Lee v. Schneider National, Inc., 2002-STA-25 (ALJ July 26, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 26Jul2002

Case No: 2002-STA-25

In the Matter of:

JAMES CHI C. LEE,
    Complainant

    v.

SCHNEIDER NATIONAL, INC.,
    Respondent

   This proceeding arises under Section 31105 of the Surface Transportation Assistance Act (STAA) of 1982 (49 U.S.C. § 31101) and the regulations promulgated thereunder [29 C.F.R. Part 1978 (1989)]. Section 31105 of the Act provides protection from discrimination to employees who report violations of commercial motor vehicle safety rules or who refuse to operate a vehicle when the operation would be a violation of these rules.

   Complainant was discharged on or about February 26, 2001, from his employment with the Respondent, and he filed his claim with the Occupational Safety and Health Administration's Aurora Area Office on or about November 21, 2001. Complainant alleged that he was subjected to unwarranted road test and wrongfully terminated as a result of making complaints to management regarding the unsafe operation of the vehicle brakes. The claim was subsequently forwarded to the Indiana Occupational Safety and Health Administration office, but that office too lacked jurisdiction under STAA. Eventually, the claim was forwarded to the United States Department of Labor, Occupational Safety and Health Administration, Indianapolis Office on or about January 16, 2002.

   On February 12, 2002, the Regional Administrator for the Occupational Safety and Health Administration, Region V, dismissed the claim, concluding that the claim was untimely filed. On February 23, 2002, Complainant appealed the denial and requested a formal hearing.

   In Respondent's March 27, 2002 letter to the Court, Respondent moves for summary decision dismissing the complaint on the grounds that it was untimely filed.

   On May 6, 2002, I issued an Order to Show Cause to Complainant, ordering Complainant to provide this Court cause to deny Respondent's summary decision motion. On May 31, 2002, Complainant responded. Complainant admits that his filing was beyond the 180-day period provided for by the implementing regulations; however, Complainant proffers several rationales to excuse his late filing.

   First, Complainant alleges that the true basis for his termination was concealed from him. On February 26, 2001, Complainant met with Clem Hall in Gary, Indiana, and was informed that he was being terminated. When Complainant inquired about the basis for the termination, Complainant alleges that Hall said, "I can fire you at any time with any reasons." Complainant alleges that Hall refused to provide him with a specific reason for his termination. In his response to the Show Cause Order, Complainant admitted that he suspected that the reason for his termination was not a February 22, 2001 accident in which he was involved, but rather, his complaints concerning the brake systems on his truck or some other unknown reason.

   Second, Complainant raises the specter that he was simply mentally and emotionally unable to file his claim within the statutory time limit. In his response to the Show Cause Order, Complainant states:

Due to the accident on February 22, 2001, I have phobias, difficulty concentrating and could not sleep for first eight weeks. I was also afraid of leaving the house, to drive, and of highways, trucks and cars. Therefore, on March 28, 2001, I joined Emotions Anonymous programs in Christ Hospital and received professional help. Psychologist Doctor Kevin McClone diagnosed me with Post-Traumatic Stress Disorder. I was unable to file any complaints during the first eight week following my job termination.

   Next, Complainant argues that he attempted to file his claim within the statutory period, but he failed to file his claim in the proper forum. Complainant alleges that he filed a complaint on April 23, 2001, with the National Highway Traffic Safety Administration [NHTSA]. Mr. Lee states that this was the institutional body referred to for complaints in the Operator's Manual in his previous truck. Complainant states that he did not receive a response from NHTSA and, thus, sent a follow-up letter on June 3, 2001. Despite his follow-up letter, Complainant alleges that NHTSA never responded to his safety concerns. Complainant also alleges that NHTSA was bound by regulation to refer him to the Department of Labor's Occupational Safety and Health Administration (OSHA). Complainant quotes the regulation in his response, but he does not cite to the regulation.

   Finally, Complainant alleges that Respondent is currently withholding earned salary and personal possessions from him. Complainant advances that such a result is inequitable and that he should be allowed to proceed to suit.

   29 C.F.R. §1978.102(d)(1) provides that a complaint must be filed within 180 days after the alleged violation. 29 C.F.R. §1978.102(d)(3) provides, however, that there are circumstances which will justify tolling of the 180-day period on the basis of recognized equitable principles or because of extenuating circumstances, e.g., where the employer has concealed or misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. Other recognized bases for equitable tolling of the filing limitation in whistleblower cases include whether "the plaintiff has in some extraordinary way been prevented from asserting his rights, or...raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3rd Cir. 1981)(quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978)); Hicks v. Colonial Motor Freight Lines, 84-STA-20 (Sec'y Dec. 10, 1985), slip op. at 7-8. 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.

   Claimant's first allegation fails to demonstrate that his employer concealed the true nature of his termination from him. First, rather than alleging an active effort to conceal the real reason for his termination, Complainant merely alleges that he was not told with specificity why he was terminated. Respondent's lack of specificity, however, does not rise to the level of concealment necessary for equitable tolling. In Hatcher v. Complete Auto Transit, 94-STA-53 (Sec'y July 3, 1995), the Secretary stated:

Neither the STAA, nor it's implementing regulations, require the employer to give notice to the employee of each fact that might be considered in rendering a discharge decision. The regulations, as set out above, do prohibit the employer from concealing or misleading the employee regarding the basis for the discharge decision.

