DATE: March 2, 1994
CASE NO; 94-STA-14
IN THE MATTER OF
Wilbur Schuler,
Complainant
v.
M & P Contracting, Inc.,
Respondent
RECOMMENDED ORDER OF DISMISSAL
An Order To Show Cause, issued on February 15, 1994 and
returnable on March 1, 1994, directed Complainant and Respondent
to recite all reasons why this case should or should not be
dismissed due to untimely filing of the Complaint. Within the
established time frame, the responses of Complainant and
Respondent were filed and each reply is herein fully addressed.
As Complainant failed to serve Respondent with copies of his
response with attachments, a complete copy is attached hereto,
made a part hereof and incorporated herein as fully and
completely as if rewritten.
The uncontradicted documentary record establishes that
Complainant did not file a Complaint with the Area Director,
Occupational Safety and Health Administration, U.S. Department of
Labor, alleging unlawful discrimination due to the making of
safety complaints until November 14, 1993, 203 days after
Respondent terminated Complainant's employment.
Twenty Nine C.F.R. §1978.102(d)(1), (2) and (3) provide:
Section 405(c)(1) provides that an employee who believes
that he has been discriminated against in violation of
section 405(a) or (b) may, within one hundred and eighty
days after such violation occurs, file or have filed by
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any person on the employee's behalf a complaint with the
Secretary.
A major purpose of the 180-day period in this provision is
to allow the Secretary to decline to entertain complaints
which have become stale. Accordingly, complaints not filed
within 180 days of an alleged violation will ordinarily be
considered to be untimely.
However, there are circumstances which will justify tolling
of the 180-day period on the basis of recognized equitable
principles or because of extenuating circumstances, e.g.
where the employer has concealed or mislead the employee
regarding the grounds for discharge or other adverse action;
or where the discrimination is in the nature of a continuing
violation. The pendency of grievance-arbitration proceedings
or filing with another agency are examples of circumstances
which do not justify a tolling of the 180-day period. The
Assistant Secretary will not ordinarily investigate
complaints which are determined to be untimely.
Since it is cast in stone that Complainant failed to satisfy
the mandated 180-day period for the filing of a complaint, the
issue for resolution is whether he is entitled to equitable
relief. Recitation of the procedural history, therefore, is
essential and it is as follows, including Complainant's
response to the Order To Show Cause:
1. Complainant was hired by Respondent as a driver of a
commercial motor vehicle with a gross weight rating in excess of
10,000 pounds on or about June, 1992.
2. Respondent terminated Complainant on April 4, 1993.
3. On April 11, 1993, Complainant, by letter directed to the
"Department of Labor, 3221 No. Sixteenth St., Phoenix, AZ 85016",
stated that "I wish to file a complaint for illegal termination
because I refused to plead guilty to an overload citations." In
his response to the Order To Show Cause, dated February 19, 1994
and received and filed on February 28, 1994, Complainant stated:
" In response to your letter dated 2-15-94 I wish to
draw your attention to the fact that I did file a
complaint with the U.S. Department of Labor in
Phoenix on April 11, 1993."
Complainant's April 11, 1993 letter is not part of the Formal
File, the existence thereof was unknown and it surfaced for the
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first time when it was found attached to Complainant's response
to the Order To Show Cause. This letter bears no receipt stamp,
other than that of February 28, 1994, and it reflects
transmission of copies to the City of Phoenix Municipal Court and
to the City of Phoenix Engineering & Architectural Services
Department.
Moreover, by letter under date of October 6, 1993 directed to
Complainant, Ronald M. Anderson, Attorney, The Industrial
Commission of Arizona, listed Complainant's "April 11, 1993 to
the ICA Labor Department" as one of "your letters" referred to me
for further response.
4. By letter under date of September 12, 1993 directed to
Gordon Marshall, Chairman, The Industrial Commission of Arizona,
Complainant complained of Respondent's failure to pay overtime
wages to drivers and the refusal of the Labor Department to take
action thereon.
5. On September 23, 1993, Complainant, by letter directed to
the Arizona Industrial Commission, Gordon Marshall Chairman,
noted that "I'm also sure the B.S. he referred to being fed up
with is the same B.S. I've been fed by the State Labor
Department."
6. On October 6, 1993, Attorney Ronald Anderson, The
Industrial Commission of Arizona, informed Complainant of the
existence and requirements of the Surface Transportation
Assistance Act and the lack of jurisdiction of The Industrial
Commission of Arizona.
7. Complainant, on October 24, 1993, directed a letter to
Robert Reich, Secretary of Labor, with copy to Fife Symington,
Governor, State of Arizona, referring to his October 10, 1993
letter to President Clinton and complaining that the State of
Arizona does not comply with the Surface Transportation Act.
Request was made for institution of a "necessary action in the
U.S. District Court so appropriate relief will be granted to me."
8. By letter dated November 14, 1993, received on November
22, 1993, Complainant filed a complainant sounding in
discrimination with the Occupational Safety and Health
Administration, San Francisco Regional Office, against
Respondent.
9. On December 15, 1993, the Regional Administrator,
Occupational Safety and Health Administration, issued Secretary's
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Findings that the complaint was untimely. By Letter dated
December 27, 1993 which was received on January 3, 1994,
Complainant generally objected to the Secretary's Finding and
requested a Hearing.
