DATE:  August 5, 1992
CASE NO. 92-STA-1

IN THE MATTER OF

ROBERT SPEARMAN,

               COMPLAINANT,

     v.

ROADWAY EXPRESS, INC.,

               RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                       DECISION AND ORDER OF REMAND

     Before me for review is the Recommended Decision and Order
of Dismissal (R.D. and O.) issued on May 1, 1992, by the
Administrative Law Judge (ALJ) in this case, arising under
Section 405 (employee protection provision) of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 
§ 2305 (1988), and its implementing regulations, 29 C.F.R.
Part 1978 (1991).  The ALJ has concluded that he lacks
jurisdiction to hear the case because Complainant Robert Spearman
filed his objections to the investigation findings of the
Assistant Secretary for Occupational Safety and Health out-of-
time.  R.D. and O. at 4-5.  I disagree.
     The STAA requires the Occupational Safety and Health
Administration (OSHA) to conduct an investigation within 60 days
of receiving a complaint of unlawful discrimination.  29 C.F.R.
§§ 1978.103, 1978.104.  Upon issuance of the Assistant
Secretary's investigation findings and a preliminary order, any
aggrieved party "may, within thirty days, file objections to the
findings or preliminary order, or both, and request a hearing on
the record . . . .  Where a hearing is not timely requested, the 
[PAGE 2]
preliminary order shall be deemed a final order which is not
subject to judicial review."  49 U.S.C. app. §
2305(c)(2)(A).  In past cases under the employee protection
provisions of the STAA and environmental laws, the Secretary has
treated the filing period at this procedural stage as a statute
of limitations, rather than a jurisdictional bar.  See,
e.g., Smith v. Specialized Transportation Services,
Case No. 91-STA-22, Sec. Remand Dec., Nov. 20, 1991; Ward v.
Bechtel Construction, Inc., Case No. 85-ERA-9, Sec. Dec.,
July 11, 1986.  Cf. Flener v. Julius Kolesar, Inc.,
Case No. 86-STA-26, Sec. Dec., Mar. 10, 1987 (assuming, without
deciding, that period was in the nature of a limitation, no
record basis existed for equitable tolling).  It is well
established that the time period for filing the initial
administrative complaint of unlawful discrimination is subject to
equitable modification.  29 C.F.R. § 1978.102(d)(2), (3);
Hicks v. Colonial Motor Freight Lines, Case No. 84-STA-20,
Sec. Dec., Dec. 10, 1985, slip op. at 7-12.  Cf. Larry
v. The Detroit Edison Company, Inc., Case No. 86-ERA-32, Sec.
Dec.,  June 28, 1991, slip op. at 11-19, aff'd, No. 91-3737, 1992
U.S. App. LEXIS 8280 (6th Cir. Apr. 17, 1922).
     Support for construing the STAA 30-day period for filing
objections as a statute of limitations derives from closely
analogous filing provisions under Title VII of the Civil Rights
Act of 1964.  Where adherence to the literal terms of a statute
would defeat congressional intent, courts have construed the
statute to authorize equitable exceptions despite plain language
suggesting a contrary result.  Thus, as discussed in
Larry, supra, a provision requiring that a
complainant file a Title VII charge against a private employer
with the Equal Employment Opportunity Commission (EEOC) within 90
days (now 180 days) of the alleged unlawful employment practice
was not jurisdictional and was, "like a statute of limitations, .
. . subject to waiver, estoppel, and equitable tolling." 
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982) (footnote omitted).  Title VII's requirement that district
court suits against private employers be filed within 90 days of
receiving notice of right to sue from the EEOC subsequently was
held subject to tolling in appropriate cases, notwithstanding
that the statute on its face did not provide for exceptions. 
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983)
(filing of class action tolls statute of limitations and thus
permits all members of putative class to file individual actions
in the event that class certification is denied, provided actions
are instituted within time remaining on limitations period).  The
30-day time limit for filing a Title VII suit against the
Government following receipt of a right to sue letter similarly
is "treated like any other statute of 
[PAGE 3]
limitations, including subjecting it to equitable tolling." 
Ynclan v. Department of Air Force, 943 F.2d 1388, 1391-
1393 (5th Cir. 1991), citing Irwin v. Veterans
Administration, ___U.S.___, 111 S. Ct. 453, 112 L.Ed.2d 435
(1990).  See also Burnett v. New York Central Railroad
Co., 380 U.S. 424 (1965) (limitations provision in Federal
Employers' Liability Act is subject to tolling).  I note that the
opportunity under Title VII to file suit in district court upon
receipt of a right to sue letter, which follows EEOC's
investigation and findings, represents a procedural stage
parallel to the instant STAA opportunity for a de novo
hearing before an ALJ.
     Indicia that a limitations period may be modified include
the character of the provisional language and the statute's
remedial purpose.  Mondy v. Secretary of the Army, 845
F.2d 1051, 1054-1056 (D.C. Cir. 1988) (modification permitted). 
STAA Section 405 unquestionably is remedial.  Brock v. Roadway
Express, Inc., 481 U.S. 252, 258-259, 262-263 (1987) (statute
seeks to promote and protect important Government and employee
interests).  Moreover, its provision that "the person alleged 
to have committed the violation or the complainant may, within
thirty days, file objections" does not employ the "exceptionally
emphatic" language commonly signaling a jurisdictional filing
period.  See Mondy v. Secretary of the Army, 845
F.2d at 1055-1056. [1]   The Section 405(c)(2)(A) administrative filing
provision also differs significantly from the STAA grant of court
of appeals review that any "petition for review must be
filed within sixty days from the issuance of the Secretary of
Labor's order."  49 U.S.C. app. § 2305(d) (emphasis added). 
I therefore find that the STAA 30-day period for objecting to the
Assistant Secretary's investigation findings is subject to
equitable modification. [2] 
     The question then becomes whether the present circumstances
permit modification of the filing period.  Courts properly may
toll a limitations period where 
     a claimant has received inadequate notice, . . . where
     a motion for appointment of counsel is pending and
     equity would justify tolling the statutory period until
     the motion is acted upon, . . . where the court has led
     the plaintiff to believe that she had done everything
     required of her, . . . [or] where affirmative
     misconduct on the part of a defendant lulled the
     plaintiff into inaction.

Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151
(1984) (per curiam) (citations omitted).  In Baldwin
County, the Court 
[PAGE 4]
considered tolling the parallel Title VII time limit for filing
suit upon receipt of a right to sue letter.  The Supreme Court
also has tolled limitations periods where a claimant actively has
pursued his judicial remedies by filing a defective pleading
during the statutory period.  See Irwin v. Veterans
Administration, 112 L.Ed.2d at 444 and n.3.  "One who fails
to act diligently [however] cannot invoke equitable principles to
excuse that lack of diligence."  Baldwin County Welcome Center
v. Brown, 466 U.S. at 151.
     Complainant Spearman timely filed his complaint of unlawful
discrimination with OSHA on January 24, 1991.  Spearman "alleged
that he was treated in a disparate manner . . . for refusing to
drive in violation of [Department of Transportation]
regulations."  Sec. Findings at 2, par. 4(a).  In particular, he
claimed Respondent Roadway Express, Inc., refused to compensate
him for motel expenses incurred when he refused to continue
operating a commercial motor vehicle due to illness and fatigue. 
Id., par. 4(d). [3]   After an investigation, the
Assistant Secretary issued findings adverse to Spearman on
September 26, 1991.  The record does not disclose the date of
their receipt.  In the cover letter accompanying the findings,
the Assistant Secretary's representative advised Spearman that he
was permitted a period of 30 days from receipt to file objections
and request a hearing and that any objections should be filed with the
Regional Administrator in Atlanta, Georgia, and the Office of
Administrative Law Judges (OALJ) in Washington, D.C.  (The date
of postmark is considered the date of filing.  29 C.F.R. 
§ 1978.105(a).)  Spearman also was advised:  "[Y]ou have the
responsibility for notifying the other appropriate parties to
this matter, including your former employer, that you have
appealed the findings, order, or both."
     By letter dated October 25, 1991, posted October 28, and
received by OALJ on October 29, Spearman requested an extension
of the 30-day filing limit for purposes of retaining counsel and
preparing and filing his objections.  The letter expressly
referenced the case name and number as they appeared in the
Assistant Secretary's findings.  Spearman sent a copy of his
extension request to the Regional Administrator in Atlanta.  
On November 1, 1991, the Deputy Chief ALJ docketed the case,
designating it Case No. 92-STA-1, and issued an order extending
the filing period to November 30, 1991.  Although the order does
not show service on Roadway, company counsel received a copy from
the Labor Department Associate Regional Solicitor on or before
November 22.  Roadway's counsel subsequently notified OALJ of his
appearance and requested future service, but did not except to
the order extending the filing period.
     By letter posted November 27, Spearman requested a further 
[PAGE 5]
extension, citing emergency surgery and difficulties securing
documentation.  Spearman previously had telephoned Roadway's Law
Department to communicate his need for this extension.  On
January 10, 1992, OALJ issued an order granting Spearman until
January 23 to file his objections.  Spearman's objections, which
were received by OALJ on January 23 with concurrent service on
Roadway, consisted of a six-page listing of specific allegations
and substantial documentation included in eight appendices.
     Under the STAA implementing regulations, a party need file
only a written objection to the Assistant Secretary's findings. 
29 C.F.R. § 1978.105(a). [4]   Here, while Spearman may not
have used the words "I object to the findings," that he objected
was implicit in the statement that he required additional time in
which "to prepare [and] file [his] objections . . . ."  OALJ
apparently understood the letter to express an objection to the
Assistant Secretary's findings in the matter referenced, since
the Deputy Chief ALJ docketed it as a STAA case and assigned it
to an ALJ for hearing.  Given the particular circumstances, it is
reasonable to construe Spearman's October 25 extension request,
which appears timely, [5]  as an objection to the Assistant
Secretary's investigation findings, and his January 1992 filings
as submitted to clarify and supplement his objection.
     Even assuming that Spearman's request does not suffice as an
objection, fairness requires tolling of the time limitation.  As
demonstrated in the chronology recited above, Spearman diligently
pursued his claim by timely seeking enlargement of the filing
periods while assembling documentation to substantiate his
objections.  That Spearman may have neglected to serve Roadway
with his initial request does not evince lack of diligence.  The
letter transmitting the Assistant Secretary's findings notified
Spearman that he must file with the Regional Administrator and
OALJ, which he did.  It also advised him of a "responsibility for
notifying the other appropriate parties" including his "former"
employer, which did not pertain since Spearman remained in
Roadway's employ.  The letter did not specify a particular time
for or manner of notification, e.g., that service by mail
concurrent with filing should be effected.  Compare 29
C.F.R. § 1978.105(a).  As a result, Spearman did not receive 
notice of the complete service requirement.
     Moreover, Roadway suffered no prejudice.  The company was on
notice from mid-November 1991, a matter of weeks after Spearman's
request, that he was contesting the complaint disposition.  Given
the nature of Spearman's January 1992 filings, Roadway received
the benefit of a more complete statement of his contentions and
proof, early in the proceeding, than is required under the
regulations.  Finally, by docketing the case and extending the
filing period, OALJ fostered Spearman's belief that he was 
[PAGE 6]
proceeding in compliance with the regulations.  In these
circumstances tolling of the time limitation is appropriate.
     Accordingly, this case IS REMANDED to the Chief
Administrative Law Judge for purposes of assignment for a de
novo hearing.  The Chief ALJ is directed to proceed in
accordance with the Order Vacating Procedural Orders and
Directing Reassignment, issued herewith.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]   The court observed:

