FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLE COPPINGER-MARTIN,
Petitioner,
NORDSTROM, INC.,
Intervenor, No. 09-73725
v. LABR No.
07-067
HILDA L. SOLIS, Secretary Of
Labor; UNITED STATES DEPARTMENT OPINION
OF LABOR ADMINISTRATIVE REVIEW
BOARD,
Respondents.
On Petition for Review of an Order of the
Department of Labor
Argued and Submitted
October 8, 2010—Seattle, Washington
Filed November 30, 2010
Before: Sidney R. Thomas and Milan D. Smith, Jr.,
Circuit Judges, and Raner C. Collins, District Judge.*
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
18993
18996 COPPINGER-MARTIN v. SOLIS
COUNSEL
Cecilia A. Cordova, Connell, Cordova, Hunger & Gautschi,
PLLC, Seattle, Washington, for the petitioner.
COPPINGER-MARTIN v. SOLIS 18997
Seema K. Patel, United States Department of Labor, Office of
the Solicitor, Washington, DC, for the respondent.
Ryan P. McBride, Lane Powell, PC, Seattle, Washington, for
the intervenor.
OPINION
M. SMITH, Circuit Judge:
Carole Coppinger-Martin alleges that Nordstrom, Inc. vio-
lated the whistleblower-protection provision of the Sarbanes-
Oxley Act of 2002 (SOX), 18 U.S.C. § 1514A, by terminating
her employment in retaliation for her reporting to supervisors
conduct she believed violated the rules and regulations of the
Securities and Exchange Commission (SEC). She petitions for
review of the final order of the United States Department of
Labor’s Administrative Review Board (ARB) that dismissed
her complaint as untimely filed. We have jurisdiction under
18 U.S.C. § 1514A(b)(2)(A) and 49 U.S.C. § 42121(b)(4).
We conclude that the ARB properly dismissed Coppinger-
Martin’s complaint as untimely. We therefore deny the peti-
tion for review.
FACTUAL AND PROCEDURAL BACKGROUND
Nordstrom hired Coppinger-Martin as Chief Technical
Architect of its Business Information Systems Strategic Plan-
ning Group in May 1999. In the summer of 2005, Coppinger-
Martin reported to her immediate supervisor, Dan Little, that
she believed security vulnerabilities in Nordstrom’s informa-
tion systems exposed the company to potential SEC viola-
tions. Although Coppinger-Martin previously had received
favorable work-performance reviews, she received an unfa-
vorable evaluation shortly after she made her report. On
18998 COPPINGER-MARTIN v. SOLIS
November 14, 2005, Little informed Coppinger-Martin that
Nordstrom was eliminating her job duties and that there were
no other opportunities for her in the company. Although Little
originally told Coppinger-Martin that her employment with
Nordstrom would end in January 2006, she continued to work
for the company until April 21, 2006. On May 22, 2006,
Coppinger-Martin’s attorney contacted Nordstrom’s general
counsel to discuss her severance agreement and possible
claims against Nordstrom.
Coppinger-Martin’s complaint alleges that on July 19,
2006, a Nordstrom employee informed her that other employ-
ees were performing many of her former job duties. At that
time, Coppinger-Martin alleges, she “for the first time real-
ized that the elimination of her job may have been retaliatory
for reporting her SEC concerns to Little and other Nordstrom
senior management.” In August 2006, another Nordstrom
employee confirmed to Coppinger-Martin that other employ-
ees were performing her former job duties.
On October 13, 2006, Coppinger-Martin filed a whistle-
blower action under SOX with the Occupational Safety and
Health Administration (OSHA), alleging that Nordstrom had
terminated her employment in retaliation for reporting the
potential SEC violations. OSHA denied her relief, and in Jan-
uary 2007, Coppinger-Martin requested a hearing before an
Administrative Law Judge (ALJ).
In March 2007, Nordstrom moved to dismiss Coppinger-
Martin’s complaint as untimely. The complaint claimed that
the 90-day statute of limitations for filing her complaint began
to run on July 19, 2006, the date Coppinger-Martin first
learned that her duties had not been eliminated. Nordstrom
argued, however, that the statute of limitation began to run in
mid-November 2005, when Nordstrom informed Coppinger-
Martin that she was being terminated, or, in the alternative, on
April 21, 2006, her last day of employment. In either case,
Nordstrom contended, her October 13, 2006, complaint was
COPPINGER-MARTIN v. SOLIS 18999
untimely filed. In response, Coppinger-Martin argued that
Nordstrom’s misrepresentation or concealment of facts
regarding the alleged retaliatory motivation for her termina-
tion tolled the accrual date of her claim.
