various medical conditions, Agate

demanded that he postpone treatment and work 60 to 80 hour weeks, "often working all night

long, doing special reports, software builds, etc." C.Opp.Br. Exh. 1 at 2. He complained to

management that this violated the Americans with Disabilities Act and the federal Family and

Medical Leave Act.

Complainant recites in his BOLI complaint: being put on an administrative leave without

explanation on September 16, 2013; believing that it was at that time that Agate hacked his

personal emails; being notified on September 27, 2013, that the employment was terminated

because, according to Respondent, he had sexually harassed Amanda Cobb; and that actually it

was Ms. Cobb who had sexually harassed him with sexual remarks and "actions," including "a

very odd 'love letter' in early September 2013" that Complainant had grieved to Agate senior

management. It is not until the end of the complaint that Complainant for the first time alleges

whistleblower retaliation. As he wrote:

I believe Agate sought to terminate me, to rid themselves of a seriously ill

employee. In their search for an excuse to do this, they illegally hacked into my

private email account, discovered that I was a whistleblower, and invented the

charge of "sexual harassment" to get rid of me and discredit my whistleblowing

claims.

C.Opp.Br. Exh. 1 at 3.

Complainant states that he sent his written complaint to intake clerk Mosely at Oregon BOLI in

December 2013. He admits that, having received the complaint, Mosely told him that BOLI

does not take whistleblower retaliation complaints. He states that Mosely "eliminated the

whistleblower retaliation claims on page 3 [i.e., those quoted above] and told the Complainant

that BOLi did not deal with whistleblower retaliation charges." C.Opp.Br. Exh. 1.

Complainant writes of this phone call: The intake clerk "flat out refused to accept

Complainant's complaint [ofretaliation]." C.Opp.Br. at 20. Complainant told the intake clerk

that the U.S. Department of Labor said that BOLi did take whistleblower claims, apparently

referring to the phone conversations he'd had with Wage & Hour Division on October 2, 2013.

As discussed above, BOLi does take wage and hour complaints, including whistleblower

complaints related to protected activity concerning wage and hour violations. It also accepts

whistleblower complaints concerning occupational safety and health (akin to OSHA section

1 l(c) complaints). But it does not process whistleblower complaints under the Sarbanes-Oxley

Act or the Affordable Care Act.

When Complainant asked to speak with a supervisor, Mosely transferred the call to a person

whom Complainant believes was named Cylvia Hayes. This gerson supported Mosley's opinion

and told Complainant to proceed as Mosley had advised him. 8 C.Opp.Br. Note 1.

Complainant states that he phoned the U.S. Department ofJustice on December 31, 2013, and

again on January 16, 2014. The phone number he gives is for the Department's information line

on the Americans with Disabilities Act. He states that he "sought assistance for whistleblower

retaliation and inexplicable actions by Oregon State officials." He does not suggest that DOJ

accepted a complaint.

Complainant states that, on February 13, 2014, he called the Oregon Secretary of State's office,

which "oversees business and consumer affairs." He says he spoke to an aide of the Secretary

and that Oregon Secretary of State Kate Brown personally "was listening in the conversation and

talking with the aide." 19 He said he reported whistleblower retaliation and requested assistance

in pursuing whistleblower retaliation claims. He does not state what response he received.

Curiously, despite all these averments that he raised whistleblower complaints with these

agencies, Complainant states in his initial opposition that it did not become "clear" to him until

May 21, 2014, that the termination was "primarily" for whistleblowing. Complainant states that

he is an expert on cyber intrusions and that, after investigating, he concluded that Agate had

hacked his private emails (written on his private computer) beginning in July 2013 and with

"multiple accesses in September 2013." C.Opp.Br. at 13, 17. According to Complainant, his

investigation disclosed hacked emails "from his attorney," that made him suspicious around

September [2013], and even as late as March 6, 2013 [probably 2014]. But it was not until May

Complainant now thinks the supposed supervisor was then-Governor John Kitzhaber's "girlfriend," who "was not

supposed to be an Oregon employee at all" and in fact was "a paid lobbyist/advisor for [Respondent] Agate." But,

as Complainant did not know this at the time, he was under the impression that a supervisor had confirmed that

BOLi did not accept whistleblower complaints of the kind he was trying to file.

Kate Brown is currently the Governor of Oregon.

20, 2014, that he had "ample evidence that Agate knew that the Complainant was a

whistleblower and retaliated against him for that." Id. at 2. Complainant states that "a flurry of

phone calls, emails, and correspondence with various federal agencies" followed. Id.

Complainant states that he called OSHA on April 21, 2014, but the phone number he gives for

the call is for the Inspector General's Office at the U.S. Department of Health & Human

Services. He also gives another number, which is a general switchboard at the Department of

Labor and allows for transfer to other offices. Complainant states that he was dissatisfied

because "no action was taken."

A week later, he again called the phone number for the Inspector General's Office at DHHS. He

reported that he had brought up "medical redlining" at a staff meeting [apparently while working

for Respondent] and that he "suspected whistleblower retaliation, but proving that would depend

upon the EEOC taking over BOLI's botched investigation [or his getting information about

possible hacking of his email account.]" Complainant also recalls telling "the Oregon State Plan

OSHA Office about this in January or February 2014" or maybe in October or early November

2013. C.Opp.Br. at 7.

As intake clerk Mosely had accepted Complainant's BOLI complaint (after striking the

whistleblower allegation), BOU assigned investigator Jeremy Wolff to the case. On March 3,

2014, Complainant and Wolff discussed the complaint on the phone. Wolff commented that the

complaint raised five statutory claims, including discrimination, harassment, and termination on

account of Complainant's disability, an FMLA claim, and "a kind of whistleblowing retaliation

claim."

Three days later, on March 6, 2014, Complainant met with Wolff in person. Complainant states

that he brought Wolff documentation showing that Respondent was selling health records,

engaged in "double billing," used "fake provider identifiers," engaged in "medical redlining,"

"falsified government reports," and paid "bribes" "to the Governor and other state officials,"

involving "tens of millions of dollars." C.Opp.Br. at 8.

According to Complainant, this is when he first learned of the Sarbanes-Oxley Act. He states

that Wolff told him that the Supreme Court had decided the Lawson case two days earlier and

that this extended Sarbanes-Oxley protection "to cases like mine involving the Affordable Care

Act (ACA)." C.Decl. ISO Opp. to Recon at 117. Complainant states that Wolff told him that,

because of Lawson, Complainant's claim was now covered under Sarbanes-Oxley. As

Complainant writes in his declaration, Wolff told him that:

He was going to redraft the whistleblower portion of [the] complaint to include

[Sarbanes-Oxley] and file a Sarbanes-Oxley complaint under section 806 of that

law and submit it prior to March 21, 2014. He specifically told me that BOU had

contracts with the US DOL and that BOU therefore could and would do this.

Id. Complainant states that Wolff also told him he would redraft the complaint to include

whistleblower retaliation under the Affordable Care Act "as well as several state whistleblower

statutes." Id. But it appears that Wolff never did any of this, nor could he have initiated a BOLi

investigation under the Affordable Care Act or the Sarbanes-Oxley Act.

Complainant last communicated with Wolff on May 21, 2014. Wolff left Oregon BOLi at that

time. According to Complainant, his complaint to BOLi "had been stripped of the whistleblower

retaliation charges" (something Moseley had notified him about) and "NOTHING had been done

with his case." C.Opp.Br. at 10 (emphasis in original). On August 24, 2014, Complainant

learned from BOLi that Wolff had left "some time ago," and no one had been assigned to the

case after May 21, 2014.

On September 2, 2014, Complainant sued the State of Oregon and Respondent Agate Resources

in U.S. District Court. 20 See ALJ Ex. 1. Complainant sought $13,200,000 in damages for

violation of his civil rights under 42 U.S.C. § 1983 and certain other statutes. 21 Id. Although

Complainant was self-represented when he filed the complaint, attorney Michael D. Vergamini

was representing him when Complainant voluntarily dismissed his case on November 18, 2014.

ALJEx. 2.

In his civil complaint, Complainant alleges that he is a whistleblower who reported on multiple

occasions, beginning in 2007, violations of HIPAA (involving Medicare and Medicaid records)

to agencies such as the Centers for Medicare and Medicaid Services and the Oregon Attorney

General as well as the Chief Medical Officer or IT Manager at Agate. He alleged that- "for law

enforcement" - he had investigated apparent fraud at Agate. See ALJ Ex. 1 at 2-3 ("The Plaintiff

is a whistleblower .... "). He alleged that he observed "payments to elected officials,

physicians, hospital administrators, Oregon agency personnel" that were "likely unlawful," and

that he had reported this to "federal authorities and private attorneys." He alleged that he saw

Agate sharing methods to defraud Medicare and Medicaid through shell corporations for moving

and hiding money. He alleges that he informed Oregon officials of "thousands of additional

violations." He alleges that he was terminated from employment.

In particular, Complainant represents to the federal court as follows:

Brooks v. State of Oregon and Agate Resources, Case No. 6:14-cv-01412-TC (D. Ore.).

Complainant alleges violations of the Americans with Disabilities Act and the Family and Medical Leave Act in

connection with Agate's failure to accommodate an eye injury, a broken foot, and a mass in his right lung. He

alleges that the eye injury was work-related and that Agate threatened him when he sought to file a workers'

compensation claim. He alleges that Agate's stated reason for the termination was that he had sexually harassed Ms.

Cobb. He alleges that he was denied unemployment insurance benefits, as it was determined that he had been

terminated for cause. But, he alleges, this decision relied on fabricated documents. He alleges that the state

administrative law judge engaged in judicial misconduct and "certainly collusion" by Agate, which he alleges was

"a felony." (Complainant asserts that the chair of the Unemployment Appeals Board was married to a nurse

practitioner "whose livelihood depends in large part upon Agate's contracts with her place of business.")

Complainant states that he appealed the denial of unemployment compensation to the Oregon Court of Appeals,

which also "engaged in judicial misconduct" that Complainant attributes to the court's desire to cover up unlawful

activity of Oregon officials and agencies as well as that of the State's contractors. Complainant, who states that he

is an amateur radio operator and "skilled engineer at intrusion detection with several patents" (and "invented the

algorithms used in the OTDR") detected that his cell phone was being hacked, he suspects by the State of Oregon.

