Brofford v. PNC Investments LLC (agency decision, February 14, 2019)

Plain-English summary

PNC Investments terminated Jonathan Brofford in November 2012, but he did not file his Consumer Financial Protection Act retaliation complaint until October 2016. That was more than three years and ten months after discharge, far beyond the 180-day deadline. Brofford argued that PNC gave a false, pretextual reason that made him believe the termination was legitimate. The Board held that allegations of pretext alone do not create the exceptional circumstances needed for equitable tolling because that would undermine the filing rule in many whistleblower cases. It found no factual dispute on timeliness, affirmed summary decision, and dismissed the complaint.

Decision snapshot

• Cited authorities: 12 U.S.C. § 5567(c)(1)(A); 29 C.F.R. §§ 18.72(a) and 1985.110(a)
• Outcome: Summary dismissal as untimely affirmed; equitable tolling denied.
• Key point: An allegedly pretextual discharge explanation, without more, does not toll the CFPA's 180-day filing deadline.

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:


  JONATHAN D. BROFFORD,                                ARB CASE NO. 2018-0003

                  COMPLAINANT,                         ALJ CASE NO. 2017-CFP-00002

         v.                                            DATE: February 14, 2019

  PNC INVESTMENTS LLC,

                  RESPONDENT.


  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD

  Appearances:

  For the Complainant:
         Jonathan D. Brofford, pro se, Columbus, Ohio

  For the Respondent:
         Robert S. Whitman, Esq., Seyfarth Shaw LLP, New York, New York; Gary J.
         Lieberman, Esq., Littler Mendelson, P.C., Boston, Massachusetts (on brief)

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


                           FINAL DECISION AND ORDER

         This case arises under the employee protection provision of the Consumer
  Financial Protection Act of 2010, Section 1057 of the Dodd-Frank Wall Street Reform
  and Consumer Protection Act of 2010, 12 U.S.C. § 5567 (2010) (CFPA). On October 5,
  2016, Jonathan D. Brofford filed a complaint with the Occupational Safety and Health
  Administration (OSHA) alleging that PNC Investments LLC (PNC) fired him in
  November 2012 for engaging in CFPA-protected activity. OSHA dismissed the



  complaint as untimely. Brofford requested a hearing on his complaint before an
  Administrative Law Judge (ALJ).

         While Brofford’s case was pending before the ALJ, PNC filed a Motion to
  Dismiss (Motion), with exhibits, arguing that the complaint was untimely. Brofford,
  appearing pro se, responded to the Motion by submitting a document entitled “Response
  to PNCI’s Motion for Summary Dismissal,” with exhibits. On September 21, 2017, the
  ALJ issued a Decision and Order Dismissing Complaint (D. & O.). 1 Brofford has
  appealed the ALJ’s ruling to the Administrative Review Board (ARB).

          The Secretary of Labor has delegated to the ARB the authority to issue final
  agency decisions under the CFPA and its implementing regulations at 29 C.F.R. Part
  1985 (2018). Secretary’s Order No. 2-2012, Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board, 77 Fed. Reg. 69,378; 69,379 (Nov.
  16, 2012); 29 C.F.R. § 1985.110(a). 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). The ARB views
  the record on the whole in the light most favorable to the non-moving party. Stroud v.
  Mohegan Tribal Gaming Auth., ARB Nos. 13-079, 14-013, ALJ Nos. 2013-ACA-003,
  2013-CFP-003, slip op. at 2 (ARB Nov. 26, 2014).

          Under the CFPA, a retaliation complaint must be filed within 180 days of the
  alleged adverse action. 12 U.S.C. § 5567(c)(1)(A). In determining whether the Board
  should permit the adjudication of an otherwise untimely complaint, we have recognized
  four principal situations in which equitable modification of filing deadlines may apply:
  (1) respondent has actively misled the complainant regarding the cause of action; (2)
  complainant has in some extraordinary way been prevented from filing his or her action;
  (3) complainant has raised the precise statutory claim in issue but has done so in the
  wrong forum; and (4) respondent’s own acts or omissions have lulled the complainant
  into foregoing prompt attempts to vindicate his or her rights. Turin v. AmTrust Financial
  Services, Inc., ARB No. 11-062, ALJ No. 2010-SOX-00018, slip op. at 8 (March 29,
  2013).

  1
           Although he did not cite any regulation, the ALJ treated the Motion to Dismiss as a
  motion for summary decision. See, e.g., D. & O. at 2 (“I find there is no genuine issue of material
  fact relative to Complainant’s filing of his claim, that it is time barred, and that Respondent is
  entitled to judgment as a matter of law.”). If matters outside a motion to dismiss and any
  responsive pleading are presented to and not excluded by the administrative law judge, it is
  appropriate to treat the original motion as one for summary decision, see Fed. R. Civ. P. 12(d),
  and analyze the evidence under the framework provided in 29 C.F.R. § 18.72 (2018).



          A review of the record reveals that Brofford filed his complaint over three years
  and ten months after PNC terminated his employment. The ALJ took into consideration
  not only that Brofford was appearing pro se but also that whistleblower limitations
  periods are subject to modification (i.e., equitable tolling) when the untimeliness is the
  result of circumstances beyond the complainant’s control. But ultimately the ALJ held
  that Brofford had failed to establish that he was entitled to an extension of the filing
  period. 2

         On appeal Brofford focuses on what he asserts is PNC’S pretextual basis for his
  termination. Specifically, he asserts that the “reason [for his termination] offered by the
  respondent is utterly false and misled me to falsely believe that PNC fired me for a
  legitimate company policy violation with a universally applied pre-prescribed penalty of
  termination.” Complainant’s Petition for Review at 1.

          We are not persuaded that allegations of a pretextual termination, without more,
  are sufficient to constitute the compelling circumstances that would justify departure
  from the statutory filing deadlines applicable to complaints under the CFPA. Many
  whistleblower complaints allege pretextual termination, and to hold that such allegations
  are sufficient to excuse untimely filing would create an exception that would largely
  swallow the rule requiring timely filing of whistleblower complaints.

          For these reasons, we agree with the ALJ that there is no genuine dispute as to
  any material fact concerning Brofford’s untimely filing and PNC is entitled to decision as
  a matter of law. Our review of the record discloses no ground for an equitable extension
  of the statutory filing deadline of 180 days. We therefore AFFIRM the ALJ’s decision
  and order and this case is hereby DISMISSED.

          SO ORDERED.




  2
           D. & O. at 2 (“There is no evidence in the record to show that Respondents [sic] actively
  misled Complainant, that Complainant was prevented from asserting his rights in some
  extraordinary way, or that Complainant raised the claim in the wrong forum . . . . Complainant
  asserts that the complexity of the banking framework made it impossible for him to conclude that
  he was entitled to whistleblower protections and it was only when the news reported fraud in the
  industry that he learned that his termination could be protected . . . . Complainant focuses on the
  underlying basis of his complaint and fail [sic] to assert evidence that tolling should apply.”).