ARB CASE NO. 05-111
ALJ CASE NO. 05-STA-020
DATE: August 30, 2007
In the Matter of:
PAUL A. MILLER,
COMPLAINANT,
v.
BASIC DRILLING COMPANY,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Paul A. Miller, pro se, Las Vegas, Nevada
For the Respondent:
Mark Harambasic, pro se, Apache Junction, Arizona
ORDER OF REMAND
Paul A. Miller filed
a complaint under the employee protection provisions of the Surface
Transportation Assistance Act of 1982 (STAA), as amended and recodified, 49
U.S.C.A. § 31105 (West 2007),[1]
and its implementing regulations at 29 C.F.R. Part 1978
[Page 2]
(2006). Miller
alleged that his employer, Basic Drilling Company (Basic), violated the STAA
when it terminated his employment on September 9, 2003.
A Department of
Labor (DOL) Administrative Law Judge (ALJ) issued a Recommended Decision and
Order (R. D. & O.) dismissing Miller’s complaint as untimely filed. This case is before the Administrative Review Board (ARB)
pursuant to the STAA’s automatic review procedure. 29 C.F.R. § 1978.109(a). Because
the ALJ committed legal error, we vacate his recommended decision and
remand for further proceedings.
Background
Miller began work for
Basic as a truck driver on June 25, 2003, and was fired on September 9, 2003,
after refusing to drive a truck he considered unsafe. Miller filed a complaint
on September 16, 2004, with the San Francisco regional office of DOL’s
Occupational Safety and Health Administration (OSHA). He stated in his complaint
that after being fired in September 2003, he contacted the Arizona Department
of Occupational Safety and Health (ADOSH) and left a message for a Clarence
Mason detailing his situation. He also called the Arizona Department of Public
Safety, and was told the matter would be looked into and a return call made.
OSHA denied
Miller’s claim as untimely. Miller requested a hearing, and on March 4, 2005, the
ALJ issued a “Notice of Assignment and Deadline for Filing Motions Based on the
Statute of Limitations.”
In response to
the Notice, Miller submitted a March 11, 2005 letter to the ALJ stating that he
talked with Clarence Mason at ADOSH for 15 minutes on September 15, 2003.
Miller stated that Mason took his name and telephone number and said he would
get back to Miller. He also asserted that he called the “regular OSHA number
at (800) 356-4674, the Arizona Department of Transportation (ADOT), and the
state public safety department. Miller added that he had called “all of these
agencies” between the hours of 9:00 a.m. and 12:00 p.m. “whenever I could get
through” on the first Monday of every month since October of 2003, but no one
ever returned his calls or contacted him by mail. Miller stated that in August
2004 an ADOT spokesman told him to file a complaint with the San Francisco OSHA
office (which he did on September 16, 2004). Finally, Miller reported that he
had been in regular contact with a staff member in a Congressman’s office in Mesa, Arizona since October 2004.
Basic’s vice-president,
Mark Harambasic, disputed Miller’s statement that he had been fired for
refusing to drive an unsafe truck and requested that Miller’s complaint be
dismissed as untimely filed in a response by letter to the ALJ’s Notice,. Miller
did not respond to Harambasic’s letter. On June 7, 2005, the ALJ dismissed Miller’s
complaint as untimely filed.
[Page 3]
Jurisdiction and Standard of Review
By authority of 49 U.S.C.A. § 31105(b)(2)(C), the Secretary
of Labor has delegated her jurisdiction to decide this matter to the
Administrative Review Board (ARB). See Secretary’s Order 1-2002, 67
Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. §
1978.109(c)(2004).
In reviewing the
ALJ’s conclusions of law, the ARB, as the designee of the Secretary of Labor,
acts with “all the powers [the Secretary] would have in making the initial
decision . . . .” 5 U.S.C.A. § 557(b) (West 2004). Therefore, we review the
ALJ’s conclusions of law de novo. Monde v. Roadway Express, Inc., ARB
No. 02-071, ALJ Nos. 01-STA-022, 029, slip op. at 2 (ARB Oct. 31, 2003).
