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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

IN THE MATTER OF:

MARIA J. PRKIC,

ARB CASE NO. 2025-0074

COMPLAINANT,

ALJ CASE NO. 2025-SOX-00021

ALJ CHRISTOPHER LARSEN

DATE: March 6, 2026

SEZZLE, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Maria J. Prkic; Pro Se; Broomfield, Colorado

For the Respondent:

Brett M. Wendt, Esq., Francis A. Wilson, Esq., and Jane WatermanJoyce, Esq.; Fisher & Phillips LLP; Denver, Colorado

Before JOHNSON, Chief Administrative Appeals Judge, and KAPLAN and

BURRELL, Administrative Appeals Judges

DECISION AND ORDER REVERSING AND REMANDING

This case arises under Section 806 of the Corporate and Criminal Fraud

Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act (SOX), as amended,

and its implementing regulations. 1 On February 15, 2025, Maria Prkic filed a

complaint with the Occupational Safety and Health Administration (OSHA)

alleging retaliation under SOX. 2 On February 19, 2025, OSHA issued a

18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2025).

OSHA Determination Letter at 1.

Determination Letter, dismissing the complaint as untimely. 3 On March 3, 2025,

Complainant objected to the OSHA Determination Letter and an Administrative

Law Judge (ALJ) was subsequently assigned to the case. 4 On July 14, 2025, the

ALJ issued an Order Granting Summary Decision (ALJ Order) because

Complainant’s claim was untimely and not subject to equitable tolling. 5 On July 28,

2025, Complainant filed a Petition of Review of the ALJ Order with the

Administrative Review Board (ARB or Board). 6

We reverse and remand the ALJ Order because the record shows

Complainant met the requirements for equitable tolling by “rais[ing] the precise

statutory claim in issue but . . . in the wrong forum.” 7

BACKGROUND

On May 28, 2024, Sezzle, Inc., terminated Complainant’s employment. 8 On

July 1, 2024, Complainant retained counsel. 9 On September 23, 2024, Complainant

filed a complaint in federal court, which included a SOX whistleblower retaliation

Id.

Petition for Review (Petition) at 2; Respondent Response Brief (Resp. Response Br.)

at 5.

ALJ Order at 3-5.

ARB Briefing Order at 1.

Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at

9 (ARB June 8, 2023) (citation omitted).

ALJ Order at 3.

Id.

claim. 10 Subsequently, on September 25, 2024, Complainant fired her attorney and

became pro se. 11

10F

As discussed below, a complainant alleging whistleblower retaliation in

violation of SOX must file a complaint with OSHA within 180 days of the alleged

violation. 12 The 180-day deadline for Complainant to file a SOX whistleblower

retaliation complaint with OSHA was November 24, 2024, and Complainant did not

meet the deadline. 13 Eventually, on February 15, 2025, Complainant filed a SOX

retaliation complaint, but OSHA dismissed it as untimely on February 19, 2025. 14

On March 3, 2025, Complainant objected and an ALJ was subsequently assigned to

the case. 15

11F

12F

13F

14F

ALJ RULING

The ALJ granted summary decision in favor of Respondent, dismissing

Complainant’s SOX whistleblower claim as untimely. The ALJ noted that “there

appears to be no dispute that Ms. Prkic did not file a timely claim.” 16 Thus, the ALJ

considered Complainant’s arguments for equitably tolling the 180-day limitation for

filing a SOX whistleblower retaliation complaint. Complainant raised several

arguments for equitable tolling, including that her counsel failed to “preserve her

rights under SOX.” 17 Complainant also argued she relied on informal SEC

15F

16F

Federal Complaint at 1; ALJ Order at 4; Complainant Opening Brief (Comp. Br.) at

3, 6, 8; Resp. Response Br. at 4.

Based solely on the ALJ Order, the timeline is incomplete regarding when

Complainant became pro se. The ALJ Order does not state that Complainant terminated

her attorney, nor does it identify when any termination occurred. However, the ALJ noted

that Respondent retained counsel on July 1, 2024, and that she later filed a pro se federal

complaint on September 23, 2024. ALJ Order at 3-4. The ALJ Order’s service sheet also

listed Complainant as “pro se.” In Complainant and Respondent’s briefs, the parties

highlight that Complainant terminated her counsel on September 25, 2024. Complainant

Br. at 8; Resp. Response Br. at 4.

