Immanuel v. The Railway Market, 2002-CAA-20 (ALJ Feb. 13, 2004)

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Immanuel v. The Railway Market, 2002-CAA-20 (ALJ Feb. 13, 2004)

U.S. Department of Labor Office of Administrative Law Judges
Seven Parkway Center - Room 290
Pittsburgh, PA 15220
(412) 644-5754
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Issue Date: 13 February 2004

Case No. 2002-CAA-20

In the Matter of

HENRY W.M. IMMANUEL,
Complainant,

THE RAILWAY MARKET,
Respondent.

RECOMMENDED ORDER OF DISMISSAL

This matter arises Section 322(a)(1-3) of the Clean Air Act (42 U.S.C. 7622), Section 110(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9610), Section 507(a) of the Federal Water Pollution Control Act (33 U.S.C. 1367), Section 1450(i)(1)(A-C) of the Safe Drinking Water Act (42 U.S.C. 300j-9), Section 7001(a) of the Solid Waste Disposal Act (42 U.S.C. 6971), and Section 23(a)(1-3) of the Toxic Substances Control Act (15 U.S.C. 2622). The procedures for handling complaints under these federal employee protection statutes are set forth at 29 C.F.R. Part 24. These statutes and regulations provide protection to employees from employment discrimination resulting from notification to the employer of an alleged violation of the statutes, refusal to engage in any practice unlawful under the statutes, or testifying in a proceeding regarding a provision of the statutes. 29 C.F.R. § 24.2(b). Such activities are referred to as "protected activities."

The complainant in this proceeding, Henry W. M. Immanuel, claims that the employer, the Railway Market, terminated him for engaging in protected activities. A hearing took place on the claim in Easton, Maryland on October 8-10, 2003. In my Order of November 26, 2003, I set the date of January 16, 2004 as the due date for briefs on whether this claim is time-barred, as I will not consider the merits of the case unless the complaint was timely filed. Complainant and Respondent timely submitted briefs on the issue.

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FACTUAL AND PROCEDURAL BACKGROUND¹

Respondent employed Complainant until July 19, 2001, when Complainant was discharged. TR 401. Mr. Immanuel submitted a letter of complaint to the Maryland Department of Labor, Licensing and Regulation, Occupational Safety and Health Program (MOSH) on July 24, 2001. Id. The MOSH investigation of the complaint commenced in late July, 2001. Id. On December 13, 2001, MOSH issued a letter notifying Complainant that it had failed to find any evidence of discrimination against him under the MOSH Act and was dismissing Complainant's claim. Id. The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) received a complaint from Mr. Immanuel on February 26, 2002 and assigned it for investigation. TR 401-02, EX-2.

The OSHA investigation failed to produce any evidence of discrimination; the complaint was dismissed June 5, 2002. EX-3. Complainant timely filed notice of an appeal of OSHA's decision. The case was referred to the Office Administrative Law Judges. A hearing took place before me on October 8-10, 2003. During that hearing, Respondent moved for judgment as a matter of law, arguing that Complainant had failed to present a prima facie case in that he had not met his burden to demonstrate jurisdiction. TR 389. Rather than rule on the motion at that time, I proceeded to hear the merits of the claim and asked the parties to submit briefs on the issue of whether Mr. Immanuel had filed this complaint outside the time limitations of the whistleblower statutes. Id.

EVIDENCE

The evidence in this case, identified as CX (Claimant's Exhibit) or EX (Respondent's/Employer's Exhibit) and briefly described is as follows:

CX-1. Letter from Claimant to MOSH, dated 7/24/01. TR 111.
CX-2. The Railway Market's employee manual. TR 134.
CX-6. Darriel Park's affidavit to the National Labor Relations Board (NLRB), dated 12/20/01. TR 689.
CX-8. Information on Damp Mop floor cleaner that Respondent provided to Claimant with answers to interrogatories. TR 717.
EX-2. Letter from OSHA investigator Seguin to Respondent, dated 3/8/02. TR 151.
EX-3. Letter from OSHA to Complainant, dated 6/5/02. TR 161.
EX-4. Complainant's employment application with Railway Market. TR 182.
EX-5. Letter from Department of Labor to Complainant regarding another claim, dated 1/4/95. TR 182.
EX-7. Letter from Complainant to the president of United Natural Foods, dated 7/21/01. TR 209.
EX-8. Notice posted by Complainant at the Railway Market on 7/19/01. TR 216.

