Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

ANJALI SACHDEV,

ARB CASE NO. 2019-0069

COMPLAINANT,

v.

ALJ CASE NO. 2019-CFP-00002

DATE: May 19, 2020

WELLS FARGO BANK,

RESPONDENT.

Appearances:

For the Complainant:

Anjali Sachdev; pro se; Maple Valley, Washington

For the Respondent:

John A. Berg, Esq. and Bradley J. Krupicka, Esq.; Littler Mendelson,

P.C.; Portland, Oregon

Before: James A. Haynes, Heather C. Leslie and James D. McGinley,

Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. The Complainant, Anjali Sachdev, filed a retaliation complaint

under the employee protection provisions of the Consumer Financial Protection Act

of 2010 (“CFPA”), 12 U.S.C. § 5567 (2018), and Section 806 of the Corporate and

Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act, 18

U.S.C. § 1514A (2010) (SOX) with the Department of Labor’s Occupational Safety

and Health Administration (OSHA) on December 4, 2018. Sachdev alleged that she

was retaliated against for raising concerns to management about opening bank

accounts that customers did not want. OSHA dismissed the claim as untimely

because it was not filed within 180 days of the alleged adverse action.

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The case was referred to the Office of Administrative Law Judges (OALJ) per

Sachdev’s request of January 18, 2019. Respondent moved to dismiss for

untimeliness. Complainant filed an opposition to the motion. On June 28, 2019, the

Administrative Law Judge (ALJ) issued a Decision and Order Granting

Respondent’s Motion to Dismiss, concluding the claim was untimely and that no

equitable modification principles applied. Complainant objected to the ALJ’s order

and filed a petition for review with the Administrative Review Board (ARB or

Board). We affirm.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the ARB the authority to issue

agency decisions in review or on appeal of matters arising under the SOX and CFPA

and their implementing regulations at 29 C.F.R. Part 1980 (2019) and 29 C.F.R.

Part 1985 (2019), respectively. Secretary’s Order No. 01-2020 (Delegation of

Authority and Assignment of Responsibility to the Administrative Review Board

(Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13,186 (Mar. 6,

2020). The ARB will affirm the ALJ’s factual findings if supported by substantial

evidence but reviews all conclusions of law de novo. 29 C.F.R. §1980.110(b); 29

C.F.R. §1985.110(b); Burns v. The Upstate Nat’l Bank, ARB No. 2017-0041, ALJ No.

2017-SOX-00010, slip op. at 2 (ARB Feb. 26, 2019).

DISCUSSION

The SOX provides that any employee who believes he has been discharged or

otherwise discriminated against in violation of the SOX, shall commence “[a]n

action under paragraph (1) . . . 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.” 18 U.S.C. § 1514A(b)(2)(D). The implementing regulations provide that

“[w]ithin 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).

The CFPA contains similar provisions. The statute provides that “[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 alleged 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.” 12 U.S.C.

§5567(c)(1)(A). Likewise, the CFPA regulations provide that “[w]ithin 180 days after

an alleged violation of CFPA occurs, any person who believes that he or she has

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been retaliated against in violation of the Act may file, or have filed by any person

on his or her behalf, a complaint alleging such retaliation.” 29 C.F.R. §1985.103(d).

In whistleblower cases, filing periods begin to run the date an employee

receives “final, definitive, and unequivocal notice of the adverse employment

action.” McManus v. Tetra Tech. Constr. Inc., ARB No. 16-063, ALJ No. 2016-SOX012, slip op. at 3 (ARB Dec. 19, 2017) (quoting Rollins v. Am. Airlines, ARB No.

2004-0140, ALJ No. 2004-AIR-00009, slip op. at 3 (ARB Apr. 3, 2007)). Such notice

means unambiguous “communication that is decisive or conclusive, leaving no room

for further action, discussion, or change.” Id. Again, the relevant date is the date the

employee has final, definitive, and unequivocal notice of the adverse action, not the

date that the termination or adverse act is felt or takes effect. Id. (citing Snyder v.

