Summary decision may be granted to either party if the pleadings, affidavits, or material obtained through discovery, show that there is no genuine issue of material fact that remains to be resolved. 29 C.F.R. §§ 18.40-41. The moving party bears the initial burden of demonstrating that there is no disputed issue of material fact, which may be demonstrated by "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Hall v. Newport News Shipbuilding and Dry Dock Co., 24 BRBS 1,4 (1990). Upon such a showing, the burden shifts to the nonmoving party to establish the existence of a genuine issue of material fact. Celotex, 477 U.S. at 322; Hall, 24 BRBS at 4. All evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261 (1986); Hall, 24 BRBS at 4. Where a genuine issue of material fact does exist, an evidentiary hearing must be held. 29 C.F.R. §18.41(b).

   The parties' papers in support and in opposition to this motion use the terms "equitable estoppel" and "equitable tolling" interchangeably. However, equitable estoppel and equitable tolling are distinct, albeit related, doctrines. Equitable estoppel focuses on actions taken by the respondent that prevent a complainant from filing a claim. Santa Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Equitable tolling does not depend on any wrongdoing by the respondent; rather, it focuses on the complainant's inability – despite all due diligence – to obtain vital information bearing on the existence of his complaint. Santa Maria, 202 F.3d at 1178. Thus, equitable tolling extends the statute of limitations until the complainant can gather information needed to articulate a claim. Id. Mr. Moldauer's Response in Opposition invokes both of these doctrines.

   Mr. Moldauer claims that the severance agreement he entered with Respondent should allow this matter to be adjudicated on the merits for one of two reasons: either the agreement was not intended to release Mr. Moldauer's right to pursue a cause of action based on his status as a whistleblower, or Respondent used the agreement to prevent him from pursuing his rights under the Act. Even if the parties to the agreement did not intend to release Mr. Moldauer's right to pursue a cause of action under a whistleblower protection statute, this cause of action was not filed until after the statute of limitations had run. Thus, the dispositive issue is whether Respondent entered the severance agreement in order to prevent Mr. Moldauer from asserting his rights under the Act.

   The parties entered into the agreement on November 1, 2002 – about one month after Mr. Moldauer's termination. At that point, Mr. Moldauer still had two months before the statute of limitations expired to file a complaint under the Act. Even if the date of the severance agreement were the start of the running of the statute of limitations, a timely complaint would have had to have been filed by January 30, 2003. This complaint – filed in April 2003 – would still be untimely. Most importantly, the doctrine of equitable estoppel requires that the complainant reasonably rely on the respondent's conduct. Santa Monica, 202 F.3d at 1177. Despite the severance agreement, Mr. Moldauer filed a complaint with DFEH, met with the FBI to discuss Respondent's alleged accounting improprieties, and complained to the SEC about Respondent's accounting practices within one month of signing the severance agreement. Collectively, these actions indicate that Mr. Moldauer was not lulled into inaction by the severance agreement. As a result, equitable estoppel is inappropriate in this matter.

   Next, Mr. Moldauer invokes the doctrine of equitable tolling. Equitable tolling applies when the complainant, despite all due diligence, is unable to discover information vital to his complaint. Santa Maria, 202 F.3d at 1178. Mr. Moldauer has asserted three grounds for invoking this doctrine: (1) he was unable to conduct his affairs after he was terminated because he had to leave the United States, (2) he raised this claim with incorrect agencies (the SEC and DFEH) within the statutory period, and (3) neither Mr. Moldauer nor the attorney he retained in conjunction with the severance agreement were aware of the Act's whistleblower protection provisions.

   Equitable tolling may be appropriate when the complainant demonstrates that extraordinary circumstances prevented him from "managing his affairs and thus from understanding his legal rights and acting upon them." Hall v. EG&G Defense Materials, Inc., ARB Case No. 98-076 (ARB Sept. 30, 1998). In his response in opposition, Mr. Moldauer asserts that he was unable to pursue his rights under the Act because he was required to leave the United States upon being terminated. However, he admits that he was represented by an attorney "with an acknowledged employment expertise" in connection with the severance agreement, Moldauer Opp. at p. 5:6-7, and is therefore presumed to have explored his right to pursue a complaint under the Act. In addition, Mr. Moldauer's complaints to DFEH, the SEC, and FBI before leaving the U.S. indicate his understanding of his possible rights under U.S. law. Accordingly, Mr. Moldauer has failed to show that his departure from the country, which appears to have been voluntary, entitles him to equitably toll the statute of limitations.

   Alternatively, Mr. Moldauer claims that he is entitled to equitable tolling because he filed complaints with the SEC and DFEH within the statutory period that shared a common nucleus of operative facts with his complaint under the Act. The doctrine of equitable tolling may be applicable when an otherwise timely complaint is filed in the wrong forum under the identical statutory scheme. Likewise, in circumstances in which "there is a complicated administrative procedure, and an unrepresented, unsophisticated complainant receives misleading information from the responsible government agency, a time limit may be tolled." Doyle v. Alabama Poor Co., 87-ERA-43 (Sec'y Sept. 29, 1989). Mr. Moldauer's complaint to DFEH does not invoke the whistleblower protection provisions of the Act. Although the DFEH complaint lists "whistleblowing" as one of the grounds of discrimination, it states that Mr. Moldauer was retaliated against because he protested harassment and discrimination and participated in an investigation of discrimination. The complaint is fifteen pages long but does not mention that Mr. Moldauer reported accounting irregularities, initiated an investigation into irregularities, or was fired for reporting irregularities. As such, Mr. Moldauer's complaint to DFEH does not warrant equitable tolling of the limitations period.

   The only evidence Mr. Moldauer has provided regarding his complaint to the SEC is an e-mail response that acknowledges that he filed a complaint by e-mail on November 24, 2002. ALJ Ex. 1. Mr. Moldauer has not provided a copy of this complaint, and the SEC's response does not divulge the specifics of it. Even if Mr. Moldauer had produced a copy of the complaint, he would not be entitled to equitable tolling because he was represented by an attorney before accepting Respondent's severance package. Because he was represented, Mr. Moldauer is deemed to have had constructive notice of the Act's whistleblower complaint procedure and the agency to which such a complaint should have been filed. Leong v. Potter, --- F.3d ---; 2003 WL 22439875 at *4 (9th Cir. 2003) (citing Leorna v. U.S. Dept. of State, 105 F.3d 548, 551 (9th 1997).

   Finally, Mr. Moldauer argues that he is entitled to equitable tolling because he and his lawyer did not know that the Act contained whistleblower protection provisions. To reiterate, a claimant who has retained counsel is considered to have constructive notice of the appropriate legal remedies. Further, Mr. Moldauer claims that his attorney was an expert in employment law. Moldauer Opp. at p. 5:6-7. Even for unrepresented claimants, there is "no authority" for tolling the statute of limitations based on ignorance of the law. Gatewood v. Railroad Retirement Bd., 88 F.3d 886 (10th Cir. 1996). Mr. Moldauer has not stated a sufficient legal ground to equitably toll the statute of limitations.

   For the foregoing reasons, Respondent's Motion for Summary Decision is GRANTED. The hearing scheduled for November 19, 2003 is cancelled.

      ALEXANDER KARST
      Administrative Law Judge

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