Respondent's Response
Respondent initially decries Complainant's failure to serve upon
it copies of all filed documents, including, but not limited to,
objections to the Secretary's Finding and a request for Hearing.
Thereafter, Respondent asserts that, even after being informed by
The Industrial Commission of Arizona of the requirements of the
Surface Transportation Assistance Act, Complainant waited
eighteen days before filing a complaint with the Occupational
Safety and Health Administration, thereby allowing 203 days to
elapse before a complaint was filed. Finally, Respondent argues
that "there are no facts even remotely suggesting a proper
application of the equitable tolling doctrine in this case."
Applicable Law
A statute of limitations serves the single purpose of specifying
the period within which an action must be instituted. It has been
defined by The Supreme Court of the United States as legislative
action which determines that, after lapse of a specified time, a
claim shall not be enforceable. South Dakota v. North
Carolina, 192 U.S. 286. The Supreme Court has also held that
stale litigation is not treated hospitably, Wood v. Carpenter,
101 U.S. 135, and that one is not excused from failure to seek advice,
U.S. v. Kubrick, 444 U.S. 111. United States Circuit
Courts of Appeal have also spoken. In Prather v. Neva
Paperbacks, Inc., 446 F.2d 338 (5th Cir. 1971) the Court stated
that the mere fact that one has no knowledge of his right to sue or file
a claim does not prevent the running of the statute of limitations until
he discovers his rights. See Fitzgerald v. Seamans, 553
F.2d 220 (D.C. Cir. 1977) in which a U.S. Air Force employee made
no inquiry concerning any of his rights to proceed or appeal. As
long ago as 1935 the Fifth Circuit in Arkansas Natural Gas
Company v. Sarter, 78 F.2d 924 (5th Cir. 1935), cert.
den. 296 U.S. 656, ruled that if the means of knowledge exist,
if the circumstances are such as to put a man of ordinary prudence on
inquiry, failure to discover is attributable to negligence or
lack of due diligence.
The doctrine of equitable tolling has been fully explained in
City of Allentown v. Marshall, Secretary of Labor, 657
F.2d 16 (3rd Cir. 1981) which holds the following:
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1. Restrictions on equitable tolling must be scrupulously
observed and the tolling exception is not an open-ended
invitation for Courts to disregard limitation periods
simply because they may bar what may be an otherwise
meritorious cause.
2. The tolling doctrine may be appropriate where;
A. An Employee has been actively mislead respecting
the cause of action;
B. Where one has in some extraordinary way been
prevented from asserting his rights;
C. Where one has raised the precise statutory claim
in issue but has mistakenly done so in the wrong
forum, ALTHOUGH SUCH FILING MUST BE TIMELY.
(Emphasis Added).
Discussion
Complainant's assertion that his April 11, 1993 letter to the
Department of Labor after his April 4, 1993 discharge by
Respondent is his timely filed complaint is wholly lacking in
merit particularly in light of his statement that "it appears the
U.S. Dept. of Labor in Phoenix automatically sends all complaints
to the ICA." It is, at least, unreasonable to conclude that the
U.S. Department of Labor, upon receipt of a complaint, summarily
forwards it to a State Agency, especially without acknowledgment
and notice of transfer. It appears strange indeed that
Complainant has offered nothing which tends to suggest that
he ever made inquiry of the U.S. Department of Labor regarding
the status of his April 11, 1993 letter and any action taken
or to be taken thereon. This circumstance assumes an even
stranger character through the numerous complaints made by
Complainant, even to President Clinton and Secretary of Labor
Reich, of inaction by the State of Arizona.
Moreover, it appears that Complainant, through his on-going
communications with officials of the State of Arizona, has cast
doubt on the validity of the April 11, 1993 letter. It was not
provided to the Occupational Safety and Health Administration, it
was a complete unknown until Complainant replied to the Order To
Show Cause and it was followed by a complainant filed with the
Occupational Safety and Health Administration. One must
reasonably wonder when the April 11, 1993 letter was spawned.
Of even greater significance is the glaring fact that, even after
being fully and carefully advised by Counsel for The Industrial
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Commission of Arizona of the Surface Transportation Assistance
Act's requirements, Complainant permitted eighteen days to elapse
before he filed his complaint with the Occupational Safety and
Health Administration. His lack of due diligence is obvious.
Upon careful consideration of all of the foregoing, I find that
the Regional Administrator did not err in determining that the
complaint was untimely. Neither can it be said that the tolling
principle is appropriate and proper. In his Show Cause Order
reply, Complainant contends that his complaint, dated November
14, 1993 which was not received until November 22, 1993 is not
untimely "since the State of Arizona Industrial Commission did
not respond in a timely manner." In so stating he ignores the
fact that the State of Arizona provided him with more than
sufficient information on where and how to proceed under the
Surface Transportation Assistance Act and that he slept on his
rights for eighteen days. Both his entry into the wrong forum
and his failure to follow instructions for entry into the right
forum are acts of his own making. There is no justification for
equitable relief.
RECOMMENDED ORDER
WHEREFORE, IT IS RECOMMENDED that the complaint filed
by Wilbur Schuler be DISMISSED.
BERNARD J. GILDAY, JR.
ADMINISTRATIVE LAW JUDGE
