Office of Administrative Law Judges 2600 Mt. Ephraim Avenue
Camden, NJ 08104
(856) 757-5312 856-757-5403 (FAX)
DATE ISSUED: December 16, 1999
CASE NO.: 1999-STA-00037
In the Matter of
MICHAEL HARRISON
Complainant,
v.
ROADWAY EXPRESS, INC.
Respondent.
PRELIMINARY DETERMINATION THAT THE COMPLAINT WAS TIMELY
and BRIEFING SCHEDULE
At the hearing on August 31 and September 1, 1999, a question arose
regarding whether a complaint was filed within 180 days of the notice of employment termination given
by Respondent to Complainant on July 2, 1998, in compliance with the 180-day statute of limitations in
the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. § 31105. By
Order dated September 9, 1999, I bifurcated this case into two segments: (1) whether a timely complaint
was filed and, if so, (2) whether Respondent violated the STAA, and the appropriate remedy for such
violation. I ordered the parties to file briefs addressing the issue of whether a timely complaint was filed.
Respondent and Complainant filed briefs on December 8 and 10, 1999, respectively.
In a memorandum dated September 1, 1999 by which a copy of the above diary sheet was provided
to Complainant during the course of the hearing on that date, Area Director Boyce stated:
The attached is a copy of a diary sheet from case file Roadway Express
Inc.. Inspection report #301002357.
(CX 35)
Based on the foregoing, I find that the fact that OSHA failed to follow the
procedures in the OSHA Manual does not invalidate the complaint Complainant made to OSHA on July
27, 1998.
Respondent also argues that the log entry does not have the necessary
characteristics of a complaint, in that it fails to identify the parties and dates of alleged discrimination,
nor refers to the STAA. As noted, the relevant regulation, 29 C.F.R. § 1978.102(b), states that no
particular form of complaint is required under the STAA. In Richter v. Baldwin Associates,
84-ERA-9 (Sec'y Mar. 12, 1986), the Secretary was dealing with a regulation, 29 C.F.R. § 24.3(b)
(1985), that requires a written complaint and suggests the need for much more specificity than is required
by the STAA regulation. Despite this, the Secretary stated:
This complaint, although "equivalent to the filing of a formal legal
complaint," is not a formal pleading setting forth legal causes of
action [but] is an informal complaint filed ... for the purpose of initiating
an investigation on behalf of the Secretary of Labor...." (Citation
omitted.)
Richter, supra, slip op. at 6. Richter held that the fact that some
complainants' complaints omitted allegations of protected activity was not fatal to the allegations.
1The following abbreviations are used herein:
"CX" denotes Claimant's Exhibit; "T" denotes the transcript of the hearing on
August 31 and September 1, 1999.
2Complainant does not argue that the
February 1, 1999 complaint was timely. The sole basis for such an argument is that the 180-day statute
was tolled during the pendency of his grievances. However, the filing of a grievance does not toll the
statute of limitations. Rezas v. Roadway Express, Inc., 85-STA-4 (Sec'y June 5, 1985);
Prybys v. Seminole Tribe of Florida, 95-CAA-15, slip op. at 4-5 (ARB Nov. 27, 1996). Both
cases rely on International Union of Electrical, Radio & Machine Workers v. Robbins & Myers,
429 U.S. 29 (1976).
3The reference to "further
discrimination" is ambiguous. Although this implies that Com-plainant had previously complained
to OSHA about discrimination, the record contains no evidence of such a complaint. (Also see n. 4,
below) It appears that the reference to "2 notices of firing" includes Complainant's second
discharge, on July 14, 1998, which is only briefly mentioned in the record. (T 294)
4The "original
complaint"apparently refers to Complainant's initial communication to OSHA about safety concerns
relating to Respondent's yard.
5 In a letter to me dated September 8,
1999, Respondent's counsel stated that he had spoken with "the OSHA 11(c) investigator who
investigated the Harrison complaint" who told counsel that Complainant "had been informed,
incorrectly, [by OSHA] that the complaint would be accepted when his discharge became final"
(i.e., after the grievance-arbitration procedure had run its course).
6This determination is interlocutory and
is not a final order that can be appealed to the Administrative Review Board. Plumley v. Federal
Bureau of Prisons, 86-CAA-6 (Sec'y Apr. 29, 1987). In the event that Respondent nevertheless files
an appeal, I shall not stay the proceeding before me.