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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

MADHURI TRIVEDI,

ARB CASE NO. 2022-0026

COMPLAINANT

ALJ CASE NO. 2022-SOX-00005

DATE: August 24, 2022

GENERAL ELECTRIC and

GE HEALTHCARE,

RESPONDENTS.

Appearances:

For the Complainant:

Madhuri Trivedi; pro se; Boston, Massachusetts

For the Respondents:

Tomasita L. Sherer, Esq. and Cassandra Beckman Widay, Esq.;

Dentons US LLP; New York, New York

Before: HARTHILL, Chief Administrative Appeals Judge, and BURRELL,

and PUST, Administrative Appeal Judges

DECISION AND ORDER

PUST, Administrative Appeals Judge:

This case arises under the whistleblower protection provisions of Section 806

of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the

Sarbanes-Oxley Act (SOX), 18 U.S.C. § 1514A, its implementing regulations at 29

C.F.R. Part 1980, and the Consumer Financial Protection Act of 2010 (CFPA),

Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of

2010, 12 U.S.C. § 5567. Madhuri Trivedi (Complainant) filed a whistleblower

complaint against General Electric and GE Healthcare (Respondents) for alleged

retaliation. The Administrative Law Judge (ALJ) issued an Order Denying

Complaint for Failure to Timely File (Order). Complainant appealed the ALJ’s

decision. We affirm.

BACKGROUND

Complainant worked as an engineer at GE Healthcare in Waukesha,

Wisconsin, beginning in November 2011. On May 31, 2013, Respondent terminated

Complainant’s employment.1

On October 8, 2013, Complainant contacted the U.S. Citizenship and

Immigration Services (USCIS) about her immigration status.2 Although she

described Respondents’ workplace as a “hostile and unprofessional work

environment,” she did not make any SOX, CFPA, or other whistleblower retaliation

allegations related to her termination in her communications with USCIS.3

On December 12, 2013, Complainant contacted the Food and Drug

Administration (FDA) to raise concerns about Respondents’ medical device

software.4 She reported that Respondents’ Insite Exc (Insite Express Connect)

product was defective with respect to “performance, maintainability, quality,

security issues” and did not have “proper logging/audit trail/reporting”

functionality, as allegedly required by the Health Insurance Portability and

Accountability Act of 1996 (HIPPA).5 Complainant’s communications with FDA

contained no allegations of whistleblower retaliation related to her termination.6

Order at 2.

See Complainant’s (Comp.) Motion to Compel Discovery (Jan. 23, 2021), electronic

record at 442-44. Although the record below contains sufficient credible evidence that

supports this finding, the ALJ included no record reference to this and many other

determined facts in the Order. In instances wherein the ARB finds citation to record

evidence necessary to a thorough review of the case and of value to the transparency of the

Board’s decision, the ARB has noted in this Decision and Order the appropriate citation to

the electronic record before the ALJ. The ARB has not relied on any new evidence

submitted as part of Complainant’s briefing to the Board and not included in her filings

below.

See Comp. Motion to Compel Discovery (Jan. 21, 2022), electronic record at 443-50.

Id., electronic record at 459-60.

Id.

Id.; Order at 3.

While concurrently engaged in an arbitration of her termination-related

claims,7 on May 3, 2014, Complainant filed a pro se8 whistleblower complaint with

the Occupational Safety and Health Administration (OSHA) alleging her

employment had been terminated due to “reporting errors in medical device

software, HIPAA, nationality and gender.”9 In a letter dated June 14, 2014, OSHA

informed Complainant that the agency lacked jurisdiction over her complaint and

would take no further action.10 OSHA’s letter referred Complainant to the U.S.

Equal Employment Opportunity Commission and the Department of Health and

Human Services, Office of Civil Rights.11

Complainant then took her complaints to the federal courts.12 In March 2016,

Complainant brought claims against the U.S. Department of Homeland Security

and USCIS, plus six individual government employees, regarding USCIS’s denial of

her I-140 immigration petition.13 In May 2019, Complainant brought suit against

In American Arbitration Association (AAA) Arb No. 51 160 01260 13, filed on or

about November 9, 2013, Complainant alleged that: (1) she was discharged “in violation of

state and federal anti-discrimination laws” due to her national origin and/or gender; (2)

Respondents failed to correct reported discrimination and hostile work environment

conditions; and (3) Respondents retaliated against her for reporting this “discriminatory

disparate treatment and working conditions.” See Comp. Motion to Compel Discovery,

electronic record at 446.

