Brooks v. A.J. Salmon Trucking, Inc., 2004-STA-29 (ALJ Mar. 8, 2004)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 08 March 2004

CASE NO.: 2004-STA-29

IN THE MATTER OF

TOM LEE BROOKS
    Complainant

   v.

A. J. SALMON TRUCKING, INC.
    Respondent

   This claim arises under Section 405 of the Surface Transportation Act (Act), 49 U.S.C. 31104 and the regulations promulgated thereunder, 29 C.F.R. §1978. The matter is set for formal hearing on March 23, 2004; however, from the records furnished to this office it appears the determination letter by OSHA dated August 27, 2003, was not appealed by Complainant to the Office of Administrative Law Judges until February 17, 2004. For that reason, by Order dated February 27, 2004, Complainant was granted ten (10) days to show cause why his appeal should not be dismissed as untimely and why the formal hearing now set in this matter for March 23, 2004, should not be canceled. His reply of March 4, 2004, provided no reason for the lateness of his appeal, but rather reiterated his allegations of discrimination.

   By the plain language of the Act if a hearing is not requested within 30 days of OSHA's determination that determination becomes final and is not subject to review. See also 29 C.F.R. §1978.105(b)(2). Consequently, from the record before me since it appears Complainant waited some six months to appeal OSHA's determination of August 27, 2003, denying his complaint of discrimination, and since Complainant has offered no reason for his untimely appeal, the same is hereby ordered DISMISSED, and the formal hearing scheduled in this matter for March 23, 2004, is CANCELLED.

   So ORDERED this 8th day of March, 2004, at Metairie, Louisiana.

      C. RICHARD AVERY
      Administrative Law Judge

CRA:kw

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996)