Glasscock v. Alliant Foodservice, Inc., 1999-STA-44 (ALJ Jan. 13, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

DATE: January 13, 2000

CASE NUMBER: 1999-STA-44

In the Matter of:

CHARLES GLASSCOCK,
    Complainant,

vs.

ALLIANT FOODSERVICE, INC.,
    Respondent.

   Pursuant to Section 405 of the Surface Transportation Assistance Act of 1982 ("STAA") (49 U.S.C. 31105), and its implementing regulation at 29 C.F.R. §1978 et seq., Complainant Charles Glasscock filed a complaint with the United States Secretary of Labor ("Secretary") on May 4, 1999 against Respondent Alliant Foodservice Incorporated. In a decision issued on July 21, 1999, the Secretary dismissed the complaint because it was untimely filed. On July 23, 1999, the Complainant requested a hearing before an Administrative Law Judge.

   A pre-hearing conference was held on August 19, 1999, at which time the parties waived the statutory and regulatory time limits on these proceedings and requested that the Decision and Order be issued on the record and without a formal hearing. On August 20, 1999, this Court granted an Order Approving Request for Decision on the Record and Setting Forth Briefing Schedule. The parties submitted briefs with attached exhibits on September 28, 1999, and the Respondent submitted a reply brief on October 12, 1999. All briefs and exhibits submitted have been made part of the record.    After reviewing all of the evidence, I find that Complainant did not file his complaint timely.

1. Whether Complainant's filing of a complaint with Oregon OSHA constitutes timely filing of a federal STAA claim.

2. Whether the statute should be tolled if the answer to # 1 is negative.

3. Whether a determination on the STAA complaint can be postponed while Complainant's civil case proceeds, if the answer to # 1 is positive.

   Alliant Foodservice Incorporated ("Respondent"), an interstate trucking company, maintains a place of business in Fife, Washington. See Secretary's Findings of July 21, 1999 ("SF") at 1. From May 7, 1997 until September 29, 1998, Charles Glasscock ("Complainant") worked for Respondent as a commercial truck driver. Id. On September 30, 1998, Respondent terminated Complainant. Id. at 2.

   On February 23, 1999, Complainant filed his STAA complaint with Oregon OSHA regarding his termination. Oregon OSHA referred Complainant's complaint to the Oregon Bureau of Labor and Industries ("BOLI"). Thereafter, Oregon OSHA withheld action pending the results of the BOLI's investigation. Complainant's Exhibit ("CX")-B, p.1. On March 10, 1999, Complainant also filed an employment discrimination complaint with the BOLI, claiming that he was discharged because he reported Respondent's alleged violations of the Federal Highway Safety Administration Act. Respondent's Exhibit ("RECORD")-8, pp.34-37.

   On May 4, 1999, Complainant filed a complaint with the United States Secretary of Labor ("Secretary"). Complainant stated that the BOLI had completed its investigation "under the applicable state statutes," and therefore he decided to forward his claim "directly to the D.O.L. so that the appropriate federal action could commence." CX-B, p.1. Complainant also filed a civil action on May 6, 1999, alleging Respondent's violations of the Oregon Safe Employment Act, ORS 654.062(2), and intentional infliction of emotional distress.¹ RECORD-9, p.40.

   On June 7, 1999, Respondent received its first notification of Complainant's complaint alleging violations of Section 11(c) of the Occupational Safety and Health Act ("OSHA") and Section 405 of the Surface Transportation Assistance Act of 1982 ("STAA"). RECORD-2, pp.2-6. Thereafter, Respondent submitted its Statement of Position to U.S. Department of Labor Investigator Sandra Dillon. RECORD-3, pp.7-23.

   The Secretary submitted her findings on July 21, 1999; Complainant's case was

29 C.F.R. §1978.102(c) (1999).    The record shows that Complainant filed his STAA complaint with Oregon OSHA,² instead of federal OSHA's local Portland office,³ thus he did not submit his claim to the appropriate agency. The undersigned is not persuaded by Complainant's argument that Oregon OSHA, a state agency, is incorporated in the regulations' term "any OSHA officer or employee." CM at 1. While section 1978.102(c) states that "any OSHA officer or employee is sufficient," the regulations also define "OSHA" as "the Occupational Safety and Health Administration." 29 C.F.R. §1978.101(f). There are

no references in these implementing regulations indicating that a State plan OSHA agency, which is authorized to handle only state occupational health and safety matters⁴ , is a proper recipient of an STAA complaint. Oregon OSHA's authority⁵ is limited to state law violations pursuant to the Oregon Safe Employment Act. ORS 654.062(2). Thus, Complainant did not effectively file his federal STAA claim when he submitted this complaint to Oregon OSHA.