Discussion
Employees
alleging employer retaliation in violation of the STAA must file their
complaints within 180 days after the alleged violation occurred. 49 U.S.C.A. §
31105(b)(1). The STAA’s implementing regulations provide that complaints must
be filed with DOL’s OSHA.[2]
No particular
form of complaint is required, 29 C.F.R. § 1978.102(b),[3] but the complaint should be filed with the OSHA Area Director
responsible for enforcement actions in the area where the employee resides. 29
C.F.R. § 1978.102(c). Nonetheless, filing with any
OSHA officer or employee is sufficient, as long as the
complaint is filed within 180 days of the alleged STAA violation. 29
C.F.R. § 1978.102(d)(1).
The STAA
limitations period is not jurisdictional and therefore is subject to waiver,
estoppel, and equitable tolling. Hillis v. Knochel Bros., ARB Nos.
03-136, 04-081, 148; ALJ No. 02-STA-050, slip op. at 4 (ARB Mar. 31, 2006).
[Page 4]
Because a major purpose of the 180-day period is to allow the Secretary to
decline to entertain complaints that have become stale, complaints not filed
within 180 days of an alleged violation will ordinarily be considered untimely.
29 C.F.R. § 1978.102(d)(2). The regulation provides for extenuating
circumstances that
will justify tolling of the 180-day period, such as when the employer has
concealed or misled the employee regarding the grounds for discharge or other
adverse action or when the discrimination is in the nature of a continuing
violation. 29 C.F.R. § 1978.102(d)(3). However, the filing of a
complaint seeking remedies other than those available under the STAA with another agency does not justify
tolling of the 180-day period. Id. See also Hillis, slip op. at
4-7.
In this case,
the ALJ indicated that Miller made a verbal complaint to ADOSH within the
180-day limitations period. However, he found that Miller’s contacts with
ADOSH and ADOT could not satisfy the 180-day limitations requirement because
neither agency’s employees were OSHA employees. R. D. & O. at 2. The ALJ
took official notice that the “regular OSHA number” that Miller claimed to have
called was in fact a toll-free number for the National Institute for
Occupational Safety and Health (NIOSH). He determined that because NIOSH was not
part of OSHA, Miller’s calls could not meet the 180-day requirement. Finally,
the ALJ found that Miller’s contact with the congressman’s office occurred more
than a year after the alleged STAA violation and therefore could not meet the
filing limitation. R. D. & O. at 2-3.
While the ALJ
concluded that Miller’s complaint was untimely filed, he did not specifically
address the equitable tolling factors. This constitutes legal error, requiring
remand. See Hillis, slip op. at 7-9 (ARB applied equitable tolling
factors and tolled the time between when the complainant filed in the wrong
forum and the time he was told it was the wrong forum but, ultimately, Hillis
failed to file with the proper agency, OSHA, in a timely manner once he had
notice that he was in the wrong forum).
As a general
matter, in determining whether equity requires the tolling of a statute of
limitations, the ARB is guided by the principles that courts have applied to
cases with statutorily-mandated filing deadlines. Howell v. PPL Servs.,
Inc., ARB No. 05-094, ALJ No. 05-ERA-014, slip op. at 4 (Feb. 28, 2007). Accordingly,
the Board has recognized three situations in which tolling is proper:
(1) [when] the respondent has actively misled the complainant respecting
the cause of action,
(2) the complainant
has in some extraordinary way been prevented from asserting his rights, or
(3) the complainant
has raised the precise statutory claim in issue but has mistakenly done so in
the wrong forum.
See School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981) (citations omitted).
In Hillis,
the ARB explained that, with respect to raising a claim in the wrong forum, the
phrase “filing with another agency” in section 1978.102(d)(3) refers to
[Page 5]
complaints filed “regarding the same general subject with another agency,”
i.e., the pursuit of alternative remedies with agencies having jurisdiction to
award relief under statutes other than the STAA.” Slip op. at 6. The ARB thus
held that the regulation’s reference to “filing with another agency” did not
preclude equitable tolling when a complainant has filed a STAA complaint in the
wrong forum. Slip op. at 7.