18 U.S.C. § 1514A; 29 C.F.R. § 1980.103(d).

Petition at 1.

OSHA Determination Letter at 1.

Petition at 2; Resp. Response Br. at 5.

ALJ Order at 3.

Id.

guidance, claiming the SEC told her that “no SEC filing was needed for a district

court lawsuit.” 18 Finally, Complainant “believed, based on Respondent’s handbook,

that her” internal complaint “to Respondent was sufficient to preserve her” SOX

rights. 19

17F

18F

Regarding Complainant’s counsel argument, the ALJ determined that

“Counsel’s mishandling of her case – if that is what happened – would not comprise

an extraordinary circumstance justifying equitable tolling.” 20 The ALJ likewise

rejected Complainant’s argument related to informal SEC guidance because the

SEC guidance was silent regarding SOX filing requirements. 21 Finally, the ALJ

rejected Complainant’s employer handbook argument, noting “Prkic faults the

handbook for not saying something she believes it ought to have said. She does not

contend it affirmatively misrepresented anything.” 22

19F

20F

21F

Thus, even assuming that Complainant’s factual allegations were true, the

ALJ ruled that equitable tolling did not apply and the complaint was untimely.

Because there was no genuine dispute as to any material fact, Respondent was

entitled to a decision as a matter of law, and the ALJ granted summary decision

and vacated all further proceedings. 23

22F

DISCUSSION

Summary decision is appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to decision as a matter of law.” 24 In

considering a motion for summary decision, the Board views the evidence, and

makes all reasonable inferences, in the light most favorable to the non-moving

23F

Id. (citing Complainant’s ALJ Brief in Support of Equitable Tolling at 3).

Id.

Id. at 4.

Id. at 4 n.4.

Id. at 5.

Id.

29 C.F.R. § 18.72.

party. 25 If the moving party demonstrates an absence of evidence supporting the

non-moving party’s position, the burden shifts to the non-moving party to establish

the existence of an issue of fact that could affect the outcome of the litigation. 26 The

non-moving party may not rest upon mere allegations, speculation, or denials, but

must instead set forth specific facts on each issue upon which the non-moving party

would bear the ultimate burden of proof. 27 If the non-moving party fails to show an

essential element of their case, there can be no “genuine issue as to any material

fact,” since a complete failure of proof concerning an essential element necessarily

renders all other facts immaterial. 28

24F

25F

26F

27F

The ALJ granted summary decision for Respondent and dismissed

Complainant’s SOX whistleblower retaliation complaint as untimely. We reverse

the ALJ’s Order. The record shows that, within 180 days of her termination,

Complainant filed the precise statutory claim in the wrong forum by filing a federal

complaint that included a SOX retaliation claim. Therefore, equitable tolling applies

and the Complainant’s SOX whistleblower retaliation complaint is deemed timely.

1. Timeliness and Equitable Tolling Requirements

Complainants alleging whistleblower retaliation in violation of SOX must file

their complaints with OSHA within 180 days of the alleged violation or after the

date on which the employee became aware of the alleged violation. 29 However, the

filing deadline is subject to equitable tolling in appropriate circumstances when the

complainant is prevented from filing despite exercising that level of diligence which

could be reasonably expected in the circumstances. 30 The Board has recognized

28F

29F

Jahanbin v. Boeing Co., ARB No. 2024-0035, ALJ No. 2023-AIR-00023, slip op. at 4

(ARB Mar. 13, 2025) (citation omitted).

Id. (citation omitted).

18 U.S.C. § 1514A(b) (“filing a complaint with the Secretary of Labor . . . 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.”); 29 C.F.R. § 1980.103(c) (the complainant “may

be filed with any OSHA officer or employee.”); 29 C.F.R. § 1980.103(d) (“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 . . . .”).

Martin, ARB No. 2022-0058, slip op. at 9 (citations and quotations omitted).

several principal situations in which a moving party may be entitled to the remedy,

including (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. 31

30F

2. Precise Statutory Claim in the Wrong Forum

The record shows that Complainant filed a federal complaint that included a

SOX whistleblower retaliation claim within the 180-day SOX filing deadline. 32 We

hold that Complainant’s federal complaint constitutes the filing of the precise

statutory claim in the wrong forum and equitable tolling is appropriate.

31F

First, Complainant’s federal complaint clearly met the requirements for the

“precise statutory claim.” The federal complaint included a detailed claim for

“Retaliation in Violation of the Sarbanes Oxley Act,” citing 18 U.S.C. § 1514A. 33

32F

Next, Complainant met the requirements for “wrong forum.” 34 In Mehra v.