Immediately after being placed on Administrative Leave, the Plaintiff [i.e.,

Complainant Brooks] had hired a private attorney to help him pursue an unlawful

termination claim against Agate, with the State of Oregon. A spoliation letter was

filed by that attorney on October 3, [2013] .••.

ALJ Ex. 1 at 7. Complainant apparently is referring to attorney Arnold who wrote the litigation

hold letter to Agate on October 3, 2013. This is completely inconsistent with Complainant's

current contention that he only hired Mr. Arnold to represent him on a claim for unemployment

compensation or workers' compensation.

He alleges that, after receiving the litigation hold letter from his attorney, Agate's Human

Resources Director "ordered the destruction of [Complainant's work] computer the next day,

October 4, 2013." Complainant then states:

This is especially important because [Complainant] had filed a concern that

Sarbanes-Oxley violations were taking place at Agate and he suspected that they

were taking place statewide at all OHP contractors and had records for this in files

on his computer. Federal statutes make this violation punishable by a $20 million

fine and 20 years in prison.

ALJ Ex. 1 at 7. This is a direct representation to a federal district court that Mr. Arnold's letterin which he said he was representing Complainant regarding his termination from employment was a letter intended to preserve, among other things, records related to Sarbanes-Oxley

violations. It is inconsistent with Complainant's contention that Mr. Arnold's involvement was

limited to unemployment compensation or workers' compensation.

Given Complainant's statement to the federal court about Sarbanes-Oxley violations and his

statement to the court that he hired the attorney to pursue an unlawful termination claim against

Agate, it is difficult to infer anything other than that Complainant was discussing pursuing as a

plaintiff a wrongful termination action against Agate that would include Sarbanes-Oxley

violations.

In any event, when the defense filed a motion to dismiss the federal case, Complainant

voluntarily dismissed the case without prejudice. He says he did this because BOLi agreed to

add his Sarbanes-Oxley and Affordable Care Act whistleblower allegations to his BOLi

complaint. He states that BOLi did this, but that it ultimately dismissed his complaint.

Complainant filed another action in the district court on September 3, 2014, the day after he filed

the first case. 23 This is a qui tam action against Agate Resources, Oregon Healthcare Plan, and

the State of Oregon under the Federal False Claims Act and other provisions. 24 ALJ Ex. 4.

Identifying the parties in the complaint, he describes himself as follows:

Complainant actually wrote "2014" in the federal complaint. But, as he filed the federal complaint on September

2, 2014, he could not be referring to a prior event that occurred on October 3, 2014-that date was still in the future.

U.S. ex rel. Brooks v. Agate Resources, et al., Case No. 6:14-cv-01424 (D. Ore.).

The United States declined to intervene on May 22, 2015.

Relator, Michael T. Brooks, was the Data Warehouse Administrator at Agate

Resources ... from November 7, 2005 until September 27, 2013, when he was

unlawfully terminated when Agate hacked his email account and discovered he

was a whistleblower. (See companion federal lawsuit.)

ALJ Ex. 4 at 2. Thus, Complainant describes the case he filed in the District of Oregon on the

preceding day concerns him as a person who was unlawfully terminated on account of

whistleblowing. As before, he alleges that:

Agate knew, due to hacking his computer, [Complainant] revealed that he was a

whistleblower and that Agate had been hacking into his computer since at least

the middle of August, 2013. They had discovered that [Complainant] was

reporting fraud, kickbacks, bribes, and other unlawful activities to private

attorneys and to the Oregon Attorney General's Office.

ALJ Ex. 4 at 6. Complainant seeks, on behalf of the United States, damages in excess of $2.1

billion. The complaint is verified, with Complainant stating that he "swears that everything in

this complaint is true." Id. at 8.

The district court appointed Jesse T. London as pro bono counsel for Complainant, which Mr.

London accepted on July 6, 2015. ALJ Ex. 5. Now represented, Complainant filed an amended

complaint on October 18, 2015. ALJ Ex. 6. He raises similar allegations about the sale of

private medical information for employer use and adds allegations of fraud through "duplicative

billing and other improper claims resulting in overpayment by the government that intention, not

mistake, is the likely cause." Id. at 6. Complainant then alleges:

Mr. Brooks went to one of Defendants' senior officers with his concerns and was

rebuffed. Within a very short time, Mr. Brooks was terminated under a false

pretense. Shortly after his pretextual firing, Mr. Brooks contacted state

enforcement authorities to alert them to Defendants' misconduct . . . . Having

gained nothing from his efforts, he decided to seek legal redress.

ALJ Ex. 6 at 2.

The court granted with leave to amend a defense motion to dismiss on April 29, 2016. The court

expressly repeated Complainant's allegation that he '"became very concerned with respect to

potential claims fraud, improper disclosure of [personally identifiable and private health

information], and discrimination against poor patients.' [He] was rebuffed when he expressed

his concerns to one of defendants' senior officers. Shortly thereafter, defendants terminated

[him], allegedly under false pretenses." ALJ Ex. 6 at 3.