When seeking
equitable tolling of a statute of limitations, the complainant bears the burden
of demonstrating the existence of circumstances supporting tolling. Herchak
v. America W. Airlines, Inc., ARB No. 03-057, ALJ No. 2002-AIR-012, slip
op. at 5 (ARB May 14, 2003), citing Wilson v. Sec’y, Dep’t of Veterans
Affairs, 65 F.3d 402, 404 (5th Cir. 1995) (complaining party in Title VII
case bears burden of establishing entitlement to equitable tolling). The
complainant must prove that he mistakenly “filed” the precise statutory claim
in issue in the wrong forum, but within the filing period. Immanuel v.
Wyoming Concrete Indus., Inc., 95-WPC-003, slip op. at 3 (ARB May 28,
1997). Further, courts “‘have generally been much less forgiving in receiving
late filings where the claimant failed to exercise due diligence in preserving
his legal rights.’” Herchak, slip op. at 4-5.
In this case,
Miller stated in his complaint that he left a message for Clarence Mason of
ADOSH and “detailed” the situation regarding his firing in September 2003.
Miller also stated that he contacted the state public safety department and was
told that the matter would be looked into and he would receive a return call. Miller
added: “As I know how slow the government works, I have been waiting until I
called your office,” (referring to his August 2004 telephone call to the OSHA
office in San Francisco).
Further, Miller
asserted in his March 11, 2004 letter that he talked with Mason, who took his
name and telephone number and said he would get back to him. Miller added that
during his monthly telephone calls to the state agencies he was told that a
representative would be contacting him but he never got a response. He
complained that he had “received the run around since the beginning.” It
appears that he was not told that he was in the wrong forum until September 14,
2004.
Given
that there was no hearing and that Miller’s factual assertions regarding his
complaint are thus undisputed, we must remand this case for the ALJ to consider
whether Miller’s contacts with the state agencies constitute filing a claim in
the wrong forum, and if so, whether equitable tolling is applicable. See
Brune v. Horizon Air Indus., Inc., ARB No. 04-037, ALJ No. 02-AIR-008, slip
op. at 16 (ARB Jan. 31, 2006) (ALJ’s errors regarding retroactive application
of AIR 21, actionable adverse actions, standards establishing
a hostile work environment, and misapplication of parties’ burdens of proof
required remand).
Conclusion
The ALJ failed
to consider whether Miller was entitled to equitable tolling in failing to file
his STAA complaint within 180 days of the alleged
adverse action.
[Page 6]
Therefore, without
expressing any opinion on the timeliness of Miller’s complaint or the
application of equitable tolling principles, we VACATE the ALJ’s
decision and REMAND this case for further proceedings consistent with
this Order.
SO ORDERED.
M. CYNTHIA DOUGLASS
Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] The STAA has been amended since Miller
filed his complaint. See Implementing Recommendations of the 9/11
Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). Even if the
amendments were applicable to this complaint, they would not affect our
decision.
[2] The regulations define OSHA as the
Occupational Safety and Health Administration in the Department of Labor. 29
C.F.R. § 1989.101(f).
[3] Accord Harrison v. Roadway Express, Inc.,
ARB No. 00-048, ALJ No. 99-STA-37 (Dec. 31, 2002)(although the complainant did
not file a written complaint with OSHA, he nevertheless filed a timely complainant
when he visited the OSHA office in person to file a complaint, the OSHA
representative memorialized his complaint in written notes and entered
identifying information in a logbook, and the notes the OSHA representative
took along with other records at the office sufficiently identified the
essential nature of the complaint and the identity of the parties). See
also Farrar v. Roadway Express ARB No. 06-003, ALJ No. 2005-STA-046, slip
op. at 8 (ARB Apr. 25, 2007).