The ALJ granted Nordstrom’s motion to dismiss the com-
plaint, and Coppinger-Martin petitioned for review with the
ARB. The ARB ordered the complaint dismissed, concluding
that the record supported the ALJ’s finding that the complaint
was untimely filed, and that Coppinger-Martin had not estab-
lished that she was entitled to equitable tolling or equitable
estoppel. Coppinger-Martin timely petitioned for review.
Our review of the ARB’s decision is governed by the stan-
dard established in the Administrative Procedure Act, 5
U.S.C. § 706. See 49 U.S.C. § 42121(b)(4)(A); 18 U.S.C.
§ 1514A(b)(2)(A) (adopting the rules and procedures set out
in 49 U.S.C. § 42121(b)). Under that standard, we will reverse
an agency’s decision only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
DISCUSSION
1. Claim Accrual Under the Sarbanes-Oxley Act of 2002
[1] SOX grants “whistleblower” protection to employees
of publicly-traded companies by prohibiting employers from
retaliating against employees for reporting certain potentially
unlawful conduct. 18 U.S.C. § 1514A. The whistleblower-
protection provision provides, in relevant part:
No [publicly-traded company], or any officer,
employee, contractor, subcontractor, or agent of such
company, may discharge, demote, suspend, threaten,
harass, or in any other manner discriminate against
an employee in the terms and conditions of employ-
ment because of any lawful act done by the
19000 COPPINGER-MARTIN v. SOLIS
employee . . . to provide information . . . regarding
any conduct which the employee reasonably believes
constitutes a violation of section 1341 [mail fraud],
1343 [wire fraud], 1344 [bank fraud], or 1348
[securities fraud], any rule or regulation of the
[SEC], or any provision of Federal law relating to
fraud against shareholders, when the information . . .
is provided to . . . a person with supervisory author-
ity over the employee . . . .
Id. § 1514A(a)(1)(C).
[2] A plaintiff seeking whistleblower protection under
SOX must first file an administrative complaint with OSHA,
see 29 C.F.R. § 1980.103(c), “not later than 90 days after the
date on which the violation occurs,” 18 U.S.C.
§ 1514A(b)(2)(D); see also 29 C.F.R. § 1980.103(d). The vio-
lation occurs “when the discriminatory decision has been both
made and communicated to the complainant.” 29 C.F.R.
§ 1980.103(d). We commence our analysis by considering
whether the discriminatory decision was made and communi-
cated to Coppinger-Martin when she learned that her employ-
ment was being terminated, or when she learned that other
employees had continued to perform her former duties.
[3] We have previously held, in the context of civil rights
claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, that
a plaintiff’s claim accrues when the plaintiff learns of the “ac-
tual injury,” i.e., an adverse employment action, and not when
the plaintiff suspects a “legal wrong,” i.e., that the employer
acted with a discriminatory intent. Lukovsky v. City & Cnty.
of S.F., 535 F.3d 1044, 1049-51 (9th Cir. 2008), cert. denied
sub nom., Zolotarev v. City & Cnty. of S.F., 129 S. Ct. 1997
(2009). Our sister circuits agree, in a variety of employment
discrimination contexts, that a claim accrues when a plaintiff
discovers the injury rather than the legal wrong.1
1
See, e.g., Amini v. Oberlin Coll., 259 F.3d 493, 500 (6th Cir. 2001)
(Title VII and Age Discrimination in Employment Act (ADEA)); Thelen
COPPINGER-MARTIN v. SOLIS 19001
[4] Coppinger-Martin’s claim similarly accrued, and the
statute of limitations began to run, when she learned of the
actual injury, i.e., that Nordstrom had decided to terminate her
employment. Although Little originally told Coppinger-
Martin that her employment with Nordstrom would end ear-
lier, she continued to work for the company until April 21,
2006. Even if the decision to terminate her employment was
initially unclear, it was unquestionably communicated to her
by her final day of work. Nevertheless, Coppinger-Martin
filed her complaint on October 13, 2006, more than 90 days
after her final day of work. Therefore, unless the date of
accrual was tolled, her complaint was filed untimely.