Elsewhere in the amended complaint, Complainant alleges more specifically that this involved Medicaid

payments. See ALJ Ex. 6 at 3-4, 9-11.

Two additional attorneys appeared on Complainant's behalf on October 28, 2016, and

Complainant filed a second amended complaint on that day. ALJ Ex. 9, 10. The second

amended complaint repeats the prior allegations about Complainant's reporting his concerns

about unlawful conduct to "one of Defendants' high-level managers" and then "within a very

short time," being "terminated under a false pretense." ALJ Ex. 10 at 5. Defendants moved to

dismiss the second amended complaint. The motion remains pending.

On June 4, 2015, Complainant filed a third complaint in the district court against Agate.

ALJ

Ex. 11. He alleged violations of the Age Discrimination in Employment Act, the Americans

with Disabilities Act, the Rehabilitation Act of 1973, the Whistleblower Protection Act (5 U.S.C.

§ 23 - affecting federal employees), the Family and Medical Leave Act, and whistleblower

retaliation under the Nineteenth Century civil rights acts as well as the Civil Rights Act of 1964

(42 U.S.C. §§ 1981-2000h). ALJ Ex. 11 at 1-2. But he also expressly alleged violation of the

whistleblower protection provisions of the Affordable Care Act and the Sarbanes-Oxley Act. He

alleges that Agate violated these statutes throufh harassment, retaliation, failure to accommodate

disability, and the termination of employment. 7 Id. at 3. He seeks over $6 million in damages.

On September 29, 2015, attorney Michael Vergamini appeared on behalf of Complainant. The

matter is pending before the district court.

Complainant filed the present complaint with the Occupational Safety & Health Administration

on April 4, 2016. This was 920 days after Agate terminated the employment. 28 It was also 188

days after attorney Vergamini appeared to represent Complainant in the most recent of the three

federal cases (the one Complainant filed on June 4, 2015).

Complainant filed the OSHA complaint in a phone call. The OSHA employee taking the call

noted Complainant as stating that he had told Respondent's management about the company's

fraudulent Medicare and Medicaid practices and that Respondent had terminated the

employment, allegedly in retaliation.

On the present motion, Complainant explains why he did not file a complaint with OSHA until

April 4, 2016. He states that what motivated him to file the OSHA complaint was a series of

post-termination threats, some against him and some against family members. Complainant

states the threats against him started in May 2014. Complainant also states that his son, who is

incarcerated, was also threatened and then assaulted, starting more recently, in March 2016.

Brooks v. Agate Resources, Case No. 6:15-cv-983-TC (D. Ore.).

Complainant alleged that either the EEOC or Oregon BOLi issued a right to sue letter on April 23, 2015, and that

he had filed a charge of age discrimination with the EEOC, but that 60 days had not elapsed since that filing

(making the ADEA complaint premature). On July 2, 2015, Complainant filed ten separate motions to compel

discovery. The district court denied the motions on August 4, 2015.

What appears to be a copy of the OSHA employee's reduction to writing of Complainant's phone complaint is

attached to Respondent's motion. The form shows a filing date of April 4, 2016, but the employee who completed

form did not sign or date it in the portion provided for her to certify the filing of the complaint. But, in the

"Secretary's Findings," issued April 13, 2016, OSHA's Acting Assistant Regional Administrator finds that

Complainant filed his complaint on April 4, 2016. No party disputes that this is the date of filing with OSHA, and I

accept that it is the date Complainant filed with OSHA.

In particular, Complainant alleges that, starting in May 2014, he received telephone calls

threatening his life. Caller ID was blocked on the calls. He reported the calls to the Federal

Bureau oflnvestigation on May 27, 2014. He states - vaguely- that he "took precaution" but

regarded the calls as bullying. He states that the calls continued and included "particularly

graphic" calls on May 3 and 5, 2014.

But Complainant states that it was the threats to his incarcerated son that prompted him to file

the OSHA complaint. He states - again vaguely - that these threats "alluded to the

Complainant's actions against Agate and Oregon officials." Complainant reports his son as

telling him that the threats extended, not only to Complainant's son, but also to his wife and

daughter. Complainant met with his son on March 21, 2016, and at his son's urging, "logged

formal complaints" with the local police, Oregon state police, and the FBI. Three days later, on

March 24, 2016, ''three unidentified males" "beat up" Complainant's son, "specifically citing

[Complainant's] whistleblowing."

As Complainant wrote: "THAT prompted the telephone call to OSHA in late March [2016 actually April 4, 2016] ... and the opening of this case." C.Opp.Br. at 3 (emphasis in original).

Complainant concluded that his son's assailants' motivation "very clearly" was court filings that

Complainant had made on March 8, 2016 against Agate and against "personnel working for the

state of Oregon." Complainant describes this as a "state case" on which attorney Michael

Vergamini is representing him. This apparently is another case aside from those described

above.

