ARB CASE NO. 03-051
ALJ CASE NO. 2002-STA-6
DATE: May 27, 2004
In the Matter of:
CHRISTOPHER J. HOFF,
COMPLAINANT,
v.
MID-STATES EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Joanne Kinoy, Esq., Kinoy, Taren and Greghty, P.C., Chicago, Illinois
For the Respondents:
Richard M. Furgason, Esq., Dreyer, Foote, Streit, Furgason & Slocum, P.A., Aurora, Illinois
FINAL DECISION AND ORDER
This case arises under the employee protection provisions of the Surface Transportation Assistance Act (STAA) of 1982, as amended, 49 U.S.C.A. § 31105 (West 1997) and implementing regulations at 29 C.F.R. Part 1978 (2003). On August 29, 2001, Christopher Hoff filed a complaint with the Occupational Safety and Health Administration (OSHA) in which he alleged that his employment "was terminated by his employer, Mid-States Express, Inc. (Mid-States) for refusing to operate a commercial motor vehicle in violation of federal motor carrier safety regulations and for filing a complaint with the United States Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA)." OSHA found that Hoff's complaint was untimely, whereupon Hoff requested a hearing before an Administrative Law Judge (ALJ). The ALJ held a hearing on July 2 and 3, 2002, during which both parties addressed the merits of Hoff's complaint. On February 3, 2003, the ALJ issued a Recommended Decision and Order (R. D. & O.) finding that Hoff's complaint was untimely. We affirm the R. D. & O.
BACKGROUND
The record fully supports the ALJ's factual and procedural history set forth at pages 1-4 of the R. D. & O. To summarize, Mid-States hired Hoff in 1998 as a dock man and eventually as a driver. On August 24, 2000, Hoff submitted a letter to the FMCSA in which he alleged that his employer, Mid-States, had violated federal motor carrier safety regulations. Hoff testified that he informed Mid-States' management of this letter.
[Page 2]
Hoff's employment with Mid-States ended on September 11, 2000. See R. D. & O. at 3. About one week later Hoff again contacted the FMCSA to inform it that Mid-States had terminated his employment. Transcript at 73-74. He testified that he continuously contacted FMSCA to discuss the allegations contained in his letter. On July 31, 2001, FMSCA contacted Hoff by letter and informed him that Mid-States had been investigated, violations found, and citations issued. It was only after the receipt of this letter that Hoff realized that the FMSCA had investigated his claims under the Federal Motor Carrier Safety Act and not under the Surface Transportation Assistance Act1 and was not investigating his retaliation claim. Complainant's Brief at 2. He thereafter filed his claim with OSHA on August 29, 2001, more than 180 days after Mid-States allegedly discharged him.
1 FMCSA has responsibility for investigating alleged violations of the Federal Motor Carrier Safety Act and regulations thereunder. It does not have responsibility for investigating allegations of violations of the Surface Transportation Assistance Act.
2 This regulation provides, "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee."
3 "A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because ... the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding . . .."