DATE:  November 24, 1992
CASE NO. 92-STA-20


IN THE MATTER OF

VAN C. LEWIS,

          COMPLAINANT,

     v.

MCKENZIE TANK LINES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the September 14, 1992, Recommended
Decision and Order of the Administrative Law Judge (ALJ) in this
case arising under Section 405, the employee protection
provision, of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  Although permitted by
29 C.F.R. § 1978.109(c)(2) (1992), the parties have not
filed briefs before me.  
     Complainant alleged that Respondent discharged him because
he refused to drive a vehicle when doing so would result in a
violation of the hours-of-service regulation.  The STAA prohibits
an employer from discharging an employee for refusing to operate
a vehicle when it would violate a Federal safety regulation.  
49 U.S.C. § 2305(b).  Following a hearing, the ALJ found
that the complaint was untimely.  R.D. and O. at 7.  Assuming for
the sake of argument that the complaint was timely, the ALJ found
that Complainant did not sustain the burden of establishing by a
preponderance of the evidence that Respondent discharged him in
retaliation for a safety related refusal to drive.  R.D. and O.
at 10.  Accordingly, the ALJ recommended dismissing the
complaint.
[PAGE 2]
     The parties stipulated that Respondent is an employer and
that Complainant is an employee subject to the STAA.  JX 1. [1]  
It is undisputed that Respondent fired Complainant on May 9,
1991, and the next day, Complainant received a letter informing
him he was fired.  T. 21, 26.  Complainant filed his complaint
with the Department of Labor on December 4, 1991, ALJX 1, or two
hundred and eight days after he learned he was discharged.  The
STAA provides that:
          Any employee who believes he has been
          discharged . . . in violation of [the STAA's
          employee protection provision] may, within
          one hundred and eighty days after such
          alleged violation occurs, file . . . a
          complaint with the Secretary of Labor
          alleging such discharge. . . .

49 U.S.C. app. § 2305(c)(1).
     The limitations period is not jurisdictional, but is subject
to waiver, estoppel, and equitable tolling.  Hicks v. Colonial
Motor Freight Lines, Case No. 84-STA-20, Sec. Order, Dec. 10,
1985.  The implementing regulations indicate that the 180-day
filing limit may be tolled under certain circumstances, 
such as "where the employer has concealed or misled the 
employee regarding the grounds for discharge."  29 C.F.R. 
§ 1978.102(d)(3).  There was no evidence in this case
suggesting that Respondent concealed the reason for the discharge
or misled Complainant about the filing of a complaint.  Rather,
Complainant apparently did not know that he had the right to file
a complaint with the Department of Labor.  Here, as in
Hicks, slip op. at 12, and School District of Allentown
v. Marshall, 657 F.2d at 21, the Complainant's ignorance of
the law is not a sufficient reason to toll the limitation. 
     Complainant testified that he timely filed a complaint about
his discharge with the Equal Employment Opportunity Commission
(EEOC), and apparently contends that the EEOC filing should toll
the 180-day limit.  This case does not fall within the limited
exception allowing equitable tolling of the STAA limitation
period when the complainant timely raised the precise claim in
issue but mistakenly did so in the wrong forum.  See
Kelly v. Flav-O-Rich, Inc., Case No. 90-STA-14, Final Dec.
and Order, May 22, 1991, slip op. at 2.  Complainant filed a charge of
discrimination with the EEOC in which he claimed that Respondent
violated a different statute, the Age Discrimination in
Employment Act, purportedly by firing him for a safety-related
refusal to drive, whereas Respondent allegedly did not fire
other, younger employees who acted similarly.  See RX 11. 
ALJX 1.  The EEOC complaint was not asserted under the STAA and
thus 
[PAGE 3]
did not involve the precise claim mistakenly raised in the wrong
forum.  Kelly, slip op. at 2.  Moreover, as recognized in
Kelly, slip op. at 3-4, the STAA regulation provides that "filing 
with another agency" is an example "of circumstances which 
do not justify a tolling of the 180-day period."  29
C.F.R. § 1978.102(d)(3) (emphasis supplied).  
     I find that there is no adequate basis in this case for
disregarding the statutory time limit, and that the complaint was
untimely.  Accordingly, the complaint is DISMISSED.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C. 


[ENDNOTES]
           
[1]   "JX" refers to Joint Exhibit, "RX" refers to Respondent's
Exhibit, and "ALJX" refers to ALJ's Exhibit.