Although Complainant states that the threatening calls to his son are what prompted him to file

an OSHA complaint, he does not state that he included any allegations of threats against himself

or his son or other family members when he called OSHA and made the complaint. The OSHA

employee who reduced the complaint to writing recites Complainant's allegations but includes

no reference to any such allegation. 29

Discussion

Standard on summary decision. On summary decision, I must determine if, based on pleadings,

affidavits, material obtained by discovery or otherwise, or matters officially noticed, there is no

genuine issue of material fact such that the moving party is entitled to judgment as a matter of

law. See 29 C.F.R. § 18.40(d); Fed. R. Civ. P. 56. I consider the facts in the light most favorable

to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986). I must

Under both statutes, the administrative complaint need not be filed in any particular form; for example, they may

be filed by telephone. For oral complaints, the OSHA employee must reduce the complaint to writing. See 29

C.F.R. §§ 1980.103(b) (SOX); 1984.103(b) (ACA).

Here, the OSHA employee recorded in a "Case Activity Worksheet" as the "allegation summary" the following,

which I quote in full: "Complainant contends that he reported concerns to company management about fraudulent

practices related to Medicare and Medicaid. Complainant further contends that Respondent terminated his

employment on September 27, 2013 in retaliation for raising these concerns, in violation of both Section 1558 of the

Affordable Care Act (ACA), 29 U.S.C. 281c and the Sarbanes-Oxley Act (SOX), 18 U.S.C.A. §1514A." There is

no mention of threats.

draw all reasonable inferences in favor of the non-moving party and may not make credibility

determinations or weigh the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 150 (2000) (applying same rule in cases under Fed. R. Civ. P. 50 and 56). Once the moving

party shows the absence of a genuine issue of material fact, the non-moving party cannot rest on

his pleadings, but must present "specific facts showing that there is a genuine issue for trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); 29 C.F.R. § 18.40(c). A genuine issue exists

when, based on the evidence, a reasonable fact-finder could rule for the non-moving party. See

Anderson, 477 U.S. at 252.

Equitable Tolling Does Not Rescue Complainant's Late-Filed Complaint.

Filing deadlines and tolling. The whistleblower protection provision in the Affordable Care Act

requires employees who believe they have a claim to follow the procedures codified at 15 U.S.C.

§ 2087(b). Those procedures require that an administrative complaint be filed with the Secretary

of Labor within 180 days after the retaliatory act occurs. 30 See 29 U.S.C. § 218c(b)(l).

The Sarbanes-Oxley whistleblower protection provision generally follows the procedures

established in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49

U.S.C.A. § 42121(b). See 18 U.S.C. § 1514A(c)(2)(A). But Sarbanes-Oxley expressly requires

that "An action ... be commenced not later than 180 days after the date on which the violation

occurs, or after the date on which the employee became aware of the violation." Id.,

§ 1514(c)(2)(D). 31 AIR 21 provides that the action is initiated by filing a complaint with the

Secretary of Labor. 49 U.S.C.A. § 42121(b)(l).

The Secretary of Labor's regulations implementing both statutes specify that administrative

complaints must be filed with OSHA. The regulations both provide: "The complaint should be

filed with the OSHA office responsible for enforcement activities in the geographical area where

the employee resides or was employed, but may be filed with any OSHA officer or employee."

29 C.F.R. §§ 1980.103(c) (SOX); 1984.103(c) (ACA). 32

The regulations for both statutes contain the same language to allow for equitable tolling:

As the statute provides: "A person who believes that he or she has been discharged or otherwise discriminated

against by any person in violation of subsection (a) may, not later than 180 days after the date on which such

violation occurs, file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging

such discharge or discrimination and identifying the person responsible for such act." 15 U.S.C. § 2087(b)(l}.

Similarly, the applicable regulation provides: "Time for filing. Within 180 days after an alleged violation of section

18C of the FLSA occurs, any employee who believes that he or she has been retaliated against in violation of that

section may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation." 29

C.F.R. § 1984.103(d).

The applicable regulation provides: "Time for filing. Within 180 days after an alleged violation of the Act occurs

or after the date on which the employee became aware of the alleged violation of the Act, any employee who

believes that he or she has been retaliated against in violation of the Act may file, or have filed on the employee's

behalf, a complaint alleging such retaliation." 29 C.F.R. § 1980.103(d).

Both regulations add that: "Addresses and telephone numbers for these officials are set forth in local directories

and at the following Internet address: http://www.osha.gov."

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. §§ 1980.103(d), 1984.103(d).

Equitable tolling focuses, not on the defendant's wrongful conduct, but on "whether the

plaintiffs delay was excusable." Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir.

2010). 33 "'Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to

obtain vital information bearing on the existence of his claim."' Id., quoting Santa Maria v. Pac.

Bell, 202 F.3d 1170, 1178 (9th Cir. 2000). Generally, equitable tolling finds application in three

situations: when respondents "actively misled Complainant ... , Complainant was prevented

from asserting his rights in some extraordinary way, or ... Complainant raised the claim in the

wrong forum." Rosenfeld v. Cox Enterprises, ARB Case No. 16-026 (May 24, 2016) (SarbanesOxley), 2016 WL 3135584, slip op. at 2. In an unpublished decision, the Ninth Circuit affirmed

the ARB's adoption of this three-prong analysis, which the court observed had been "articulated

in cases such as School Dist. ofAllentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981)."