Wyeth Pharms., ARB No. 2009-0008, ALJ No. 2008-SOX-00055 (ARB Apr. 30,

2009); Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980); Chardon v.

Fernandez, 454 U.S. 6, 8 (1981) (proper focus contemplates the time the employee

receives notification of the discriminatory act, not the point at which the

consequences of the act become apparent)).

As the ALJ explained, Complainant should have filed a complaint under the

SOX and CFPA alleging whistleblower protection within 180 days of the

termination of her employment. While her termination date is unclear, it appears

from the submissions that it occurred no later than 2006,1 and even at the latest

date Complainant asserts it occurred, in 2016, Complainant’s complaint is

untimely.2

Even assuming that Complainant did not have sufficient notice of an adverse

employment action at the time she was fired, she clearly had notice that she had

suffered a legal wrong (beginning the filing period) as of September 21, 2016, when

Congressional hearings “revealed how Wells Fargo management had kept the

regulatory organizations fooled.” Complainant’s Brief at 3. Complainant admits that

as of this date, she “realized [she] was a victim of organized corporate fraud, and

[her] life had been ruined because [she] stood up to wrongdoing and protected

consumers from harm.” Id. However, she did not file a complaint until 804 days

The ALJ listed as another possible date for termination, May 30, 2012, because this

was the date listed by Respondent as the termination date in response to Complainant’s

unemployment benefits claim. Decision at 5. Viewing other evidence, including the fact that

Complainant had not worked for Respondent for seven years prior to this date, the ALJ

noted that the May 30, 2012 date, appeared to be a clerical error. Id. In any event, a May

30, 2012 termination date would not change the fact that Complainant’s complaint was

untimely filed.

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Complainant asserts in her brief that her employment went from 2006 to 2016,

indicating that she consulted an attorney in 2016, presumably after her termination, and

the attorney told her she did not have a cause of action for wrongful termination. Comp. Br.

at 7.

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later, on December 4, 2018. Thus, whichever of these dates is used, Complainant’s

complaint was untimely.

To begin addressing Complainant’s appeal, we first recognize that

Complainant is acting pro se and we “construe complaints and papers filed by pro se

complainants ‘liberally in deference to their lack of training in the law’ and with a

degree of adjudicative latitude.” Wimer-Gonzales v. J.C. Penney Corp., Inc., ARB No.

2010-0148, ALJ No. 2010-SOX-00045, slip op. at 4 (ARB Feb. 7, 2012) (quoting

Williams v. Domino’s Pizza, ARB No. 09-092, ALJ No. 2008-STA-052, slip op. at 4

(ARB Jan. 31, 2011) (quoting Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ

No. 2003-STA-047, slip op. at 2 (ARB Apr. 26, 2005) (citations omitted))).

Nevertheless, interpreting Complainant’s filings, we conclude that Complainant’s

assertions that her complaint was timely and that equitable tolling is warranted are

not persuasive.

First, Complainant appears to make the argument that her complaint was

timely filed because she did not know of the circumstances giving rise to her claim

until November 2, 2018, when she received a settlement offer from Wells Fargo.3

However, as has already been discussed, it is clear and Complainant has admitted

that she became aware on September 21, 2016, about Wells Fargo’s alleged

wrongdoing, and she knew that Wells Fargo had fired her. Comp. Br. at 7. Thus, her

complaint was untimely.

Complainant asserts that equitable tolling should apply because (1) she

“came to know of that wrongdoing had been done to [her] after the Attorney General

Report on crimes committed by Wells Fargo in Sept 2016 and the Congressional

Hearings aired on C-Span on September 21, 2016,” and (2) she joined a class action

lawsuit against Wells Fargo on December 27, 2016, in U.S. District Court for the

Northern District of California (which was the precise statutory claim filed in the

wrong forum). Comp. Br. at 7-8.