          [I]n King v. Dole, 782 F.2d 274, 276
          (D.C. Cir. 1986), this court relied on the
          "clear and emphatic" character of 5 U.S.C.    
          § 7703(b)(2) -- "[n]otwithstanding any 
          other provision of  law, any such case filed . . . 
          must be filed within 30 days . . . ."  Compared with 
          the phraseology considered in Saltz [v.
          Lehman, 672 F.2d 207 (D.C. Cir. 1982)]
          ("[t]he agency may accept the complaint for
          processing in accordance with this subpart
          only if [the aggrieved employee] brought [it]
          to the attention [of the EEO Counselor]
          within 30 calendar days . . .") or
          Zipes ("[a] charge under this
          provision shall be filed within [one hundred
          and eighty] days after the alleged unlawful
          employment practice occurred"), the words of
          42 U.S.C.    § 2000e-16(c) certainly
          have no special ring:  "Within thirty days of
          receipt of notice of final action . . . an
          employee or applicant for employment, if
          aggrieved by the final disposition of his
          complaint . . . may file a civil action as
          provided in section 2000e-5 of this title . .
          . ."

[2]   The decision in Martin v. R.M. Black, Jr. Produce,
Inc., No. 91-0991-AH-C, 1992 U.S. Dist. LEXIS 4955 
(S.D. Ala. Apr. 8, 1992), does not dictate a contrary result.  The 
court in that case did not decide whether the filing period was
 jurisdictional or in the nature of a statute of limitations which could 
be tolled.  Rather, it merely recited the regulatory and statutory
language and applied it to the facts of that particular case. 
There is no indication in the decision that any party even raised
the issue.

[3]   In setting out Spearman's allegations, I expressly make no
factual findings.

[4]   The regulation provides:  "The objection and [hearing]
request shall be in writing and shall state whether the objection
is to the findings or the preliminary order or both.  Such
objection shall also be considered a request for a hearing." 
See 29 C.F.R. § 1978.104(a) (findings accompanied by
preliminary order if complaint deemed meritorious).

[5]   The cover letter accompanying the Assistant Secretary's
findings is dated Thursday, September 26, 1991, and the documents
were mailed from Atlanta, Georgia, to Spearman's Nashville,
Tennessee, address, presumably by certified mail, return receipt
requested.  29 C.F.R. § 1978.104(b).  Assuming a two-day
delivery time, Spearman's objection, which bears an October 28
postmark, would have been timely filed under 29 C.F.R. §
1978.105(a).  Alternatively, 29 C.F.R. § 1978.106(a) applies
the procedures appearing at 29 C.F.R. Part 18 (1991) to STAA
hearings, arguably permitting the addition of five days to the
prescribed period for documents delivered by mail.  29 C.F.R
§ 18.4(c)(1).