Complainant was represented by various legal counsel when demanding

employment reinstatement pending continued immigration status processing in 2013,

during a mediation process with Respondents filed later in 2013, and in July 2014 when

again demanding settlement discussions. See Respondent (Resp.) Exhibit (Ex.) A, electronic

record at 93; Comp. email to OSHA (Sept. 10, 2021), electronic record at 826-32. During the

same period and thereafter, Complainant proceeded pro so in her agency and court filings.

See Self-Represented Party Notice of Appearance, electronic record at 50-51.

Comp. Objections (Oct. 2021), electronic record at 359, 640, 791; Order at 2.

Id.

Pursuant to Rule 201, Federal Rules of Evidence, the ARB takes judicial notice of

the fact of these court filings and the content of judicial decisions related thereto, all

adjudicatory facts not subject to reasonable dispute and able to be accurately and readily

determined from a review of sources whose accuracy cannot reasonably be questioned,

including the cited courts’ published dockets.

In Trivedi v. U.S. Dep’t of Homeland Sec., No. 16-CV-01122-JD, 2016 WL 10651086

(N.D. Cal. Nov. 21, 2016), the U.S. District Court for the Northern District of California

dismissed Complainant’s claims brought under: 8 U.S.C. § 1324b (unfair immigrationrelated employment practices); Health Insurance Portability & Accountability Act, citing 45

C.F.R. § 164.530(g)); 31 U.S.C. §§ 3729, 3802 (False Claims Act); 42 U.S.C. § 2000e-3a (Civil

Rights Act of 1991); 18 U.S.C. §§ 1512, 1513, 1621 (witness tampering/retaliation and

Respondents and others in the U.S. District Court for the District of Columbia, then

filed a notice of voluntary dismissal without prejudice in that suit when faced with a

motion to dismiss.14 In August 2019, Complainant filed a fifteen-count amended

complaint against Respondents and others in the U.S. District Court for the District

of Massachusetts.15 The U.S. Magistrate Judge granted the defendants’ motion to

dismiss all claims, including her SOX and CFPA whistleblower claims, on August

11, 2020, which dismissal Complainant unsuccessfully appealed to the First Circuit

Court of Appeals.16

On September 2, 2021, Complainant filed a second pro se complaint with

OSHA alleging that Respondents wrongfully terminated her employment in 2013 in

violation of the SOX and CFPA.17 On September 17, 2021, OSHA dismissed the

complaint as being untimely filed.18

Complainant then requested a hearing before an ALJ with the Office of

Administrative Law Judges (OALJ). On January 6, 2022, the assigned ALJ held a

preliminary conference call during which the ALJ raised the issue of whether

Complainant’s claim was untimely.19 On January 7, 2022, the ALJ issued an Order

to Show Cause as to why the case should not be dismissed for failure to timely file a

complaint, advising the parties to respond by January 24, 2022.20 On January 24,

2022, Complainant sent an email to the ALJ stating that “I am not going to reply to

order to show ca[use]—until[] I get stay or another judge; or order that my motion

perjury); intentional infliction of emotional distress; and a request for review of the I-140

petition denial. The Ninth Circuit Court of Appeals affirmed. See Trivedi v. U.S. Dep’t of

Homeland Sec., 711 F. App’x 827 (9th Cir. 2017), cert. denied 138 S. Ct. 1293 (2018).

See Trivedi v. Gen. Elec. Co., No. 19-CV-01479 (D.D.C. Sept. 4, 2019).

Trivedi v. Gen. Elec. Co. CV 19-11862-PBS, 2020 WL 9744753 (D. Mass. Aug. 11,

2020), report and rec. adopted, 2021 WL 2229088 (D. Mass. May 27, 2021), aff’d 2022 WL

1769136 (1st Cir. May 3, 2022).

Trivedi v. Gen. Elec. Co., No. 21-1434, 2022 WL 1769136 (1st Cir. May 3, 2022). The

First Circuit denied the petition for rehearing and the petition for rehearing en banc on

August 8, 2022. Trivedi subsequently filed a notice requesting that the en banc panel

reconsider and reverse its en banc decision and a motion and an amended motion to

transfer the case. See Trivedi, No. 21-1434 (Docket August 8 and 9, 2022). Finally, the First

Circuit issued a mandate on August 16, 2022, in accordance with the Judgment of May 3,

2022.

Order at 1.

Id.

