Turgeau v. The Nordam Group, Inc., 2003-AIR-41 (ALJ Oct. 30, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 10 October 2003

In the Matter of

BRIAN M. TURGEAU
    Complainant

    v.

THE NORDAM GROUP, INC.
    Respondent

Case No.: 2003-AIR-00041

   A hearing in this case arising under §519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. §519 (2003) (hereinafter referred to as "AIR 21") is scheduled for the week of November 17-21, 2003 in Tulsa, Oklahoma. On September 3, 2003, Respondent moved for summary judgment, contending that Complainant's complaint should be dismissed as untimely filed. Respondent cites Complainant's failure to file a complaint with the Occupational Safety and Health Administration (hereinafter referred to as "OSHA") within 90 days of the alleged violation as grounds for dismissal. Relying upon the doctrine of equitable tolling, Complainant argues that his AIR 21 complaint should not be dismissed.

    The standards applicable to summary decision are rooted in the Office of Administrative Law Judges (OALJ) regulations as well as Board and federal court case law. OALJ Rule 18.40, 29 C.F.R. §18.40, which is modeled on Rule 56 of the Federal Rules of Civil Procedure, permits an ALJ to enter a summary decision for either party where "there is no genuine issue as to any material fact and . . . a party is entitled to summary decision." Id. . . . In deciding a motion for summary decision, we view the factual evidence in the light most favorable to the nonmoving party.

Williams v. Lockheed Martin Corp., ARB Nos. 99-54 & 99-064, OALJ Nos. 1998-ERA-40, 42 (Sept. 29, 2000). Here, there clearly are no material factual issues in dispute. The pleadings filed by the Complainant both in State court and under AIR 21 are in the file, and Complainant has not contended that the timeliness issue cannot be decided summarily. Accordingly, summary decision on the issue of the timeliness of the complaint filed under AIR 21 is appropriate.

   Pursuant to 49 U.S.C. §42121 (2003), Complainant "may [bring an AIR 21 complaint] not later than 90 days after the date on which [the] violation occurs." See also 29 C.F.R. §1979.103(d) (2003). In its motion, Respondent notes that Complainant was discharged from employment with Respondent on or about September 27, 2002. Respondent further notes that on November 22, 2002 Complainant filed a retaliatory termination petition, grounded in Oklahoma state law, with the District Court in and for Tulsa County, Oklahoma. Respondent successfully removed the case to the United States District Court for the Northern District of Oklahoma, which then granted Respondent's motion to dismiss on the basis that AIR 21 preempted the Complainant's original State law cause of action. The order of dismissal was issued on April 8, 2003. Thereafter, on April 17, 2003, Complainant filed with OSHA the AIR 21 complaint that is the subject of the motion at bar.

   It is the Complainant's contention that the doctrine of equitable tolling applies here, excusing the untimely filing of his AIR 21 complaint with OSHA. It is proper for a court to apply equitable tolling under three conditions: "[1] [when] the defendant has actively misled the plaintiff respecting the cause of action, [(2)] [when] the plaintiff has in some extraordinary way been prevented from asserting his rights, or [(3)] [when] the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." (Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978) (internal quotation marks omitted; emphasis added)). There are two corollaries of the third condition. (See Allentown, supra, at 20 (citing Burnett v. N.Y. Cent. R.R., 380 U.S. 424 (1965)); Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, OALJ No. 2000-STA-12 (ARB Mar. 22, 2001) (citing Allentown, supra, at 20). The first corollary is that the claim filed in the wrong forum must have been filed within the time limits that would have applied had the complaint been filed in the correct forum. (See Allentown, 657 F.2d at 20 (citing Burnett v. N.Y. Cent. R.R., 380 U.S. 424 (1965)). The second corollary is that the plaintiff must have used the same statutory foundation when filing both the original claim and the subsequently filed claim. (See Tierney, supra, slip op. at 3; see also Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 467 n.14 (1975) (citing Developments in the Law - - Statutes of Limitation, 63 Harv. L. Rev. 1177, 1185-86 (1950); Tracy v. Consol. Edison Co., 89-CAA-1, slip op. at 2-4 (Sec'y 1992); Lewis v. McKenzie Tank Lines, Inc., 92-STA-20, slip op. at 2 (Sec'y 1992); Nixon v. Jupiter Chem., Inc., 89–STA-3, slip op at 1-2 (Sec'y 1990)).