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EX-9. Charge letter by Complainant to the NLRB. TR 219.
EX-10. Investigative report by NLRB. TR 220.
EX-11. Decision of NLRB. TR 221.
EX-13. Letter by Susan Mickalowski and Darriel Park, signed by both, for Complainant's employee file, dated 7/20/01. TR 438.
EX-14. List of job priorities for produce manager written by Darriel Park. TR 583.
EX-15. Document written by Darriel Park and typed by Susan Mickalowski, signed by Darriel Park on 7/20/01. TR 615.
EX-16. Statement written by Park, dated 7/19/01 (originally misdated 4/19/01 but corrected through testimony of Park). TR 627-28.
EX-17A-L. Pictures taken by Darriel Park of the produce section of the Railway Market at approximately 2:30 - 3:00 p.m. on 7/19/01. TR 646.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Henry W.M. Immanuel worked as the produce manager at the Railway Market, a health- food grocery owned by the Natural Retail Group (NRG). Mr. Immanuel was hired by store manager Darriel Park in June, 2001. TR 567. Mr. Park came to be dissatisfied with Mr. Immanuel's job performance and dismissed him the day after an incident involving Mr. Immanuel abruptly leaving a management meeting. TR 603. Later on the day of the management meeting, July 18, 2001, Mr. Park and the other managers participated in a cleanup of the loading dock behind the Railway Market. TR 608. Mr. Immanuel was present at that cleanup at some point. Id. Mr. Park and another employee disposed of unused or partially used buckets of floor cleaner in a dumpster because the cleaner had gone unused for a long period of time. TR 616. Mr. Immanuel testified that he objected to disposing of the cleaner in this manner, based on his belief that it posed a hazard to the environment and other workers, and that he was later fired for raising the concern. TR 335. Mr. Park testified that he and other employees had ascertained to their satisfaction that the floor cleaner was safe to throw into a dumpster; he further testified that any disagreement that arose that day about disposing of the floor cleaner took place after he had already made the decision to fire Mr. Immanuel and had informed a visiting NRG regional director, Susan Mickalowski, of his decision. TR 605, 612. Mr. Park and Ms. Mickalowski called Mr. Immanuel into a meeting on July 19, 2001 and discharged him from the Railway Market. TR 423.

Under the statutes at issue and their implementing regulations, Mr. Immanuel's complaint against the Respondent had to have been filed within thirty (30) days after the alleged violation occurred in order to be timely. 29 C.F.R. § 24.3(b); stipulated by parties at TR 105-06. The alleged violation in this case was the Railway Market firing Mr. Immanuel on July 19, 2001 in retaliation for his whistleblowing activity the day before. The parties agree that Mr. Immanuel did not actually file the complaint until approximately seven months later, but that he did file a similar complaint with MOSH within that period of time. TR 104-05, Complainant's Brief at 1- 3, Respondent's Brief at 2-3. Complainant argues, and Respondent is willing to concede for

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purposes of this issue, that filing a state claim very similar to the federal one equitably tolled the federal Acts' time limitations.² TR 108-13, Complainant's Brief at 3, Respondent's Brief at 2.

The Respondent's brief states the time-bar issue in this claim precisely: "Assuming that the environmental statutes of limitations were tolled during the pendency of the MOSH complaint, did they continue to be tolled for 73 days ³ after the MOSH complaint was dismissed or, in the alternative, were they revived when the MOSH complaint was dismissed, so as to expire, at the latest, 30 days later on January 12, 2002[?]" I must answer this question in order to determine whether I may consider the merits of the claim.

