Rimini v. J.P. Morgan Chase & Company (agency decision, July 31, 2019)

Plain-English summary

Thomas Rimini filed successive Sarbanes-Oxley complaints concerning a 2011 email exchange that he discovered during litigation in October 2016. His December 2017 complaint came 414 days after that discovery, and neither it nor his April 2018 complaint identified an adverse action within the statute's 180-day filing period. The Board found no circumstances beyond Rimini's control that supported equitable tolling and affirmed both dismissals. It consolidated a 2019 complaint based on J.P. Morgan's filings in the pending appeals because the new allegations did not concern facts outside those appeals. Using its special-circumstances authority, the Board also dismissed that complaint three days after issuance.

Decision snapshot

• Cited authorities: 18 U.S.C. § 1514A; 29 C.F.R. § 1980.115
• Outcome: Dismissal of the 2017 and 2018 complaints as untimely affirmed; related 2019 complaint consolidated and dismissed.
• Key point: A SOX complaint must identify an adverse action within 180 days of the filing or the employee's awareness, absent grounds for equitable tolling.

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:


  THOMAS RIMINI,                                   ARB CASE NOS. 2018-0039
                                                                 2018-0070
                  COMPLAINANT,                                   2019-0073

        v.                                         ALJ CASE NOS. 2018-SOX-00010
                                                                 2018-SOX-00023
                                                                 2019-SOX-00033
  J.P. MORGAN CHASE & COMPANY,
                                                   DATE: July 31, 2019
                  RESPONDENT.


  Appearances:

  For the Complainant:
        Thomas Rimini; pro se; Winchester, Massachusetts

  For the Respondent:
        Steven J. Pearlman, Esq., and Edward C. Young, Esq.; Proskauer
        Rose, LLP; Chicago, Illinois

  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, Thomas Rimini, filed retaliation complaints
  under Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002,
  Title VIII of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A (2010) (SOX), as
  amended, and its implementing regulations at 29 C.F.R. Part 1980 (2017, 2018).
  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. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 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.
  18 U.S.C. § 1514A(a)(1). Dispositive here is the statutorily-imposed limitation that a
  SOX complaint “shall be commenced not later than 180 days after the date on which
  the violation occurs, or after the date on which the employee becomes aware of the
  violation.” Id. § 1514A(b)(2)(D). Rimini appeals to the Administrative Review Board
  (ARB or Board) from two decisions of two Department of Labor Administrative Law
  Judges (ALJ) dismissing his SOX complaints as untimely filed. J.P. Morgan Chase
  & Company (the Respondent) opposes these appeals, and gives notice of
  supplemental authority regarding an adjudication of this same matter between
  these same parties which it argues forecloses these appeals. Respondent’s Notices of
  Supplemental Authority (Nov. 9, 2018). Because these complaints are time-barred,
  we affirm the ALJs decisions.

                       JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the ARB the authority to issue final
  agency decisions in review or on appeal of matters arising under the SOX.
  Secretary’s Order 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072-73, §
  (5)(b)(50) (April 3, 2019).

                                      DISCUSSION

          Rimini appeals (ARB No. 2018-0039) from an ALJ’s Order Dismissing
  Complaint (ALJ No. 2018-SOX-00010) (Order). The ALJ ruled that the complaint
  filed in December 2017 was untimely filed and that equitable tolling of the 180-day
  limitations period was inapplicable. Order at 3, n.5. Rimini generally argues that
  equitable tolling of the statutorily-imposed 180-day limitations period should apply
  and asserts that he did not discover evidence of adverse action taken against him in
  November 2011 until receiving the evidence in October 2016 during the





  adjudication of a previous SOX complaint he had filed. 1 Thus, Rimini urges the
  Board to reverse the ALJ’s Order and also alleges bad conduct on the part of the
  Respondent and seeks relief.

         Rimini also appeals (ARB No. 2018-0070) from an ALJ’s Decision and Order
  Granting Respondent’s Motion for Summary Decision and Denying Other Pending
  Motions as Moot)(ALJ Case No. 2018-SOX-00023) (D. & O.) on a complaint filed in
  April 2018. The ALJ’s D. & O. memorialized a bench decision the ALJ made during
  a prior conference call with the parties in which the ALJ ruled that the complaint
  was untimely filed and there was no showing that equitable tolling of the
  statutorily-imposed 180-day limitations period applied. Conference Call Transcript
  (Aug. 29, 2018) at 26-27, 30-31, 33-34, 41–42. Rimini alleges bad conduct on the
  part of the Respondent and seeks relief, but does not address the ALJ’s statute of
  limitations ruling.