2. Equitable Tolling
[5] Coppinger-Martin contends that equitable tolling
should extend the filing period because she was not aware of
Nordstrom’s retaliatory motive until July 19, 2006, when she
learned that other Nordstrom employees were performing
many of her former job duties. “Equitable tolling may be
applied if, despite all due diligence, a plaintiff is unable to
obtain vital information bearing on the existence of his
claim.” Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th
Cir. 2000). Equitable tolling does not depend on the defen-
dant’s wrongful conduct; rather, it focuses on whether the
plaintiff’s delay was excusable. Id. “If a reasonable plaintiff
would not have known of the existence of a possible claim
within the limitations period, then equitable tolling will serve
to extend the statute of limitations for filing suit until the
plaintiff can gather what information he needs.” Id.
v. Marc’s Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995) (ADEA); Dring
v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1995)
(ADEA); Hulsey v. Kmart, Inc., 43 F.3d 555, 558-59 (10th Cir. 1994)
(ADEA); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1386 (3d Cir. 1994) (Title VII); Merrill v. S. Methodist Univ., 806 F.2d
600, 605 (5th Cir. 1986) (Title VII).
19002 COPPINGER-MARTIN v. SOLIS
[6] Coppinger-Martin’s equitable tolling argument fails for
two reasons. First, Coppinger-Martin is charged with con-
structive knowledge of the law’s requirements once she
retained counsel. “[O]nce a claimant retains counsel, tolling
ceases because she has gained the means of knowledge of her
rights and can be charged with constructive knowledge of the
law’s requirements.” Leorna v. U.S. Dep’t of State, 105 F.3d
548, 551 (9th Cir. 1997) (internal quotation marks and cita-
tion omitted). Shortly after her termination, Coppinger-Martin
hired an attorney, and her attorney contacted Nordstrom’s
general counsel on May 22, 2006, to discuss her severance
agreement and possible claims against Nordstrom. Thus, even
if equitable tolling could be properly applied, it would have
ceased by May 22, 2006, at the latest.
[7] Second, under the burden-shifting framework of the
SOX whistleblower-protection provision, Coppinger-Martin
had sufficient information to make out a prima facie case by
April 21, 2006, when the decision to terminate her employ-
ment had unquestionably been made and communicated to
her. “Equitable tolling may not be invoked by a[ ] . . . plaintiff
who, within the limitations period, has sufficient information
to know of the possible existence of a claim.” Santa Maria,
202 F.3d at 1179.
To make a prima facie showing under the whistleblower-
protection provision of SOX, an employee’s complaint must
allege that (1) the employee engaged in protected activity; (2)
the employer knew, actually or constructively, of the pro-
tected activity; (3) the employee suffered an unfavorable per-
sonnel action; and (4) the circumstances raise an inference
that the protected activity was a contributing factor in the per-
sonnel action. 29 C.F.R. § 1980.104(b)(1). If the employee
makes a prima facie showing, the burden shifts to the
employer to rebut the employee’s prima facie case by demon-
strating by clear and convincing evidence that the employer
would have taken the same personnel action in the absence of
the protected activity. See 49 U.S.C. § 42121(b)(2)(B)(ii); 18
COPPINGER-MARTIN v. SOLIS 19003
U.S.C. § 1514A(b)(2)(C) (adopting the burdens of proof set
out in 49 U.S.C. § 42121(b)).
[8] To the extent Coppinger-Martin argues that she needed
additional proof of Nordstrom’s motivation in terminating her
employment, her argument fails. A prima facie case does not
require that the employee conclusively demonstrate the
employer’s retaliatory motive. See, e.g., Gay v. Waiters’ &
Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 546
n.11 (9th Cir. 1982) (distinguishing between prima facie and
conclusive proof of discriminatory intent). Rather, the
employee need only make “a prima facie showing that pro-
tected behavior or conduct was a contributing factor in the
unfavorable personnel action alleged in the complaint.” 29
C.F.R. § 1980.104(b).
[9] Coppinger-Martin’s complaint contains allegations that
satisfy her required prima facie showing for a SOX claim.
Specifically:
[T]he circumstances surrounding her termination
raise the inference that her protected activity was at
the very least a contributing factor in the decision to
terminate her—the timing of notice of her termina-
tion after engaging in the protected activity and the
dramatic change in her good evaluations before
engaging in her protected activity compared to her
unfavorable evaluation after engaging in the pro-
tected activity followed by her termination of
employment from the Company.