III. EQUITABLE TOLLING

   The regulations also provide that if the complaint is not timely filed, there are certain circumstances that will justify tolling of the 180-day period. See 29 C.F.R. §1978.102(d)(3). The doctrine of equitable tolling is deemed appropriate in instances where:

(1) the defendant has actively misled the plaintiff respecting the cause of action; (2) the plaintiff has in some extraordinary way been prevented from asserting his or her rights; or (3) the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

Smith v. American President Lines, Ltd, 571 F.2d 102, 109 (2nd Cir. 1978).

   However, the tolling exception is not "an open-ended invitation to the court to disregard limitation periods simply because they bar what may be an otherwise meritorious cause." School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 20 (3rd Cir. 1981). In fact, the doctrine of equitable tolling is generally inapplicable where a plaintiff is represented by counsel. See Kent v. Barton Protective Services, No. 84-WPC-2, slip op. at 11-12 (Sec'y, Sept.28, 1990), aff'd, Kent v. U.S. Department of Labor, (11th Cir. 1991). Once a claimant is represented by counsel, he has "access to a means of acquiring knowledge of his rights and responsibilities," thereby precluding application of equitable tolling considerations. Smith, 571 F.2d at 109.

   Complainant has been represented by counsel throughout this case, and therefore the doctrine of equitable tolling should not apply. The undersigned acknowledges that this is not an absolute rule; however, there is no evidence to support a deviation from this general principle. Even if the Court declined to follow this principle, Complainant would still be unable to avail himself of the tolling exceptions. There is no evidence to suggest, nor has Complainant alleged that he mistakenly filed, was actively misled or was prevented from asserting his rights.

   In addition, the record reflects that Complainant's Counsel ("Counsel") should have known that the February complaint initiated only state action. Counsel admitted that Oregon OSHA notified him about the transfer of the February complaint to the BOLI in accordance with the applicable state statutes. Thus Counsel, having previously filed an action with the BOLI, should have known that the BOLI's authority was limited to only state matters. Moreover, Counsel conceded in his May 4 Letter to the Secretary that no federal action had been taken in response to his February 25, 1999 filing.⁶

   In sum, the Court declines to apply equitable tolling because: (1) Complainant has been represented by counsel; (2) Complainant has not demonstrated that any of the tolling exceptions are applicable to his case; and (3) Counsel should have known that the February complaint initiated only state action.

III. POSTPONEMENT OF STAA DECISION PENDING RESULT IN COMPLAINANT'S CIVIL ACTION

   Assuming arguendo that Complainant's STAA complaint was timely filed, Respondent contends that it is within the Secretary's discretion to postpone a determination of an STAA complaint pending the results of another proceeding. See 29 C.F.R. §1978.112(b).

   The implementing regulations also provide that postponement is justified where:

(1) the rights asserted in the other proceeding are substantially the same rights under the STAA; (2) those proceedings are not likely to violate the rights guaranteed by the STAA; and (3) it must be clear that those proceedings dealt adequately with all factual issues and that the forum hearing the matter has the power to decide the ultimate issue of discrimination.

29 C.F.R. §1978.112(c).

   Complainant's civil action alleges that his employment was terminated because he complained of Respondent's violations of several state and federal highway and safety statutes. Similarly, his STAA complaint alleges that Respondent wrongfully discharged Complainant for his refusal to violate federal regulations. In both proceedings, Complainant is alleging a wrongful termination of his employment and is asserting his right to report unsafe working conditions without encountering retaliatory measures. The district court is also the appropriate forum for determining the ultimate issue of discrimination. Thus, assuming arguendo that Complainant had filed a timely STAA complaint, this matter should be postponed pending the resolution of Complainant's civil action.

¹ Complainant's civil action was removed to federal court and is currently pending.

² Oregon OSHA
    500 S.W. Barbur Boulevard
    Suite 200
    Portland, Oregon 97219

³ Local DOL OSHA - Portland Area Office
    Federal Office Building
    1220 Southwest Third Avenue, Room 640
    Portland, Oregon 97204

⁴ Part 1953 of Title 29, Code of Federal Regulations, prescribes procedures under Section 18 of the Occupational Safety and Health Act of 1970 ("the Act"), by which the Regional Administrator for Occupational Safety and Health, under a delegation of authority from the Assistant Secretary of Labor for Occupational Safety and Health, will review and approve standards promulgated pursuant to a State plan which has been approved in accordance with Section 18(c) of the Act and 29 CFR Part 1902.

⁵ On December 28, 1972, notice was published in the Federal Register (37 FR 28628) of the approval of the Oregon plan. The Oregon plan provides for adoption of State standards which are at least as effective as comparable Federal standards promulgated under Section 6 of the OSHA. This plan established a state agency which operates an OSHA-approved State Plan in partnership with Federal OSHA.

⁶ In his May 4 Letter to the Secretary of Labor, Counsel stated:

The Oregon Bureau [of Labor and Industries] has completed its investigation under the applicable state statutes. Therefore, I have decided to forward a copy of this complaint directly to the D.O.L. so that the appropriate federal action could commence.

CX-B, p.1.