DATE:  July 3, 1995
CASE NO.  94-STA-53


IN THE MATTER OF:

VINCENT HATCHER,
          COMPLAINANT,

     v.

COMPLETE AUTO TRANSIT,
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


DECISION AND ORDER

     Complainant Vincent Hatcher (Hatcher) alleges that
Respondent Complete Auto Transit (Complete) violated the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1994),  by
discharging him, in part, due to his refusal to drive during
unsafe weather conditions.  Complete alleges that the complaint
was not timely filed and that Hatcher was discharged for
legitimate, nondiscriminatory reasons.  The Administrative Law
Judge (ALJ) issued a Recommended Decision and Order (R. D. and
O.) finding that the complaint was timely filed, but that Hatcher
failed to carry his burden to prove by a preponderance of the
evidence that he was discharged because of his protected
activities.  I find that the ALJ erred in holding that the
complaint was timely filed, but agree with the ALJ that the
complaint should be dismissed.
       On February 16, 1993, Hatcher refused to report to work
because of allegedly unsafe driving conditions.  The refusal to
operate a vehicle is protected under the STAA, if the operation
would violate a regulation, standard, or order; or if the
employee has a reasonable apprehension of serious injury to
himself or others.  49 U.S.C.A. § 31105(a)(1)(B).  A
disciplinary 
[PAGE 2]
notice was placed in Hatcher's personnel file because of this
refusal.  Hatcher was ultimately discharged on July 7, 1993, for
refusing to work as ordered on July 1, 1993.  Hatcher's reason
for refusing to work on July 1, 1993 was not related to safety 
concerns.  The record reflects no other relevant incidents
concerning any employment related problems between February 16,
1993, and July 1, 1993.  
     The STAA allows an employee to file a complaint with the
Secretary of Labor within 180 days after an alleged violation. 
49 U.S.C.A. § 31105(b)(1).  The STAA implementing
regulations note that:
     [T]here are circumstances which will justify the
     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 mislead the employee
     regarding the grounds for discharge or other adverse
     action; or where the discrimination is in the nature of
     a continuing violation.

29 C.F.R. § 1978.102 (d) (3).
     Hatcher filed the complaint on June 6, 1994, 341 days after
the termination of his employment and 463 days after engaging in
allegedly protected activity.  Hatcher states that he did not
know that the February 16, 1993 protected activity was used as a
basis for the July 7, 1993 discharge until "much later." R. D.
and O. at 6.  The ALJ found the complaint timely because Complete
"did not give notice that the February 16, 1993 incident might be
used against the Complainant to justify the July 7, 1993
discharge."  Id.  
     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.  The record here reveals no basis for
concluding that Complete concealed or mislead Hatcher regarding
the February 16, 1993 incident.  In fact, at a union grievance
hearing held shortly after Hatcher's discharge, the February 16,
1993 incident was mentioned "when discussing the Complainant's
work history."  R. D. and O. at 5.  Therefore, I find that
Hatcher has not produced evidence to show that the statutory
filing period should be equitably tolled.[1] 
       The continuing violation theory is also not applicable to
the factual situation presented here because a claim is preserved
under that theory "where there is an allegation of a course of
related discriminatory  conduct and the charge is filed within
[PAGE 3]
[180 days] of the last discriminatory act." Garn v.
Benchmark Technologies, Case No. 88-ERA-21, Dec. and Order of
Remand, Sept. 25, 1990, slip op. at 6. (emphasis added) (under the Energy
Reorganization Act).  Hatcher has not alleged that any
discriminatory act took place within 180 days of the filing of
his complaint.
     Hatcher's complaint was not timely filed.  Accordingly, it
is hereby ORDERED that the complaint be DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor
Washington, D.C.

[ENDNOTES]
           
[1]   For a discussion of the recognized bases on which a
statutory filing period should be equitably tolled in
whistleblower protection statutes see School District of
Allentown v. Marshall, 657 F.2d 16, 19-20 (3rd Cir. 1981)
and Holden v. Gulf States Utilities, Case No. 92-
ERA-44, Dec. and Remand Ord., April 14, 1995, slip op. at 11-15.