Herchak v. US. Dep 't ofLabor, 125 Fed. Appx. 102, 106 (9th Cir. 2005) (unpub.).

Agate asserts, and Complainant does not dispute, that under controlling Ninth Circuit authority,

an argument for equitable tolling ceases when the party retains counsel, for the party

Is charged with constructive knowledge of the law's requirements once she

retained counsel. "[O]nce a claimant retains counsel, tolling ceases because she

has gained the means of knowledge of her rights and can be charged with

constructive knowledge of the law's requirements." Leorna v. US. Dep 't of State,

105 F.3d 548, 551 (9th Cir. 1997) (internal quotation marks and citation omitted).

Coppinger-Martin v. Solis, 627 F.3d at 750 (Sarbanes-Oxley whistleblower). In CoppingerMartin,

Shortly after her termination, Coppinger-Martin hired an attorney, and her

attorney contacted Nordstrom's general counsel on May 22, 2006, to discuss her

severance agreement and possible claims against Nordstrom. Thus, even if

equitable tolling could be properly applied, it would have ceased by May 22,

2006, at the latest.

Id. Once the party is represented by counsel, counsel's negligence in meeting deadlines is not a

basis for equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1067 n. 4 (9th Cir. 2002)

(collecting cases) (attorney's miscalculation of deadline and his negligence in general does not

constitute extraordinary circumstances sufficient to warrant equitable tolling).

The Ninth Circuit is controlling in this Oregon-based case.

In the present case, unless Complainant can demonstrate that his filing with the Oregon Bureau

of Labor and Industries satisfied the requirement to file an administrative complaint with OSHA,

there is no dispute that he late-filed the complaint. He filed the complaint with OSHA on April

4, 2016; Agate informed Complainant of the termination 920 days earlier, on September 27,

2013. This far exceeds the 180-day filing requirement applicable to both statutes. I will address

below and reject Complainant's argument that his filing with Oregon BOLi met the filing

requirements applicable to the present claims. The viability of Complainant's claims thus turns

on whether the filing requirement was equitably tolled such as to make timely Complainant's

April 4, 2016 OSHA filing. I conclude that, as a matter oflaw, Complainant cannot rescue his

stale claims through equitable tolling. See Coppinger-Martin v. Solis, 627 F.3d at 750.

Mr. Arnold's representation. There is no dispute that an attorney (Mr. Arnold) was representing

Complainant no later than October 2013. It appears that Complainant's assertion that the

representation was limited and did not extend to claims related to his whistleblowing activities is

a sham. See, e.g., Yeager v. Bowlin, 693 F.3d 1076, 1079-80 (9th Cir. 2012); Van Asda/e v. Int'/

Game Technology, 557 F.3d 989, 998-99 (9th Cir. 2009). As the Ninth Circuit stated:

The Supreme Court has explained that "[s]ummary judgment procedure is

properly regarded not as a disfavored procedural shortcut, but rather as an integral

part of the Federal Rules as a whole, which are designed to secure the just, speedy

and inexpensive determination of every action." Some form of the sham affidavit

rule is necessary to maintain this principle. This is because, as we have

explained, "if a party who has been examined at length on deposition could raise

an issue of fact simply by submitting an affidavit contradicting his own prior

testimony, this would greatly diminish the utility of summary judgment as a

procedure for screening out sham issues of fact."

Van Asdale, 557 F.3d at 998. Thus,

"The general rule in the Ninth Circuit is that a party cannot create an issue of fact

by an affidavit contradicting his prior deposition testimony" . . . . But the sham

affidavit rule "should be applied with caution" because it is in tension with the

principle that the court is not to make credibility determinations when granting or

denying summary judgment.

Yeager, 693 F.3d at 1080.

I thus place no reliance on the fact that Mr. Arnold's letter states that he is representing

Complainant on the termination or that the only examples of documents he specifies for

preservation would relate to an assertion that it was Complainant who was being sexually

harassed at Agate. These suggest that Mr. Arnold was representing Complainant on some form

of affirmative claim for wrongful termination, not simply a claim for unemployment

compensation. But the Arnold letter goes to the credibility of Complainant's characterization of

Mr. Arnold's representation; it is not an assertion that Complainant made inconsistent with the

statement in his current declaration. I treat in the same manner Complainant's statements to

BOLi that he reported by email Medicare and Medicaid fraud and accounting irregularities to his

"private attorney" and that Agate hacked those emails in September 2013.

Of much greater concern is Complainant's inconsistent statements made to the United States

District Court. In his civil complaint filed on September 2, 2014, Complainant states that

"immediately after being placed on Administrative Leave," he hired "a private attorney to help

him pursue an unlawful termination claim against Agate, with the State of Oregon."

Complainant stated to the district court that the anti-spoliation letter this attorney wrote to Agate

on October 3, 2013, was "especially important because [Complainant] had filed a concern that

Sarbanes-Oxley violations were taking place at Agate .... "

This is almost certainly a reference to Mr. Arnold, who we know wrote the October 3, 2013 antispoliation letter to Agate. It supports a conclusion that Complainant's assertion now that Mr.

