Monroe v. Cumberland Transportation Corp., 2000-STA-50 (ALJ June 29, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 856-757-5403 (FAX)

Issue date: 29Jun2001
CASE NOS.: 2001-STA-00042

In the Matter of

ROGER H. MONROE
    Complainant

    v.

CUMBERLAND TRANSPORTATION CORP.
    Respondent

   On May 22, 2001, I issued a Notice of Docketing and Order to Show Cause directing the Complainant to show why this matter should not be dismissed for failure to file a timely complaint under the employee protection provisions of the Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105, and the implementing regulations at 29 C.F.R. Part 1978. The Complainant responded to the show cause order in writing, arguing that his complaint was timely filed, and the Respondent filed an opposition to the Complainant's arguments. Upon careful consideration of the matter, I conclude that the complaint must be dismissed as untimely.

   The record shows that the Complainant filed a complaint with the Secretary of Labor on December 4, 1998, alleging that the Respondent had discriminated against him in violation of 49 U.S.C. §31105 when it terminated his employment on February 10, 1997. The complaint was investigated, and on January 21, 1999, the Regional Administrator of the Occupational Safety and Health Administration determined that the complaint was not timely filed withing the STAA's 180-day limitation period. The Complainant then filed a timely request for a hearing before the Office of Administrative Law Judges.

   The evidence submitted by the Complainant shows that his employment with the Respondent was terminated effective February 11, 1997 in part based on the Complainant's attempts, contrary to his supervisor's instructions, to have a reported problem with his truck's cruise control repaired before returning the truck to the Respondent's facility in Syracuse, New York. The termination action was confirmed by letter dated February 12, 1997, and the Complainant filed a grievance challenging the termination under the provisions of the collective bargaining agreement then in effect between the Respondent and the International Brotherhood of Teamsters. The Complainant's grievance was heard on March 5, 1997 by Arbitrator Jeffrey Michael Sherman who issued an award on March 17, 1997 denying the grievance based on his finding that the Respondent did not violate the collective bargaining agreement by terminating the Complainant's employment. The Complainant also wrote a letter to the Department of Transportation (DOT) on March 27, 1997, alleging that his employment had been terminated by the Respondent because he had filed a grievance over poor maintenance of the Respondent's tractor-trailers and urging DOT to inspect the Respondent and require it to operate under DOT's motor carrier guidelines.

   The STAA provides that an employee who believes that an employer has violated the employee protection provisions "may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred." 49 U.S.C. §31105(b)(1). In his response to the show cause order, the Complainant does not dispute that his complaint was not filed within 180 days of the date on which the alleged violation occurred, but he argues that the limitation period should be tolled for three reasons: (1) because the DOT did not inform him that he had to file a complaint with the Secretary of Labor in order to challenge his termination as violating of the STAA; (2) because he had contacted former Senator Alfonse D'Amato¹ and was under the belief that the Senator had contacted the Department of Labor on his behalf; and (3) his termination was part of a continuing violation.

   As I noted in the Notice of Docketing and Order to Show Cause, the regulations recognize that the STAA's 180-day period is subject to equitable tolling in certain circumstances:

However, there are circumstances which will justify 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 misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. The pendency of grievance-arbitration proceedings or filing with another agency are examples of circumstances which do not justify a tolling of the 180-day period.

   There being no evidence of a continuing violation or circumstances which would permit equitable tolling of the statutory limitation period, it is hereby RECOMMENDED that this complaint be DISMISSED in its entirety.²

       Daniel F. Sutton
       Administrative Law Judge

Camden, New Jersey

NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. §1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).

¹ The Complainant did not submit a copy of the letter to Senator D'Amato which he claims to have lost.

² In view of this determination, the Complainant's request that I consider remanding his complaint to the Occupational Safety and Health Administration is denied. Compare Clement v. Milwaukee Transport Services, Inc., USDOL/OALJ Reporter (HTML), 2000-STA-8 (ALJ June 20, 2000) (remand to OSHA for investigation where administrative law judge concluded, contrary to OSHA's determination, that a complaint was timely filed).