DATE: May 4, 1994
CASE NO. 94-STA-14
IN THE MATTER OF
WILBUR SCHULER,
COMPLAINANT,
v.
M & P CONTRACTING, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review is the Recommended Order of Dismissal
(R.O.) of the Administrative Law Judge (ALJ) issued on March 2,
1994, in this case arising under the employee protection
provision of the Surface Transportation Assistance Act of 1982,
49 U.S.C. app. § 2305 (1988) (STAA). The ALJ recommended
dismissal of the complaint as untimely, finding that equitable
tolling was not warranted in the circumstances. As permitted by
29 C.F.R. § 1978.109(c)(2), Complainant has filed a brief
before me opposing the ALJ's R.O. Respondent has not filed a
brief. [1] The following facts are undisputed. Complainant
was discharged by Respondent on April 4, 1993. On September 23,
1993, Complainant filed a complaint with the State of Arizona
Division of Occupational Safety and Health (ADOSH), alleging
discriminatory discharge by Respondent. Complainant was informed
by ADOSH, by letter dated October 6, 1993, that the complaint was
outside of their jurisdiction and should be filed with the
federal Occupation Safety and Health Administration of the U.S.
Department of Labor. The federal OSHA office in San Francisco
acknowledges a STAA complaint filed by Complainant on or about
November 14, 1993. Complainant also mailed a letter addressed to
me, dated October 24, 1993, stating that he had mailed a letter
[PAGE 2]
to President Clinton, dated October 10, 1993, and seeking my
". . . intervention in accordance with the Federal
Surface Transportation Assistance Act . . . Since the
State of Arizona has not complied with the provisions
of the above mentioned Act and I have met the criteria
in reporting unsafe and intolerable conditions by my
employers, please verify my allegations and file the
necessary civil action in the U.S. District Court so
appropriate relief will be granted to me."
Complainant's Letter of October 24, 1993. In a letter to the
Arizona Industrial Commission dated September 12, 1993,
Complainant referenced a letter dated April 11, 1993, which
allegedly described in detail his problems as an employee of
Respondent.
On December 15, 1993, the Regional Administrator of OSHA
issued the Secretary's Findings regarding the complaint of
November 14, concluding that the complaint was untimely filed 203
days after the alleged discriminatory discharge. By letter dated
December 27, 1993, Complainant generally objected to the
Secretary's Findings and this letter was treated as a request for
a hearing.
On February 15, 1994, the ALJ issued an Order to Show Cause
why the complaint of November 14, 1993 should not be dismissed as
untimely filed after the expiration of the 180 day statutory
period for filing. In response, Complainant submitted a letter
with attachments, asserting that he had filed a letter with the
U.S. Department of Labor in Phoenix, Arizona, dated April 11,
1993, which was received and signed for by the Wage and Hour
division on April 14, 1993. Complainant attached interalia a copy of a letter dated April 11, 1993, and
addressed to "Department of Labor, 3221 Sixteenth St., Phoenix,
Arizona 85016," and "To whom it may concern." Additionally,
Complainant attached a letter addressed to him from an attorney
in the legal department of the Industrial Commission of Arizona,
dated October 6, 1993, which references a letter of April 11,
1993 to
the ICA labor department. See Procedural history in ALJ's
R.O. at 2-3.
Respondent's submission in response to the ALJ's Order to
Show Cause, date stamped as received on March 1, argued that a
complaint filed with OSHA on October 23, 1993, should be
dismissed as untimely filed and that Complainant is not entitled
to equitable tolling of the limitations period. Respondent
further points out that it did not receive a copy of
Complainant's letter requesting a hearing and could not respond
to any arguments raised therein, but questions the timeliness and
[PAGE 3]
sufficiency of Complainant's letter in response to the
Secretary's findings.
On March 2, 1994, the ALJ issued the R.O. finding that the
"uncontradicted documentary record establishes that
Complainant did not file a complaint with the Area
Director, Occupational Safety and Health
Administration, U.S. Department of Labor, alleging
unlawful discrimination due to the making of safety
complaints until November 14, 1993, 203 days after
Respondent terminated Complainant's employment."
ALJ's R.O. at 1. The ALJ further questioned the validity of the
April 11 letter stating that, "one must reasonably wonder when
the April 11, 1993 letter was spawned." R.O. at 5. Finally, the
ALJ found that equitable tolling of the limitations period was
not justified.
The ALJ's R.O. has been forwarded to me for review pursuant
to 29 C.F.R. § 1978.109(c)(1). Complainant's filed a letter
before me, dated March 6, 1994, in opposition to the ALJ's R.O.
Complainant also attached a copy of a return receipt card
indicating that an article addressed to "Department of Labor,
Wage and Hour Division, 3221 N. 17th St., Phoenix, Arizona 85016"
was sent certified mail and signed for on April 14, 1993 (date of
delivery). Complainant asserts that the April 11 complaint
letter was the article sent certified mail and received on
April 14. [2]
Upon careful review of scant record before me, including the
documents submitted by the Complainant in response to the ALJ's
Order to Show Cause and the ALJ's R.O. of Dismissal, I find that
there are sufficient questions of fact concerning Complainant's
filing of a timely complaint with the U.S. Department of Labor,
to warrant further development of the evidence and consideration
of the issue before the ALJ.
I do not agree with the ALJ's finding that the
"uncontradicted documentary evidence establishes that Complainant
did not file a complaint with the Area Director. . . until
November 14, 1993" or with his conclusions concerning
Complainant's credibility. There is not sufficient evidence in
the record to support the ALJ's finding that Complainant's "on-
going communications with officials of the State of Arizona, has
cast doubt on the validity of the April 11, 1993 letter" or that
Complainant's letter was a fabrication. Neither Complainant's
confused explanations concerning his April 11 complaint, nor his
correspondence to other state and federal officials are
sufficient to establish that Complainant "spawned" a timely
complaint letter in response to the ALJ's Order to Show Cause. I
do not believe that the confusion surrounding Complainant's
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letters to State and Federal agencies and officials can be sorted
out clearly from the incomplete evidence now before me. Further,
contrary to the ALJ's findings, the documents submitted by
Complainant indicate the existence of an April 11 letter alleging
discriminatory discharge, prior to the Complainant's response to
the show cause order.
Without reaching any conclusions as to the existence, or
timely filing of, a STAA complaint under 29 C.F.R. §
1978.102, I remand this case to the ALJ for a hearing on the
issue of timeliness and equitable tolling in accordance with 29
C.F.R. § 18.41(b) (1993) of the Rules of Practice and
Procedure
for Administrative Hearings Before the Office of Administrative
Law
Judges. At such hearing the parties will have an opportunity to
develop record evidence in accordance with the rules of evidence
provided at 29 C.F.R. Part 18, Subpart B (1993).
Accordingly, this case is remanded for further proceedings
consistent with this opinion.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] It appears that Complainant failed to serve Respondent with
a copy of his letter before me. Accordingly, Complainant's
letter-brief with attachments is appended hereto for service on
all parties. Since the regulations provide for simultaneous
filing of the parties' briefs, 29 C.F.R. § 1978.109(c)(2),
Respondent was not prejudiced by the failure to serve.
[2] As proof of his attempt to serve Respondent with his
objections to the Secretary's Findings, Complainant also sent a
copy of an envelope marked certified mail and addressed to Mrs.
Hardin at M&P Contracting, postage stamped on Dec. 27, 1993,
which was returned unclaimed to Complainant.