Arnold was not involved in pursuing an unlawful termination claim against Agate is a sham.

And if Complainant was not referring to Mr. Arnold, it means that he had some other lawyer at

that time who was representing him in the pursuit of a wrongful termination claim against Agate.

In that event, his assertion about the limits of Mr. Arnold's representation might not be a sham,

but it does not help him: It means that he was represented by counsel for wrongful termination

purposes whether counsel was Mr. Arnold or some other lawyer. The reference to his private

attorney hired to "pursue an unlawful termination claim" is enough to foreclose equitable tolling;

the additional reference to Sarbanes-Oxley violations only makes more certain the same result:

no equitable tolling. The result is that Complainant was not entitled to equitable tolling at any

time; at the time of the termination, Complainant had constructive knowledge from Mr. Arnold

or another attorney how to initiate the present claims timely and failed to do so.

Mr. Vergamini's representation. The civil action filed on September 2, 2014, also defeats

Complainant's equitable tolling argument in a second and independent way. As discussed

above, Complainant alleged in the district court that he was attempting to raise wrongful

termination claims, including claims related to Sarbanes-Oxley. Consistent with this,

Complainant only dismissed this district court action when defendant State of Oregon (BOLi)

agreed to amend his BOLi complaint to add a Sarbanes-Oxley whistleblower complaint. That

was plainly a purpose of the litigation. But, crucially, it was an attorney, Michael D. Vergamini,

who signed the voluntary dismissal papers on behalf of Complainant on November 18, 2014.

Even if Mr. Vergamini first began his representation of Complainant on that date, November 18,

2014, it was 503 days before Complainant filed the OSHA complaint on April 4, 2016.

Complainant was charged with knowledge of how to proceed on his claims and did not do so for

503 days, making them untimely.

Mr. London's representation. In the qui tam action Complainant filed in the district court on the

day after he filed the civil case discussed above, he alleged that he was "unlawfully terminated

when Agate hacked his email account and discovered he was a whistleblower." Mr. London

appeared as pro bono counsel for Complainant on July 6, 2015. Mr. London was aware of the

complaint and its allegation; he knew Complainant contention that Agate had terminated the

employment in retaliation for whistleblowing. Again, under Coppinger-Martin v. Solis, 627 F.3d

at 750, Complainant is charged with constructive knowledge of his rights under the

whistleblower statutes and of how he must proceed to pursue the whistleblower claims. This was

273 days before he filed an OSHA complaint. Even had he been entitled to equitable tolling

before this time, the tolling ceased at this point, making his OSHA filing untimely.

Mr. Vergamini 's second representation. In the next district court case, Complainant filed a

complaint on June 4, 2015. This complaint expressly and unequivocally pleads whistleblower

retaliation claims under the Affordable Care Act and the Sarbanes-Oxley Act. Mr. Vergamini

appeared on Complainant's behalf on September 29, 2015. That was 188 days before

Complainant filed his OSHA complaint. It is beyond question that Mr. Vergamini' s

representation extended to the very whistleblower claims that Complainant has asserted here.

Under Coppinger-Martin v. Solis, 627 F.3d at 750, Complainant is charged with knowledge that

those claims had to be filed initially with OSHA, not with a federal district court. Even if

Complainant was entitled to equitable tolling throughout the entire period before September 29,

2015, the tolling ceased on that day, leaving Complainant's OSHA filing untimely.

For all of these reasons, Complainant failed to file a timely complaint with OSHA on either of

his whistleblower claims. 35

II.

Complainant's Filing with BOLi Did Not Satisfy the Statutory or Regulatory Filing

Requirement under Either Statute.

Ultimately, Complainant explains the timing of his OSHA filing, and it has nothing to do with anything that

would support equitable tolling. What triggered the filing on April 4, 2016, were threats to Complainant's son and

his son's family in March 2016, together with an assault on his son in prison. Complainant concluded that the

motivation for the attack was filings Complainant had made in a state court action against Agate and the State of

Oregon. It was not that Complainant finally learned that the place he had to file the complaint was the federal

OSHA office. That history is not a basis for equitable tolling.

Complainant's arguments based on Lawson v. FMR LLC, 134 S.Ct. 1158 (2014) are frivolous. Complainant

argues that, until the Supreme Court announced that decision, the protections of the Sarbanes-Oxley Act were not

extended to the Affordable Care Act, and thus he did not have a claim under that Act until that time.

Complainant misconstrues Lawson. There, the Court resolved a conflict between the Administrative Review Board

(Spinner v. David Landau &Assoc., LLC, No. 10-111 etc., ALJ No. 2010-SOX----029 (May 31, 2012)) and the First

Circuit's decision in Lawson below. Rejecting the First Circuit's view, the Court agreed with the Administrative

Review Board and held that the Sarbanes-Oxley whistleblower provision protected employees of contractors of

publically traded companies. Lawson is of no assistance to Complainant and did nothing to make statutory

protection available to him that was not available before Lawson was decided.