Id. at 1-2.

to stay legal arguments meets timeliness requirement.”21 From January 7th to the

24th, Complainant had filed thirty-eight emails with OALJ, which the ALJ

analyzed with the rest of the record to determine whether any evidence established

that Complainant’s OSHA filing was timely.22

On February 25, 2022, the ALJ denied the complaint with prejudice. The ALJ

determined that Complainant filed her whistleblower complaint with OSHA 3,106

days after her termination date. After finding that the complaint was filed well

beyond the 180-day limitation period and therefore both the SOX and CFPA23

claims were untimely, the ALJ analyzed whether equitable tolling was applicable.24

First, the ALJ analyzed whether Complainant raised her precise statutory

claims in the wrong forum. The ALJ determined that Complainant’s filings with

USCIS and FDA did not allege any claims of whistleblower retaliation or request

Complainant’s reinstatement to her former position due to protected whistleblowing

activity. Thus, the ALJ concluded that Complainant did not raise the precise

statutory claims at issue in this matter in the wrong forum.25

Next, the ALJ determined there was no evidence that Respondents misled

Complaint or prevented her in any way from asserting her rights. The ALJ further

opined that Complainant could not reasonably claim she was unaware of her right

to file a whistleblower complaint because she had actively litigated against

Respondents for years. Therefore, the ALJ concluded that equitable tolling was not

warranted and dismissed the complaint with prejudice.26

Complainant timely appealed to the Administrative Review Board.

Id. at 2 n.3

Id.

With regard to Complainant’s CFPA claim, the ALJ also noted OSHA’s

determination, and that of the U.S. District Court for the District of Massachusetts, that

Respondent is not a covered person or service provider within the meaning of 12 U.S.C. §

5567 and, therefore, Complainant is not an employee within the meaning of Section 5567 as

required for complaints filed under the CFPA. See Order at n.1.

Id. at 3.

Id.

Id. at 3-4.

JURISDICTION AND STANDARD OF REVIEW

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

agency decisions under the SOX and CFPA as amended.27 The ARB reviews an

ALJ’s grant of summary decision de novo.28

DISCUSSION

A SOX complaint must be filed no later than 180 days after the date of the

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

the violation.29 Likewise, a CFPA complaint must be filed no later than 180 days

after the date an alleged violation occurs.30

The limitations period for filing a complaint is not jurisdictional and is

subject to equitable modification.31 Equitable tolling is granted sparingly and only

upon a showing that extraordinary circumstances out of the complainant’s control

prevented a timely filing.32

The Board recognizes four principal situations in which a party may be

entitled to equitable tolling: (1) respondent has actively misled the complainant

regarding the cause of action; (2) complainant has in some extraordinary way been

prevented from filing the action; (3) complainant has raised the precise statutory

claim at issue but has done so in the wrong forum; and (4) respondent’s own acts or

omissions have lulled the complainant into forgoing prompt attempts to vindicate

the rights at issue.33

To invoke equitable tolling, the claim must be brought within a reasonable

time after the complainant “has obtained, or by due diligence could have obtained,

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).

Elias v. Celadon Trucking Servs., Inc., ARB No. 2012-0032, ALJ No. 2011-STA00028, slip op. at 3 (ARB Nov. 21, 2012).

18 U.S.C. § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(d).

29 C.F.R. § 1985.103(d).

Id.; 29 C.F.R. § 1980.103(d); Swinney v. Fluor Corp., ARB No. 2015-0044, ALJ No.

2014-SOX-00041, slip op. at 2 (ARB June 11, 2015).

Katz v. Underwriters Lab’ys, ARB No. 2021-0006, ALJ No. 2018-SOX-00030, slip op.

at 4 (ARB Nov. 30, 2020).

See Brown v. Synovus Fin. Corp., ARB No. 2017-0037, ALJ No. 2015-SOX-00018,

slip op. at 2 (ARB May 17, 2017).

the necessary information” giving rise to the claim.34 Complainant bears the burden

of justifying the application of equitable tolling.35 Courts are generally “much less

forgiving in receiving late filings where the claimant failed to exercise due diligence

in preserving [her] legal rights.”36 A complainant’s “pro se status does not provide

an independent basis for the Court to toll the statute of limitations.”37

Complainant asserts that OSHA illegally closed her 2014 OSHA complaint.38

Other than with unproven allegations of corruption and illegal conduct,

Complainant has presented no convincing evidence in support of this claim. As

noted in OSHA’s September 17, 2021 determination letter, OSHA no longer

maintains records relating to the 2014 closure of Complainant’s case filing, having

disposed of them in compliance with the agency’s mandatory document retention

schedule.39 Fortunately, Complainant’s Objections filed with the OALJ in this

matter contain a copy of OSHA’s July 14, 2014 administrative closure letter, which

noted the untimely nature of her complaint and that OSHA would not take any

further action on it. 40 Complainant has acknowledged her receipt of the OSHA

letter.41 Therefore, the record clearly establishes that the complaint was filed

beyond the 180-day limitation period and was untimely under applicable law.