The Board has held that circumstances justifying equitable tolling include

situations in which (1) the respondent has actively misled the complainant

respecting the cause of action, (2) the complainant has been prevented from

asserting his rights in some extraordinary way, or (3) the complainant has raised

the precise statutory claim but has mistakenly done so in the wrong forum. DeFazio

v. Sheraton Steamboat Resorts & Villas, ARB No. 2011-0063, ALJ No. 2011-SOX00035, slip op. at 3 (ARB Oct. 23, 2012) (quoting Sch. Dist. of the City of Allentown

Complainant has argued that because the ALJ dismissed the complaint, she was not

given the opportunity to present all of the evidence in her defense, and that she did not

receive all of the mail or emails that the ALJ referenced in his decision. Viewing all of the

evidence in the light most favorable to Complainant, neither of these arguments is

persuasive in determining that her complaint was untimely filed or that equitable tolling is

not warranted.

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v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981)). While these categories are not

exclusive, limitations periods and other filing deadlines should be equitably

modified only in exceptional circumstances. Larrick v. Bechtel Nat’l Inc., ARB No.

2017-0053, ALJ No. 2017-ERA-00004, slip op. at 4, n.5 (ARB Feb. 20, 2020) (citing

Hill v. Tennessee Valley Authority, Nos. 1987-ERA-023, -024, slip op. at 3 (Sec’y

April 21, 1994)). Complainant bears the burden of justifying the application of

equitable tolling principles. Williamson v. Washington Savannah River Co., ARB

No. 07-071, ALJ No. 2006-ERA-030, slip op. at 4 (ARB June 28, 2007) (citation

omitted).

First, as already discussed, Complainant does not dispute, and indeed asserts

several times, that she received notice that Wells Fargo engaged in wrongdoing

such that her termination may have been prohibited by SOX and CFPA on

September 21, 2016, when the Congressional hearings already referenced took

place. Therefore, Complainant’s only argument pertaining to this fact appears to be

that the limitations period should be forgiven because of the importance of the

underlying criminal activity Wells Fargo engaged in, and its actions in covering up

its criminal activity. However, as the ALJ stated, citing Ubinger v. CAE Int’l, ARB

No. 2007-0083, ALJ No. 2007-SOX-00036, slip op. at 6 (ARB Aug. 27, 2008), the

seriousness of the complaint has not been found to be grounds for equitable tolling.

By Complainant’s own admission, again, she filed 804 days after she received this

notice, and that the notice provides no basis for tolling regardless of the seriousness

of Wells Fargo’s acts.

Complainant also argues for the first time in her reply brief that she filed the

precise statutory claim in the wrong forum. As a result, she claims that she should

be entitled to an equitable tolling of the filing period. However, although she may

have entered into a class action lawsuit against Wells Fargo in December 2016,

rather than showing grounds for equitable tolling, this action detracts from her

argument because it clearly shows that she aware of her SOX and CFPA claims

against Wells Fargo at that time and should have filed them with the appropriate

OSHA office. See 29 C.F.R. §1980.103(c) and 29 C.F.R. §1985.103(c) (“Place of

filing. The complaint should be filed with the OSHA office responsible for

enforcement activities in the geographical area where the complainant resides or

was employed, but may be filed with any OSHA officer or employee.”). Her

intentional action in joining the class action removes any possibility that

Complainant “mistakenly” filed in the wrong forum.

Considering all of Complainant’s submissions, we conclude that she has

failed to show either that her complaint was timely or that equitable tolling

principles should apply. Therefore, we affirm the ALJ’s Decision and Order

Granting Respondent’s Motion to Dismiss, and dismiss Complainant’s untimely

complaint.

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CONCLUSION

Accordingly, we AFFIRM the ALJ’s decision that the claim filed on

December 4, 2018, was untimely, and deny the complaint.

SO ORDERED.