ARB CASE NO. 05-128
ALJ CASE NO. 2005-STA-034
DATE: September 28, 2007
In the Matter of:
MARTIN REEVES,
COMPLAINANT,
v.
OLD DOMINION FREIGHT LINE,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearance:
For the Complainant:
Henry Egghart, Esq., Reno, Nevada
FINAL DECISION AND ORDER
This case arises
under the employee protection provisions of the Surface Transportation
Assistance Act (STAA) of 1982, as amended and recodified, 49 U.S.C.A. § 31105
(West 1997).[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 July 15, 2005, the
Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D.
& O.) in which she recommended dismissal of Reeves’s complaint. The issue
before the Board is whether the ALJ properly determined that the limitations
period for filing Reeves’s STAA complaint was not tolled while an internal
grievance proceeding was pending, nor by incapacity due to therapy Reeves
received for treatment of Hepatitis C.
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For the following reasons we accept
the ALJ’s recommended decision and dismiss Reeves’s complaint.
BACKGROUND
The Respondent, Old
Dominion Freight Line, employed the Petitioner, Martin Reeves, as a truck
driver. On July 19, 2004, Old Dominion terminated Reeves’s employment, and in
August 2004, Reeves challenged this termination through an internal appeal
process that Old Dominion provided to its employees.[2]
On September 27, 2004, Old Dominion denied his internal appeal. Reeves filed
his STAA complaint on March 24, 2005, 248 days after Old Dominion terminated
his employment.[3]
The Occupational
Safety and Health Administration concluded that Reeves did not timely file his STAA
complaint. Reeves requested a hearing before an Administrative Law Judge
(ALJ). The ALJ issued a Notice of Trial and Pretrial Order (Order). In
response to the Order, Reeves requested that the hearing be postponed pending
resolution of the timeliness issue.
Reeves argued that
the limitations period governing his STAA complaint should be tolled for two
reasons. First, he contended that the limitations period did not begin to run
until September 27, 2004, the date upon which Old Dominion denied his internal
appeal.
Second, he argued
that during the filing period, he had been receiving medical therapy for
Hepatitis C, which rendered him “incapacitated due to … the chemotherapy used
to treat it.”[4]
In support of this contention, he submitted a letter from Trish Hernandez, a
doctor of pharmacology, indicating that the therapy may cause him to experience
“severe fatigue, mood swings, and flu like symptoms.”[5]
He contended that the therapy made it “very difficult to work, go to
appointments, and stay on top of all the legal things that needed to be done as
a result of [his] Temporary Termination by Old Dominion on July 19, 2004.”[6]
On July 15, 2005, the
ALJ issued an R. D. & O. in which she concluded that Reeves failed to show
that the doctrine of equitable tolling was applicable to his untimely
complaint. The case is now before the Administrative Review Board (Board) pursuant
to
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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
We
have jurisdiction to decide this matter by authority of 49 U.S.C.A. §
31105(b)(2)(C) and 29 C.F.R. § 1978.109(c). Under the STAA, the Board is bound
by the ALJ’s factual findings if substantial evidence on the record considered
as a whole supports those findings.[7]
Substantial evidence is that which is “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.”[8]
In reviewing the ALJ’s conclusions of law, the Board, as the Secretary’s
designee, acts with “all the powers [the Secretary] would have in making the
initial decision . . . .”[9]
Therefore, the Board reviews the ALJ’s conclusions of law de novo.[10]
Discussion
Employees
alleging employer retaliation in violation of the STAA must file their
complaints with OSHA within 180 days after the alleged violation occurred.[11]
Reeves’s complaint is therefore untimely. However, the STAA limitations period
is not jurisdictional and therefore is subject to equitable tolling.[12]
In
determining whether equitable principles require the tolling of a statute of
limitations in certain whistleblower cases, the Board has been guided by the discussion
of equitable tolling of statutory time limits in School Dist. of Allentown
v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981). In that case, which arose
under the whistleblower provisions of the Toxic Substances Control Act, 15
U.S.C.A. § 2622 (West 2004), the court articulated three principal situations
in which equitable tolling may apply: when
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the defendant has actively misled
the plaintiff regarding the cause of action; when the plaintiff has in some
extraordinary way been prevented from filing his action; and when “the
plaintiff has raised the precise statutory claim in issue but has done so in
the wrong forum.”[13]
Reeves
argues that, because he appealed his termination through Old Dominion’s
internal appeal process, the filing period for his STAA complaint did not begin
to run until September 27, 2004, the date upon which the committee responsible
for deciding his internal appeal rendered a decision.[14]
We disagree. The plain language of the STAA precludes tolling of the
limitations period during the pendency of Reeves’s internal appeal of his
termination.[15]
We therefore concur with the ALJ’s conclusion that the limitations period began
to run on July 19, 2004, the date Old Dominion discharged Reeves.