First, the Supreme Court announced Lawson on March 4, 2014. That is 762 days before Complainant filed his

OSHA complaint. Even were there some merit to Complainant's argument about the extension of the Affordable

Care Act, notice on March 4, 2014 would render untimely Complainant's OSHA filing 762 days later.

Second, the Court never mentions the Affordable Care Act in Lawson. Complainant offers no explanation for his

argument that Lawson extended coverage under the Affordable Care Act.

Third, the First Circuit opinion in Lawson was never controlling in any case Complainant would bring. Complainant

lives and worked for Agate in Oregon. Had it issued any relevant decisions, the Ninth Circuit would be controlling,

not the First Circuit. As the Ninth Circuit had not ruled on the issue Lawson decides, the Administrative Review

Board decision would be controlling on an Oregon-based case. The Board held that Sarbanes-Oxley protects

employees of contractors ofpublically traded companies. For a person living and working in Oregon, Lawson made

no change in controlling law; it confirmed in a final way that the Board's view - already applicable to Complainant

- was correct.

As discussed above, both the Affordable Care Act and Sarbanes-Oxley Act. require that a person

initiate a claim by filing a complaint with the Secretary of Labor. The regulations further

particularize that the complaint must be filed with the Occupational Safety & Health

Administration. Unlike EEOC charges of discrimination and section 11 (c) retaliation cases

under the Occupational Safety & Health Act, there is no work-sharing or cross-filing agreement

between the U.S. Department of Labor (or OSHA) and state agencies on the processing of

whistleblower complaints under either of the statutes involved in the present case.

For the first time in this litigation, Complainant argued in his reply brief that his BOLi complaint

satisfied the filing requirements under the federal statutes here. He cites nothing in the statutes,

nothing expressly stated in any regulation (federal or state), and nothing in Oregon law

(statutory, regulatory, or case decisions) to suggest that the Affordable Care Act and the

Sarbanes-Oxley Act filing requirements may be met with a filing in a state agency.

Rather, Complainant argues that following links in at least one website leads to a site that gives

the Oregon State Plan as a place where whistleblower complaints may be filed. Complainant

neglects the relevant Department of Labor website: "Whistleblower Protection Programs: File a

Complaint." That site states:

File a discrimination complaint if your employer has retaliated against you for

exercising your rights as an employee. If you have been punished or retaliated

against for exercising your rights under the OSH Act, you must file a complaint

with OSHA within 30 days of the alleged reprisal. In states with approved state

plans, employees may file a complaint under the OSH Act (Section 11 (c)) with

both the State and Federal OSHA.

If you are filing a complaint under any other whistleblower statute enforced by

OSHA, the time limit for filing varies by statute. They also must be filed directly

with Federal OSHA. Refer to the Summary of OSHA Whistleblower Statutes to

determine the time limit that applies to your complaint.

https://www.whistleblowers.gov/complaint_page.html. This is entirely consistent with the

relevant federal and state statutes and regulations discussed above. Filing with a state plan

satisfies the requirements only for whistleblower claims under the Occupational Safety & Health

Act; for all other whistleblower claims, the complaint "must be filed directly with Federal

OSHA." 36

Conclusion and Order

Complainant failed to file a timely complaint with the Occupational Safety & Health

Administration on either of his whistleblower claims. As a matter of law, any application of

equitable tolling ceased beyond the limitations period, rendering the April 4, 2016 filing

untimely. Accordingly,

Complainant's complaint is DENIED and DISMISSED in its entirety.

SO ORDERED.

•

Digitally signed by STEVEN BERLIN

DN: CN=STEVEN BERLIN, OU=ADMIN

LAW JUDGE, O=US DOL Office of

Administrative Law Judges, L=San

Francisco, S=CA, C=US

Location: San Francisco CA

STEVEN B. BERLIN

Administrative Law Judge

NOTICE OF APPEAL RIGHTS (SARBANES-OXLEY ACT): 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 S-5220, 200 Constitution

Avenue, NW, Washington DC 20210, for traditional paper filing. Alternatively, the Board offers

an Electronic File 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 parties 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, thee-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 will also have access to electronic service

If Complainant's filing with Oregon BOLi was sufficient, his claim is foreclosed. Complainant states that, when

he dismissed his federal action against Oregon BOLi, the agency agreed to add these whistleblower claims to this

state agency complaint. He states that BOLi complied but subsequently dismissed his claims. To the extent that is

correct, Complainant's present whistleblower claims were already adjudicated and are subject to dismissal as res

judicata.

(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://dol-appeals.entellitrak.com. If you have any questions or

comments, please contact: Boards-EFSR-Help@dol.gov

Your Petition is considered filed on the date of its postmark, facsimile transmittal, ore-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. § 1980.1 IO(a). Your Petition should identify the legal 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. § 1980.110(a).

When 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 on the Associate Solicitor,

Division of Fair Labor Standards, U.S. Department of Labor. See 29 C.F.R. § 1980.1 IO(a).

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 party's 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 29 C.F.R. §§ 1980.109(e) and 1980.1 l0(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. § 1980.11 0(b).

NOTICE OF APPEAL RIGHTS (AFFORDABLE CARE ACT): To appeal, you must file a