          In both appeals, the Respondent urges the Board to affirm the ALJs’
  decisions dismissing the complaints as untimely filed and to enjoin Rimini from
  filing additional related complaints against the Respondent. In addition, the
  Respondent has filed Notices of Supplemental Authority regarding a Judgment of
  the United States Court of Appeals for the First Circuit in Rimini v. JP Morgan
  Securities, LLC, No. 18-1031 (1st. Cir., Nov. 7, 2018)(unpub.). The First Circuit
  Court’s Judgment affirmed a decision of the United States District Court for the
  District of Massachusetts in Rimini v. J.P. Morgan Securities LLC, Civil No. 17-cv-
  10392-LTS (D. Mass. Dec. 13, 2017) that the allegations in Rimini’s complaint at
  issue in that case “were insufficient to state a SOX claim because [Rimini] failed to
  identify any adverse employment action that occurred within the 180-day statutory
  window.”. 2 Based on the First Circuit’s Judgment, the Respondent argues that res
  judicata bars consideration of whether Rimini’s complaints at issue here are time-
  barred.



  1      See Rimini v. J.P. Morgan Chase & Co., ALJ No. 2015-SOX-00034 (ALJ Jan. 18,
  2017) (Decision and Order Granting Respondent’s Motion for Summary Decision) and (ALJ
  Feb. 24, 2017) (Order Denying Complainant’s Motion for Reconsideration) (Rimini I).

  2      We take judicial notice that the First Circuit Court, in accordance with its Judgment
  issued on November 7, 2018, issued a Mandate on July 25, 2019. See Rimini v. JP Morgan
  Securities, LLC, No. 18-1031 (1st. Cir., July 25, 2019)(unpub. Mandate).



         The relevant timeline is as follows:

  November 8, 2011           Respondent’s employees exchange emails about Rimini

  July 2015                  Rimini files a SOX complaint (Rimini I)

  October 25, 2016           Respondent produces the November 8, 2011, email
                             exchange during discovery in Rimini I. Rimini relies on
                             the email exchange to allege he suffered adverse
                             employment action

  January 18, 2017           ALJ in Rimini I finds no actionable adverse action and
                             grants motion for summary decision as July 2015
                             complaint is time-barred (ALJ No. 2015-SOX-00034)

  March 8, 2017              Rimini removes matter in Rimini I to United States
                             District Court

  December 13, 2017          United States District Court dismisses July 2015
                             complaint as time-barred

  December 13, 2017          Rimini files SOX complaint (Rimini II) 414 days after
                             October 25, 2016, discovery of November 8, 2011, email
                             exchange

  November 7, 2018           First Circuit Court affirms United States District Court
                             dismissal of July 2015 complaint (Rimini I)

  April 3, 2018              ALJ in Rimini II issues Order finding no actionable
                             adverse action and dismissing December 2017 complaint
                             as time-barred (ALJ No. 2018-SOX-00010)

  April 3, 2018              Rimini appeals (ARB No. 2018-0039) (Rimini II).

  April 13, 2018             Rimini files SOX complaint (Rimini III)

  August 29, 2018            ALJ in Rimini III issues D. & O. granting summary
                             decision finding no actionable adverse action and April
                             2018 complaint is time-barred (ALJ No. 2018-SOX-00023)

  August 30, 2018            Rimini appeals (ARB No. 2018-0070) (Rimini III)





  April 2, 2019              Rimini files a SOX complaint (Rimini IV) in order to
                             amend his “earlier complaints” or to “make a new
                             complaint” that the Respondent made false statements in
                             its Notices of Supplemental Authority filings to the ARB

  June 24, 2019              ALJ in Rimini IV transmits the case (ALJ No. 2019-SOX-
                             00033) to the ARB to be consolidated with Rimini’s appeal
                             in Rimini III (ARB No. 2018-0070) as Rimini’s complaint
                             “counter[s] the Respondent’s filings” submitted to the
                             ARB in Rimini III “and do not allege any new facts
                             outside of the administrative appeal

  July 26, 2019              ALJ in Rimini IV denies Rimini’s request for
                             reconsideration as there has been no mistake of law or
                             fact, nor any other sufficient ground to warrant
                             reconsideration

         We consider the threshold determination of timeliness based on the
  statutorily-imposed 180-day limitations period. An employee alleging employer
  retaliation in violation of the SOX must demonstrate that he suffered an adverse
  employment action which occurred within the statutorily-imposed 180-day
  limitations period preceding the filing of the complaint alleging such a violation.
  Therefore, an employee must file a complaint within 180-days after the occurrence
  of the SOX violation or when the employee becomes aware of it. 18 U.S.C. §
  1514A(b)(2)(D).