Coppinger-Martin had notice by the time of the adverse
employment action, that is, by April 21, 2006, at the latest, as
to the underlying facts of each allegation of her complaint,
including the timing of the notice of her termination and her
poor work-performance evaluations. Equitable tolling there-
fore does not extend the accrual period for the filing of her
complaint.
19004 COPPINGER-MARTIN v. SOLIS
3. Equitable Estoppel
[10] Coppinger-Martin also contends that equitable estop-
pel should prevent Nordstrom from asserting a statute of limi-
tations defense because Nordstrom fraudulently concealed its
motive in terminating her employment. “Equitable estoppel
focuses primarily on the actions taken by the defendant in pre-
venting a plaintiff from filing suit . . . .” Santa Maria, 202
F.3d at 1176. Equitable estoppel may be invoked “if the
defendant takes active steps to prevent the plaintiff from suing
in time,” id. at 1176 (quoting Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450 (7th Cir. 1990)), such as by misrep-
resenting or concealing facts necessary to the discrimination
claim, id. at 1177. Equitable estoppel is also sometimes
referred to as “fraudulent concealment.” Id. at 1176; Guerrero
v. Gates, 442 F.3d 697, 706 (9th Cir. 2006).
[11] Coppinger-Martin’s equitable estoppel argument fails
because her “alleged basis for equitable estoppel is the same
as [her] cause of action.” Lukovsky, 535 F.3d at 1052. “As we
have previously explained, the plaintiff must point to some
fraudulent concealment, some active conduct by the defendant
‘above and beyond the wrongdoing upon which the plaintiff’s
claim is filed, to prevent the plaintiff from suing in time.’ ” Id.
(quoting Guerrero, 442 F.3d at 706) (emphasis in Lukovsky).
In Lukovsky v. City & County of San Francisco, we rejected
a nearly-identical argument on the ground that the plaintiffs
had failed to allege any fraudulent concealment or misrepre-
sentation beyond the actual basis for the lawsuit. Id. Specifi-
cally, in Lukovsky, the plaintiffs contended that the defendants
had concealed their discriminatory motive in failing to hire
them and in giving preferential treatment to unqualified Asian
and Filipino applicants. Id. at 1047. We held that equitable
estoppel did not apply, and quoted the Seventh Circuit’s rea-
soning with approval :
If [defendant] had told [plaintiff] that it would not
plead the statute of limitations as a defense to any
COPPINGER-MARTIN v. SOLIS 19005
suit for age discrimination that he might bring, this
would be a case for equitable estoppel; so also if
[defendant] had presented [plaintiff] with forged
documents purporting to negate any basis for sup-
posing that [plaintiff’s] termination was related to
his age. [Plaintiff] tries to bring himself within the
doctrine by contending that [stated reason for termi-
nation] was a ruse to conceal the plan to fire him
because of his age. This merges the substantive
wrong with the tolling doctrine. . . . It implies that
a defendant is guilty of fraudulent concealment
unless it tells the plaintiff, “We’re firing you because
of your age.” It would eliminate the statute of limita-
tions . . . .
Id. at 1052 (alterations in original) (quoting Cada, 920 F.2d
at 451). We also noted that the plaintiffs “do not point to any
misrepresentation by the Defendants that concealed the com-
position of the applicant pool, the qualifications of those actu-
ally hired, or any promise by which the Defendants
discouraged plaintiffs from timely asserting their rights.” Id.
[12] Similarly, Coppinger-Martin’s attempt to invoke equi-
table estoppel “merges the substantive wrong with the tolling
doctrine.” Cada, 920 F.2d at 451. Coppinger-Martin does not
allege that Nordstrom hid evidence, promised not to plead the
statute of limitations, or otherwise engaged in some miscon-
duct separate from her claim for retaliatory discharge. She
argues only that Nordstrom failed to reveal its retaliatory
motive, the very conduct upon which her claim is founded.
Because Nordstrom’s alleged misrepresentation did not pre-
clude her from knowing or discovering the requisite elements
of her prima facie case, equitable estoppel does not provide
relief to Coppinger-Martin.
CONCLUSION
We hold that the ARB did not err in dismissing Coppinger-
Martin’s complaint as untimely filed.
PETITION FOR REVIEW DENIED.