Given that Farnham was constructively discharged on February 3, 2005, more than 90 days passed between his constructive termination and the date on which Farnham states that the fear of retaliation from the Respondents took hold of him. Farnham has failed to provide any basis for tolling the limitations period between the
[Page 12]
date of his constructive discharge and the date he alleges his fear of retaliation took hold of him and ostensively precluded him from filing his complaint. Accordingly we accept the ALJ's recommendation and DISMISS Farnham's complaint because he neither timely filed his complaint nor established that he was entitled to tolling of the limitations period.
SO ORDERED.
WAYNE C. BEYER
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 18 U.S.C.A. § 1514(A)(West 2007). SOX's section 806 prohibits certain covered employers from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against employees who provide information to a covered employer or a Federal agency or Congress regarding conduct that the employee reasonably believes constitutes a violation of 18 U.S.C.A. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank fraud), or 1348 (securities fraud), or any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. Employees are also protected against discrimination when they have filed, testified in, participated in, or otherwise assisted in a proceeding filed or about to be filed relating to a violation of the aforesaid fraud statutes, SEC rules, or federal law.
2 29 C.F.R. Part 1980 (2007).
3 Affidavit of Keith G. Farnham (Complainant's Exhibit (C. Ex.) A-9) at 1, 5.
4 Id. at 1.
5 Id.
6 Id. at 2.
7 Id.
8 Id. at 4.
9 Id.
10 Id.
11 Id.
12 Id. at 3.
13 Id. at 5.
14 Id. at 4-5.
15 Id.
16 Id. at 5.
17 Affidavit of Jim Blackwell, C. Ex. A-10; Affidavit of Phillip Marin, C. Ex. A-10; Affidavit of Marcus Land, C. Ex. A-12.
18 Id.
19 C. Ex. A-9 at 6.
20 Id.
21 Complainant's Brief to the Administrative Review Board (Comp't's br.) at 16.
22 Affidavit of Robert Schmidt, C. Ex. A-14.
23 Id.
24 C. Ex. A-7 at 1-3.
25 C. Ex. A-9 at 6.
26 Id.
27 Affidavit of J. Eduardo Cadena, C. Ex. A-13.
28 C. Ex. A-9 at 6.
29 Id.
30 Comp't's br. at 19.
31 Affidavit of Vickie Farnham, C. Ex. A-15.
32 Id.
33 Id.
34 Id.
35 Id.
36 R. D. & O. at 6.
37 Id.
38 Id. at 6-7.
39 Id. at 7.
40 Id.
41 Id. at 1.
42 Id.
43 Id.
44 Id. at 2.
45 Id.
46 Id.
47 See 29 C.F.R. § 1980.106(a).
48 R. D. & O. at 2.
49 Id.
50 Id.
51 Id.
52 R. D. & O. at 11. The ALJ assumed for purposes of this decision only that Farnham's resignation from employment constituted a constructive termination. Id. at 11, n.40.
53 Id. at 11.
54 Id.
55 Id.
56 Id.
57 Id.
58 Id.
59 Id. at 12.
60 Id.
61 Id.
62 Id.
63 Id. The ALJ noted that even if the initial January 14, 2006 e-mail to Congressman Reyes was considered to be a complaint, it was filed eleven months after the Respondents constructively terminated his employment and 92 days after Farnham filed his civil suit against the Respondents. Id. at 12, n.42.
64 Id.
65 See 29 C.F.R. § 1980.110(a).
66 See Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1980.110.
67 See 29 C.F.R. § 1980.110(b).
68 Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Getman v. Sw. Sec., Inc., ARB No. 04-059, ALJ No. 2003-SOX-008, slip op. at 7 (ARB July 29, 2005).
69 Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). See also Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-051 (ARB June 29, 2006).
70 5 U.S.C.A. § 557(b) (West 1996).
71 See Getman, slip op. at 7.
72 18 U.S.C.A. § 1514A(b)(2)(D).
73 Accord Hillis v. Knochel Bros., ARB Nos. 03-136, 04-081, 04-148; ALJ No. 2002-STA-050, slip op. at 3 (ARB Oct. 19, 2004); Overall v. Tennessee Valley Auth., ARB Nos. 98-111, 98-128; ALJ No. 1997-ERA-053, slip op. at 40-43 (ARB Apr. 30. 2001).
74 Irwin v. Veterans Administration, 498 U.S. 89, 96 (1990).
75 657 F.2d 16, 19-21 (3d Cir. 1981).
76 15 U.S.C.A. § 2622 (West 2004).
77 Allentown, 657 F.2d at 20 (internal quotations omitted).
78 Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995), quoting Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
79 Baldwin County Welcome Ctr. v. Brown, 446 U.S. 147, 152 (1984).
80 Accord Wilson v. Sec'y, Dep't of Veterans Affairs, 65 F.3d at 404 (complaining party in Title VII case bears burden of establishing entitlement to equitable tolling).
81 Comp't's br. at 26-27.
82 18 U.S.C.A. § 1514A (a).
83 See Olson v. Federal Mine Safety & Health Review Comm'n, 381 F.3d 1007, 1014 (10th Cir. 2004); Moses v. Phelps Dodge Corp., 818 F. Supp. 1287, 1289 (D. Ariz. 1993).
84 Moses, 818 F. Supp. at 1289.
85 C. Ex. A-9 at 6.