Roadway, however, in its motion to dismiss, did not address this allegation. Instead, Roadway focused exclusively on the timeliness of the August discharge. The record does not establish whether Roadway knew of the allegation of retaliation based on Roadway's testimony at the grievance hearing. But it is clear that the ALJ was aware of this basis for the complaint even though Farrar did not address this allegation in his response to Roadway's motion to dismiss.
Accordingly, the ALJ erred when he dismissed Farrar's complaint without addressing the basis for his complaint. We do not decide here whether Farrar's allegations regarding the grievance proceedings are true or whether even if proven, would constitute retaliation and adverse action under the STAA. We remand this case to the ALJ to make those determinations.
Conclusion
We agree with the ALJ's conclusion that Farrar has failed to demonstrate any genuine question of material fact relevant to the issue whether his complaint for the August discharge was timely filed. However, the ALJ did not address the allegation that Roadway retaliated against Farrar in violation of the STAA at the grievance hearing on October 26, 2004. Accordingly, we REMAND the case to the Administrative Law Judge for further proceedings consistent with this opinion.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2007).
2 29 C.F.R. Part 1978 (2006).
3 Farrar's Objections to OSHA Findings at 1 (June 14, 2005).
4 General Teamsters Local 528 Claim # 528-04-130.
5 This is the third complaint Farrar has filed against Roadway pursuant to the STAA's whistleblower protection provisions. Farrar filed the first complaint on November 3, 2000, in response to a warning Roadway issued to him for failing to meet his run time. Farrar filed the second complaint on October 6, 2002, after Roadway terminated his employment on May 7, 2002. Roadway contended that it terminated Farrar's employment because he had a "preventable accident;" Respondent's Motion to Dismiss, Ex. 1, para. 13. Farrar claimed that Roadway fired him in retaliation for filing his first STAA complaint. Roadway reinstated Farrar and he subsequently withdrew the October 2002 complaint. Respondent's Motion to Dismiss, Exhibit (EX) 5.
6 Section 31105 reprisal complaint (Apr. 16, 2005).
7 49 U.S.C.A. § 31105(b)(1) provides, "An employee alleging discharge, discipline, or discrimination in violation of subsection (a) of this section, or another person at the employee's request, may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred." Farrar filed the April 16, 2005 complaint within 180 days of the October 26, 2004 grievance hearing, but not within 180 days of the August 2004 termination.
8 Farrar's Objections to OSHA Findings at 1 (June 14, 2005).
9 Id. at 2.
10 Summary of Prehearing Conference and Order (July 6, 2005).
11 Complainant's Brief in Opposition to Respondent's Motion to Dismiss at 1-2.
12 Complainant's Affidavit (Comp. Aff.) at para. 11.
13 1999-STA-37 (ALJ Dec. 16, 1999).
14 Complainant's Brief in Opposition to Respondent's Motion to Dismiss at 1. In his supporting affidavit Farrar averred, "The Complaint was within the 180-day statutory time limit from the date of October 5, 2004. Therefore, this complaint was timely filed." Comp. Aff. at para.16.
15 Accord R. D. & O. at 3.
16 R. D. & O. at 3.
17 Id.
18 Id. at 4.
19 R. D. & O. at 4. See 29 C.F.R. § 1978.102(d)(3).
20 29 C.F.R. § 1978.109(c)(2); Monroe v. Cumberland Transp. Corp., ARB No. 01-101, ALJ No. 00-STA-50 (ARB Sept. 26, 2001); Cook v. Shaffer Trucking Inc., ARB No. 01-051, ALJ No. 00-STA-17 (ARB May 30, 2001).
21 29 C.F.R. § 1978.109(c)(2).
22 Secretary's Order No. 1-2002, (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
23 Erickson v. U.S. Envtl. Prot. Agency, ARB No. 99-095, ALJ No. 99-CAA-2, slip op. at 3 n.3 (ARB July 31, 2001).
24 Fed. R. Civ. P. 56.
25 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
26 Bobreski v. U.S. EPA, No. 02-0732 (RMU), 2003 WL 22246796, at *3 (D.D.C. Sept. 30, 2003).
27 Lee v. Schneider Nat'l, Inc., ARB No. 02-102, ALJ No. 2002- STA-25, slip op. at 2 (ARB Aug. 28, 2003); Bushway v. Yellow Freight, Inc., ARB No. 01-018, ALJ No. 00-STA-52, slip op. at 2 (ARB Dec. 13, 2002).
28 Bobreski, at *3 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
29 Bobreski, at *3.
30 29 C.F.R. § 18.40(c). See Webb v. Carolina Power & Light Co., No. 93-ERA-42, slip op. at 4-6 (Sec'y July 17, 1995).
31 49 U.S.C.A. § 31105(b)(1).
32 Complainant's Brief in Opposition to Administrative Law Judge's Decision (Comp. Br.) at 5-8.
33 Id.
34 Higgins v. Glen Raven Mills, Inc., ARB No. 05-143, ALJ No. 2005-SDW-7, slip op. at 8 (ARB Sept. 29, 2006).
35 R. D. & O. at 3.
36 No. 1999-STA-37 (Dec. 16, 1999).
37 Id.
38 Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 99-STA-37 (Dec. 31, 2002).
39 Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 03-STA-47, slip op. at 2 (ARB April 26, 2005), quoting Young v. Schlumberger Oil Field Serv., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-10 (ARB Feb. 2003), citing Hughes v. Rowe, 449 U.S. 5 (1980).
40 49 U.S.C.A. § 31105(a)(1).
41 Letter from William Farrar to Cody Coe Laesteter, Regional Administrator for OSHA in Atlanta, GA, dated April 16, 2005.
42 Comp. Br. at 7.
43 R. D. & O. at 3.