Coppinger-Martin v. Solis: 90-Day Whistleblower Time Limit Begins at Firing

In Coppinger-Martin v. Solis, No. 09-73725 (9th Cir. Nov. 30, 2010), the Ninth Circuit Court of Appeals dismissed an employee’s whistleblower claim under the Sarbanes-Oxley Act of 2002 (“SOX”) as untimely filed. 

Carole Coppinger-Martin (“Coppinger-Martin”) was Chief Technical Architect of Nordstrom’s Business Information Systems Strategic Planning Group. During the summer of 2005, she alerted her immediate supervisor that security vulnerabilities in Nordstrom’s information systems exposed the company to potential SEC violations.  Soon after, Coppinger-Martin received an unfavorable work-performance review.  In November 2005, Coppinger-Martin’s supervisor informed her that her job would be eliminated.  She continued working for the company until April 2006. 

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 fired her in retaliation for reporting possible SEC violations.  The whistleblower provision in Sarbanes-Oxley (SOX) required the filing of an administrative complaint with OSHA “not later than 90 days after the date on which the violation occurs.”  18 U.S.C. §1514A(b)(2)(D).  The violation occurs “when the discriminatory decision has been both made and communicated to the complainant.”

After OSHA denied her relief, Coppinger-Martin requested a hearing before an Administrative Law Judge. In March 2007, Nordstrom moved to dismiss Coppinger-Martin’s complaint as untimely. The Administrative Law Judge granted Nordstrom’s motion to dismiss, and Coppinger-Martin petitioned for review with the Department of Labor’s Administrative Review Board (“ARB”). The ARB also held that the complaint was untimely filed. 

The Ninth Circuit held that the ARB properly dismissed Coppinger-Martin’s complaint as untimely and denied her petition for review.  In support of its decision, the court held that a claim accrues when the plaintiff learns of the actual 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."  As a result, the latest possible accrual date was Coppinger-Martin's last day of work, April 21, 2006.  Because Coppinger-Martin filed her complaint on October 13, 2006, more than 90 days after her final day of work, the court held that it had been filed untimely under SOX.

Coppinger-Martin argued that even if her complaint was not filed in time under the 90-day whistleblower doctrine, she should receive an extension of time under the doctrines of equitable tolling and equitable estoppel. The court held that neither of these equitable doctrines applied in Coppinger-Martin’s case.

The primary materials for this post can be found on the DU Corporate Governance website.