as a Route Driver Sales
Representative. The Complainant alleges that Kraft terminated him because of his objections
to the company's orders to drive in excess of permissible hours under the STAA. Kraft responds
that Complainant was terminated because of poor work performance.
Bachmeier filed a complaint with the Seattle office of the Occupational
Safety and Health Administration (OSHA) on June 26, 1996, alleging that he had been
terminated by Kraft in March, 1995,(sic) for engaging in protected activity. On July 17, 1996,
the OSHA Acting Regional Administrator determined that the complaint had not been timely
filed within 180 days of the adverse action, even if the erroneous 1995 date was used, as required
by the Act.
[Page 2]
Bachmeier requested a hearing before the Office of Administrative Law
Judges (OALJ). On September 17, 1996, the presiding ALJ issued a show cause Order
pertaining specifically to the issue of Bachmeier's late filing of his complaint and since no good
cause was shown, consequently issued the Recommended Order of Dismissal.
DISCUSSION
Although an untimely filing of a complaint under the employee protection
provisions of the environmental protection statutes can be subject to equitable modification
under certain circumstances, see School District of City of Allentown v. Marshall, 657
F.2d 16, 19-20 (3rd Cir. 1981) (case involving the Toxic Substances Control Act); Rose v.
Dole , 945 F.2d 1331, 1335 (6th Cir. 1991) (case involving the Energy Reorganization Act),
the Complainant has failed to show the existence of any of such circumstances. Bachmeier's
complaint was filed approximately 28 months after he was actually terminated by Kraft.
We agree with the ALJ that there is no evidence of a continuing violation
or of extenuating circumstances sufficient to equitably toll the filing period, and therefore the
complaint should be dismissed. The complaint IS DISMISSED .
SO ORDERED.
DAVID A.
O'BRIEN
Chair
KARL J.
SANDSTROM
Member
JOYCE D.
MILLER
Alternate
Member
[ENDNOTES]
1 On April 17, 1996,
Secretary's Order 2-96 was signed delegating jurisdiction to issue final agency decisions under this
statute and the pertinent regulations to the Administrative Review Board. 61 Fed. Reg. 19978 (May 3,
1996). The Order contains a comprehensive list of the statutes, executive order and regulations under
which the Board now issues final agency decisions.
2 Bachmeier's
complaint filed with OSHA on June 26, 1996, indicated that he was terminated on March 4,
1995, but the actual date of termination was March 4, 1994 . Bachmeier letter to the
Board, dated Jan. 2, 1997; Kraft letter to OALJ, dated Sept. 26, 1996.