See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990), quoted with

approval in Daryanani v. Royal & Sun Alliance, d/b/a Arrowpoint Capital Corp., ARB No.

2008-0106, ALJ No. 2007-SOX-00079, slip op. at 7 (ARB May 27, 2010).

See Jaludi v. Citigroup, Inc., ARB No. 2021-0053, ALJ No. 2021-SOX-00014, slip op.

at 3 (ARB Aug. 25, 2021).

Lubary v. El Floridita, ARB No. 2010-0137, ALJ No. 2010-LCA-00020, slip op. at 6

(ARB Apr. 30, 2012).

Correia v. Mass. Bay Commuter R.R., No. CIV.A 12-12048-DJC, 2013 WL 6383107,

at *3 (D. Mass. Dec. 4, 2013), aff’d, No. 14-1020, 2014 WL 7506802 (1st Cir. Sept. 15, 2014)

(quoting Stonier v. United States, No. 03–10146–JLT, 2011 WL 1877670, at *4 (D. Mass.

Apr. 7, 2011) (“[I]t is well established that ignorance of the law, even for a[ ] ... pro se

[plaintiff], generally does not excuse prompt filing.”)).

Comp. Brief (Br.) at 12.

See Resp. Ex. A (OSHA’s findings dated Sept. 17, 2021), electronic record at 92-94,

n.2, 3.

See Comp. Objections (OALJ Oct. 2021), electronic record at 359, 640, 791.

Complainant’s “Objections to OSHA dismissal of complaint (1) General Electric and

GE Healthcare/Trivedi/5-3100-21-110; filed under SOX and CFPA” dated October 17, 2021,

filed in electronic record at 110 and 163, included in Exs. C and D to Declaration of

Tomasita Sherer in Support of GE’s Response to the Order to Show Cause. See also

Transcript of Judicial Conference Call held below on January 6, 2022, electronic record at

73 (“And when I filed in 2014, you have it in my objection what OSHA responded. OSHA

responded in Milwaukee that it doesn’t fit any of the 22 statutes that OSHA has. One of

that was SOX, right, and I have even submitted in my objection.”).

Complainant next contends that equitable tolling principles apply.42

Complainant first asserts that she raised this precise statutory claim in the wrong

forum when she contacted USCIS on October 8, 2013, and the FDA on December 12,

2013.43 The record does not support this contention and in fact supports the

opposite: Complainant did not include any allegations of SOX, CFPA, or other

whistleblower retaliation related to her termination in these filings.44 For the

reasons stated by the ALJ, we agree that Complainant did not raise this precise

statutory claim in the wrong forum.45

Second, Complainant argues that extraordinary circumstances warrant the

application of equitable tolling.46 Specifically, she contends that the attorneys who

represented her in 2013 did not inform her of her ability to file an OSHA complaint,

and she was not aware that she could file an OSHA claim until May 3, 2014.47

Attorney error, standing alone, does not constitute an extraordinary factor that

justifies equitable tolling of a filing deadline because “clients are accountable for the

acts and omissions of their attorneys.”48 Further, “ignorance of the law is neither a

sufficient basis for granting equitable tolling nor by itself an independent ground

establishing entitlement.”49

Third, Complainant claims that mediation and arbitration delayed her from

timely filing her complaint as those processes took from June 2013 until May 7,

2014.50 Complainant has not explained why she could not file an OSHA complaint

to preserve these claims while participating in these other proceedings. Further,

being occupied with other matters does not excuse the failure to comply with filing

deadlines.51

Comp. Br. at 17. 21, and 24.

Comp. Reply Br. at 10.

See Comp. Motion to Compel Discovery (Jan. 23, 2021), electronic record at 442-44;

459-60.

Order at 3.

Comp. Br. at 24.

Id.

Nevarez v. Werner Enter., ARB No. 2018-0005, ALJ No. 2013-STA-00012, slip op. at

3 (ARB Dec. 14, 2017) (citations omitted).

Tardy v. Delta Air Lines, ARB No. 2016-0077, ALJ No. 2015-AIR-00026, slip op. at 5

(ARB Oct. 5, 2017).

Comp. Br. at 24.

Matthews v. Labarge, Inc., ARB No. 2008-0038, ALJ No. 2007-SOX-00056, slip op. at

2-3 (ARB Nov. 26, 2008).