Id. at 2. In Hatcher, the Secretary specifically reversed the administrate law judge's determination that equitable tolling was appropriate because the employer had not informed the complainant that his engagement in protected activity may be used against him. To demonstrate the level of activity necessary to rise to "concealment," the Secretary cited to School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3rd Cir. 1981). In Allentown, the Third Circuit Court of Appeals stated that one ground for equitable tolling was the "active concealment" by the employer of the true reason for such action. Id. In the instant case, no such concealment occurred. Rather, Respondent simply refused to provide details of its rationale. There was no active concealment. Furthermore, in Complainant's response to the Order to Show Cause, he admitted suspecting his complainants about the brake problems played a part in the termination decision. Concealment and misdirection on the part of employers invoke equitable tolling to protect employees without knowledge that their protected activity played a role in the adverse actions they suffer. In the instant case, Complainant, by his own admission, was not without knowledge that his protected activity may have played a part in his termination. Thus, application of equitable tolling principles, on the grounds of concealment or misdirection, are further unnecessary.

   Complainant's second rationale for tolling the statutory period is also unpersuasive. While this Court is sympathetic to the emotional and mental trauma that can occur after an automobile accident, Complainant has failed to demonstrate a level of emotional and mental disability during the relevant statutory period to dictate equitable tolling. In cases analogous to the whistleblower provision of the STAA under Title VII and the ADEA, the courts have declined to allow equitable tolling for reasons of ill health unless the plaintiff has been adjudicated, or institutionalized, as mentally incompetent. Steward v. Holiday Inn, Inc., 609 F. Supp. 1468, 40 FEP Cases 191, 192 (E.D. La. 1985)(physical and mental incapacity are not an additional category for tolling time limitation); Kerver v. Exxon Prod. Research Co., 40 FEP Cases 1567, 1568 (S.D. Tex. 1986)(no tolling due to plaintiff's psychological impairment resulting from job loss); Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244, 35 FEP Cases 382, 385 (S.D. Ohio 1984)(ADEA time limitation may be tolled during period of adjudication or institutionalization as mentally incompetent). In Ellis v. Ray A. Schoppert Trucking, 92- STA-28 (Sec'y Sept. 23, 1992), a complainant's bare assertion that he could not timely file his STAA complaint because he had been under extreme duress, on medication for spinal stenosis, a collapsed disc, and spinal obstruction, and had suffered a severe memory loss in the months after being discharged, did not provide sufficient grounds for equitable tolling. The Secretary held that the Ellis complainant did not allege that he was mentally incompetent because of his ill health, and he could have had someone (either a lay person or attorney) file a complaint on his behalf. Similarly, Complainant's version of the history of his claim simply reveals no adequate level of mental, emotional, or physical incapacity to warrant the tolling of the statutory period for filing a claim under the STAA.

   I find Complainant's third rationale for his late filing equally unconvincing. Complainant misconstrues this recognized ground for equitable tolling and advances that his efforts to file any complaint tolls the statutory period. Complainant's allegations demonstrate that he failed to raise the precise statutory claim he now raises at any time during the 180-day statutory period. Complainant does not allege that either of his letters to NHTSA invoked the protection of the STAA. See Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001)(finding nothing in Complainant's pleadings or testimony demonstrated that he "‘raised the precise statutory claim in issue' [before these agencies] -- i.e., a complaint that he was discharged in retaliation for activity protected by the STAA whistleblower provision."); Nixon v. Jupiter Chemical, Inc., 89-STA-3 (ALJ July 16, 1990), aff'd Nixon v. Jupiter Chemical, Inc., 89-STA-3 (Sec'y Oct. 10, 1990)(holding that wrongful discharge claim, brought within statutory period, was separate and distinct from STAA claim and that filing of former did not give respondent notice of statutory claim [STAA] asserted later); Lewis v. McKenzie Tank Lines, Inc., 92-STA-20 (Sec'y Nov. 24, 1992). Furthermore, when a complainant does not timely file his STAA complainant because he does not know that he had the right to file a complaint with the Department of Labor, his ignorance of the law is not a sufficient reason to toll the limitation. See Lewis v. McKenzie Tank Lines, Inc., 92-STA-20 (Sec'y Nov. 24, 1992). In addition, Complainant attempts to infer that NHTSA was bound to refer his claim to the Department of Labor's Occupational Safety and Health Administration; however, Complainant cites to no specific regulation requiring that, and this court is similarly unaware of any such requirement. Accordingly, tolling the statutory period due to Complainant's inability file in the proper forum is inappropriate in the instant case.

   Complainant's final rationale, grounded in general equity, is not grounds for tolling the statute. If Respondent is unlawfully withholding Complainant's personal possessions, Complainant should instigate a legal suit to recover his property. The STAA does not grant this Court jurisdiction over replevin actions.

   In conclusion, Mr. Lee has not provided an adequate basis for finding either that his claim was timely filed or that the statutory limitations should be tolled. Thus, the aforementioned claim is hereby recommended to be dismissed as untimely.

   IT IS HEREBY RECOMMENDED that the Motion for Summary Decision filed by Schneider National, Inc. be granted and this case be dismissed with prejudice.

       JOSEPH E. KANE
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20010. Such a petition for review must be received by the Administrative Review Board within ten business days of the days of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).