          Application of the 180-day statutory limitations period bars relief for Rimini.
  In neither of Rimini’s 2017 or 2018 complaints did Rimini demonstrate that he
  suffered an adverse employment action which occurred either within 180-days of
  the filing of his complaints alleging a SOX violation or within 180-days of his
  becoming aware of the violation.

         Moreover, the ALJs took into consideration not only that Rimini was
  appearing pro se but also that the statutory limitations period is subject to
  equitable tolling when the untimeliness of the complaint is the result of
  circumstances beyond the complainant's control. But ultimately the ALJs held that
  Rimini failed to put forth or establish any basis that he was entitled to equitable
  tolling of the statutory limitations period. Our review of the record discloses no





  ground for equitable tolling of the statutory limitations period deadline of 180
  days. 3

        In addition, Rimini’s most recent 2019 complaint arose in light of the
  pleadings filed in conjunction with his appeals at issue here involving his prior 2017
  and 2018 complaints. Thus, in the interest of judicial and administrative economy,
  and to avoid the inefficient piecemeal litigation of SOX complaints, 4 we consolidate
  Rimini’s 2019 complaint in Rimini IV (ALJ No. 2019-SOX-00033) with Rimini’s
  appeal in Rimini III (ARB No. 2018-0070) pursuant to the ALJ’s transmittal of that
  complaint to the Board. 5 For the reasons stated above, Rimini’s 2017 and 2018
  complaints fail as a matter of law as they are time-barred under 18 U.S.C. §
  1514A(b)(2)(D). 6 Accordingly, we AFFIRM the decisions below and, therefore,
  Rimini’s 2017 and 2018 complaints are DISMISSED as untimely filed.

         As to the complaint in Rimini IV, the procedures for the handling of
  discrimination complaints under Section 806 of the SOX, 29 C.F.R. § 1980.115
  provide the following:

         In special circumstances not contemplated by the provisions of this
         part, or for good cause shown, the . . . Board on review may, upon
         application, after three days’ notice to all parties and interveners,
         waive any rule or issue any orders that justice or the administration of
         the Act requires.

  3       See Brofford v. PNC Investments LLC, ARB No. 18-0003, ALJ No. 2017-CFP-00002,
  slip op. at 2-3 (ARB Feb. 14, 2019).

  4     See generally Jordan v. Sprint Nextel Corp., ARB Nos. 10-113, 11-020, ALJ Nos.
  2006-SOX-098, 2010-SOX-050, slip op. at 4-5 (ARB June 29, 2012).

  5      See Harvey v. Home Depot U.S.A., Inc., ARB Nos. 04-114, 04-115; ALJ Nos. 2004-
  SOX-020, -036; slip op. at 6 (ARB June 2, 2006). See also Federal Rule of Civil Procedure
  42(a):

         If actions before the court involve a common question of law or fact, the court
         may: 1) join for hearing or trial any or all matters at issue in the actions; (2)
         consolidate the actions; or 3) issue any other orders to avoid unnecessary cost
         or delay.

  6      In light of our decision, we need not reach the Respondent’s argument raised in its
  Notices of Supplemental Authority that res judicata bars consideration of Rimini’s 2017 and
  2018 complaints at issue here.



  29 C.F.R. § 1980.115 (emphasis added). Consequently, pursuant to our authority
  under 29 C.F.R. § 1980.115, and for good cause shown, we hereby place the parties
  on notice that because Rimini’s 2019 complaint in Rimini IV arises from pleadings
  filed in conjunction with his appeals at issue here involving his prior 2017 and 2018
  complaints, and as those complaints are time-barred under 18 U.S.C.
  § 1514A(b)(2)(D), Rimini’s 2019 complaint is also DISMISSED three days from the
  issuance of this decision and order.

  SO ORDERED.