Fourth, Complainant contends that the continuing violations doctrine

applies. In support of this argument, Complainant alleges that Respondents

engaged in ongoing fraud, and that OSHA and ALJ McGrath mismanaged her

case.52

The continuing violations doctrine may allow an employee “who ordinarily

would be unable to recover damages for discrete acts of discrimination falling

outside the limitations period [to] avoid that bar if those acts are shown to be part of

a pattern of discrimination anchored by acts that occurred within the limitations

period.”53 The First Circuit has traditionally “recognized that ‘[c]ontinuing

violations may be serial or systemic.’”54 “‘Systemic violations occur where an

employer maintains a discriminatory policy, responsible for multiple discriminatory

acts that fall outside the limitations period.’”55 Conversely, a serial violation exists

“‘where the plaintiff experiences a number of discriminatory acts arising from the

same discriminatory animus.’”56

In addition, it is “well established that the [continuing violation] doctrine

does not apply to ‘discrete acts’ of alleged discrimination that occur on a ‘particular

day,’ but only to discriminatory conduct that takes place ‘over a series of days or

perhaps years.’”57 Discrete acts include “termination, failure to promote, denial of

transfer, or refusal to hire.”58

The continuing violation doctrine is generally applied in the context of hostile

work environment and other employment claims.59 “The statute of limitations

Comp. Br. at 25, 31-35, 46-53.

Kahriman v. Wal-Mart Stores, Inc., 115 F. Supp. 3d 153, 161 (D. Mass. 2015)

(citing Noviello v. City of Boston, 398 F.3d 76, 86 (1st Cir. 2005)).

Crowley v. L.L. Bean, Inc., 303 F.3d 387, 405 (1st Cir. 2002) (citing Provencher v.

CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 14 (1st Cir.1998)); Powell v. Alexander,

No. 18-CV-30146-MGM, 2020 WL 7706096, at *3 (D. Mass. Feb. 27, 2020), R. and R.

adopted sub nom. Powell v. City of Pittsfield, No. CV 18-30146-MGM, 2020 WL 7334313, at

*4 (D. Mass. Dec. 14, 2020).

Powell v. Alexander, at *3 (citing Rivera–Rodriguez v. Frito Lay Snacks

Caribbean, 265 F.3d 15, 21 (1st Cir. 2001) (emphasis added)).

Id. (citing Rivera–Rodriguez, 265 F.3d at 22).

Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009) (quoting Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)).

Morgan, 536 U.S. at 114.

Id. at 117; Ayala-Sepúlveda v. Mun. of San Germán, 671 F.3d 24, 30-31 (1st Cir.

2012) (applying the continuing violation doctrine to a hostile work environment claim).

begins to accrue at the time the Plaintiff knows or should have known of the harm

suffered as a result of the employer’s discriminatory [or retaliatory] conduct.”60

Although Complainant accuses Respondents of ongoing securities and

consumer fraud, she does not allege the type of discriminatory activity directed at

her that would support application of the continuing violations doctrine.

Respondent terminated her employment on May 31, 2013, which is alleged as a

discrete act.

Complainant also alleges that OSHA and ALJ mismanaged her claim and

that this supports her claim that the continuing violations doctrine should apply.61

We do not find that either OSHA or the ALJ mismanaged this claim. However, even

if we found such mismanagement, the continuing violations doctrine would not

apply. As noted above, the continuing violations doctrine applies to acts by

employers, not court claims.62 Therefore, we conclude that the continuing violations

doctrine does not apply.

In addition, Complainant has not demonstrated that she exercised due

diligence to preserve her legal rights. Complainant waited nearly a year after her

employment was terminated to file her first claim with OSHA regarding a potential

whistleblower claim. She then waited more than seven years to file her present

claim with OSHA. As such, Complainant has failed to exercise due diligence and

thus has not established the type of extraordinary circumstances that justify

extending the filing deadline in this case under equitable tolling principles.

For all of the reasons cited, we conclude that Complainant filed an untimely

complaint and failed to establish any situation that would warrant an extension of

the filing deadline under equitable tolling principles.

MacDonald v. Town of Upton, 297 F. Supp. 3d 209, 212 (D. Mass. 2018)

(citing Ocean Spray Cranberries, Inc. v. Mass. Comm’n Against Discrimination, 808 N.E.2d

257, 265-66 (Mass. 2004)).

Comp. Br. at 25, 31-35, 46-53.

See Crowley, 303 F.3d at 405.

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.