   Complainant originally filed his retaliatory termination complaint in State court. Subsequently, this retaliatory termination complaint was dismissed because the court held it was preempted by AIR 21, verifying that the Complainant had filed his complaint in the wrong forum. Therefore, the Complainant's reliance on the doctrine of equitable tolling defense lies within the third condition.

   Regarding the first corollary, Complainant's retaliatory termination complaint was filed in State court less than two months following Respondent's alleged retaliatory act, well within the 90 day time frame set out in 49 U.S.C. §42121 and 29 C.F.R. §1979.103 (d). Therefore, Complainant fulfilled the first corollary of the third condition.

   Regarding the second corollary, Complaint contends that his AIR 21 complaint was identical to his retaliatory termination complaint in that both contend he was fired by Respondent because he reported violations of FAA requirements. However, the case law holds that more than the underlying facts must be identical. Rather, both claims must have been made under the same statute.

   The Administrative Review Board (hereinafter referred to as "the ARB") recently examined this same issue in Tierney v. Sun-Re Cheese, Inc., supra. In Tierney, the ARB held that equitable tolling was inapplicable to a complaint filed with OSHA alleging that the Complainant was terminated in violation of the Surface Transportation Assistance Act (hereinafter referred to as "STAA") despite the fact that the Complainant had filed an earlier complaint with a State agency within the 180-day limitations period for STAA complaints. The ARB held that the phrase "precise statutory claim" in the Allentown decision means that complainants must have brought both complaints pursuant to the same statute, not just that the underlying facts pled must be the same, and the complaint filed with the State did not plead a violation of the STAA. (See id. at 3).¹ Therefore, to fulfill the second corollary the Complainant must evidence complete identity as to the facts pled in the complaints and the statutory foundation for the complaints. (See id.; see also Johnson, supra, at 467 n.14 (citing Developments in the Law - - Statutes of Limitation, supra, at 1185-86); Tracy, supra, slip op. at 2-4; Nixon, supra, slip op. at 1-2).²

   Both complaints filed by Complainant allege that Respondent terminated him because he complained to Respondent about its supervisor's noncompliance with manufacturing specifications and Federal Aviation Administration regulations. Complainant further contends in both complaints that Respondent failed to remedy the alleged noncompliance, encouraged the noncompliance, and retaliated against Complainant because of his complaining. But Complainant's initial, timely complaint was brought under Oklahoma state law while his subsequent, untimely complaint filed with OSHA was brought pursuant to a federal law, AIR 21. Despite the similarity of the alleged facts, Complainant's AIR 21 complaint does not fulfill the second corollary on the basis that the initial complaint was not filed pursuant to AIR 21. Therefore, Complainant is precluded from relying upon equitable tolling to excuse the late filing of his AIR 21 case.³

¹ The ARB found that tolling would only be appropriate if complainant's earlier filing was "a complaint that [complainant] was discharged in retaliation for activity protected by the STAA whistleblower provision." (Tierney, supra, slip op. at 3 (emphasis added)).

² Complainant cites my colleague Judge Clement J. Kennington's decision in Ford v. Northwest Airlines, Inc., 2002-AIR-21 (ALJ Oct. 18, 2002), noting that Judge Kennington permitted tolling of an otherwise untimely complaint filed under AIR 21 despite the fact that the initial, timely complaint had been filed in State court under State law. I respectfully disagree with this opinion, which I believe to be contrary to weight of the case law.

³ While a complainant's ignorance of the law has been held not to be a mitigating factor in determining whether equitable tolling is appropriate (see, e.g., Allentown, supra, at 21), it should be noted that Complainant was represented by counsel when he filed both his State and AIR 21 complaints.