Brooks v. Agate Resources, LLC (agency decision, March 25, 2019)

Plain-English summary

Michael Brooks alleged that Agate Resources discharged him for protected activity and later threatened him and his son. His employment ended on September 27, 2013, but he did not file the Department of Labor complaint until April 4, 2016. The ALJ granted summary decision to the company, finding the complaint untimely and equitable tolling unavailable. The Board found no genuine dispute of material fact on either point. It adopted the ALJ's reconsideration order and affirmed dismissal.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. § 18.72(a)
• Outcome: Summary dismissal as untimely affirmed; equitable tolling denied.
• Key point: The record presented no factual dispute that the SOX complaint was late or basis to toll its filing period.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:

  MICHAEL BROOKS,                                   ARB CASE NO.   2017-0033

                  COMPLAINANT,                      ALJ CASE NO.   2016-SOX-00037

         v.                                         DATE: March 25, 2019

  AGATE RESOURCES, LLC,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Michael Brooks; pro se; Coburg, Oregon; and Marianne Dugan, Esq.;
        Eugene, Oregon

  For the Respondent:
        Carolyn D. Walker, Esq.; Reilley D. Keating, Esq.; and Brianne L.
        Bridegum, Esq.; Stoel Rives LLP; Portland, Oregon

    Before: William T. Barto, Chief Administrative Appeals Judge; James A.
            Haynes and Daniel T. Gresh, Administrative Appeals Judges



                          FINAL DECISION AND ORDER

         PER CURIAM. The Complainant, Michael Brooks, filed a retaliation
  complaint under 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)



  and its implementing regulations, 29 C.F.R. Part 1980 (2018). Complainant alleged
  that his former employer, Agate Resources, LLC, violated the SOX whistleblower
  protection provisions by discharging him on September 27, 2013, because he
  engaged in protected activity and by engaging in post-termination threats against
  him and his son.

        Complainant filed his initial complaint of unlawful retaliation with the
  United States Department of Labor’s Occupational Safety and Health
  Administration on April 4, 2016. On March 6, 2017, the ALJ granted Respondent’s
  motion for summary decision, holding that Complainant failed to file a timely
  complaint and that equitable tolling of the untimely complaint did not apply.
  Complainant filed a petition requesting that the Administrative Review Board
  (ARB or the Board) review the ALJ’s order. We affirm.



                        JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the Board his authority to act on
  appeal from ALJ decisions arising under the SOX and issue final agency decisions
  in those matters. 1 The ARB reviews an ALJ’s grant of summary decision de novo
  under the same standard the ALJ applies. Summary decision is permitted where
  “there is no genuine dispute as to any material fact and the movant is entitled to
  decision as a matter of law.” 29 C.F.R. § 18.72(a) (2018). On summary decision, we
  review the record on the whole in the light most favorable to the non-moving party.
  Micallef v. Harrah’s Ricon Casino & Resort, ARB No. 2016-0095, ALJ No. 2015-
  SOX-00025, slip op. at 3 (ARB July 5, 2018).




  1     Secretary’s Order No. 02-2012 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 77 FR 69378-01 (Nov. 16, 2012).




                                   CONCLUSION

         The ALJ’s decision is in accordance with law. For the reasons stated by the
  ALJ, there is no genuine issue of material fact that Brooks’s complaint was
  untimely and that equitable tolling does not apply. Accordingly, we adopt the ALJ’s
  well-reasoned Order Granting Summary Decision on Reconsideration and attach a
  copy hereto.

         SO ORDERED.