We
also conclude that Reeves’s contention that he was “incapacitated” due to his
treatment for Hepatitis C does not entitle him to equitable tolling. Reeves’s
assertion that he was incapacitated, and the fact that he was under a doctor’s
care, does not establish that his medical condition was so severe that it
prevented him from pursuing his STAA complaint in a timely manner.[16]
This
Board has held that incapacity, specifically “mental” incapacity, may entitle a
complainant to equitable tolling “if the illness in fact prevents the sufferer
from managing his affairs and thus from understanding his legal rights and
acting upon them.”[17]
Reeves’s contention that it was “difficult” for him to “stay on top of all the
legal
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things that needed to be done as a result of” the termination of his
employment does not indicate that he was in fact prevented from managing his
legal affairs. To the contrary, Reeves was able to pursue his internal
complaint with Old Dominion during the STAA limitations period. We therefore
reject his request “for equitable tolling of the running of the filing period
due to his lack of capacity to file earlier due to illness.”[18]
For
the reasons above, we conclude that Reeves’s complaint was untimely filed and that
the doctrine of equitable estoppel does not apply. Accordingly, we DISMISS Reeves’s
complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] The STAA has been amended since Reeves
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] Complainant’s Exhibit (CX) 3.
[3] R. D. & O. at 2.
[4] Complainant’s Brief Before the ALJ at 3.
[5] CX 4.
[6] ALJ’s Exhibit 3 at 1.
[7] 29 C.F.R. § 1978.109(c)(3); BSP Transp.,
Inc. v. U.S. Dep’t of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle
Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995).
[8] Clean Harbors Envtl. Servs. v. Herman, 146
F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
[9] 5 U.S.C.A. § 557(b) (West 1996). See
also 29 C.F.R. § 1978.109(b).
[10] Roadway Express, Inc. v. Dole, 929
F.2d 1060, 1066 (5th Cir. 1991).
[11] 49 U.S.C.A. § 31105(b)(1).
[12] See, e.g., Hillis v. Knochel Bros.,
ARB Nos. 03-136, 04-081, 04-148; ALJ No. 02-STA-050, slip op. at 3 (ARB Oct.
19, 2004).
[13] Allentown , 657 F.2d at 20 (internal quotations omitted).
[14] Complainant’s Brief at 3.
[15] See 29 C.F.R. § 1978.102(d)(3) (“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.”).
[16] See, e.g., Foley v. Boston Edison Co.,
ARB No. 99-022, ALJ No. 97-ERA-056, slip op. at 4 (ARB Jan. 31, 2001) (“Although
Foley has submitted letters showing that he was under a doctor’s care, his
doctor does not state or even suggest that Foley’s illness was so debilitating
that it prevented him from either understanding his legal rights or acting upon
them.”); Ellis v. Ray A. Schoppert Trucking, 92-STA-028, slip op. at 1-2
(Sec’y Sept. 23, 1992) (complainant not entitled to equitable tolling despite
suffering extreme duress, spinal stenosis, a collapsed disc, spinal
obstruction, and severe memory loss).
[17] See Hall v. E G & G Def.
Materials, Inc., ARB No. 98-076, ALJ No. 97-SDW-009, slip op. at 3 (ARB
Sept. 30, 1998), aff’d sub nom., Hall v. U.S. Dep’t of Labor, 198 F.3d
257 (10th Cir. 1999). In Hall we also acknowledged the stricter
standard applied by some courts under which physical and mental incapacity are
not grounds for tolling unless a complainant “has been adjudged mentally incompetent
or was institutionalized during the filing period.” See Hall, ARB
No. 98-076, slip op. at 3.
[18] Complainant’s Brief at 4.