In an earlier case brought by the same Complainant, the ARB agreed with a United States Circuit Court's ruling that equitable tolling is appropriate when a complainant mistakenly filed the "precise statutory claim in issue" in the wrong forum, but within the filing period. Immanuel v. Wyoming Concrete Industries, Inc., ARB No. 96-022 (May 28, 1997) [Immanuel I], citing School District of the City of Allentown v. Marshall, 657 F.2d 16, 18-21 (3rd Cir. 1981). What the ARB did not address in Immanuel I is the precise date that equitable tolling stops in such a claim. Does equitable tolling cease, as logic would suggest, on the day that the underlying claim is dismissed?

Complainant's brief on the timeliness issue fails to address the precise question that I must answer. Although Complainant has consistently argued that equitable tolling should apply because Mr. Immanuel filed a complaint with MOSH, he has gone no further in addressing at what point that equitable tolling should cease. TR 108-13, Complainant's Brief at 3. I can only infer that Complainant's position is that Immanuel I commands equitably tolling the time limitations for filing federal environmental complaints indefinitely. Complainant cites no support whatsoever for this position.

A decision that speaks to this issue is the United States Supreme Court's opinion in Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965). In that case, the Court held that the statute of limitations period prescribed by the Federal Employees Liability Act was tolled when the claimants, who failed to file a timely complaint in the federal forum, did file a claim in a state forum (that claim was later dismissed for improper venue). The Court found that, even

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though the claimants failed to file a timely federal claim, the purpose of the limitations period-- to notify the defendant of the alleged violation of a federal act--was satisfied because the employer still received such notice through the state claim. The Court held that the limitations period was tolled from the date on which the complaint was filed in the state forum until the date on which the state court's dismissal order became final. Although the Burnett holding was modified by later Court decisions, its finding for purposes of claims such as this one remains: the equitable tolling period for a federal claim, when a substantially similar claim was filed timely in state court, runs from the date the state claim was filed through the date it was finally dismissed. I believe that the same rule is appropriate for claims such as the one before me.

In the current claim, Mr. Immanuel timely filed his state claim with MOSH. That claim was finally dismissed on December 13, 2001; from that date, the federal claim's time limit began to run again. Under 29 C.F.R. § 24.3(b), Complainant had no more than thirty days from December 13, 2001 to file his complaint with the proper federal agency. A letter in the record from Regional Supervisory Investigator William Seguin, of the Department of Labor's Occupational Safety and Health Administration, states that OSHA received Mr. Immanuel's complaint on February 26, 2002--a date that has been stipulated to by both Complainant and Respondent. TR 104-05. That date is plainly far outside the time limitations of 29 C.F.R. § 24.3(b). Complainant has not met his burden of showing that this claim was timely filed (and is therefore properly before me). As I must therefore recommend dismissal of the complaint, I will not address the merits of Mr. Immanuel's claim.

ORDER

The instant claim is time-barred under the Regulations. I recommend that the Respondent's motion for judgment as a matter of law be GRANTED and that the claim of Henry W. M. Immanuel be DISMISSED as untimely filed.

MICHAEL P. LESNIAK
Administrative Law Judge

NOTICE: This Recommended Order of Dismissal 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, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of the Recommended Order of Dismissal, 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).

[ENDNOTES]

¹ Citations to the hearing transcript of October 8-10, 2003, are herein abbreviated as TR. Complainant's exhibits are abbreviated as CX, and Employer's/Respondent's exhibits are abbreviated as EX.

² Courts have held that the time limitation provisions in federal whistleblower actions are not jurisdictional, so that the failure to file a complaint within the statutory period will not absolutely bar the administrative action. School Dist. of the City of Allentown v. Marshall, F.2d 16, 18 (3rd. Cir. 1981). Instead, an ALJ may consider whether the time limits for such claims may be equitably tolled, as courts have done with statutes of limitations. The Allentown court distilled from United States Supreme Court opinions three sets of circumstances in which tolling might be appropriate. Id. The third of these is a circumstance that both parties agree--for purposes of this question--applies to this claim: "the plaintiff has raised the precise statutory claim in issue, but has mistakenly done so in the wrong forum." Id. Neither Complainant nor Respondent contends that either of the other two Allentown circumstances applies here.

³ Seventy-three days elapsed between the dismissal of Complainant's MOSH claim and the filing of his DOL claim.