ARB CASE NO. 07-038
ALJ CASE NO. 2007-STA-006
DATE: October 31, 2007
In the Matter of:
CARL B. BEDWELL, SR.,
COMPLAINANT,
v.
SPIRIT-MILLER NE, LLC,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This
case arises under the employee protection provisions of the Surface
Transportation Assistance Act (STAA) of 1982, 49 U.S.C.A. § 31105 (West 2007).[1]
Section 31105 provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules or who refuse to operate a
vehicle when such operation would violate those rules. On December 27, 2006,
the Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R.
D. & O.) in which he recommended dismissal of Bedwell’s complaint. We
affirm.
BACKGROUND
Bedwell
began working as a truck driver for Spirit-Miller on September 21, 2005. On
October 31, 2006, Bedwell contacted the Occupational Safety and Health
Administration (OSHA) to file a STAA complaint. He informed OSHA that he
“stopped working with [Spirit-Miller] as of December 31, 2005 [because] he was
disqualified from
[Page 2]
driving at the end of December because he complained about
not having insurance.”[2] OSHA dismissed the complaint on
December 1, 2006, because it was untimely.
Bedwell requested a
formal hearing before an ALJ. On December 14, 2006, the ALJ issued an Order to
Show Cause requiring Bedwell to show cause why his complaint should not be
dismissed as untimely. In response to the Order, Bedwell submitted a letter
describing actions taken by Spirit-Miller and Mamo Transportation, Inc. that he
contends violate the STAA. He also submitted copies of a “Charge of
Discrimination” against Mamo Transportation dated April 7, 2005, and a “Charge
of Discrimination” against Spirit-Miller dated May 12, 2006. Bedwell had filed
these charges with the Equal Employment Opportunity Commission (EEOC).[3]
On December 27, 2006,
the ALJ issued an R. D. & O. in which he concluded that the doctrine of
equitable tolling was inapplicable to Bedwell’s untimely complaint. The case
is now before the Administrative Review Board pursuant to the automatic review
provisions of 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1) (2007).
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).
In reviewing the
ALJ’s conclusions of law, the ARB, as the Secretary of Labor’s designee, 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. 2001-STA-022, 029, slip op. at 2 (ARB Oct. 31, 2003).
Discussion
The
STAA provides that an employer may not “discharge,” “discipline,” or
“discriminate” against an employee-operator of a commercial motor vehicle
“regarding pay, terms, or privileges of employment” because the employee has
engaged in certain
[Page 3]
protected activities.[4]
Employees alleging employer retaliation in violation of the STAA must file
their complaints within 180 days after the alleged violation occurred.[5]
The
STAA’s implementing regulations provide that complaints must be filed with
OSHA, but no particular
form of complaint is required.[6]
The STAA limitations period is not jurisdictional and therefore is subject to
equitable tolling.[7]
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.[8] 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.[9]
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.[10]
The alleged STAA
violation in this case occurred on December 31, 2005,[11]
when Spirit-Miller informed Bedwell that he was disqualified from driving for
the company.
[Page 4]
Bedwell filed his complaint on October 31, 2006, more than 180
days after the alleged violation. Accordingly, Bedwell’s complaint is
untimely. We must therefore determine whether Bedwell is entitled to equitable
tolling of the filing period.
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.[12]
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.[13]
When seeking
equitable tolling of a statute of limitations, the complainant bears the burden
of demonstrating the existence of circumstances supporting tolling.[14]
The complainant must prove that he mistakenly filed the precise statutory claim
in issue in the wrong forum, but within the filing period.[15]
In Hillis v.
Knochel Bros., Inc., ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-050,
slip op. at 6 (ARB Mar. 31, 2006),[16]
we explained that, with respect to raising a claim in the wrong forum, the
phrase “filing with another agency” in section
[Page 5]
1978.102(d)(3) refers to
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.”[17]
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.[18]
Bedwell’s May 12, 2006 EEOC Charge
of Discrimination does not constitute a complaint alleging that his employer
violated the STAA. It constitutes the pursuit of an alternative remedy with an
agency having jurisdiction to award relief under statutes other than the STAA.[19]
It therefore does not justify a tolling of the STAA’s 180-day filing period.
Bedwell
has not presented any other argument for tolling the limitations period
governing his claim. We therefore conclude that the doctrine of equitable tolling
does not apply to his untimely complaint. Accordingly, we DISMISS his
complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] The STAA has been amended since Bedwell
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] R. D. & O. at 1, citing ALJ Exhibit
(ALJX) 1.
[3] Bedwell’s EEOC charge against Spirit-Miller
states: “I believe I have been discriminated against because of my age (69)
(09/05/36) in violation of the Age Discrimination in Employment Act and also in
retaliation for having filed a charge against another trucking company.” ALJX
2. The other trucking company is presumably Mamo Transportation.
[4] 49 U.S.C.A. § 31105(a)(1).
[5] 49 U.S.C.A. § 31105(b)(1).
[6] 29 C.F.R. §
1978.102(b); see, e.g., Harrison v. Roadway Express, Inc.,
ARB No. 00-048, ALJ No. 1999-STA-037 (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).
[7] See, e.g., Miller v. Basic Drilling Co.,
ARB No. 05-111, ALJ No. 2005-STA-020, slip op. at 3 (ARB Aug. 30, 2007).
[8] 29 C.F.R. § 1978.102(d)(2).
[9] 29 C.F.R. § 1978.102(d)(3).
[10] Id. See also Hillis v. Knochel Bros.,
Inc., ARB Nos. 03-136, 04-081,
04-148, ALJ No. 2002-STA-050, slip op. at 4-7 (ARB Mar. 31, 2006).
[11] December 31, 2005 is the date Bedwell
provided to OSHA as the date Spirit-Miller disqualified him as a driver. R. D.
& O. at 1. Bedwell’s EEOC Charge of Discrimination against Spirit-Miller
states that he was disqualified from his employment on January 1, 2006. This
later date would not render his STAA complaint timely.
[12] Howell v. PPL Servs., Inc., ARB No.
05-094, ALJ No. 2005-ERA-014, slip op. at 4 (Feb. 28, 2007).
[13] School Dist. of Allentown v. Marshall,
657 F.2d 16, 19-21 (3d Cir. 1981) (citations omitted).
[14] 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).
[15] Immanuel v. Wyoming Concrete Indus., Inc.,
ARB No. 96-022, ALJ No. 1995-WPC-003, slip op. at 3 (ARB May 28, 1997).
[16] In concluding that Bedwell was not entitled
to equitable tolling, the ALJ cited a ruling we made in the Hillis v. Knochel
Brother case in 2004. R. D. & O. at 3 (“The Administrative
Review Board has clearly held that making a complaint in the wrong forum does
not toll the STAA’s statute of limitations.”). Our ruling in that case was modified
by Hillis v. Knochel Bros., Inc., ARB Nos. 03-136, 04-081, 04-148, ALJ
No. 2002-STA-50, slip op. at 6 (ARB Mar. 31, 2006), which we rely upon in
deciding this case.
[17] Hillis, slip op. at 6.
[18] Id. slip op. at 7.
[19] We concur with the ALJ’s conclusion that
“[t]he EEOC charge against Mamo Transportation filed on April 7, 2005 was filed
before Complainant was discharged by Respondent and is irrelevant to the
instant case.” R. D. & O. at 2.