West Virginia University, the ARB equitably tolled a filing deadline because the

complainant filed with the U.S. Department of Labor’s (DOL) Office of Inspector

General (the wrong forum), instead of the DOL’s Wage and Hour Division (the

33F

Id. (citations omitted).

We construe Complainant’s filings as including an argument for equitable tolling

based on Complainant raising the precise statutory claim in the wrong forum. For example,

Complainant’s Petition for Review noted that, on September 23, 2024, she filed a “pro se

federal complaint without OSHA exhaustion.” Petition at 5.

Federal Complaint at 4-5; see also ALJ Order at 4; Comp. Br. at 8; Resp. Response

Br. at 4. Whether a complainant has “raised the precise statutory claim in issue” is an

equitable consideration determined on a case-by-case basis, and it is not limited to the

circumstances present in this case.

The SOX regulations also support tolling for filing the precise statutory claim in the

wrong forum. Notably, the SOX regulations state that filing deadlines may be “tolled for

reasons warranted by applicable case law,” and include an example of “a complainant [that]

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) (emphasis added).

proper forum). 35 Similarly, in this case, Complainant filed the federal complaint

with the SOX claim with the United States District Court for the District of

Colorado—a forum, but the wrong forum for the claim at this stage.

34F

Finally, Complainant timely raised her SOX claim in the wrong forum. The

SOX implementing regulations require filing of a retaliation complaint “[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.” 36 Here, on May 28,

2024, Respondent terminated Complainant’s employment, 37 and on September 23,

2024 (118 days later), Complainant filed a complaint with her SOX claim in federal

court. 38 Thus, it would have been timely. 39

35F

36F

37F

38F

Mehra v. W. Va. Univ., ARB No. 2017-0058, ALJ No. 2017-LCA-00002, slip op. at 4-5

(ARB Nov. 21, 2019). Notably, “forum” is not limited to filing in the wrong forum when the

forum is an agency, as the Board has also noted that “[a] forum is a court or other judicial

body.” Ndiaye v. CVS Store No. 6081, ARB No. 2005-0024, ALJ No. 2024-LCA-00036, slip

op. at 8 (ARB Nov. 29, 2006) (citation omitted).

29 C.F.R. § 1980.103(d). The implementing regulations are consistent with the

statute. See 18 U.S.C. § 1514A(b)(2)(d).

ALJ Order at 3.

Federal Complaint at 1.

The 180-day period to file began on May 28, 2024, and approximately 118 days

elapsed before Complainant timely filed the SOX claim in the wrong forum on September

23, 2024. Because Complainant met the tolling requirements for filing in the wrong forum,

the limitations clock was tolled until January 22, 2025, when Respondent filed a motion in

federal court that first put Complainant on specific notice of OSHA’s filing prerequisite.

Comp. Br. at 3. Complainant then filed with OSHA 24 days later, on February 15, 2025—

well within the roughly 62 days remaining—both rendering the OSHA filing timely and

evidencing reasonable diligence in correcting forum.

Because grounds for equitable tolling are present, we do not consider the

other arguments raised by the parties. 40

39F

CONCLUSION

The record shows that Complainant filed the precise statutory claim in the

wrong forum. Thus, Complainant met the requirements for equitable tolling, and

Complainant’s SOX retaliation complainant is deemed timely. Accordingly, we

REVERSE the ALJ’s Order, and REMAND for further proceedings consistent with

this Order.

SO ORDERED.

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

ELLIOT M. KAPLAN

Administrative Appeals Judge

THOMAS H. BURRELL

Administrative Appeals Judge

On December 5, 2025, Complainant filed a Supplemental Brief and Submission of

New Evidence in Support of Equitable Tolling and Reversal (Supplemental Brief), asking

the Board to consider “newly discovered evidence validating Complainant’s protected

whistleblowing and extraordinary circumstances for equitable tolling.” On December 15,

2025, Respondent filed a Motion to Strike Complainant’s December 5, 2025 Supplemental

Brief (Motion to Strike). Subsequently, on December 29, 2025, Complainant filed an

Opposition Brief to the Motion to Strike. On January 14, 2026, the ARB took the filings

under advisement. Given our determination that equitable tolling is appropriate, the

Supplemental Brief and Motion to Strike are moot.

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.